IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LOKOJA JUDICIAL DIVISION
HOLDEN AT LOKOJA
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. OYEWUMI
DATED: 19TH JULY, 2022
SUIT NO: NICN/LKJ/30/2019
BETWEEN
MR. MALAFA A. ABDULAZEEZ - CLAIMANT
AND
DANGOTE CEMENT PLC - DEFENDANT
Representations
Nyenke Ikpendu C.J. Esq with him Rita Victor Esq. and J.A. Lukeman Esq for the Claimant
B.M. Musa Esq with O.G. Inubaraye Esq for the Defendant.
JUDGMENT
1. By a General Form of Complaint filed by the claimant dated 11th July, 2019 and filed on 5th September, 2019 praying the Court for the following reliefs;
(a) A Declaration that the non-payment of the claimant’s salaries and entitlements by the Defendant since the month of September 2018 (except February 2019) is illegal, unlawful, abusive and humiliating.
(b) An Order of mandatory injunction, compelling the Defendant to pay the claimant his salaries and entitlements owed him since the month of September 2018 (except February 2019).
(c) An Order restraining the Defendant either by themselves, servants, agents, privies, officers, authorities, bodies or any other persons howsoever described from interfering, disturbing or howsoever tampering with the Claimant’s appointment until the backlog of his salaries and entitlement been owed him since September 2018 (except February 2019) is paid to him.
(d) A Declaration by this Honourable Court that failure of the Defendant to pay the Claimant his salaries and entitlements since September 2018 (except February 2019) have caused the Claimant a lot of suffering, hardship and humiliation.
(e) General damages in the sum of N150,000,000.00 (One Hundred and Fifty Million Naira)
(f) Legal professional fees in the sum of N1,000,000.00 (One Million Naira)
2. It is the Claimant’s case that he was employed by the Defendant in 2003, left the service of the Defendant in 2015 and was asked to return in September 2015. He averred that he carried out every duty given to him diligently and was never found wanting in anyway whatsoever by the Defendant since 2003 before his employment was terminated on the 10th day of May, 2019. He averred also that after his employment was terminated on 13th May, 2019 and when he went to the office in line with the directive in the letter of termination to finalize the release of his salaries/entitlements he was told that he will not be paid and upon this. He made several frantic efforts to find out why the defendant had refused to pay his salaries/entitlements but was turned down. The failure and refusal of the defendant to pay him has caused him and his family members their health and financial challenges. He averred that he hasn’t been paid since September, 2018 except for the month of February 2019 which led him to hire the services of a lawyer. Hence this action
3. Although the defendant entered appearance in this case by way of physical appearance made by learned counsel for the defendant B.M Musa of counsel on the 18th March, 2020, he informed the Court that the defendant is in the process of filing its defence to this suit. On the 9th December, 2021, when the claimant opened his case, defendant counsel Inubaraye Esq, appeared for the defendant, he participated in the trial and said he has no questions for the claimant’s witness. It is on record that the defendant has since then failed to file any processes in this suit. It is only the Claimant who filed his pleadings and testified in this case. On the 9th December, 2021, the claimant opened his case and testified for himself as CW by adopting his written statement on Oath made on 5/9/19 as his oral evidence in this case. The documents he tendered were admitted in evidence and marked as Exhibits M-M3 without objection from learned counsel on behalf of the defendant, Inubaraye esq. Learned Counsel on behalf of the defendant did not equally cross examine Claimant as stated supra. Claimant was subsequently discharged and the case adjourned with an order that parties should file their final written addresses.
4. In accordance with the Rules of this Court, learned Counsel on behalf of the claimant filed his final written address on 29/12//2021 and equally filed a letter adopting same which letter was deemed adopted on 17th May, 2022. Learned counsel therein formulated three (3) issues for the Court determination thus:
1) Whether by the failure/refusal and neglect of the defendant to file a Memorandum of Appearance, statement of defence and/or call evidence in this matter, the defendant should be adjudged as having no defence to the action and judgment should therefore be entered for the claimant accordingly?
2) Whether the claimant have proved by credible evidence that he is entitled to the reliefs sought in the action?
3) Whether the defendant is not liable to pay the claimant damages and legal/professional fees?
5. On issue one, learned Counsel submitted that the failure/refusal and/or neglect of the defendant to call evidence in this matter should be adjudged that the defendant has no defence to his action and as such judgment should be entered for the claimant accordingly. He also submitted that the defendant having not filed any defence to his action nor adduced any evidence, and thus deemed to have accepted the facts adduced by the claimant in the suit, Counsel relied on the case Okonkwo v. Kano Agr. Supply Co. Ltd [2013]8 WRN 69@72-73; Jimoh v. INEC [2012]24 WRN 32@39, ratio 5 and; ACN v. INEC [2012]24 WRN 48@52. He submitted that the defendant’s action for not calling evidence is tantamount to admission as it is trite that a fact which is admitted needs no further proof and same would be taken as established. He also relied on the case of Idoghor v. Idoghor [2014] 41 WRN 164 @ 168. He submitted further submission of counsel that the Court is to restrict itself to the pleadings filed and evidence adduced in support of same to make findings on issues in controversy. H relied on the case of Adetule v. Adetule [2015]32 WRN 37@41. He submitted that the Court is duty bound to consider the totality of the evidence led by each of the parties before placing it on the imaginary scale of justice to see which of the two sides the scale of justice is titling to. He cited the case of Lagga v. Sarhuma [2018] 50 WRN 63 @ 70. It is his submission that however that the Court can only exercise this duty of considering evidence before it in favour of the Claimant as the defendant has no evidence before the Court. He also submitted that the learned counsel on behalf of the defendant equally elected not to cross examine Claimant even after being given the opportunity but chose to thread the path of settlement. It is also part of his submission that the defendant had not filed any memorandum of appearance or statement of defence whatsoever, which shows that the defendant do not have any defence to the action. He therefore urged the Court to resolve this issue in favour of the claimant and enter judgment as per the reliefs sought.
6. On issue two, learned counsel submitted that the claimant’s unchallenged statement on Oath which is the evidence before the Court would demonstrate that the claimant has proven his case, showing that he was an employee whose employment was unjustly purportedly terminated, yet his salaries and entitlements were not paid till date. He noted that the defendant has not put up any evidence to contradict the position of the claimant. He cited in support the following cases; Aiyeola v. Pedro, supra; CAN v. Harrison, supra; Afewai Microfinance Bank Ltd v. Seacos (Nig) Ltd, supra; Amaechi v. INEC, supra; Ladotun v. Oyewumi, supra and; Mobil Producing (Nig) Unltd v. Udo, supra.He submitted also that documents when tendered are like words and will speak for themselves. He cited in support the case of Ogundele & Anor v. Agiri & Anor [2009]12 S.C. (Pt 1)135. It is his final submission on issue two that the testimony of Claimant are credible and ought to be given evidential weight in the assessment and/or consideration of this matter.
7. Learned counsel submitted on issue three, that the claimant has proven that he is entitled to the reliefs sought by his unchallenged statement on oath since his purported termination and refusal to pay his salaries and entitlements has caused unimaginable sufferings and humiliation to him and his family . He relied on the case of Bilante International Ltd v. N.D.I.C, supra. He submitted further that the essence of costs is to compensate the successful party for the loss incurred in the litigation as it is the position of the law that cost follows events and a successful party should not be deprived of his lost. He cited the case of Master Holdings (Nig) Ltd & 1 Or v. Emeka Okefiena [2011] 38 WRN 50 @54. He submitted that Claimant has no doubt incurred some losses, namely; legal /professional fees of his solicitors; cost of filing and maintenance of this action and the losses associated with time. As such, Claimant is entitled to damages/cost. He submitted that the Court would consider some factors in the award of cost. He referred the Court to the following cases; Master Holdings (Nig) Ltd v. Nwandu [2011]38 WRN , 50@76-77 and Advert- Ange Ltd v. Escade Ventures Ltd [2013]46 WRN 172. Learned Claimant counsel therefore urged the Court to grant all the prayers of the claimant.
8. I have carefully examined all the processes filed by the claimant as well as documents tendered, it is in my considered view that the vexed issue begging for the Court’s intervention and determination is whether or not the claimant has proven his case to be entitled to the reliefs sought.
9. Let me start by addressing the way and manner learned counsel for the claimant Nyenke Ikpendu C.J Esq cited some authorities in his final written address. Learned counsel while arguing issue two on page 7 of his final written address cited some cases thus; AIYEOLA V. PEDRO (supra); CAN V. HARRISON (supra); AFEWAI MICROFINANCE BANK LTD V. SEACOS (NIG) LTD (supra); Amaechi v. INEC (supra); LADOTUN V. OYEWUMI (supra) and; MOBIL PRODUCING (NIG) UNLTD V. UDO (supra). Learned Counsel also on page 8 of the address cited a case thus; BILANTE INTERNATIONAL LTD V. NDIC (supra). Let me point out that learned counsel had not prior to that cited these judicial authorities in the address to warrant the use of the word “supra”. Learned counsel failed to include the year the authority was reported or the particular law report that reported same. He just merely cited the cases without clarity and quoted from the said decision. Learned counsel owes it a duty to this Court to cite authorities correctly if he wants the Court to consider same. Where the authorities are reported as in this instant, the name of the law report, the year, volume and the page must be cited by counsel. See the following cases; Ugo-Ngadi v. FRN [2018] LPELR-43903(SC)22, Para D Chidoka & Anor v. First City Finance Ltd [2012] LPELR-9343(SC) 13-14, Para D. To dump authorities on the Court without clear reference, that would not be accepted by this Court. The said authorities are thus discountenanced.
10. Before going into the merits of this case, it is important to note that the defendant neither filed statement of defence nor lead any evidence and it has equally failed to cross examined the claimant or called any witness and also did not object to the documents tendered by the claimant despite been represented by the defence counsel. The law is settled that a defendant who failed to file a statement of defence is entitled to a hearing before the Court even though he cannot lead evidence. The only legal effect in that circumstance is that the Defendant is deemed to have forfeited his right to first address the Court. However, he can for example rely on a point of law arising from the statement of claim without the necessity of filing pleading and adducing evidence. He may rest on the Claimant's case and simply wish to address the Court on the issues raised in the Claimant’s case. See the cases of Majekodunmi & Ors v. Ogunseye [2017]LPELR-42547 (CA)1@16-19, Para G; Mainstreet Bank v. Yau [2015]LPELR-24657(CA)1@19, Para B. However, the defendant in this case did not equally exercise its right to address on any point of law raised in the Claimant’s claims despite being aware of the order of the Court for parties to file their final written addresses. In fact, Inubaraye Esq, indicated to the Court that the defendant may file a final a written address in this case, the option he again failed to comply with.
11. It is trite law that the effect of the failure of a defendant to file pleadings is that the assertions of the claimant in his pleading stand unchallenged and are deemed admitted and established. See the following cases of Bauchi State Govt v. Gumau & Anor [2019] LPELR-47061 (CA); Omale v. Federal Ministry of Lands, Housing and Urban Development & Ors [2015]LPELR-25906(CA)1@47, Para A; Elumeze v. Onegbedan [2011]LPELR-4347(CA)1@14-15, Para G and; Consolidated Resources Ltd v. Abofar Ventures (Nig) Ltd [2007] 6 NWLR (Pt.1030) 221. However, this Court is mindful of the nature of the Claimant’s reliefs as evinced by his General Form of Complaint, id est declaratory reliefs. Declaratory actions fall within the exception to the rule of admission as the Claimant must always rely on the strength of his own case and not on the weakness of the defendant’s or default of the defendant to file defence. In the case of Alhassan & Anor v. Ishaku [2016] LPELR-40083(SC) 20, Paras E-F, the Supreme Court per Rhodes- Vivour, JSC(Rtd) stated succinctly thus; “Sections 20 and 21 of the Evidence Act provides for admission. Admissions in pleadings are a waiver of all controversy on the fact the pleader admits." However, the exception to this is where the Plaintiff/Claimant/Petitioner seeks declaratory reliefs. It then becomes a different kettle of fish. The law is settled that declaratory reliefs cannot succeed even on an admission by the opposing side. The reason is that a declaratory action is discretionary in nature. It is a species of civil action whose purpose is to seek an equitable relief in which the Plaintiff prays the Court, in the exercise of its discretionary jurisdiction, to promote or declare an existing state of affairs in law in his favour, as may be discernible from the averments in the statement of claim or pleadings from the claimant. Hence, the onus of proof here lies on the petitioners. They must succeed on the strength of their own case and not on the weakness of the defence, except where the case for the defence supports the Respondents' case…” [Emphasis mine]. See also the cases of ; Achir & Anor v. Chabo & Ors [2019] LPELR-48763 (CA)26-28, Para A; Oyetola v. Adeleke & Ors [2019] LPELR-47545 (CA); INEC v. Atuma[2013] 11 NWLR (pt.1366)494(SC).
12. I am equally mindful of the fact that the defendant in this case equally did not exercise its right to cross examine Claimant when he testified on oath, something which the learned counsel on behalf of Claimant in his final written address relied on. It is the law that a party who though has not filed or entered defence still has a right to cross examine a witness of the adversary. See the case of Keystone Bank Ltd v. A. Anco Enterprises Nigeria Ltd [2019]LPEL-47857(CA)1@59--60, Paras A-A. This is because a defendant by such cross-examination might simply want to create some doubt regarding the credibility of the evidence of the witness or authenticity of the documents tendered by the witness if any. In line with the above position of the law, the defence counsel, Inubaraye Esq was called upon to cross examined the claimant on the 9th day of December, 2021 and he responded that he had no cross examination for Claimant. Such a party who was given an opportunity to be heard by way of cross examination but failed to exercise same cannot equally be heard later alleging that he was not given fair hearing. See the case of Adamawa State Ministry of Lands and Survey & Ors v. Salisu & Ors [2020]LPELR-50036(CA)1@45-49, Para E. It is only when a defendant refuses to cross examine a witness that such a party will be deemed to have accepted the testimony of the said witness. This is because cross examination is a potent weapon or instrument in the hands of a party to challenge his opponent's case and seek to weaken it and/or strengthen its case. It is the position of the law that unchallenged and uncontroverted evidence ought to be accepted by the trial Court. More importantly where the adversary or other party had every opportunity to cross examine the witness of the opponent but fails to do so. See the following cases; Gambo v. Isa & Anor [ 2018]LPELR-45984(CA)1@ 18-19, Para E; NIPOST v. Musa [2013] LPELR – 20780 (CA); Gaji & Ors v. Paye [2003]LPELR-1300(SC)1@20, Para B; [2003]8 NWLR (Pt 823) 583 @ 608 per Edozie JSC. It is therefore without doubt that failure of the defendant to cross examine the Claimant even when given the opportunity to exercise the right operate as a tacit acceptance of the truth of the testimony of Claimant as contained in his written statement on oath which is his oral testimony. Besides, an unchallenged and uncontroverted evidence is deemed to be good evidence which the Court can act on except where such is manifestly unreliable. See the following cases; Musa & Anor v. Ibrahim [2017]LPELR-43101(CA)1@27, Para B; Ezechukwu & Anor v. Onwuka [2016]LPELR-26055(SC)1 and; Omoregbe v. Lawani [1980]LPELR-2655(SC)1@16, Para A. Accordingly, this Court will rely on Claimant’s testimony in proof of this case so far same is credible and reliable to ground the reliefs sought.
