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REPRESENTATION Yinka Owoeye with N. Agada for the Claimant. C. Onwatuegwu (Miss) for the Defendant. JUDGMENT On the 15th of March 2013, the Claimant in this case by a General Form of Complaint approached this Court for the following reliefs: 1. The sum of N3,207,306.45 (Three Million, Two Hundred and Seven Thousand, Three Hundred and Six Naira) being the amount calculated as the Outstanding Terminal Benefits/Entitlements due to him. 2. Interest on the said sum of N3,207,306.45 (Three Million, Two Hundred and Seven Thousand, Three Hundred and Six Naira) at the rate of 24% per annum from 14th August, 2011 till judgment. 3. The sum of N970,731.00 as special damages being cost incurred and to be incurred by him for the filing and prosecution of this case on account of neglect, failure and refusal of the Defendant to pay him his due without making him resort to litigation to recover the same. The sum is made up as follows: a. N150,000.00 filing fees and other anticipated out of pocket expenses. b. N500,000.00 professional fee for conducting the case from commencement to judgment. c. N320,000.00 being 10% commission upon recovery of the entitlement of the sum of the sum of N3,207,306.45. 4. Interest at the rate of 7.5% per annum on the entire judgment debt from the date of judgment until liquidation of the entire debt. The Complaint was accompanied by Statement of Facts, List of Witness, Statement of Witness on Oath, List of Documents as well as copies of the documents to be relied on at the trial. The Defendant in this case entered an appearance on the 29th of April 2013 and filed its Statement of Defence on the same day together with List of Witness, Witness Statement on Oath, List of Documents and copies of documents to be relied on at trial. The hearing of this case commenced on the 13th September 2013 when the Claimant testified as CW1 and tendered 8 Exhibits - Exh. KS1-Exh. KS8. The case for the Claimant is that he worked with the Defendant for a period of about 3 years and voluntarily resigned on the 13th August 2013 (sic) as Programmes Manager of the Defendant. Claimant averred that the Defendant is a limited liability company engaged in the business of broadcasting via the radio medium and carries on business under the name and style of City FM Radio 105.1 with its office at No. 1, Billingsway, Oregun Industrial Estate, Lagos State' that he was employed by the Defendant by letter dated November 19, 2009 as Manager Programmes; that by a letter dated 13th August, 2013 the Claimant resigned his appointment from the employment of the Defendant; that in its letter (email) dated 24th September, 2012, addressed to the Claimant by Mr. James Eguzoro of its Accounts Department, the Defendant advised the Claimant of his terminal/disengagement entitlement, which by its own calculation came to N3,207,306.45; that notwithstanding the fact that the Defendant had by itself calculated Claimant’s due entitlement and communicated the same to him, no payment was made to the claimant in satisfaction of the said duly admitted entitlement. Claimant further averred that by his Solicitor’s letter dated 18th December, 2012 directed to the Defendant and copied to its Company Secretary, Messrs Usman & Elema (Solicitors), request was made for immediate payment of the said due and admitted sum of N3,207,306,45 but the letter, though duly received and acknowledged, was never responded to either by the company or its company secretary; that by his email communication to the Defendant’s officers, including its company Secretary, Slyvester Eleme of Usman & Elema, the Claimant informed them of his counsel, Olayinka Owoeye’s authority to collect his entitlement on his behalf; that in spite of the Claimant’s letter informing the Defendant of Claimant’s authority to collect his entitlement on his behalf, the Defendant refused, failed and neglected to pay the Claimant’s entitlement and that it is for reasons of the neglect, failure and or refusal of the Defendant to pay the Claimant’s due entitlement even as admitted by them that led to the Claimant filing this suit in order to recover the said entitlement. Claimant stated further that by reason of being forced by the Defendant to file a suit to claim the due entitlement, the claimant has incurred needless and otherwise avoidable cost of legal services in the sum