NICN - JUDGMENT
IN THE NATIONAL INDUSTRIAL COURT OF
NIGERIA
IN
THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN
AT PORT HARCOURT
BEFORE
HIS LORDSHIP HONOURABLE JUSTICE M. A. HAMZA
Date:
27th November, 2025 Suit
No: NIC/PHC/14/2024
BETWEEN
BARR.
NNAA LELEBABARI PYABARA ……………………… CLAIMANT
AND
1.
BARR. PRINCE JOEL O. WILLIAMS
2.
PRINCE JOEL & ASSOCIATE ……….....…… DEFENDANTS
3.
TRAVEL LEGAL
Representation
Nnaa
Lelebabari Pyabara for the Claimant
D.
Cole for the Defendants
JUDGMENT
Introduction
and Reliefs
1.
On July 9th, 2024, the Claimant
sued the Defendants by way of complaint seeking for the following reliefs:
a. A
Declaration that the Claimant is entitled to paid the sum of ?300,000.00 (Three
Hundred Thousand Naira) being the outstanding salaries and transport allowance
owed the Claimant by the Defendants as his former employers.
b. An
Order directing the Defendants to pay 20% interest accruable from the
outstanding debt to the Claimant.
c. An
Order directing the Defendants to pay 10% interest after judgment till the
outstanding debt is finally liquidated.
d. An
Order compelling the Defendants to pay to the Claimant the sum of ?5,000,000.00
(Five Million Naira) only as special damages for wrongfully withholding the
monies and salaries of the Claimant and hereby causing untold hardship and
financial and emotional anguish to the Claimant and ?2,000,000.00 (Two Million
Naira) only as general damages respectively as a result of untold hardship,
loss, pain and distress the Claimant underwent as he was denied the fruit of
his labour.
e. The
sum of ?500,000.00 (Five Hundred Thousand Naira) as cost of action.
2.
Other initiating processes were filed
along with the complaint in line with the Rules of this Court. In response, the
Defendant entered appearance through its Counsel and filed their Statement of
Defence together with other processes in compliance with the Rules of this Court.
The
Case of the Claimant as Pleaded.
3.
The case of the Claimant is that he was a
former employee of the 1st, 2nd, and 3rd
Defendants and worked as a Legal Practitioner with the Defendants between
01/07/2023 and 31/12/2023 before his letter of resignation. The Claimant went
on that the Defendants have refused to pay him his salaries from November, 2023
to December, 2023 despite repeated demands, which is cumulatively amounting to
the sum of ?200,000.00 (Two Hundred Thousand Naira), including his unpaid
transport allowance from the months of July, 2023 to December, 2023, amounting
to a total of ?100,000.00 (One Hundred Thousand Naira). That the Defendants
have failed/refused to pay the Claimant his own salaries and transport
allowances till date, despite repeated demands.
The
Case of Defendants as Pleaded
4.
The case of the Defendants on the other
hand vehemently disputed the Claimant’s entitlement to the reliefs sought
before the Court. the Defendants went on that they never owed the Claimant his
salaries, that the Claimant was paid November, 2023, but did not pay December,
2023, because he only reported for work once out of the whole month, and also
refused to work. That the Court should dismiss the suit as it is one of
vexatious, frivolous and abuse of Court process and award the cost of ?500,000.00
(Five Hundred Thousand Naira) against the Claimant and in favour of the Defendants.
5.
During hearing of the case, the Claimant
gave evidence as CW1, while the 1st Defendant testified as DW1, and
Rosemary Ime Edem as DW2. The Court subsequently directed Counsel to the
parties to file their respective Final Written Addresses in line with the Rules
of this Court and they complied with the said direction.
Defendant’s Final Written Arguments
6.
In the Defendants’ Final Written Address
at page 173 of the record, Counsel raised the issue for the determination of
the Court this way:
“Whether
on the Balance of probabilities or convenience and on the preponderance of evidence
the Claimant upon his pleadings has been able to prove his case to be entitled
to the reliefs sought before this Honourable Court”.
7.
Arguing the issue as formulated, Counsel
answered the sole issue for determination in the negative, i.e from the state
of pleadings and evidence led, the Claimant has not proved his case on the
preponderance of evidence to be entitled to the reliefs sought in this suit.
8.
Counsel submitted that the Claimant 1st
relief in this case cannot be granted, reason being that the Claimant did not
give a valid illustration and evidence before this Honourable Court as to how
he was owed the cumulative sum of ?200,000.00 (Two Hundred Thousand Naira) as
unpaid salary and ?100,000.00 (One Hundred Thousand Naira) for unpaid transport
allowance of ?20,000.00 (Twenty Thousand Naira) from the month of July, 2023 to
December, 2023 stating that a piece of credible evidence is one that is worth
of belief, citing the case of CAMAC NIGERIA LIMITED V. GODFREY EKIKEPENTISE
(2023) 15 NWLR (PT. 1907) 221 CA, where the Court held that:
“A
piece of credible evidence is one that is worth
of
belief”.
9.
It was also submitted that it is trite law
that in a case of claims, the onus is always on the person who alleges to
establish his case and not to rely on the weakness of the defence. That the
Claimant succeeds on the strength of his own case and not on the weakness of
the Defendant’s case, referring to paragraphs 14 & 15 of the Claimant’s
Statement of Fact.
10. Counsel
submitted further that the Claimant does not seem to have a cause of action
against the 1st & 3rd Defendants on record. That
under cross-examination, the Claimant was asked; “I suggest to you that you do
not have a contract of service with the 1st & 3rd
Defendants”, and his response was; “yes, it was because the 3rd
Defendant had not been registered at the time”.
11. Counsel
posited that a cause of action is the entire set of facts or circumstances
giving rise to an enforceable claim. It includes all those things necessary to
give right of action and every fact which is material to be proved to entitle
the plaintiff to succeed. He referred the Court to the case of AMODU V.
AMODU (1990)5 NWLR (PT. 150)356 and that of A-G FEDERATION V. ABUBAKAR
(2007)10 NWLR (PT. 1041)1. Counsel contended that by the pleadings and
evidence adduced by the Claimant especially considering the answer provided
under cross-examination, the Claimant cannot reasonably maintain this action
against the 1st & 3rd Defendants on record.
12. Counsel
submitted that in a civil case, the case presented by the Plaintiff is won and
lost first on the pleadings and second on the evidence led in support of the
averments in the statement of fact, while the defence of the Defendants is
premised on the facts averred in its statement of defence and the evidence
adduced in support thereof. Citing the case of OBE V. MTN NIG. COMMUNICATION
LTD (2021)18 NWLR (PT. 1809) 415 @ 435 PARAS F-G. Counsel stated that in
civil cases the claim of the Claimant is circumscribed by the reliefs claimed.
That the duty of the Claimant is to plead only such facts and materials as are
necessary to sustain the reliefs and adduce evidence to prove same. He may at
the end of the day obtain all the reliefs sought or less but not more, he
cannot obtain reliefs not claimed.
13. Counsel
submitted that the law requires a Claimant to prove his case in all material
ways he can for success will depend on the credibility and weight ascribed to
the evidence. That a case not supported and proved by a Claimant is bound not
to succeed. As in civil cases, a Claimant who asserts or makes a claim has the
burden to prove or establish his case by preponderance of evidence or the
balance of probabilities with cogent and credible evidence otherwise his case
will fail, citing the case of PDP V. APC (2020)9 NWLR (PT. 1729)213 @ 227,
PARAS G-H.
14. Referring
to paragraph 5 & 8 of the Statement of Facts, Counsel submitted that the
Claimant made averments in respect to claims as per letter of employment and
transportation allowance. Counsel pointed that the Claimant could not lead
credible evidence to support his claim, that under cross-examination, the Defendants
were able to debunk the said claim as it relates to the validity or other wise
of the transportation fees/allowance. The questions put across to the Claimant
are reproduced as follows:
Question: it is correct
that there is nowhere in the letter of employment that stated your entitlement
as to monthly transportation allowance save for the monthly salary estimated
for ?1,200,000.00 (One Million, Two Hundred Thousand Naira) per annum?
Answer: yes.
Question: look at your
paragraph 8, the monthly transportation in clause 8 does not state what you
earn as monthly allowance. True or false?
Answer: true.
Question: I suggest to
you that your claim of monthly transportation allowance is unfounded and so you
are not entitled to same.
Answer: it is not
correct, because I pay transport to the office.
Counsel further argued that evidence
elicited from a party or his witness(es) under cross-examination which goes to
support the case of the party cross examining constitutes evidence in support
of the case or defense of that party, citing the case of ADAMA V. K.S.H.A
(2019) 16 NWLR (PT. 1699)501.
15. Counsel submitted that the Claimant was unable
to establish the fact that the monthly transportation allowance was contained
in his letter of employment and that he is entitled to same. Counsel urged the
court to discontinue the Claimant’s claim or reliefs as contained on his statement
of facts. That the Claimant is not being owed a two (2) months’ salary as
claimed in his statement of facts for ease of reference under
cross-examination, the Defendants were able to debunk same. The questions put
to the Claimant are reproduced as follows:
Question: I suggest to you that you
were paid salary for the 1st month and never complained and did not
also complain in the 2nd, 3rd, & 4th
months of monthly transportation allowance.
Answer: I did not
complain because I was hoping it would be paid.
16. It was further submitted that the Claimant
alluded that the Defendants have also refused to pay his salary from November,
2023 to December, 2023 and that the Defendants last paid him for the month of
October, 2023 and cumulatively now owes him ?200,000.00 (Two Hundred Thousand
Naira) only. Counsel argued that under cross-examination, the Claimant was
unable to justify the claim that the Defendants owed salaries for two (2)
months. The questions put to the Claimant are reproduced as follows:
Question: you alluded to the fact
that you did not go to work for a period of one (1) month owing to non-payment
of salary and monthly transportation allowance. Please, tell this court the
month.
Answer: it was November,
2023.
Question: I suggest to
you that you are not entitled to be paid salary since you did not work in
November. True or false?
Answer: it is false, I
was doing some work at home on my laptop on behalf of the office or the
Defendants.
Question: do you have
anything to show that you worked from home?
Answer: I don’t have
anything to show.
Question: look at the
exhibits statement of accounts, please identify the dates monies were received
from the Defendants and one Ms. Raphaella Essi, a senior partner in the 2nd
Defendant.
Answer: it is correct that I received
funds from the Defendants on 15th September, 2023, 23rd
October, 2023, 5th December, 2023, and 21st September,
2023, 13th October, 2023 from the senior partner being refunds of
expenses incurred in carrying out duties for the 2nd Defendant.
17. Counsel submitted that the Claimant’s claim
for special damages must be proved strictly that he did suffer such damages as
he claimed. However, that this does not mean that the law requires a minimum
measure of evidence or that the law lays down a special category of evidence required
to establish entitlements to special damages. That what is required to
establish entitlements to special damages is credible evidence of such a
character as would suggest that he indeed is entitled to an award under that
head otherwise the general law of evidence as proof by preponderance or weight
as usual in civil cases operates, citing the case of REGISTERED TRUSTEES OF
PEOPLE’S CLUB OF NIGERIA V. REGISTERED TRUSTEES OF ANSARA-UD-DEEN SOCIETY OF
NIGERIA & ORS (2019) LEPLR- 47523 (CA).
18. Referring to paragraph 16 & 17 of the
Claimant’s statement of facts, the claimant stated the financial hardship or
difficulties he suffered owing to the actions of the Defendants. The Claimant
placed heavy reliance on his WhatsApp chats he had with the 1st
Defendant and one Ms. Raphaella Essi, a Senior partner in the 2nd
Defendant. The questions put to the Claimant are reproduced as follows:
Question: look at your paragraphs, I
suggest to you that in all your WhatsApp chats, you did not demand for your
salary or monthly transportation allowance instead you were pleading for free
fruits to eat, fill gas and celebrate your birthday in church with your group.
Answer: it is not
correct; I was indirectly demanding for my salary.
Counsel contended that there were no
WhatsApp chats with the Claimant and on the surface of the chats or exhibits
relied on the Claimant is between the Claimant and one Ms. Raphaella Essi who
is not a party to this suit and so there is no privity of contract. That the
exhibits relied upon should be expunged from the records of this Court having
not complied by filing a certificate of compliance.
19. Finally, Counsel submitted that to succeed on
a claim for special damages, the party claiming must not only particularize the
items of special damages but must also adduce credible evidence in proof of
each item. The evidence must show how the sum claimed was arrived at. Mere
assertions without proof are not sufficient. That on the claim for general
damage, this Court is empowered to award same where it finds that a party has
suffered inconvenience, hardship, or injury not strictly quantifiable in
monetary term. The evidence before this Honourable Court does not show that the
Claimant suffered any financial hardship because he did not work for the months
he is claiming in his reliefs.
Claimant’s
Final Written Arguments
20. In the Claimant’s Final Written Address at
page 194 of the record, Counsel to the Claimant formulated the following issues
for the determination of the Court this way:
a. Whether
the Respondent’s persistent late payment of the salaries constituted a
fundamental breach of the employment contract, entitling the Claimant to
resign.
b. Whether
the Claimant is entitled to the outstanding salaries and emoluments for the
period he worked for the Respondent which the Respondent has failed and/or
refused to pay.
d. Whether
the Defendant has a competent defense before this Honourable Court, having
filed its processes out of time and without regularizing same in accordance
with the National Industrial Court of Nigeria (Civil Procedure) Rules 2017.
21. Arguing issue one, on Whether the Respondent’s
persistent late payment of the salaries constituted a fundamental breach of the
employment contract, entitling the Claimant to resign.
Counsel submitted that it is the law that
a contract of employment, like any other contract is governed by its terms and
conditions, and a fundamental term of any employment contract is the employer’s
obligation to pay wages or salary promptly as agreed, which is primarily
governed by the Labour Act, Cap L1 LFN 2004 as it is reflective in Section
1. That the Claimant’s employment letter which is an exhibit in this Court
clearly stipulated the agreed remuneration and the periodicity of payment.
Counsel submitted that the evidence before this Honourable Court, particularly
the Claimant’s unchallenged testimony and the documentary evidence tendered as
exhibits which includes bank statements showing late payments, demand letter of
monies owed and WhatsApp chats, conclusively demonstrates that the Respondent
consistently failed to pay the Claimant’s salaries on time and owes the
Claimant unpaid wages, shifting the burden to the Defendant to justify the
non-payment and delay in payment. That this was not an isolated incident but a
recurring pattern of default. Counsel referred the court to the case of JOHN
MOWETTE V. O.K. ISOKARIARI & SONS NIGERIA LIMITED, where the court held
thus:
“Withholding
earned salaries amounted to unfair labour
practice and constructive dismissal, hence the
non-payment
of wages is viewed as a serious breach
of an
employer’s duty”.
22. Counsel submitted that the Respondent’s
persistent late payment of salaries amounted to a fundamental breach of the
employment contract. That such a breach goes to the root of the contract and
negates the very essence of the employment relationship from the Claimant’s
perspective. He submitted further that an employee’s primary consideration for
rendering services is timely remuneration. When this fundamental obligation is
breached, it renders the continuation of the employment relationship unbearable
and constitutes what is often referred to as “constructive dismissal” or in
this context, a justifiable reason for the employee to terminate the contract
as a result of frustration.
23. It was also submitted that his reliance is on Section
1 of the Labour Act and the case of ZAHARADEEN ABDULLAHI V. SAO-ELIAS
NIGERIS LTD, where the Court emphasized the importance of fulfilling
contractual obligations. Why the Claimant resigned, the circumstances surrounding
his resignation clearly showed that he was forced to do so by the Respondent’s
egregious and persistent breach.
24. Arguing issue two on, whether the Claimant is
entitled to the outstanding salaries and emoluments for the period he worked
for the Respondent which the Respondent has failed and/or refused to pay.
Counsel
submitted that it is an established principle of labour law that an employee
who has rendered services is entitled to be paid for those services. Counsel
emphatically argued that he meticulously discharged his duties as Associate Counsel
for the Respondent up to the date of his resignation, citing the case of JOHN
MOWETTE V. O.K. ISOKARIARI & SONS NIGERIA LIMITED.
25. Counsel submitted that the evidence adduced
before this Honourable Court, specifically the Claimant’s testimony and the
calculations of outstanding payments as established in the Claimant’s statement
of account and resignation letter, clearly established the periods for which
the Claimant worked but was not paid. That the Respondent has not controverted
these facts or provided any credible explanation for the non-payment of these
outstanding sums. Similarly, it is common knowledge that if an employee resigns,
he is still entitled to payment for work already done. That the Respondent
cannot benefit from the Claimant’s labour without fulfilling its reciprocal
obligation to pay. Thus, to deny the Claimant these outstanding sums would
amount to unjust enrichment on the part of the Respondent.
26. Arguing issue three, on Whether the Claimant
has proved his case on the balance of probabilities and is entitled to the
reliefs sought.
Counsel
submitted that it is trite law in civil cases, the burden of proof is on the
party who asserts, citing Section 131(1) of the Evidence Act 2011, and
the case of MOGAJI V. ODOFIN (1978)3 SC 91.
27. Counsel referred the Court to paragraph 23 of
the Defendant’s written statement, where the Defendant denied knowledge of the
demand letter served on him, and in paragraph 30 of the same Defendant’s
written deposition stated that he called the Claimant for a negotiation and the
Claimant did not avail himself. Counsel submitted that no witness is entitled
to the honour of “credibility” when he has two materially inconsistent evidence
given on oath by him on record. That such witness does not deserve to be described
as truthful, citing the case of MONOPRIX NIG. LTD V. OKENWA (1995)3 NWLR
(PT. 383)325 @ 341 PARA C PER KATSINA-ALU JSC (as he then was).
28. Counsel highlighted that under
cross-examination the DW1 was asked the following questions:
Question: if the Claimant was the
only lawyer in the Port Harcourt office.
Answer: he was the one
managing the office.
But in the Defendant’s statement on
oath stated that the Claimant was causing problem in the office with other
staff. Counsel submitted that evidence which is at variance with pleaded facts
is inadmissible and ought to be rejected by the Court. That Courts must ensure
that evidence which is at variance with the pleadings of a party is not
admitted. Counsel posited that it is the singular duty of Counsel to object to
inadmissible evidence but if inadmissible evidence is admitted, it becomes the
duty of the Court when it delivers judgment to treat such evidence as if it was
not admitted, citing the case of AL-HASSAN V. ISHAKU (2016)10 NWLR (PT.
1520)230 @ 260 PARAS C-G, PER RHODES-VIVOURS JSC.
29. Counsel further submitted that the DW1 was
asked under cross-examination the following questions:
Question: if there was any attendance
book from the office showing the days the Claimant did not come to work before
this Honourable court?
Answer: it was the duty
of the Claimant to provide it in the office.
Counsel submitted that same question
was put to the DW2, and the response was, there is a book but it is in the
office.
30. Counsel pointed out that where there are
material contradictions in evidence adduced by a party, the Court is enjoined
to reject the entire evidence as it cannot pick and choose which of the
conflicting versions to follow. That the entire evidence must be rejected,
citing the case of KAYII V. YILBUK (2015)7 NWLR (PT. 1457)26 @ 77 PARA C;
(2015) ALL FWLR (PT.775) 347 @ 390 PARAS B-F, PER OGUNBIYI JSC.
31. Counsel adumbrated that the law is certain
that where evidence before a trial Court is unchallenged, it is the duty of
that Court to accept and act on it as it constitutes sufficient proof of a
party’s case, citing the case of KOPEK CONSTRUCTION LTD V. EKISOLA (2010)3
NWLR (PT. 1182) 618 @ 663, PARAS C-D PER MUHAMMED JSC. Counsel contended
that the Defendant has raised no legal or factual defence capable of
discrediting the Claimant’s claim. That the pleadings and evidence of the
Claimant stand unassail. Thus, there is nothing before this Honourable Court to
weigh against the Claimant’s case.
32. Arguing issue four, on whether the Defendant
has a competent defense before this Honourable Court, having filed its
processes out of time and without regularizing same in accordance with the
National Industrial Court of Nigeria (Civil Procedure) Rules 2017.
Counsel submitted that it is trite law that parties
before a Court of law are bound by the Rules of Court. That the National
Industrial Court of Nigeria (Civil Procedure) Rules 2017 (“the Rules”)
prescribe specific timelines within which parties must file their processes.
Counsel cited Order 15 Rule 1 of the Rules which stipulates that a
Defendant shall file its Memorandum of Appearance and Statement of Defence
within 14 days of being served with the Originating processes. Counsel
submitted further that the Defendant was served with the Originating processes
on the 7th day of March, 2024, and the Defendant was required to
file its defense processes on or before 21st March, 2024. Rather,
the Defendant only filed its statement of defense on the 22nd day of
April, 2024, which is clearly 30days (one month) out of time which is evident
from the Court’s own record. Counsel referred the Court to the case of U.T.C
(NIG.) LTD V. PAMOTEI (1989) 2 NWLR (PT. 103) 244, where it was held thus;
“The Court affirm that where a party fails to file a
defense and no leave is sought, default judgment may be entered”.
33. Counsel added that the consequences of filing
processes out of time are well settled. That such process are in law
incompetent, null, and void and cannot be relied upon by the Court. Thus, the
National Industrial Court still requires strict adherence to its procedural
rules, particularly those relating to timeliness, as they go to the root of
hearing and expeditious dispensation of justice, citing the case of MADUKOLU
V. NKEMDILIM (1962)2 SCNLR 341, where the Supreme Court held thus;
“the Court is only competent where all conditions precedent to the exercise of jurisdiction are fulfilled
including proper filing”.
Also, in the case of SLB
CONSORTIUM LTD V. NNPC (2011) 9 NWLR (PT. 1252)317, it was held that;
“A process not properly before the Court is a nullity
and must be disregarded”.
34. Counsel submitted further that, where a party
files a process out of time, the Rules provide a mechanism for regularization,
usually by way of an application for an extension of time. That Order 57
Rule 4(1) of the National Industrial Court of Nigeria (Civil Procedure) Rules
2017 grants this Honourable Court the power to extend time within which an
act is required to be done. However, such application must be brought formally
and diligently, as Order 9 Rules 5 of the National Industrial Court of
Nigeria (Civil Procedure) Rules 2017 provides as follows;
“where the Defendant fails to file a defense
Within the time
prescribed, the Claimant
May apply for judgment in default”.
Also,
the case of OKAFOR V. ASOH (1999) 3 NWLR (PT. 593) 35, held thus;
“Filing a defense out of
time without leave means
the Defendant is not
properly before the court
and may be shut out”.
35. Counsel added that, in this suit, the
Defendant not only filed its defence processes out of time but also failed,
refused, and/or neglected to bring any application to regularize the said
out-of-time filing. That there is no motion on notice, no affidavit in support,
and no accompanying written address seeking the leave of this Honourable Court
to deem their late filed processes as properly filed and served, and that this
omission is fatal to the Defendant’s case, citing the case of AJAYI V.
OMOREGBE (1993)6 NWLR (PT. 301) 512, where the court held;
“That a process
filed out of time without leave
is incompetent and
of no effect”.
36. Counsel went on that the consequences of this
failure to regularize is that the Defendant purported defense processes are
incompetent and ought to be discountenanced by this Honourable Court. That they
are mere scraps of paper with no legal effect, and to admit and rely on such
processes would be to undermine the very essence of the Rules of this Court and
reward a party for its dilatoriness and disregard for due process, citing
plethora of cases in support; ALAWIYE V. OGUNSANYA (2013)5 NWLR (PT. 1348)
570 (SC), MADUKOLU V. NKEMDILIM (SUPRA), OBI V. INEC (2007)11 NWLR (PT. 1046)
565 @ 636.
No reply on point of law.
COURT’S DECISION
37. After going through the facts of this case as
pleaded and deposed to by the parties, the evidences and various exhibits
tendered and admitted together with the final written arguments of their
counsel including their cited authorities; statutory and case laws. From all of
these, I am of the considered view that two (2) issues for determination to be
resolved by this Court between the parties as they are the thrust of action.
Other ancillary issues may be submitted in the determination of these issues to
wit:
A)
Whether the Defendants’ defence filed out of time without leave of court is
competent and proper before this Honourable Court.
B)
Whether the Claimant has made out a case of wrongful stoppage of his salaries
and allowances against the Defendants to be entitled to the reliefs sought in
his Statement of Facts before this Court?
What
is the Nature of this Employment Relationship and what Regulate the Employment
Relationship between the parties?
38.
It is worthy to note that the employment
relationship between the parties in this case was a private one formerly known
as Master and Servant Relationship. It is trite law that in case of master and
servant relationship, the primary issue to be resolved by the Court in order to
determine the respective rights, duties and liabilities of the parties is to
ascertain what the terms and condition of service regulating the contractual
relationship between the employer and the employee. In doing this, the Court is
bound to look at the letter of appointment, any service regulations connected
with establishment of employer and also the provisions of any Statute or Decree
which regulates the service conditions of the establishment. See NGUN V.
MOBILE PRODUCING NIG. UNLIMITED (2013) LPELR- 20197 (CA) 35 PARA A.
39. From
the totality of the evidence before this Court, particularly the letter of
employment tendered by the Claimant, the periodic payment of salary and
transport allowance, and the control and supervision exercised by the
Defendants over the Claimant’s work as an Associate Counsel, it is clear that the
relationship was purely contractual and devoid of statutory flavour. The
Defendants had the right to hire and fire, and the Claimant was bound by the
firm’s internal policies and instructions in the discharge of his duties.
40. The law is settled that where an employer has
control not only over what work an employee does but also how it is done, a
master-servant relationship is established. See SKYE BANK PLC V. AKINPELU (2024) LPELR- 61888 (CA), JOHN MOWETTE V.
O.K. ISOKARIARI & SONS (NIG.) LTD (NICN/PHC/34/2022, JUDGMENT DELIVERED 18TH
MARCH, 2024) and AMODU V.
AMODU (1990)5 NWLR (PT. 150) 356.
Whether
the Defendants’ Defence filed out of time without leave of Court is competent
and proper before this Honourable Court?
41. On the competence of the Defendants’ Statement
of Defence filed out of time without leave of Court, I have carefully
considered the processes filed by the Defendants, particularly the Statement of
Defence dated the 22nd of April, 2024, alongside the submission of Learned
Counsel for both parties. The record of this Court clearly reveals that the Originating
processes were served on the Defendants on the 7th day of March,
2024. By virtue of Order 15 Rule 1 of the National Industrial Court of
Nigeria (Civil Procedure) Rules, 2017, a Defendant is required to file its
Memorandum of Appearance and Statement of Defence within fourteen (14) days
from the date of service of the originating process.
42. In the instant case, the Defendant filed their
Statement of Defence thirty (30) days out of time that is, on the 22nd
day of April, 2024 without filing any Motion on Notice seeking the leave of
this Court to extend time or deem the said process as properly filed and
served. There is equally no affidavit or written address before this Court
explaining or justifying the delay in filing the said Statement of Defence.
43. It is trite law that any process filed out of
time without first seeking and obtaining the leave of Court is incompetent and
liable to be struck out. See SLB CONSORTIUM LTD. V. NNPC (2011)9 NWLR (PT.
1252) 317 SC, where the Supreme Court held that:
“a
process not properly before the court is
a nullity and must be disregarded”.
In ALAO V.
AKANO (2021) LPELR- 56641 SC, where the Apex Court reaffirmed that
failure to comply with the mandatory provisions of the Rules of Court regarding
time of filing processes renders the process incompetent; NWOSU V. IMO STATE
INDEPENDENT ELECTORAL COMMISSION (2023) LPELR- 61173 (CA), where the Court
of Appeal held that;
“a
process filed out of time without leave of court is fundamentally defective and
cannot confer any right or benefit on the party who filed it”.
Similarly, in OBI
V. INEC (2007) 11 NWLR (PT. 1046) 565, the Supreme Court emphasized that
Rules of Court are not mere formalities but are meant to be obeyed, as they
form the procedural backbone of justice delivery.
44. This Court has repeatedly held that a process
filed out of time without regularization is a mere piece of paper with no legal
effect. See MR. UGOCHUKWU ARINZE V. ACCESS BANK PLC (NICN/LA/258/2023,
JUDGMENT DELIVERED 12TH MARCH, 2024 UNREPOERTED), where the
Court Per Hon. Justice B.B. Kanyip, PNICN, held that:
“Where
a Defendant fails to file its defence within the time stipulated by the Rules
and does not seek leave for extension of time, such process is incompetent and
cannot be relied upon. The court proceed to determine the matter based on the
Claimant’s uncontroverted evidence”.
That is why Order
57 Rule 4(1) of the National Industrial Court of Nigeria (Civil Procedure)
Rules, 2017, empowers the Court to extend time for doing an act prescribed
by the Rules only upon a formal application showing good cause. The Defendants
in this case neither applied for nor obtained such extension or even pay the prescribed
penalty for default as required by the Rules of this Court. It follows
therefore that their Statement of Defence filed out of time without leave of Court
is irregular, incompetent and liable to be discountenanced. Consequently, it is
hereby struck out.
45. Invariably, the Defendants are only left with
their Final Written Address Argument. The question therefore is whether Address
of Counsel can take the place of evidence? Infact, the submission by Learned
Counsel, no matter how brilliant cannot take the place of evidence. In JAMES
CHIOKWE VS THE STATE (2012) LPELR – 19716 (SC) Per PETER-ODILI, JSC as
he then was held thus “It needs to be
reiterated that submissions of Counsel however beautiful or enticing cannot
take the place of evidence. This is because Address of Counsel to be accepted
and utilized must be a reminder to Court on evidence proffered. On its own,
address of Counsel cannot stand.
46. The Supreme Court in another case also put its
imprimatur in this issue in UNION BANK OF NIGERIA PLC & ANOR VS
AYODELE & SONS NIGERIA LIMITED & ANOR (2001) LPELR – 3391 (SC) when
it held, Per Onnoghen JSC, as he then was as follows “It is also settled that address of Counsel however brilliant cannot
take the place of evidence. Particularly where there is no evidence. See MADUBUEZE
& ANOR VS MORTGAGE P.H.B LTD & ORS (2021) LPELR – 53521 (CA).
47. If that settled, then it suffice saying that it
is trite law that where a Defendant fails to file a defence or where his
defence is struck out, the Court is entitled to proceed upon the uncontroverted
evidence of the Claimant, provided that such evidence is credible and
sufficient to sustain the reliefs sought. The Court is, however not a rubber
stamp and must still satisfy itself that the evidence before it justified the
grant of the claims.
48. Infact, where depositions in a affidavit are
not denied way of counter affidavit, they are generally deemed admitted and the
Court is to act thereon. However, for such a presumption to be correct, the
facts in the affidavit must have properly been put before the Court. It follows
therefore that the absence of a counter affidavit does not ipso facto amount a
conclusive exercise of a favourable discretion. In other words, an unfettered
burden lies on the applicant’s affidavit to stand or fall on its own merit.
This is synonymous with the requirement placed a Plaintiff to succeed on the
strength of his own case- and not to rely on the weakness of the defence.
Therefore, the presumption that unchallenged and uncontradicted averments in an
affidavit are deemed admitted does not hold in all situation. See EJEFOR
VS. OKEKE (2000) 7 NWLR (pt. 665) 363; A. G. ONDO STATE VS. A G. EKITI STATE
(2001) 17 NWLR (pt.743) 706; BELLO VS. A. G. LAGOS STATE (2007) 2 NWLR (Pt.
1017) 155.
49. Flowing from the above foregoing position of
the law, the issue that need to be resolved is whether the testimony of the
Claimant is sufficient and capable of sustaining the claim even in the absence
of any defence? It is imperative to say that a critical examination of the
structure and content of the Statement on oath of CW1 it reveals that it scaled
successfully the test of admissibility and relevancy. It has never been found
wanting in any respect. Hence, the National Industrial Court has consistently applied
this principle in several recent decisions holding that once the Defendant’s
processes are absent or incompetent, and the Claimant’s evidence remains
uncontroverted, the Court will proceed to determine the matter based on the
evidence. See UGOCHUKWU ARINZE V. ACCESS BANK PLC (SUPRA), and MRS.
NNENNA OKAFOR V. ANAMBRA STATE HEALTH MANAGEMENT BOARD (NICN/EN/37/2022 –
JUDGMENT DELIVERED 10TH NOVEMBER, 2023).
50. In the instant case, the Claimant testified as
CW1 and tendered several documents showing his Letter of employment- Exhibit
C1A, Letter of resignation- Exhibit C1B,
Letter of Demand- Exhibit C1C and Bank Statement- Exhibit C1D respectively. His
evidence was not challenged or contradicted under cross-examination, nor was
any contrary evidence pleaded before this Court. Consequently, I find the
testimony of the Claimant to be credible, cogent, and unshaken in establishing
the material facts of this case. See OKEKE V. AONDOAKAA (2000)14 NWLR (PT.
688)398, and OMOREGBE V. LAWANI (1980)3-4 SC 108. Consequently
therefore, the Claimant is entitled to the following reliefs;
51. On relief no. 1, this Court has consistently
held that failure to pay an employee’s salary for work done constitutes a clear
breach of the employment contract and an unfair labour practice. See OKOEBOR
V. POLICE SERVICE COMMISSION (2003)12 NWLR (PT. 834)444, AMINA V. FIRST BANK OF
NIGERIA PLC (2021) LPELR- 56432 (CA), and MR. UZOIGWE IKECHUKWU V.
STUDIO PRESS (NIG.) PLC (NICN/LA/10324/2025 UNREPORTED), where it was held
that and reaffirmed that withholding an employee’s lawful entitlements is a
fundamental breach going to the root of the employment relationship. I
therefore hold that the Claimant is entitled to the payment of his outstanding
salaries and transport allowance in the total sum of ?300,000.00 (Three Hundred
Thousand Naira) only.
52. On relief no 3, it could conceivably be
correct to say that the Claimant was forced to resigned from the Defendants’
employment due to the unacceptable conduct of the Defendants. See MISS
EBERE UKOJI VS. STANDARDALLIANCE LIFE ASSURANCE CO. LTD (2024) 47 NLLR (Pt.
154) 531. Where the Court held that:
“Globally,
and in Labour / Employment Law, constructive dismissal, also referred to as
constructive discharged, occurs when an employee resigns because his/her
employer's behaviour has become intolerable or heinous or made life difficult
that the employee has no choice but to resign. Given that the resignation was
not truly voluntary, it is in effect a termination. In an alternative sense,
constructive dismissal or constructive discharge is a situation where an
employer creates such working conditions (or so changes the terms of
employment) that the affected employee has little or no choice but to resign.
Thus, where an employer makes life extremely difficult for an employee, to
attempt to have the employee resign, rather than outright firing the employee,
the employer is trying to create constructive discharge. The exact legal
consequences differ from Country to Country, but generally a constructive
dismissal leads to the employee’s obligation ending and the employee acquiring
the right to seek legal compensation against the employer. The employee may
resign over a single services incident or over a pattern of incidents.
Generally, the employee must here resign soon after the incidence.”
53. Consequently, where an employee’s contract is
terminated constructively, the employee may seek compensation in the form of
damages for the wrongful termination of employment. See MR. PATRICK
OBIORA MODIKIM VS UNITED BANK FOR AFRICA PLC. Unreported Suit No:
NICN/LA/355/2012. It is my considered opinion that the Claimant in this suit is
entitled to compensation in the form of Damages.
54.
For the reliefs 2 & 3, the Claimant has failed to substantiate the grounds
upon which they are predicated to warrant the Court into granting same as
rightly contemplated by the Statutory and Judicial authorities to that effect.
Consequently, they are hereby refused.
55. On the whole, I declare and hold as follows:
A. I
declare that the non- payment of the Claimant’s salaries and Transport
allowances by the Defendants amounted to constructive dismissal as Unfair
Labour Practice.
B. I hold that the Claimant is entitled to the
sum of N300,000.00 (Three Hundred Thousand Naira as arrears of Salaries and
Transport Allowance.
C. I hold that the Claimant is entitled to the
sum of N500,000.00 ( Five Hundred Thousand Naira only as the general and
exemplary damages for Unfair Labour Practice.
D. The Judgment sum is to be paid within 30 days
effective from today.
E. Cost of N30,000.00 ( Thirty Thousand Naira)
is awarded in favour of the Claimant against the Defendants.
Judgment
is entered accordingly.
----------------------------------------------------
Hon. Justice M. A. Hamza
Judge