IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA
Date: 29th November 2022 SUIT NO. NICN/LA/407/2020
BETWEEN
MR. EMENIKE ONYEGEME-OKERENTA … CLAIMANT
AND
SHEBAH EXPLORATION AND PRODUCTION COMPANY LTD … DEFENDANT
JUDGMENT
1. By his originating processes filed on 12th October 2020, the Claimant claims against the Defendant for:
a. A declaration that the Defendant is indebted to the Claimant in the total sum of US$308,596.71 [three hundred and eight thousand, five hundred and ninety-six dollars, seventy-one cents] due and payable to him as his outstanding salary or consultancy fee for services fully rendered.
b. An order compelling the Defendant to pay to the Claimant the total sum of US$308,596.71 [three hundred and eight thousand, five hundred and ninety-six dollars, seventy-one cents] due and payable to him as his outstanding salary or consultancy fee for services fully rendered.
c. An order mandating the Defendant to pay the sum of N50,000,000.00 [fifty million naira] to the Claimant as general damages and cost of this suit.
d. Interest on the judgment sum at the rate of 25% per annum from the date of judgment until finally liquidated of the judgment debt.
2. The Defendant was served with the originating processes on 17th March 2021, but it did not enter appearance or file a defence and did not participate in the proceedings in spite of service of hearing notices. The Claimant opened his case on 6th April 2022. He adopted his statement on oath dated 12th October 2020 as his evidence and tendered 9 documents, which were marked as Exhibits 1 to 9. Thereafter, the case was adjourned to 20th June 2022 for cross examination and defence. The Defendant was absent and unrepresented by counsel on 20th June 2022 and, on application by learned counsel for the Claimant, was foreclosed from cross examining the Claimant and presenting its defence. Thereafter, the case was adjourned to 10th October 2022 for adoption of final written addresses and subsequently to 20th October 2022. On 20th October 2022, learned counsel for the Claimant adopted his final written address dated and filed on 4th July 2022 and the matter was set down for judgment.
3. The Claimant was employed by the Defendant as Facilities Project Manager effective 11th January 2016 by an agreement dated 8th January 2016 on a monthly salary of $17,000 payable in naira at the prevailing Central Bank of Nigeria exchange rate. The contract was for an initial period of 12 months but was extended and continued till its termination on 28th February 2019. It is the Claimant’s case that he effectively and efficiently discharged his duties to the Defendant throughout the duration of his employment to the full satisfaction of the Defendant; but for several months the Defendant was inconsistent with payment of his salary, and at the end of his service on 28th February 2019, the total unpaid salary was US$308,596.71. Prior to his disengagement, he demanded payment of his salary but was informed via a mail dated 14th February 2019 that the outstanding salaries would be paid within ninety days from 28th February 2019, which promise was not honoured. His salary remains unpaid till date in spite of several demands and entreaties. In consequence, he secured the services of Liborous Oshoma Chambers to recover his full entitlement, and they wrote to the Defendant. The Defendant received the letter but refused, failed and/or neglected to respond or settle its indebtedness to him. Hence this suit.
4. Learned counsel for the Claimant raised one issue for determination in the final written address, to wit:
“Whether or not the Claimant is entitled to the relief[s] sought?”
He returned an affirmative answer and states that the suit is undefended, and a clearcut case of unpaid salaries which was expressly admitted by the Defendant in its email of 14th February 2019. Counsel notes that despite service of the originating process and hearing notices, the Defendant neither appeared in Court nor filed a defence to the suit. He argued that in the absence of any defence, the facts deposed to by the Claimant are deemed admitted needing no further proof. Section 123 of the Evidence Act, 2011 was cited in support. He reviewed the evidence of the Claimant, and submits that the Claimant’s further mails and letters of demand are business letters which require responses; and the schedule of salaries attached to the Claimant’s mail of 12th February 2019, Exhibit 9, shows all salaries paid to him by the Defendant from inception of his employment and unpaid salaries. He also submits it is trite that where a party fails to respond to a business letter which by the nature of its contents requires a response or a rebuttal of some sort, the party will be deemed to have admitted the contents of the letter. Reliance was placed on the cases of Amber Resources Nig. Ltd v. Century Energy Services Ltd [2018] LPELR- 43671, Famlab Nig. Ltd v. Jahmarco Nig. Ltd [2018] LPELR-44730 and Tilley Gyado & Co. [Nig] Ltd v. Access Bank Plc [2019] 6 NWLR [Pt 1669] 399 at 435-436. Counsel observed that inasmuch as the Defendant initially queried the naira equivalent demanded by the Claimant by admitting only a fraction of the sum demanded, the Defendant did not respond to and so did not query the dollar equivalent demanded by Claimant’s Solicitors. He contends that aside the Defendant’s express admission of indebtedness in its mail of 14th February 2019, the Defendant filed no defence to this suit. Thus, the Claimant’s case and evidence are unrebutted, uncontroverted, deemed admitted and credible enough to justify the Court’s exercise of discretion in favour of the Claimant. He urged the Court to so hold, and submits further that where a Defendant fails, neglects or refuses to effectively traverse positive averments of facts in a Claimant’s pleading, he will be deemed to have admitted such averments; and what is admitted need no further proof in law. Reference was made to Stanbic IBTC Bank Plc v. L.G.C. Ltd [2018] 10 NWLR [Pt 1629] 96 at 140-141 and Akinbade v. Babatunde [2018] 7 NWLR [Pt 1618] 366 at 397. Continuing, counsel argued that once a debt is admitted, no further evidence is required to prove it and judgment should be entered for the sum admitted. He cited the cases of Dunlop Nig. Plc v. Gaslink Nig. Ltd [2018] LPELR-43642, Alhaji Hassan Bello & Sons Ltd v. Zenith Bank Plc [2018] LPELR-43792 and Tilley Gyado & Co. [Nig] Ltd v. Access Bank Plc [supra] at pages 438-439. Lastly, he argued that when a Claimant adduces evidence which establishes his claim against the Defendant in the terms of his Writ of Summons and that evidence is not rebutted by the defence, the Claimant is entitled to judgment on the authority of Nwogo v. Njoku [1990] 3 NWLR [Pt 140] 571. The Court was urged to grant the entire claims of the Claimant as prayed in this suit.
5. I adopt the lone issue for determination raised by learned counsel for the Claimant with some modifications, that is:
“Whether the Claimant has proved his case to entitle him to judgment on his claims or any of them?”
The law is trite that he who asserts must prove. See Section 131[1] of the Evidence Act, 2011 and the case of Ibezim v. Elebeke & Ors [2022] 4 NWLR [Pt 1819] 1 at 41. To determine the party on whom the burden of proof lies, Section 131[2] of the Evidence Act, 2011 provides that when a person is bound to prove the existence of any fact, the burden of proof lies on that person. Section 132 of the Evidence Act, 2011 adds that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Invariably, the Claimant who initiated this suit on a set of facts which he claims entitles him to judicial relief has the burden of establishing those facts and proving that those facts entitle him to the reliefs he seeks. See Sections 133[1] and 136[1] of the Evidence Act, 2011. Failure to discharge this burden will result in dismissal of the case. See Charles Okwudili Umera v. Nigerian Railway Corporation [2022] 10 NWLR [Pt 1838] 349 at 387.
6. Where the Claimant seeks a declaratory relief, he must prove his entitlement to the declaration. Evidence which will support a legal right must be overwhelming, total, convincing and credible. The Claimant will succeed on the strength of his case and not on the weakness or absence of the defence. See Ilori & Ors v. Ishola & Anor [2018] 15 NWLR [Pt 1641] 77 at 94. However, the standard of proof remains proof on a balance of probabilities. See Section 134 of the Evidence Act, 2011.
7. It is equally trite law that in resolution of employment disputes, the Court will usually refer to the contract of employment, and any other stipulation incorporated or deemed to have been incorporated into the contract. The contract of employment is the bedrock on which an employee founds his case, and its success or failure depends entirely on the terms agreed or deemed to have been agreed by the parties. See Charles Okwudili Umera v. Nigerian Railway Corporation [supra] at page 386, Frank Jowan & Ors v. Delta Steel Company Ltd [2013] 1 ACELR 18 at 24 and Gbedu & Ors v. Itie & Ors [2020] 3 NWLR [Pt 1710] 104 at 126. A claim for salary is in the nature of special damages which must be specifically pleaded and proved. See Adekunle v. United Bank for Africa Plc [2019] 17 ACELR 87 at 115 and Nigerian National Petroleum Corporation v. Clifco Nigeria Limited [2011] LPELR-2022[SC] 30.
8. While it is true that the failure of the Defendant to defend the suit makes the Claimant’s evidence unchallenged and liable to be accepted and acted upon by the Court; that does not entitle the Claimant to automatic judgment. See Elewa & Ors v. Guffanti Nigeria Plc [2017] 2 NWLR [Pt 1549] 233 at 248. The evidence presented by the Claimant must justify the grant of the claims. Where it is incapable of sustaining the claims, the Claimant has not discharged the burden of proof and the claim is bound to fail notwithstanding the absence of defence. See Erinfolami v. Oso [2011] LPELR-15357[CA] 18.
9. The Claimant seeks 4 reliefs which have been reproduced earlier in this judgment. He testified in proof of his claims and tendered 9 exhibits. These are consultancy agreement dated 8th January 2016, termination letter dated 28th January 2019, email thread from 12th February 2019 to 16th February 2019, emails of 13th May 2019 and 11th June 2019, email of 4th August 2019, Claimant’s Solicitors’ demand letter dated 11th May 2020, Claimant’s Solicitors’ email to Defendant’s Managing Director dated 24th June 2020, Claimant’s Solicitors’ email to Defendant’s Chairman dated 5th August 2020 and Claimant’s schedule of payments made and due to him.
10. A summary of the Claimant’s evidence is that he was an employee of the Defendant from January 2016 to 28th February 2019 and served as facilities project manager. According to him, the Defendant engaged his services as facilities project manager based on a consultancy agreement dated 8th January 2016. By the agreement he was to be paid a basic monthly salary of $17,000 payable in naira at the prevailing Central Bank of Nigeria exchange rate. The contract was for an initial period of 12 months but was extended till its termination on 28th February 2019. The Defendant, relying on clause 5 of the consultancy agreement, by letter dated 28th January 2019 terminated the contract by one month’s notice effective 28th February 2019. The Claimant asserts that he effectively and efficiently discharged his duties to the Defendant throughout the duration of his contract to the satisfaction of the Defendant; but for several months the Defendant was inconsistent with payment of his salary but he kept a record of all payments received from the Defendant. The Defendant paid part of his monthly salary for several months and for some months it did not pay at all, and in the process accumulated the sum of US$308,596.71 unpaid salary as at 28th February 2019. The naira equivalent of the unpaid sums for each month is set out in the schedule to his mail of 16th February 2019 to the Defendant. He states that prior to completion of his services, he demanded payment of his outstanding salaries but was informed by email dated 14th February 2019 from the Defendant that it would be paid within 90 days from 28th February 2019 which promise was not honoured, and the salaries remain unpaid till date despite several demands and entreaties through emails and oral communications to the Defendant. He states that having waited fruitlessly for the Defendant to specifically perform their part of the contract he engaged the services of Liborous Oshoma Chambers to recover his full entitlement. His Solicitors after, several failed attempts to serve a demand letter on the Defendant at their known office address, served same vide a mail sent to the Defendant’s Managing Director, Mr. Ikemefuna Okafor, at IOkafor@sepcol.org and IOkafor@salvicpetroleum.com on 24th June 2019. The Defendant refused, failed and/or neglected to respond to the letter. As a result, his Solicitors forwarded the demand letter to the Defendant’s Chairman’s vide his email address abcorjiako@gmail.com on 5th August 2020. The Claimant states that, notwithstanding the demands made both personally and through his Solicitors, the Defendant has refused, failed and/or neglected to pay his salaries and diverted it to its corporate beneficial use to his detriment, thereby subjecting him to untold hardship. He asserts that the Defendant has never at any time disputed the sum owed, and it is in the interest of justice to grant the reliefs sought.
11. Let me reiterate that the responsibility of establishing the claim to the satisfaction of the Court rests on the Claimant who initiated this action, and the fact that the Defendant did not defend the suit does not entitle him to automatic judgment. His evidence must justify the grant of the claims. What emerges from the oral and documentary evidence is that the Claimant was employed as facilities project manager by the Defendant for an initial term of 12 months effective 11th January 2016 on a monthly salary of $17,000 payable in naira at the prevailing CBN exchange rate. See Exhibit 1. Clause 6 thereof provides that any extension of the contract upon its expiration would be advised by the company in writing. The Claimant asserts that his contract was extended although no document was tendered in proof of the extension, but Exhibit 2, the letter of termination appears to corroborate the fact that Claimant’s contract was extended. Exhibits 3, 4, 5, 6, 7 and 8 are demands made by the Claimant and his Solicitors for payment of his outstanding salaries. By email dated 14th February 2019, Vanessa Nsofor, the HR Manager, while admitting liability for the sum of N33,340,000 promised that Claimant would be paid within 90 days from the termination date. See Exhibit 3. As rightly argued by learned counsel for the Claimant in paragraph 4.6 of the final written address, the Defendant only queried the naira equivalent, not the dollar sum, and since the exchange rate is at CBN prevailing rate, the query of the naira equivalent pales into insignificance. There is also evidence that Claimant’s breakdown of payments made and outstanding, Exhibit 9, was forwarded to the Defendant by email dated 16th February 2019. There is equally evidence that Exhibits 4, 5, 6, 7 and 8 were sent to the Defendant’s principal officers, the Chairman and Managing Director, but they did not respond. The law is trite that a business letter deserves to be replied, and where a party receives a business letter but fails to reply it, the silence will be deemed an admission of the content of the letter. See Vaswani & Anor v. Johnson [2000] 11 NWLR [Pt 679] 582 at 588-589, UBA v. Obajinmi [2022] LPELR-57354[CA] 24-25 and Matjon Nigeria Limited & Anor v. Nasarawa State Government & Ors [2021] LPELR-54191[CA] 29-31. Therefore, the Defendant’s failure to respond to Exhibits 4, 5, 6, 7 and 8 amounts to admission of the content of the letters. What is more, the originating process was received by Mr. M. A. Bambgoye, Defendant’s senior legal counsel. In spite of this, the Defendant did not enter appearance or file a defence to the suit and did not participate in the proceedings. In the circumstance, and for the reasons stated earlier, I find as a fact that the Claimant has established his claim for the sum of $308,596.71. In the premise, the lone issue is resolved in the affirmative.
12. This leads me to a consideration of the reliefs. The first claim is for a declaration that the Defendant is indebted to the Claimant in the total sum of US$308,596.71 [three hundred and eight thousand, five hundred and ninety-six dollars, seventy-one cents] due and payable to him as his outstanding salary or consultancy fee for services fully rendered. A claim for declaration is not granted as of course or on the basis of admission by the adverse party. See Charles Okwudili Umera v. Nigerian Railway Corporation [supra] at page 390. The Claimant must satisfy the Court by credible evidence that he is entitled to the declaration. See GE International Operations [Nig.] Ltd v. Q Oil and Gas Services Limited [2016] 1-3 SC [Pt III] 150 at 181-182. I found in the preceding paragraph that the Claimant has established his claim for the sum of $308,596.71. I adopt my reasoning and conclusion in paragraph 11 above and hold that this claim has been proved.
13. The second relief is for an order compelling the Defendant to pay to the Claimant the total sum of US$308,596.71 [three hundred and eight thousand, five hundred and ninety-six dollars, seventy-one cents] due and payable to him as his outstanding salary or consultancy fee for services fully rendered. This claim is ancillary to relief one, and that relief having succeeded, this relief ought to succeed. See Udu & Ors v. Ogwudu & Ors [2020] LPELR-51937[CA] 26. Therefore, I hold that this claim has been established.
14. The third claim is for an order mandating the Defendant to pay the sum of N50,000,000.00 [fifty million naira] to the Claimant as general damages and cost of this suit. The Claimant lumped two distinct claims together. Generally, general damages are within the discretion of the Court to grant and it is awarded to assuage a loss caused by the act of the adversary. See Dauda v. Lagos Building Investment Co. Ltd. & Ors. [2010] LPELR-4024[CA] 19-20 and The Nigerian Railway Corporation v. Ojo [2021] LPELR-55971[CA] 40-41. This Court has powers to award general damages in deserving cases, see Section 19[d], National Industrial Court Act, 2006. Exhibit 5 show the pain and deprivation suffered by the Claimant as a result of the Defendant’s refusal without reasonable cause to pay his earned salaries. In the circumstance, I am of the view that the Claimant is entitled to general damages. Also, cost follows event in litigation and a successful party is entitled to his costs. See DHL International Nigeria Limited v. Eze-Uzoamaka & Anor. [2020] 16 NWLR [Pt. 1751] 445 at 500 and Mukhtar Sule v. Habibu Sule & Ors [2021] LPELR-55788[CA] 30-31. This Court has unfettered discretion to award cost which discretion must, in all circumstances, be exercised judicially and judiciously. See Order 55 Rule 1 of National Industrial Court of Nigeria [Civil Procedure] Rules, 2017. By sub-rule 5 of Order 55, in fixing the amount of costs, the principle to be observed is that the successful party is to be indemnified for the expenses to which he has been unnecessarily put in the proceedings. I hold that the Claimant is entitled to the cost of this action. From the Court’s record, the Claimant spent N53,000 as filing fees, and was represented by counsel seven times in this proceeding which spanned a period of about 2 years. Consequently, general damages and cost of N500, 000.00 [five hundred thousand naira] is awarded in favour of the Claimant against the Defendant.
15. Relief four is for interest on the judgment sum at the rate of 25% per annum from the date of judgment until finally liquidated of the judgment debt. This Court is empowered by Order 47 Rule 7, National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 to award post-judgment interest at a rate not less than 10% per annum. The Claimant claims interest at the rate of 25% from the date of judgment until the final liquidation of the judgment sum, but did not justify the claim of 25% interest. However, in view of the fact that the Defendant has wrongly withheld the Claimant’s salaries for nearly 3 years, I hold that the Claimant is entitled to interest at the rate of 10% per annum, which is the minimum interest the Court can award.
16. On the whole, this case succeeds. Judgment is entered in favour of the Claimant against the Defendant as follows:
a. It is declared that the Defendant is indebted to the Claimant in the sum of US$308,596.71 [three hundred and eight thousand, five hundred and ninety-six dollars, seventy-one cents] being outstanding salaries.
b. It is ordered that the Defendant pay to Claimant the sum of US$308,596.71 [three hundred and eight thousand, five hundred and ninety-six dollars, seventy-one cents] being outstanding salaries.
c. The sum of N500, 000.00 [five hundred thousand naira] is awarded in favour of the Claimant against the Defendant as general damages and cost of this action.
d. It is ordered that the Defendant pay interest on the judgment sum at the rate of 10% per annum from today until the judgment sum is fully liquidated.
Judgement is entered accordingly.
………………………………………….
IKECHI GERALD NWENEKA
JUDGE
29/11/2022
Attendance: Parties absent.
Appearances:
Liborous Oshoma Esq. with Ogochukwu M. Chikezie [Ms] for the Claimant
No legal representation for the Defendant
