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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Thursday 4th December, 2014 SUIT NO: NICN/ABJ/133/2013 Between: Abba Suleman Augustine Claimant And United African Company Nigeria (UACN) Defendant REPRESENTATION Claimant present. Defendant absent; A. G Ochigbo Esq. for the claimant; Nnodu Okeke Esq. for the defendant. JUDGMENT By an amended complaint dated the 1st APRIL 2014 Claimant claimed as follows; 1. The sum of 310, 706. 49 being the claimants entitlement for his service gratuity 2. The claimant accumulated pension contribution with UNICO pension fund amounting to N722.189.13 3. 21% interest on claim 1 above from the date of the claimants resignation till the date judgment in this suit is delivered 4. The cost of this suit; The complainant frontloaded his processes in accordance with the rules of the court. The defendant was accordingly served with all the processes of this court. The defence counsel Mr. Okeke, who use to appear for the defendant suddenly abandoned the case and despite the issuance and service of several hearing notices, he refused failed and neglected to appear in court even though he sent his junior counsel Miss Omoladu Adun, Miss C. Umeasalugo. On the 15th of January 2014, the defendants counsel objected to the name of the defendant as being improper and unknown. Consequently the name was amended leading to the filing of an amended complaint and all other frontloaded processes by the claimant; on the 6th of February 2014 the defence counsel wrote to court asking for an adjournment and it was granted. On the 9th of April 2014, the defence counsel wrote to court again asking for an adjournment and it was granted in the interest of the principle of fair hearing. On the 5th of June 2014 when this matter came up for hearing, the defence counsel Mr. Nnodu Okeke, even though he did not file any memorandum of appearance nor a defence proceeded with the cross examination of the claimant counsel and was allowed by the court as requested in the interest of fair hearing. The claimant adopted his witness statement on oath and tendered several exhibits as frontloaded as follows; (1) Witness statement on oath is exhibit ASA 01. (2) Letter of appointment is exhibit ASA 02. (3) Promotion letter is Exhibit ASA 04. (4) Letter of contract appointment is Exhibit ASA 05. (5) Congratulatory documents on 2003, 2004 and 2005 performances are Exhibit ASA 06 a-c (6) Promotion letter to assistant Management in Exhibit ASA 07. (7) Performance Appraisal letter is Exhibit. ASA 08. (8) Transfer letter is exhibit ASA 09. (9) Another transfer letter is Exhibit ASA 10. (10) Unico scheme contribution statement of account is exhibit 11A-b (11) Letter on clearance procedure on all staff is Exhibit ASA 012. (12) Another promotion letter is exhibit ASA 013. (13) Acceptance of resignation letter is exhibit ASA 014. (14) Letter from Chris Ohene &Co. is Exhibit ASA 015. (15) Letter from Regional Manager North to Division M.D is Exhibit ASA 016. (16) Staff hand book for senior staff is exhibit 017. During cross examination the claimant testified that he requested for his entitlement after he resigned after putting in 7 years of service. He was entitled to gratuity after putting in 4 years of service and his entitlement was calculated to be above N300,000,00. The witness referred to exhibit ASA 014 where the calculation is contained as requested by him. The witness stated further that he duly submitted his clearance certificate to the management of the defendant who duly acknowledged same. He referred to exhibit 012 as containing the mode of calculation of the entitlement based on the formular Submitted and used by the defendant. Witness referred to UNICO Pension fund as the custodian of his pension which is part of UAC and he claimed ignorance of its legal entity. The witnesses claimed to be aware that he will be entitled to pension claims after attaining the age of 50 years but agreed that he is now 43 years old; claimant testified further that he need not approach the UNICO Pension until all his entitlements are remitted to the pensions fund by the defendant. He further stated that he need not approach UNICO pension because there was a case in FCT High Court for four years; claimant stated that the staff handbook stated the years of staff entitlement to gratuity to be 5 years and not ten years as he served the defendant for 7 years and four months excluding the period of contract employment. Witness stated that he falls under the category of 5-9 years of service category. Witness stated also that he did not join