of N970,731.00 (Nine Hundred and Seventy Thousand, Seven Hundred and Thirty One Naira Only) which comprised of filing fees and other anticipated out of pocket expenses, professional fee for conducting the case and commission on recovery of the said due entitlement as charged and contained in the bill of professional fee given to the Claimant by his Solicitors and that he has paid the sum of N50,000.00 (Fifty Thousand Naira) being part of the filing fees and other anticipated out of pocket expenses on account and is committed to payment of the all the outstanding bills as outlined in the bill of fee. On 13/9/13, Claimant as CW1 adopted his witness statement on oath dated 15/3/13 as his evidence in this case, tendered Exh. KS1-KS8 and urged the Court to grant all the reliefs sought before the Court. Under cross examination, CW1 restated the fact that he voluntarily resigned his appointment with the Defendant; that he was aware of his terminal entitlements before the calculated figure was given to him; that the amount claimed and the amount advised by the Defendant are the same; that he admitted in his Reply to Statement of Defence to receiving =N=500,000.00 out of =N=3,207,306.45 and that the outstanding balance is =N=2,707,306.45, that he disagreed that the Defendant were willing to pay his entitlement notwithstanding the payment of =N=500,000.00, that he was not aware of why the Defendant put a hold on further payment into his account and that the delay in payment was caused by the Defendant. CW1 further testified that he had not returned the Defendant's property in his custody and that he has e-mail correspondence from the Defendant that he should not return the said property in his custody. Under re-examination, CW1 stated that he did not have to pay for the Defendant's property in his custody because the total value of the property was deducted from his total entitlement of =N=4,108,798.62 and that that left him with a balance of =N=3,207,306.45. The case for the Defendant is that the Claimant was its former employee; that that out of the sum of N3,207,306.45 stated in the email dated 24th September, 2012 to be owed to the Claimant, the sum of N500,000 (Five hundred thousand naira) was paid to the Claimant on 23rd October, 2012 vide Ecobank Cheque, Cheque No. 882; that the sum of N2,707,306.45 (Two million, seven hundred and seven thousand, three hundred and six naira, fourty five kobo only) is the amount of money now owed to the Claimant by the Defendant; that it shall at the trial rely on the document from its Account Department showing a breakdown of the Claimant’s financial entitlement and that it has not paid the said disengagement entitlement due to the Claimant’s refusal to accept the figures as his final disengagement entitlement from the Defendant. Defendant stated further that the Claimant failed or refused to communicate to the Defendant that he accepts the said sum of N2,707,306.45 as his full disengagement entitlement; that the Defendant has never at any time represented to the Claimant that it was unwilling to pay the entitlement due to him for services rendered to the company; that the Defendant remains willing to pay the said sum of N2,707,307.45 due to the claimant in so far as the claimant admits the calculated sum as his full and final entitlement; that the Claimant is not entitled to the interest sought on the due entitlement as the delay in payment of same is not a result of default on the Defendant’s part and that the claimant is only entitled to the sum of N2,707,306.45 (Two Million, Seven Hundred and Seven Thousand, three hundred and six thousand, fourty five kobo). On the 5th November 2013, Defendant opened and closed its case. Defendant called one witness - John Popoola as DW1 who adopted his written witness deposition dated 29/4/13 and tendered 2 Exhibits - Exh. D1 and Exh. D2. Under cross examination DW1 stated that Defendant had not paid to the Claimant the outstanding sum because there was disagreement between the parties as to the actual amount involved; that the entitlement of the Claimant was =N=3,207,306.45 out of which =N=500,000.00 had been paid; that Defendant has not paid the outstanding amount because it had not received confirmation of the figure from the Claimant; that he did not know why Defendant did not pay the Claimant the total sum at the time it paid=N=500,000.00 because he was not the Accountant at the time; that he was not aware that the Defendant did not pay the Claimant in order to punish the Claimant and that Defendant could not make any payment until this case is finally disposed off. In re-examination, DW1 said that the Defendant presently owed =N=2,707,306.45 to the Claimant. The case was thereafter adjourned for Counsel to file and adopt their final written addresses. Defendant's final written address was dated 16/12/13 and filed on 19/12/13. In it, learned Counsel raised 3 issues for determination as follows: 1. Whether the Claimant is entitled to the sum of =N=3,207,306.45 2. Whether the Claimant can change his claim without amendment, and 3. Whether the Claimant is entitled to interest/damages payable on his claim on the grounds of delay not occasioned by the Defendant's fault. On issue 1, learned Counsel stated that in both the writ and the Statement of Facts, Claimant claimed the sum of =N=3,207,306.45 whereas Claimant had acknowledged under cross examination that he was paid the sum of =N=500,000.00 by the Defendant. Relying on Ariolu v. Ariolu (2011)11 NWLR (Pt. 1258) 447 Counsel submitted that a court of law grants a party only the claim he has proved and that the court cannot award a claim not proved. Counsel urged the Court to resolve this issue in favour of the Defendant. On issue 2, learned counsel urged the Court to be guided by the case of Hong Kong Synthetic Fibre v. Monsuruajibawo & ors (2008)7 NWLR (Pt. 1087) 511 at 516. Counsel submitted that a party cannot raise any position or new ground of claim in a suit which is inconsistent with its previous position in the same suit without first seeking leave of the court for amendment. Counsel noted that there is no application before the Court indicating that Counsel to the Claimant sought the leave of court to amend his claim. Learned Counsel submitted that 'the Claimant's claim of =N=3,207,306.45 was not proved before the Court and that the Claimant is not entitled to his claim. On issue 3, learned Counsel submitted relying on Master Holdings (Nig.) Ltd & Or. v. Emeka Okefiena (2011)6 NWLR (Pt. 1244) 514 that a party who claims interest on a sum of money has an obligation to support his claim, this is so in that a court cannot award to a Claimant what he has not claimed or proved. Further relying on R.M.A & F.C v. U.E.S Ltd (2011)9 NWLR (Pt. 1252) 379 at 388 learned Counsel submitted that there was no agreement between the parties on claim of interest as of right and that secondly, 'there is no revision of the law or Rules of this Honourable court conferring on the Claimant the right to claim such interest'. Counsel urged the court to dismiss Claimant's claim for damages and resolve this issue also in favour of the Defendant. Finally, learned Counsel urged the Court to hold that the Claimant has woefully failed to prove that he is entitled to his claim as per his writ nor damages or interests claimed thereupon. The final written address of the Claimant was dated and filed 11/2/14. In it learned Counsel submitted 3 main issues for the determination of this case. The issues are: 1. Whether the Claimant is not entitled to judgment for the sum of =N=2,707,206.45 upon admission by the Defendant 2. Whether the Claimant is entitled to judgment against the Defendant for special damages incurred by reason of Defendant's refusal to pay Claimant's due entitlements, and 3. Whether the Claimant is entitled to be awarded interest on the sums claimed. On issue 1, learned Counsel submitted that all evidence adduced confirmed the fact that the Defendant is indebted to the Claimant in the sum of =N=2,707,206.45 that parties agreed on this sum as borne out of their pleadings. Citing Section 123 of the Evidence Act, 2011, Tamti v. N.C.S.B (2009)7 NWLR (Pt. 1141) 631, )seni v. Bajulu (2009)18 NWLR (Pt. 1172) 164 and Ekpemupolo v.Edremoda (2009)8 NWLR (Pt. 1142) 166 Counsel urged the court to enter judgment accordingly as facts admitted by parties need no further proof. On issue 2, it was the argument of the learned Counsel that the Defendant deliberately refused to pay the Claimant his entitlement notwithstanding that the Defendant already acknowledged the indebtedness, Learned Counsel further argued that the Defendant's action is deliberate and mischievous and designed to punish the Claimant. Counsel argued further that but for the refusal to pay the Claimant, Claimant would not have had cause to approach the court or retain the services of a Legal Practitioner. Counsel referred the Court to Exh. 6, 7 & 8. Counsel therefore submitted that the Claimant incurred the cost of this case because he was compelled by the Defendant to file this suit to recover his money and that the filing of the suit is a direct consequence of the Defendant withholding the Claimant's money and for which the Claimant has incurred expenses in the sum of =N=970,731.00. This, according to learned Counsel, is special damages for which the Defendant must be responsible. Counsel urged the Court to resolve this issue in favour of the Claimant. On issue 3, learned Counsel submitted that Claimant claimed interest in two respects; the first being pre-judgment interest on the sum outstanding as terminal entitlement while the second is post-judgment interest. In relation to pre-judgment interest, learned Counsel, relying on N.M.B. Ltd v. Aiyedun In. Ltd (1998)2 NWLR (Pt. 537) 221 submitted that the law treats the holder of such funds as a borrower of it on which interest must be paid and urged the Court to hold that Defendant having admitted to withholding Claimant's money is liable to pay interest on same to the Claimant. With regard to post-judgment interest, learned Counsel submitted that monetary judgment attracts interest even where none is claimed, relying on Diamond Bank Ltd v. P.I.C. Ltd (2009)18 NWLR (Pt. 1172) 67. Counsel further submitted that award of post-judgment interest is sanctioned by the Rules of this Court referring to Order 21 Rule 4, National Industrial Court Rules, 2007. While urging the Court to award post-judgment interest for the Claimant, learned Counsel submitted that notwithstanding that the Claimant claimed 7 1/2% interest on the judgment of the Court, the Court is obliged, if it finds the Claimant's claim worthy to award interest at 10% which is the minimum prescribed by the Rules of this Court. Finally, learned Counsel urged the Court to grant all the reliefs sought by the Claimant. The judgment in this case was slated to be delivered on 5/5/14. The judgment was ready for delivery on that date. Defendant however filed a Motion on Notice dated and filed 10/3/14. Upon application by the learned Counsel to the Defendant to exercise the right to file a Reply on points of law to the Claimant's Counter Affidavit, the hearing of the Motion and judgment was adjourned till today. That application was heard this morning and dismissed in a considered ruling. I am constrained to state in this judgment that that application by Counsel was brought mala fide and with a deliberate intention to delay the delivery of this judgment. Let me reiterate that this case ought not to have come to Court for trial in the first place if the learned Counsel for the Defendant - Chugo Onwuatuegwu were to be a good Minister in this Temple of Justice. The findings of the Court in this case and this judgment are testimonies to the position l just expressed. The facts of this case and the position of the law on same are to me straight forward. I have read with understanding all the processes filed, the evidence led and exhibits tendered and admitted in this case. Notwithstanding the diverse issues canvassed by learned Counsel on either side, l have narrowed the issues for determination in this case to be a lone issue thus: Whether the Claimant is entitled to the reliefs sought. The first relief sought by the Claimant against the Defendant is for the sum of =N=3,207,306.45 as being the amount calculated as the outstanding terminal benefits/entitlement due to the Claimant. In its Statement of Defence dated 26/4/13 and filed 29/4/13 defendant averred in paragraphs 5 and 6 of same as follows: '5. The Defendant denies the averment in paragraphs 5 and 6 of the statement of fact and states that out of the sum of =N=3,207,306.45 stated in the email dated 24th September, 2012 to be owed to the Claimant, the sum of =N=500,000 (Five hundred thousand naira) was paid to the Claimant on 23rd October, 2012 vide Ecobank Cheque No. 882'. '6. The Defendant states further to paragraph 5 above that the sum of =N=2,707,306.45 (Two million, seven hundred and seven thousand, three hundred and six naira, fourty five kobo only) is the amount of money owed to the Claimant by the Defendant presently'. The same position was repeated in paragraphs 9 and 18 of the Defendant witness Statement on Oath of John Popoola dated 29/4/13. In a clear and unambiguous manner, paragraph 18 of the said witness Statement on Oath states thus- ''18. That the claimant is only entitled to the sum of =N=2,707,306.45 (Two Million, seven hundred and seven thousand, three hundred and six thousand (sic), forty five kobo''. In Claimant's Reply to Statement of Defence dated and filed 10/6/13 in paragraphs 1 and 2 stated that '1. With reference to paragraph 5 of the Statement of Defence, the Claimant admits that the Defendant has paid a sum of =N=500,000.00 out of the =N=3,207,306.45 calculated by it as the Claimant's final entitlement'. 2. The claimant therefore agrees with the defendant that the sum now outstanding on is final entitlement as calculated by the defendant and now admitted by it is =N=2,707,306.45'. Learned Defence Counsel's final written address was not paged. But l did the pagination. On page 7 of the Defendant's final written address which is page 142 of the Court's file, learned Counsel stated thus - 'We therefore urge the court to resolve issue 2 in favour of the Defendant, and award the Claimant only the sum of =N=2,707,306.45 which is the outstanding balance due to the Claimant'. The effect and consequence of the foregoing is that as far as the sum of =N=2,707,306.45 is concerned, there is no controversy. The law is trite that whatever fact is admitted needs no further proof. Such admitted fact is deemed established. See Geneva v. Afribank Nigeria Plc (2013) LEPLR-20662 (SC). I thus find and hold that the sum of =N=2,707,306.45 admitted by the Defendant as owed to the Claimant needs no further proof and is payable by the Defendant to the Claimant. The second claim of the Claimant was for interest on the sum of =N=3,207,306.45. I have found and held that there is a consensus among parties that the outstanding sum is actually =N=2,707,306.45. Claimant is asking for interest at the rate of 24% on the said sum from 14/8/11 till judgment. Now is the Claimant entitled to said sum? The fact remains that the Claimant was entitled to the sum of =N=2,707,306.45 as at 14/8/11; that the said sum was withheld from the Claimant by the Defendant. No doubt the Claimant is entitled to some form of compensation for being deprived of the money due to him. See N.M.B. Ltd v. Aiyedun (1998)2 NWLR (Pt. 537) 221 at 232. Learned Counsel for the Claimant had submitted before me that the Central Bank of Nigeria's lending rate at the relevant time was 24% per annum. There being nothing from the Defendant to the contrary, l find and hold that the Claimant is entitled to pre-judgment interest at the rate of 24% per annum on the sum of =N2,707,306.45 owed to the Claimant by the Defendant. The third claim of the Claimant is for the sum of =N=970,731.00 as special damages being cost incurred and to be incurred by the Claimant for the filing and prosecution of this case on account of neglect, failure and refusal of the defendant to pay to the Claimant his due without making him resort to litigation to recover the same. The sum is broken down to 3 heads thus a. =N=150,000.00 for filing and other anticipated out of pocket expenses; b. =N=500,000.00 as professional fees for conducting the case from commencement to judgment and c. =N=320,000.00 being 10% commission upon recovery of the entitlement of the sum of =N=3,207,306.45. I have since held that the sum in issue as admitted by both parties is =N=2,707,306.45. Thus the figure as stated in particular (c) of the Claimant's claim for special damages will necessarily change to reflect the sum in issue. Now, the law is trite that special damages must be particularised item by item, see NIMASA & Anor. v. Hensmor Nigeria Limited (2014) LPELR 22462 (CA). Exh. KS6 was a letter form Claimant's Solicitor to the Claimant regarding Solicitor's fees respecting this suit. Exh.KS7 was a letter from the Claimant to his Solicitor accepting the Bill for prosecuting this case and requesting the Solicitor's Bank Account details so as to make funds transfer as part of the filing fees and Exh. KS 8 was a receipt from Olayinka Owoeye & Co acknowledging payment of Fifty Thousand Naira as Deposit on Professional fees. I find and hold that these expenses arose as a result of failure of the Defendant to pay the money due to the Claimant. It is also part of my findings that if the Defendant had paid the complete outstanding sum when it paid the initial =N=500,000.00 the need for this suit would not have arisen more so when both parties had agreed on the sum outstanding. No doubt, by instituting this action, the Claimant had suffered some pecuniary losses; see Union Bank of Nigeria Plc v. Alhaji Adams Ajabule & Anor. (2011)LPELR-8239 (SC).I find and hold that the Claimant has proved the particular (a) and particular (b) of the special damages. Particular (c) is not proved. Besides, it is difficult to reconcile particular (c) being 10% commission on recovery of the entitlement of the sum with particular (b) which is professional fee for conducting the case from commencement to judgment. It seems to me that once professional fee is agreed upon that is the only financial obligation by a client to his Solicitor. I must say however that i was aware then as a Legal Practitioner that a brief especially for recovery of stated sum of money could be taken and professional fees predicated on a certain percentage recovered. To therefore award special damages resulting from professional fees paid to a Solicitor as well as certain percentage of the sum awarded by the Court will amount to 'double jeopardy' for the Defendant. In this respect therefore l award the sum of Six Hundred and Fifty Thousand Naira only as Special Damages in favour of the Claimant and against the Defendant. The 4th claim of the Claimant is for interest at the rate of 7.5% per annum on the entire judgment debt from the date of the judgment until liquidation of the entire debt. Learned Counsel to the Defendant had submitted on page 8 of his final written address, inter alia, that there was no agreement between the parties thereby vitiating the Claimant's right to lay claim to interest as of right and that secondly, there is no provision of the law or Rules of this Court conferring on the Claimant the right to claim such interest. It must be said here and now that the law seems elementary that in certain cases even failure to claim interest in the writ of summons will not preclude a successful party from praying for and being awarded interest after judgment may have been entered for an amount. For, as the apex Court has said in a long line of judicial authorities, this is so because the general rule is that monetary judgment attracts appropriate interest even where none is claimed, see Nig. Superintendence Co. Ltd v. N.P.A (1990)1 NWLR (Pt. 129) 741, Ibama v. Shell Petroleum Development co. (Nig.) Ltd (1998)3 NWLR (Pt.542) 493 and Diamond Bank Ltd v. P.I.C. Ltd & Anor. (2009)18 NWLR (Pt.1172) 67 per Ogbuagu JSC at p.97. The Claimant in this case has asked for interest at the rate of 7.5% per annum form date of judgment until final liquidation of same. Unfortunately, this court cannot award interest at any rate less than 10% per annum. For, according to Order 21 Rule 4 - 'The Court at the time of delivering the judgment or making the order may direct the time within which payment is to be made or other act is to be done and may order interest at a rate not less than 10 percent per annum to be paid upon any judgment'. I therefore order that interest at the rate of 10% per annum shall be paid by the Defendant to the Claimant on the total judgment debt from the date of this judgment until final liquidation of same. Finally, and for the avoidance of doubt, l make the following orders: 1. The Defendant shall pay to the Claimant the sum of =N=2,707,306.45 being the amount calculated and agreed to by the parties as the outstanding terminal benefits/entitlement due to the Claimant; 2. Defendant shall pay to the Claimant interest on the said sum of =N=2,707,306.45 at the rate of 24% per annum from 14th August 2011 till the date of this judgment; 3. Defendant shall pay to the Claimant the sum of =N=650,000.00 only as Special Damages being the cost incurred by the Claimant in filing and prosecuting his case on account of neglect, failure and refusal of the Defendant to pay to the Claimant his due without making Claimant resort to litigation to recover same; 4. Defendant shall pay interest at the rate of 10% on the entire judgment debt from the date of this judgment until liquidation of the entire debt. All payments due by and under this judgment are to be made to the Claimant by the Defendant within 14 days of this judgment. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters