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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date: 16TH MARCH, 2015 Suit No. NICN/ABJ/219/2013 BETWEEN ENGINEER YAKUBU OKPANACHI CLAIMANT AND DIGITAL TOLL COMPANY LIMITED DEFENDANT REPRESENTATION Francis Ocheja Esq holding the brief of S. O. Ikani Esq for the Claimant. JUDGMENT By a complaint dated and filed on the 28th August, 2013. The claimant claims against the defendant the following:- a. The sum of N9,300,134.15 (Nine Million Three Hundred Thousand One Hundred and Thirty-four Naira Fifteen Kobo) being the outstanding salaries/terminal benefits of the Plaintiff. b. Interest at the rate of 21% on the sum of N9,300,134.15 from the 1st November, 2011 till date of Judgment and thereafter fill final liquidation of the Judgment sum/date. c. Cost of the suit. The defendant did not enter any appearance and defend this suit, despite the substituted service posted to its last know address. The matter went on trial and the claimant gave evidence in his case and tendered Exhibits. The claimant filed his final written address on the 23rd November, 2014. Judgment could not be given because of the strike action after the delivery of the Judgment, later the claimant came with a motion dated and moved 4th March, 2015 requesting to amend his final address which was moved and granted on 5th March, 2015. It is also on record that six (6) claimants jointly filed this suit initially before other five claimants 2 – 5 withdrew as a party to the suit, remaining only Engineer Yabuku Okpanachi. The claimant formulated a sole issue for determination by this Honourable Court:- Whether having regard to the totality of the evidence on record before this court, the claimant proved his case against the defendant to be entitled to the reliefs sought before this court. From the claimant’s claim which is replicated in his witness statement on Oath, which is admitted in evidence before this court as representing the evidence of the claimant, the claimant gave a concise account of his employment with the defendant, his monthly salary and how his employment was terminated by the defendant verbally. The claimant’s witness statement on Oath and the documents were tendered and admitted in evidence by the Honourable Court and these establishes the case of the claimant before this Honourable Court, more so, that the entire evidence of the claimant hereof was not contradicted in any way whatsoever by the defendant. The claimant is claiming only his outstanding salaries with interest from the defendant which on its own prepared Exhibit PW2 and PW11 which contains in line two of these exhibits the name of the claimant and the details of salaries payable to the claimant, salaries paid to the claimant and the outstanding salaries as follows:- 1. The salary of the claimant in accordance Exhibit PW3 hereof is Eight Million Naira Only per annum (i.e. N8,000,000.00). 2. The claimant salary is equivalent to the sum of Six Hundred & Sixty-six Thousand, Six Hundred and Sixty-six Naira Only approximately per month (i.e. N666,666.00 monthly). 3. An amount of Sixty-five Thousand, One Hundred & Eighty-seven Naira and Fifty Kobo Only (i.e. N65,187.50) was deducted as the Tax payable per month as stated in Exhibit PW2 & PW11. 4. From the above, the net salary payable per month after necessary tax deductions was the sum of Six Hundred & One Thousand Four Hundred and Seventy-Eight Naira and Fifty Kobo Only (i.e. N601,478.50). 5. Consequently, the total net salaries payable to the claimant for the period May 2008 to June 2011 (i.e. for 26 months) is Fourteen Million, Nine Hundred & Fifty-five Thousand, One Hundred & Eight Naira Only (i.e. N14,955,108.00). 6. The net salary was always made in cash by the defendant. 7. The total salaries paid to the claimant from April 2008 till June, 2011 is the sum of Five Million, Six Hundred and Fifty-four Thousand Nine Hundred and Seventy-three Naira Thirty-four Kobo Only (N5,654,973.34) i.e. an equivalent of 9 months salary). 8. Out of the total sum of N14,955,108.00 (Fourteen Million Nine Hundred and Fifty-five Thousand One Hundred and Eight Naira) Only being salary payable to the claimant, only the sum of N5,654,973.34 (Five Million Six Hundred and Fifty-four Thousand Nine Hundred and Seventy-three Naira Thirty-four Kobo) Only was paid to the claimant as stated above leaving the balance of N9,300,134.67 (Nine Million Three Hundred Thousand One Hundred and Thirty-four Naira Sixty-seven Kobo) Only as outstanding salaries constituting the claimant’s claim before this court. 