UNICO Fund to this suit because he knew it to be part of the defendant when the claimant closed his case on the 9th of April 2014, the defence counsel also rested its case on that of the claimant and took an adjournment to enable him file his appearance formally and his written address. When the matter came up for hearing on the 30th of September 2014 neither the defendant nor his counsel were in court and there was no memorandum of appearance filed neither was there any written address. Consequently the claimant adopted his final written addresses; In his final submission, claimant counsel Mr. A.G Ochigbo formulated a lone issue for determination as follows; whether or not the claimant has proved his case against the defendant on the preponderance of evidence and balance of probabilities to warrant granting the relief sought before this Honourable court. Counsel submitted that the claimant’s evidence which are unchallenged by the defence should be regarded as proof of his claim as they are all admitted exhibits without objection. Counsel cited the case of UBA PLC Vs. Mustapha 2004 I NWLR Pt. 855 P. 443 at 480. Mainagge Vs. Gwamma 2004 14 NWLR Pt. 893 at 323. Counsel urged the court to look at the letter of resignation of the claimant, letter from his solicitor demanding for his entitlement and the reply from the defendants Divisional M.D; Exhibits 14, 15 and 16 respectively, counsel submitted that the claimant is entitle to his gratuity after putting in 7years of service as provided by exhibit 17 which is the handbook in appendix 2 at page 46. Counsel also referred the court to Exhibit 12 which the claimant complied with by clearing himself; counsel also referred the court to the pay slip of the claimant in exhibit 11 a-c which stated the salary of the claimant to be N55 916.67 per month and paragraphs 19 of his witness statement on oath where his total entitlement is calculated to be N310.707.49 which is 3 weeks basic salary of N41.987.49 multiplied by 7 years 4 month. Counsel urged the court to hold that the claimant is entitled to service gratuity by reason of Exhibit ASA 017 the handbook as he has put in more than 5 years. Counsel finally urged the court to grant all the prayers of the claimant. I have carefully read and considered the pleadings, the testimonies of the claimant, the cross examination and the written address of the claimant counsel. The defence rested its case on the claimants case. The implication of this legal position is that the defence elects not to call any witness. He is understood to be saying either that the claimant has not made out any case for the defendant to answer or that the defendant has a complete answer in law to the claimants case. This defendant is bound by the evidence of the claimant. See the cases of Akanbi Vs. Alao 1989 3 NWLR 118 AT 140. Atugbue Vs. Chine 1963 All NLR 208. It is trite law that civil cases are determine on the balance of probabilities. It is also trite that he who asserts must proof in order to discharge the burden place on him. The fate of every civil case depend upon the pleadings and the evidence in support. See the cases of Esiegbe Vs. Aghobor 1993 9 NWLR Pt. 316 at 150; Ede Vs. Okafor 1990 2 NWLR Pt. 150 at 356 (SC). The duty of the court then is to assess the evidence before him to see whether or not the claimant has discharged the burden of proof in a case before him. The lone question that then calls for determination in this case is whether or not given the state of pleading and the evidence before this court the claimant has sufficiently proved his case to entitle him to judgment on all the reliefs sought therein. The claimant has submitted that all his evidences are unchallenged and therefore uncontradicted making it unassailable and bound to be believe by the court; the law is that when evidence is uncontroverted or unchallenged it must be accepted in proof of the issue in contest if only the unchallenged evidence itself is credible. See the case of Consolidated Res. LTD Vs. Abafor Ven Nig Ltd 2007 6 NWLR Pt. 1030 221; Akalonu Vs. Omokaro 2003 8 NWLR (Pt. 821) 190 at 206 -207. So also in the case of Iriri Vs. Erhurhobara 1991 2 NWLR (Pt. 173) 252 at 255 where it was held that “Where the evidence of a witness is not inadmissible in law, uncontradicted and unchallenged, a court of law can act on it and accept it as a true version of the case it seek to support” In the same vein, it was decided that whenever any evidence, affidavit or oral evidence stand uncontradicted unless the evidence is patently incredible, the court ought to regard the matter to be proved by that evidence as admitted by the adverse party. So also the failure of the defendant to call any witness or file any defence is deem to mean that he has admitted all the affirmations of the facts before the court including the fact, elicited during the cross examination; in the case of Broadline Ent Ltd Vs. Monetery Corp. 1995 9 NWLR (Pt. 417) 11 it was held that Where the defendant offered no evidence before the court the evidence under such circumstances clearly flows one way with no other evidence to be placed on the other side of the proverbial imaginary balance as against such evidence given by or on behalf of the claimant. The onus of proof in such a case is discharged on a minimal proof. In most cases where the defendant case is not challenged, he succeeds. This is because the court has no other case to deal with other than the case stated by the claimant on his statement of claim and in his written statement on oath which is adopted as his oral evidence. Where then the defendant fails to file a defence he will be deem to have admitted the claim or relief in the statement of claim. See the case of Okoebor Vs. Police council 2003 12 NWLR (Pt. 8 34) 444. In the contest of this case, I am also mindful of the legal principle that, where the defendant fails to defend a suit or call witnesses the claimant is not relieve of his responsibilities to prove his case; See also the case of Yarafa Vs. Chika 2000 7 NWLR Pt. 301. at 392. Failure therefore on the part of the defendant to challenge the averment in the claimant’s pleadings means that the facts are admitted as all matters not denied in the pleadings raised in the statement of claim are taken as admitted. See the cases of Waziri Vs. Ali 2009 4 NWLR 185; Balogun Vs. E. O. B. Nig Ltd 2007 Pt. 1028 5 NWLR 587. Now in the case of NRW Ind Ltd Vs. Akingbulugbe 2011 11 NWLR Pt. 1257 an employee who seeks a declaration on his employment must prove the following material facts among others. (1) That he is an employee of the defendant (2) The term and condition of his employment I have look at exhibit ASA 02 the claimants letter of employment and exhibit ASA 017 the senior staff handbook. This two critical documents basically contains the terms and conditions of the engagement. Paragraphs 13 of the statement of facts and that of witness statement on oath has established that the pension scheme of the claimant is being managed by the UNICO pension fund. The exhibits in this case has established beyond doubt that the claimant was an employee of the defendant. Exhibit SA 014, the acceptance of resignation reads; paragraph 5 thereof: “UNICO is being advised of your cessation from fund and to credit your account with all monies due to you up to and including 25th March 2008……………..” The exhibits went further thus: “Concerning your post 2004 pension contribution, please note that in line with new pension Act 2004, you are to advise UNICO CPA Ltd ….. of your new pension fund administrator PFA whenever you secure fresh employment …..” . In exhibit SA 017 Appendix II page 46, the document by item 3 under the title service Gratuity reads. “The new rate for service Gratuity will be as follows 5-9 years -3 weeks pay for every year of service”. From the available evidence before me and couple with the uncontradicted testimony of the claimant, I hold that the defendant is liable to pay the gratuity and remit the pension money to the pension fund administrator of the claimant”. On the issue of cost of this suit; there is no evidence before me to warrant the court to make any positive pronouncement on this head of relief as this sort of special damage is suppose to be specifically proved. The pleadings and the evidence of the claimant did not reveal any special damage. See the case of UTB Vs. Ozoemena 2007 All FWLR (Pt. 358) at 1014 . If a court finds the evidence led by a claimant believeable, reliable and it accept it and the evidence supports the case of the claimant, then he will be entitled to judgment in that regard. See the case of FCDA Vs. Nzelu 2014 5 NWLR Pt. 1401 565. Consequently judgment is entered for the claimant as follows; (1) The defendant should pay the sum of N310 706. 47 being the claimant entitlement as service gratuity. (2) The sum of N722.189.13 being the claimants contribution as pension should be remitted to his pension fund managers forthwith. (3) This judgment should be satisfy by the defendant within 30 days from today otherwise it shall attract an interest rate of 10% per annum. I award the cost of N50,000 in favour of the claimant but against the defendants. ----------------------------- Hon. Justice P.O Lifu (JP.) Judge