13. Now, to the crux of this suit, there is no doubt that the employment relationship between parties in this case is that of master-servant relationship wherein the master reserves the right to terminate the employment of its employee provided he complies with the provision of the contract. See Shuaibu & Ors v. NBC Plc (Coca-Cola) [2020]LPELR-52110(CA)1@44-46, Para C and; CCG (Nig) Ltd v. Bakare & Anor [2018]LPELR-46810(CA)1@9-11, Para D. Claimant in this case averred that his employment has been terminated on the 10th of May, 2019. The letter of termination is herein as Exhibit M1 and it is clear that the letter is dated May 10, 2019. Ordinarily, an employer is not bound to give reason for the termination of the employment of an employee. However, where an employer gives reason, he must prove such reason in order to justify the termination of the employment to the satisfaction of the Court. A cursory look at Exhibit M1 clearly shows that Claimant’s employment was terminated for services no longer required. The Court in the case of Union Bank v. Salaudeen [2017]LPELR-43415(CA)1@33-34, Para B held while relying on the case of NITEL Plc v. Akwa [2006] 2 NWLR (Pt.964) 391 on termination for services no longer required thus; “The question that now agitates my mind is, whether the words "for services no longer required" qualify as a reason as to require the Appellant to establish by evidence. This scenario occurred in the case of NITEL Plc v. Akwa (2006) 2 NWLR (pt.964) 391, where My Lord, Sanusi, JCA (as he then was) said: "The effect of the judicial decisions, some of which I cited above, which stated that an employer needs not give reason for termination simply means that the master or employer needs not give a catalogue of allegation or accusation(s) of any wrong doing, or offence committed by the employee in terminating his appointment. In other words, even if the employee was never involved in any wrong doing, misconduct, fraud or any act that smacks of criminality, his employment can still be terminated. In my view, to say that the phrase" your service is no longer required" amounts to "giving reason" for the termination which requires the employer to justify, is stretching the meaning too far”. (underlining is mine).. It is clear from the above authority that where termination is for services no longer required, it will not amount to a reason that the employer would be required to justify. In any case, it is clear from the reliefs sought in this case and the pleadings of Claimant as contained in his statement of facts that he is not even challenging the termination of his employment by the defendant. Rather Claimant’s grouse is with the non-payment of his salaries and lawful earnings by the defendant since September, 2018.
14. There is no doubt as reasoned above that an employer in a master-servant employment reserves the right to terminate the employment of its employee at any time provided the conditions provided in the contract is complied with However, it should be noted that the right given to an employer under a master-servant relationship does not include the right to deny an employee his lawfully accrued earnings after the termination of employment. This is because it is a trite principle that an employee is entitled to be paid for work done in the cause of his lawful engagement except where he has not worked. See the cases of; Spring Bank v. Babatunde [2012]5 NWLR (Pt 1292)83@101, Paras C-D; C.C.B. Nig Ltd v. Nwankwo [1993]4NWLR (Pt 286)159. The claimant in this case is contending that the non-payment of his salaries and entitlements by the defendant since September 2018 (except February 2019) is illegal, unlawful, abusive and humiliating. Claimant vide paragraphs 3-4 of his statement of facts averred that he has served meritoriously in the service of the defendant without being found wanting of any infractions before his employment was terminated on the 10th day of May 2019 and that he was dedicated to his job and carried out every task given to him at all material times. These facts were equally reiterated in paragraphs 4 and 5 of the statement of oath which has already been admitted by Claimant as his oral evidence in this case. Claimant equally averred that on the 13th day of May, 2019 in line with the directive in the letter of termination when he arrived the office to finalize the release of his salaries/ entitlements he was refused and as a result of which he made frantic efforts to be paid which yielded no results. These facts were equally reiterated in the Claimant’s statement on oath in this case which is his oral evidence. The evidence of Claimant as reasoned supra has not been challenged or controverted by the defendant and therefore the Court can rely on same. It is apparent on exhibit M1(Termination letter), specifically at paragraph 3, that the defendant evinced and clearly expressed its intention to pay claimant his final entitlements, wherein it stated thus “Our payroll department is currently working out your final entitlements and this would be communicated to you during your off-boarding process” The defendant by this paragraph has raised the hope of the claimant to receiving his entitlement after terminating his employment, but failed to comply with it in flagrant disregard to the contract between the duo and its expressed intention to pay him his entitlement. By the ILO Convention No. 95 (the Protection of Wages Convention 1949) ratified by Nigeria, the Convention forbids the practice of deductions/withholding of employees ‘salary and terminal benefits, specifically Article 12 (2) of this Convention provides thus-
Upon the termination of a contract of employment, a final settlement of all wages due shall be effected in accordance with national laws or regulations, collective agreement or arbitration award or, in the absence of any applicable law, regulation, agreement or award, within a reasonable period of time having regard to the terms of the contract.
15. It is obvious from this provision that the defendant ought to have paid the claimant his terminal benefits after compulsorily termination of his employment within a reasonable time. Claimant’s employment was terminated vide exhibit M1, since May, 2019, which is more than three years now. If I may ask, has the defendant paid the claimant his entitlements within reasonable time after termination? The answer is definitely in the negative. From the above it is not in doubt that Claimant having worked for the defendant is entitled to be paid and the defendant do not have any power to withhold it and is in law estopped from withholding his salaries and entitlements from him without any justification. An employee is entitled to his wages and he cannot be denied same under any guise or excuse. Accordingly, relief ‘a’ succeeds.
16. Next, is claimant’s claim for salaries and entitlements from September 2018 (except February 2019). It is trite that monetary claims are in the realm of special damages and must be specifically pleaded and strictly proved. See the cases of Ajigbotosho v. RCC [2018] LPELR-44774(SC)1@9-11, Para A and H.G.R Ltd v. Bikem Ltd [2009] LPELR- 11915 (CA). Specifically in the case of Adekunle v. UBA [2016] LPELR-41124(CA)1@36-38, Para D the Court of Appeal per Tsammani JCA while relying on the dictum of Chukwuma-Eneh JSC (of blessed memory) in the case of I.H.A.B.U.H.M.B. v. Anyip (2011) 12 NWLR (Pt.1260)1@20 -21 Paras H – A; held thus as regard claim for salaries and other entitlements; “The law is that, claims for salaries, allowances, bonuses, emoluments, etc are in the nature of special damages. Like in all claims for special damages, they need to be pleaded with particulars and evidence led thereon before they could be granted…” He continued at pp.20 - 21 Paragraphs H - A, thus “…I must observe in regard to this matter that the Respondent with regard to her pleadings has neither pleaded satisfactorily her special damages to wit - the salaries, allowances and other benefits that is "accruable to her as pronounced by the Lower Court in its judgment nor have these items of special damages been specifically proved. None the less, the law is trite that unless pleaded and strictly proved, the Court is not obliged to make any awards in that regard for special damages. This aspect of the Lower Court's judgment should be set aside and I so hold.” In the case cited above, the Respondent upon dismissal from her employment by the Appellant had sought for the following relief; amongst others:
"Payment of all arrears of salaries, allowances, and other benefit to which the Plaintiff has been entitled from the 11th June, 1995, being the date of her interdiction from duty, until the determination of this suit.” That claim of the Respondent in that case would appear to be in pari materia with the Appellant's claim subject of this appeal. It. is clear therefore, that the Appellant's claim for salaries, allowances and other perquisites of his employment are in the nature of special damages, which needed to be pleaded and specifically proved.” [Emphasis mine]. The Claimant’s relief’ b’ for an injunction compelling the defendant to pay the Claimant his salaries and entitlements owed him since the month of September, 2018 (except February 2019) is im pari materia with the Claim Respondent’s claim in the case of Adekunle, supra and as such must be specifically pleaded and strictly proved. Equally by the provisions of Order 3 Rule 12 of the Rules of this Court, 2017, Claimant is supposed to plead how much is his salary and the total amount being claimed or owed. It the claimant’s assertion vide paragraph 14 of the statement of facts that he was not paid his salaries since September 2018 (except February 2019) which this Court has held that he cannot be denied in relief ‘a’ above. However, Claimant did not plead the particular amount he is entitled to as salary in a month or what he is specifically claiming as entitlement the period under consideration. Although Exhibit M2 dated 1st March, 2018 with subject, “SALARIES UPGRADE, STEP INCREASE AND 8% INCREASE ON A BASIC SALARY” shows that the claimant is entitled to N215,260.00 per month. It is a trite principle of our law that evidence led on facts not pleaded goes to no issue. In the absence of any specific averment as to the exact amount Claimant is entitled to, the Court cannot rely on Exhibit M2 to award Claimant the payment of his salaries and entitlements owed him since the month of September, 2018. Claimant has not satisfactorily pleaded his special damages to wit his salaries and entitlements. Accordingly, relief ‘b’ fails.
17. Regarding relief ‘C‘, the claimant is urging the Court to restrain the defendant, it servants, agents, privies, officers, authorities, bodies or any other persons from interfering, distributing or howsoever tampering with his appointment until the backlog of his salaries and entitlements been owed him since September 2018 is paid to him. Although this Court has by relief ‘a’ above declared that the refusal of the defendant to pay Claimant his salaries and entitlements is unlawful, abusive and humiliating, it will not however give the Court the power to fetter with the right of the defendant to terminate the employment of the Claimant. This is because the law is trite that the Court cannot impose a willing employee on an unwilling employer in a master servant employment relationship as in this case. See the cases of Osisanya v. Afribank (Nig) Plc [2007] LPELR-2809(SC)1@19, Para F; Texaco Nigeria Plc v. Alfred G. Adegbite Kehinde [2001] 6 NWLR (Pt. 708) P. 224 and Olarewaju v. Afribank (Nig.) Plc [2001]13 NWLR (Pt. 731) 691@705. It is in consequence that I hold that the claimant’s employment remains terminated notwithstanding that he has not been paid his arrears of salaries owed. Thus, relief C fails.
18. It is relief ‘d’, of the claimant that failure of the defendant to pay him his salaries and entitlements since September 2018 (except February 2019) have caused the claimant a lot of suffering, hardship and humiliation. I have held supra that for declaratory reliefs to succeed, the claimant must rely on the strength of his case and not on the weakness of the defendant’s case. Now the question that comes to mind is that has the claimant proven that the defendant’s action caused him suffering, hardship and humiliation. The testimony of Claimant in paragraphs 12-14 of the statement on oath alone is not sufficient to prove and sustain the grant of this relief. Although the defendant did not file any defence or challenge the claimant’s evidence, I am mindful of the fact the claimant has equally failed to prove or show to the Court the negative resultant effect of the defendant’s action on him by proving that the failure has caused him suffering and hardship. Consequently, I find that relief ‘d’ also fails.
19. The claimant also claims the sum of N150,000,000.00 (One Hundred and Fifty Million Naira) as general damages. The law is trite that where breach is established, general damages will follow without need to specifically plead it. See the cases of SPDC Ltd v. Nwabueze [2015] LPELR-21178 (CA) 1@33; Felix George and Company Ltd v. Afinotun & Ors [2009] LPELR – 22782 (CA)52. General damages are these losses that follow naturally from the adversary and its generally presumed by law, as it need not be pleaded. General damages are awarded by the Court to assuage the injury caused by an act of the adversary. See the case GTB v. Dieudonne [2017] LPELR 43557 CA. Having held that the defendant’s act of withholding the claimant’s salaries and entitlements is unlawful, abusive and oppressive, claimant is thus entitled to damages. An employee as reasoned supra is entitled to his wages, to withhold it is likened to withholding the very life of that employee or sniffing life out of him. This Court held in Peter Demenge Kumba v. Daar Communications Plc (Unreported Suit No. NICN/ABJ/25/2020) judgment delivered on 3rd March, 2021 held thus- “There is equally no agreement or arbitral award placed before this Court by the defendant granting it the liberty to withhold claimant’s terminal benefits since February, 2018. This is accrued and earned terminal benefits for an employee who has served his employer for 14 years. He is out of job and has no other means of livelihood. His terminal benefits, gratuity and pension are his life wire, upon which he can live and take care of his family. 2 or upward of 3 years withholding of claimant’s terminal benefit is the most unreasonable and unconscionable. It is against the ILO Convention on payment of wages and thus claimant should be entitled to general damages which is above the payment of the money he would have earned”. It is obvious by the decision of this Court in Demenge’s case supra and a host of other cases on this subject that it is the most oppressive and unconscionable for an employer to withhold an employee’s terminal benefits and entitlements. It is consequent upon this that I find that claimant is entitled to damages. This Court is empowered by the provisions of Section 19(d) of National Industrial Court Act, 2006, to award compensatory damages in deserving cases of breach in any case that is within the jurisdiction of this Court as in this instant. By exhibit M2, titled “Salary Upgrade, Step Increase and 8% increase on Basic Salary” the defendant put the claimant’s salary at N215,260.00 per month. It is on this premise that I award to the claimant 3 months’ salary in the sum of N645,780.00. (Six Hundred forty-five Thousand, Seven Hundred and Eighty Naira) Only as damages for the defendant’s unlawful act of withholding claimant’s salaries and entitlements uptill date. I so award.
20. On the claim of N1,000.000 as legal/professional fees. There is no doubt that a claim for solicitor’s fees is equally a claim for cost of action. The position of law is that cost follows event and a successful party should not be deprived of his cost unless for good reasons. See the case of Bonum (Nig) Ltd v. Ibe & Anor [2019] LPELR- 46449 (CA). It is settled law that award of cost including cost of litigation is always at the discretion of the Court which discretion must be exercised judicially and judiciously once empowered by its Rules. This was the position of the Apex Court on award of cost in the case of Mekwunye v. Emirate Airlines (2019) LPELR- 46553 (CA). By the provisions of Order 55 Rules 1 and 5 of Rules of this Court, this Court is empowered to exercise its discretion in the award of cost and to ensure that a successful party is indemnified for the expenses to which the party has unnecessarily put in the proceeding. Claimant in this case has succeeded in some parts of his claim and was able to show that the defendant has willfully refused to pay him his earned salaries. The circumstance in this case is one deserving of an award of cost. Claimant in this case equally relied on Exhibit M3 which is the receipt of payment of solicitor’s fee in the sum of N250,000. In the exercise of my discretion and considering the number of sittings in this case wherein Claimant and his counsel were present and the number of processes filed by Claimant in this case I award the claimant the sum of N100,000.00 as cost in this suit. I so find and hold.
21. In summary, the claimant’s claims succeed in part, I thus make the followings declaration and orders;
1. That the non-payment of the claimant salaries and entitlement is illegal, unlawful and unconscionable and should be paid forthwith.
2. Reliefs ‘b’, ‘c’ and ‘d’ fail.
3. That the claimant is entitled to the sum of N645,780 (Six Hundred forty-five Thousand, Seven Hundred and Eighty Naira) Only as General damages.
4. That the claimant is entitled to the sum of N100,000 as cost.
5. Judgment sum is to be paid within 30 days failing which it shall attract interest of 10% per annum.
22. Judgment is entered accordingly.
Hon. Justice Oyewumi Oyebiola O.
Presiding Judge.