9. The sum of (i.e N9,300.134.67 an equivalent to 17 months salary) It is trite that in Civil proceedings the onus of proof lies on the claimant. The Supreme Court in the case of CHRISTIAN EWO & ORS V OGBODO ANI AND ORS reported in 2004, Vol. 4, monthly Judgment of the Supreme Court (MJSC) page 119 at 124, ratio 2, the court held as follows:- The onus of proof in civil cases lies on the Plaintiff to satisfy the court that he is entitled on the evidence adduced by him to the claim he asserts. Counsel submitted that the totality of the claimant’s evidence before this court was uncontradicted and unchallenged, the court has a duty in the circumstances and it is entitled to act on it. The Supreme Court in the case of OWNERS OF GONGOLA & ANOR V SMURFIT NIGERIA LTD (2007) 6 SCNJ, 269, AT 290, the held as:- Also firmly settled is that where the evidence of a Plaintiff is unchallenged and uncontradicted, particularly, where the opposite party or side, had the opportunity to do so, It is always open to the trial court seized of the matter, to accept and act on such unchallenged and uncontroverted, evidence before it. It is trite law that facts admitted need not be proved. This position is succinctly captured in the case of N.I.I.A. V Ayanfalu (2011) 24 NLLR (Pt. 67) @ Pg. 24, parag. D – F where Justice Isa Ayo Salami J.C.A. (as he then was) held thus:- Where the Plaintiff fails to plead and prove the fact of his appointment, in a contract of service, he will not be entitled to the declaration that his appointment subsists: Morohunfola V Kwara State College of Technology (1990) 4 NWLR (Pt. 145) 406, 519 and 527. But where as in the instant appeal, the appellant admitted the existence of the contract, rule set down in Morohumfola’s case (Supra) would not be adhered to. The respondent having pleaded the existence of contract of employment which the appellant admitted, there is no need to call evidence to prove what has been admitted. Flowing from the above, it is crystal clear, that the respondent has acknowledged the claimant as its staff as stated by the claimant in his pleadings and through the various documents tendered by the claimant which were admitted by this court. The claimant has thereby discharged the rigid onus on the claimant to plead his letter or contract of employment. On the issues of interest, the claimant testified that he suffered severe mental trauma, lost social convenience as well as economic difficulties. He testified that life has been so horrible for him having abruptly and his employment terminated by the defendant which refused to pay him his earned outstanding salaries as well as terminal benefits. The interest of Justice will be manifestly been done in this case should the court gives Judgment in favour of the claimant with interest as claimed by the claimant or as the court reasonably deems fit in the circumstance. In conclusion the counsel urged the court to abide by the decisions of the court in the case of Musa V Yerima (1977) 7 NWLR (Pt. 511) 27 at 41 – 42 paras H – A per Onu JSC where Supreme Court held that:- It is trite law that where a claimant adduces oral evidence which establishes his case against the defendant in terms of the writ and the evidence is not rebutted by the defendant, the claimant is entitled to Judgment. Having carefully considered the submissions of the claimant’s counsel in this suit the issue for determination is whether having regard to the peculiar facts of the case the claimant is entitled to his claims. In this case the claimant is seeking for three reliefs namely:- (i) the sum of N9,300,134.15 ( nine million three hundred thousand one hundred and thirty four thousand Naira fifteen kobo ) only being the outstanding salaries/terminal benefits (ii) Interest at the rate of 21% on the sum of N9,300,134.15 (Nine million three hundred thousand one hundred and thirty four thousand Naira fifteen kobo) from the 1st of November 2011 till date of judgment and thereafter till final liquidation of the judgment sum . And (iii) Cost of the suit It is on record that the defendant did not file any defense and did not appear at the hearing of this suit. It is trite law, that where evidence of a party remains unchallenged and not contradicted, minimum evidence will suffice. The principle of unchallenged evidence however, does not create a flood gate for every type of evidence. To qualify for reliefs and reliance from trial court such unchallenged evidence must be credible in all circumstances and must be cogent enough to sustain the claim of the claimant. The claimant must proffer evidence of such quality that will sustain the claim as disclosed in his p[leadings even in the absence of the defendant. The rule of evidence is that he who asserts the evidence of a fact or facts that must prove what he asserts. The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side. These sections of Evidence Act make it imperative that the claimant must provide credible evidence. The facts of this case are: that the claimant was employed by the defendant Digital Toll Company Limited, by letter of offer of employment dated 27th of March 2008 as Director Engineering Exhibit PW3. The document governing employment relationship of the claimant with the defendant is the letter of offer of employment Exhibit PW3. It is this document that will be interpreted by the Court to give effect to the wishes of the parties as expressed in the document and the court must not look elsewhere. This is because is the bedrock upon which the aggrieved employee must establish his case he succeeds or fails upon the terms the court will not look outside the terms stipulated or agreed therein, in deciding the right and obligation of the parties. Provisions of a written contract of service bind parties. It is not in doubt that the claimant was a former employee of the defendant the Digital Toll Company Limited going by Exhibit PW3. The claimant claimed that his contract of service was verbally terminated by the defendant on the 30th of November 2011. And that since then all effort to get his entitlement had failed the claimant is now claiming the above mentioned sum of N9,300,134.15 (Nine million three hundred thousand one hundred and thirty four thousand Naira fifteen kobo) as the outstanding salary and terminal benefits. To buttress his claim for the sum of N9,300,139.64 an equivalent of 17 months salary and the claimant tendered photocopy of Digital Toll Company Ltd staff salaries for the month of May 2008, June, July, August 2009 and January 2010. What can be gathered from the defendant staff salaries sheets is that officer of the defendant were received their salaries in cash. The duty of a trial court as stated by court in the case of FBN PLC V Onokwugha (2005) 16 NWLR (PT. 950) 120 at 133 Para D is that:- The duty of a trail court is to access the evidence before him to see whether or not the Plaintiff has discharged the burden of proof in a case before him. The standard of proof in a civil claim is proof on balance of probabilities. Similarly, in the case Onwuka V Omogul (1992) 3 NWLR (Pt. 230) 393 at 424 where the Supreme Court held:- The principles that in civil cases the facts are proved on a preponderance of evidence and that when there is nothing on the other side of the balance the onus of prove is discharged on a minimal prove also apply to an issue of damages, provided that if special damages are claimed they must be pleaded, with particularly and proved strictly where this requirement of pleading has been satisfied and the plaintiff gives evidence in support which is unchallenged and uncontradicted, it ought to be accepted in the court. From the foregoing where the defendant has not challenged the evidence of the claimant, the onus of proof is discharged as minimal proof. The only exception is if special damages are claimed, they must be pleaded particularized and proved strictly. In the case of Newbreed Organization Ltd V Erhomsele (2006) 5 NWLR (Pt. 974) 499 Ogbuafu JSC stressed in pages 544 – 545 F – N as follows:- The next question one may ask is, was the learned trial Judge right in giving Judgment in favour of the Plaintiff/respondents on the ground that his evidence was not controverted by the appellant? I think so. This is because (and this is settled in a line of decided authorities) that where a plaintiff adduces oral evidence, which established his claim against the defendant in terms of the writ or statement of claim, and that evidence is not rebutted by the defence either by challenging the same under cross examination or by controverting the same in evidence, the plaintiff is entitled to Judgment. See Nwabuoku V Ottih (1961) All NWLR 489, Isaac Omoregbe V Daniel Lawani (1980) 3 – 4 SC 108 at 117. The claimant has satisfied the principle of law given evidence to prove his case and this piece of evidence was not controverted or discredited by the defendant. The result in law where the evidence of the claimant has not been controverted is that the defendant is deemed to have accepted as true and correct evidence led in proof if the contract of the claimant’s pleadings as there is nothing on the other side of the scale. For all the reasons given above and from the surrounding circumstance, the claimant’s claim for the sum of N9,300,134.15 (Nine Million Three Hundred Thousand One Hundred and Thirty-four Naira Fifteen Kobo) Only being his outstanding salaries/terminal benefits succeeds. The claimant is asking for interest rate at 21% of the sum of N9,300,134.15 (Nine Million Three Hundred Thousand One Hundred and Thirty-four Naira Fifteen Kobo) Only from 1st November, 2011 till date of Judgment and thereafter till final liquidation of the Judgment sum/debt. The 21% interest on Judgment sum is not granted because the claimant has not proved or shown to the court that the current interest rate approved by banks is 21%. The court however orders that whatever is the prevailing interest be paid until Judgment sum is liquidated. On the cost of the suit, the claimant also does not lead any evidence as this, the claim is therefore taken as abandoned. For the reasons given above the claimant claim for outstanding salaries for the sum of N9,300,134.15 (Nine Million Three Hundred Thousand One Hundred and Thirty-four Naira Fifteen Kobo) Only is granted with interest rate at the prevailing rate to paid until Judgment sum is settled. Judgment is entered accordingly. ______________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE.