WD
IN THE NATIONAL INDUSTRIAL COURT OF
NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE, A.N
UBAKA
DATED 2ND FEBRUARY, 2024 SUIT NO: NICN/LA/371/2018
BETWEEN
MR. ISMAILA ABDULRAHMAN CLAIMANT
AND
NTS NIGERIA LIMITED
DEFENDANT
REPRESENTATION
Semidara Jones for the Claimant
Micheal Igbati-Egorp for the defendant
JUDGMENT
By a complaint filed by the claimant on
the 6th of July, 2018 against the Defendant seeking the following
reliefs:
1. AN ORDER that the
Defendant pay to the Claimant his 8 months’ salary arrears of N320,000 (Three
Hundred and Twenty Thousand Naira) from May 2017 to December 2017.
2. General damages in
the sum of N500,000 (Five Hundred Thousand Naira) for the financial hardship
and socio-economic discomfort suffered by the Claimant for unpaid salary
arrears.
3. Cost of the action
assessed at N500,000 (Five Hundred Thousand Naira).
Accompanying
the complaint is the claimant’s written statement on oath, list of witnesses and documents to be
relied upon on trial dated and filed on 6th July, 2018.
In reaction, the
Defendant entered appearance and filed a Statement of Defence and
Counter-claim, Written Statement on Oath, and list of Documents to be relied on
at the trial on the 19th October, 2018. In its counter claim, the
defendant/counterclaimant claimed as follows:
1.
A DECLARATION that the Claimant did not work for the
Defendant and, therefore, is not entitled to payment of monthly salary
(otherwise payable to him by the Defendant/Counter-Claimant) for the respective
months of June - December, 2017 (both months inclusive) and either at the
monthly rate of N40,000.00 only or at all.
2.
A DECLARATION that the Claimant's salary for the month of
May 2017 (otherwise payable to the Claimant by the Defendant) is properly and
appropriately deductible, deducted and withheld by the Defendant/counter-Claimant
as a SET OFF and as part-payment of the indebtedness of the Claimant to the
Defendant/Counter-Claimant and as per the sum of N969,240.00 only being the
total value of loss of 4,920 litres of diesel products negligently inflicted on
the Defendant/Counter-Claimant by the Claimant (and as already pleaded above).
3.
A CONSEQUENTIAL ORDER of forfeiture of the aforesaid
salary of N40,000.00 only for the month of May 2017 by the Claimant to the
Defendant/counter-Claimant; and accordingly.
4.
A DECLARATION that the Claimant/Respondent is liable to
fully compensate and indemnify the Defendant/Counter-Claimant for the
unaccounted loss/shortfall/contamination/wastage/disappearance/ evaporization
in the quantity of 4,920 litres of diesel (which monetary value is N969,240.00
at the rate of N197 per litre) and all INTEREST accruing upon said trade
capital commencing from 27/5/2017 until final liquidation of the judgment debt
hereof.
5.
The sum of N969,240.00 only being the total value of
4,920 litres of diesel products of the Defendant/Counter-Claimant which is
contaminated, wasted and unaccounted for by the Claimant (and minus the
Claimant's salary for the month of May, 2018: N40,000.00 only).
6.
INTEREST at the rate of 23.5% (or any other rate adjudged
by the Hon. court) on the aforesaid N969,240.00 only per month and commencing
from 27/05/2017 until the final liquidation of the judgment sum herein.
7.
The sum of N750,000.00 being professional legal services
fee incurred by the Defendant/Counter-Claimant in defending this suit and
prosecuting this counter-Claim/setoff.
8.
The sum of N1,320,760.00 only being general damages for
industrial negligence, nuisance, embarrassment, harassment, malignment,
official and judicial blackmail and, to wit, malafide gold-digging.
The Claimant’s Reply to the Defendant’s
Statement of Defence and Defence to counter claim is dated 22nd,
November 2018 but filed 23rd November, 2018.
The defendant’s Reply to the claimant’s
defence to counter claim is dated and filed 22nd March, 2019.
The summary of the facts
pleaded by the claimant is that he was employed by the Defendant as a Haulager on 26th day
of August, 2014 on a salary of N40,000 (Forty Thousand Naira) per month paid
into his Stanbic IBTC Bank Savings Account; that he worked diligently for the
Defendant as a Haulager as his primary place of
assignment was the company yard situated at Oregun; that his job description in
the company was to offload diesel from the long truck (tanks) to a short truck
at the company yard in Oregun, logging in diesel products, returns and
rehousing of remnants of products not exhausted at the Site by the Engineers
back to the yard and at no time did he convert, collaborate, conspire, collude
or connive with other persons (Known or Unknown) to sabotage the business of
the Defendant. That on Sunday, 28th May, 2017 he was called by the
Managing Director to come and account for some drums of diesel in the yard
which was not in line with his primary assignment, as he was not in charge of
distribution of diesel and that he was also instructed by the Managing Director
to mention certain people Involved in the theft of diesel products at the
company yard which he knew nothing about.
That because he was unable to name
anyone involved in the theft of the company’s Products, he was beaten and
locked up in a truck in the yard at Ibadan Express Way by the company security all
on the instructions of the Managing Director, Mr. Titan Ngalam, and his vehicle,
a Golf Volkswagen was also seized by the company even though he told them that the
car was not his own, as he was looking for a buyer for the owner of the car and
that he did not deposit the car as collateral or security; that the day after, he
was taken to Magodo Police Station where it was found out after investigation
by the police that no diesel product was lost in his care and that after the
incident, he was asked to resume at the office instead of the yard to await
further instructions from the Managing Director. That he continued to show up at
work judiciously without being paid any salary from May 2017 until his
appointment was terminated on 29th December, 2017 in the sum of
N320,000 (Three Hundred and Twenty Thousand Naira) via a letter of termination.
That the Defendant owes him 8 months arrears in salary from May 2017 to 29th
December, 2017; that after his termination, he wrote to the Defendant,
requesting for payment of his outstanding salaries and the release of his Golf
Volkswagen vehicle. That the non-payment of his salaries has caused him financial
injury and no longer able to meet his financial obligations being a family man
with children. That he approached the Office of the Public Defender (OPD),
Lagos State Ministry of Justice at No: 2/8 Iyun Road, off Funsho Williams
Avenue, Surulere, Lagos to lay a complaint over non-payment of his salary
arrears and the Defendant was invited for a mediation by the Office of the
Public Defender on two occasions but failed to honor the invitation the first
time, but honored the second invitation and that the mediation at the OPD
yielded no result, as the Defendant refused to pay him, consequently, OPD
decided to file this matter before the Honorable Court as a last resort.
In his
Reply to the defendant statement of defence and defence to the counter claim,
CW stated that he was never
given any query whatsoever as to the performance of his duties; that he neither
hid nor kept nor deposited 24 number of 205 litres of diesel in secretive
arears of the yard, that the true position is he and his fellow haulagers on
numerous occasions asked the defendant to provide storage tanks for the diesel
products and were not happy with the use of drums because of regular police
disturbance and harassment and that there was no official nor mandatory policy
by the Defendant that prohibits the storage of the diesel in drums as all the
superiors from the COO, Project Manager, Transport Manager, and the two
distribution Managers were all aware about the storage of the diesel in drums
and they on numerous occasions came to the yard and none of them raised any
policy whatsoever regarding storage. That he was accused of theft of the diesel
products by the Managing Director and he reiterated that he was beaten and
locked up in a truck along Ibadan expressway and it was in the process of being
beaten that his Golf car keys fell out of his pocket and his phones were seized
by the Security guards on orders from the Managing Director. That the only time
he was absent from the office was when his child had an accident and was
admitted at the hospital, a situation he brought to the attention of the Chief
Operating Officer (COO) "Mr. Emmanuel Ode" who granted him permission
for that week.
That his son was in coma at the
hospital for 2 days, and he pleaded with the COO to lend him some money to
attend to his child's situation, but was not given any and the COO said he was
not in a position to give him any money without instructions from the Managing
Director, but he could give him a week off to sort out his finances; that he is
an indigent of the state, hence entitled to the services of the OPD. That on
numerous occasions he told the Defendant that there was need to provide tanks
to store the diesel products to which the defendant turned a deaf ear. That he
did not at any time abdicate his duty, neither was he negligent, hence he is
not liable to compensate the Defendant/Counter Claimant for any loss; that the Defendant is
merely trying to avoid paying him his salary, hence the frivolous claims and that
the Defendant is not entitled to any of the sums in its Counterclaim as same is
gold digging, lacking in merit and should be dismissed with substantial cost.
Under cross examination by the defendant’s counsel, CW stated that
he did not undergo any training after his employment; that he did not depose to
transloading all diesel in his written statement on oath.
There was
no Re-Examination by the claimants’ counsel. The claimant
thereafter closed his case.
The defendant opened
its defence and disagreed with the claimant’s version of array of events. That it is correct that
on 28/05/2017, the MD/CEO of the Defendant did pay an unscheduled working visit
to the Defendant's said YARD in Oregun; And during which an inspection of the
YARD by same did uncover 24 number of 205 litre drums of Diesel separately hidden,
kept or deposited in various secretive areas of the Depot (i.e. YARD).
Naturally, the MD/CEO demanded to know to whom those drums of diesel, belonged
and how the said consignments came to be kept in the Defendant's said YARD and
by whom: that was how the MD/CEO of the Defendant got referred to the Claimant
(as the Haulager) for the explanation which he sought and that the Claimant's
on-the-spot explanation to the MD/CEO of the Defendant was anything but
satisfactory or convincing and was full of incoherence and self-contradictions:
The official and mandatory policy and strict industrial practice of the
Defendant specifically forbids and prohibits the storage of products in drums
or containers other than the plastic tanks installed by the Defendant in the YARD
for the purpose; that consequently upon the abnormal manner of storage of the said
24 drums of diesel product, same had been rendered contaminated, wasted and
unfit for marketing by the Defendant.
That it is absolutely
untrue that accounting for improperly stored or secretively hidden drums of
diesel products in the Defendant's YARD is not in line with the Claimant's
primary assignment; that the work schedule of the Claimant as the Haulager of the Defendant's products in
the Yard includes taking stock and keeping inventory and records of the
Defendant's products coming into the yard, warehoused in the yard and leaving
the yard: the Claimant, by his exclusive industrial duty as haulage, monitors
and takes stock of the delivery of diesel products into the Defendant's Yard,
the storage of the said products therein and the supply of the said products
from the Defendant's yard; At all times material to this suit, the claimant is,
by his employment work schedule, duty-bound to know and/or reasonably ought to
know about the quantity and ownership of all diesel products inside the
Defendant's yard (inclusive of those diesel products found inside those drums
that were discovered to have been secretively stored away/hidden in the
Defendant's yard).
That there was no allegation of theft
against the Claimant at all; the Claimant was not called upon to name those
involved in the alleged theft of the company products nor beaten up and/or
locked up in a truck in the yard at Ibadan Expressway by the company security
as alleged or at all; that the Claimant's golf Car was not seized by the
company at all and at the instruction of the Managing Director Mr. Titan Ngalan
as alleged or at all; On the contrary, the claimant initially said that the
said Golf car belonged to someone else and that he was only trying to assist in
selling the said Golf car and that it was the Claimant who, subsequently,
voluntarily deposited his said Golf car with the Defendant and as
security/collateral for repayment of all the Claimant's admitted money value
equivalent of the diesel products which he had wrongfully wasted and thereby
converted the Defendant's diesel products; it is not true at all that the said Golf car was seized from the Claimant
by the Defendant.
That subsequent to 28/05/2017, the
Defendant did not have reason to believe that the claimant knew nothing about
the 24 drums of 205-litre each diesel found in the Defendant's yard on
28/05/2017 and as a law-abiding corporate person, the Defendant reported the
matter to the Magodo Police Station which swung into investigation (and with
the Claimant as 1st suspect) and that in order to settle amicably
and pave the way for discontinuance of continuing police investigation and
eventual prosecution, the Claimant came back to the Defendant and volunteered
to enumerate all the parties and persons with whom they have jointly done
illegitimate deals and transactions with the Defendant's diesel products in the
Defendant's yard as well as to mention all those that were behind the aforesaid
24 drums of diesel that were found in the Defendant's yard. That without prejudice
to the police intervention, the Defendant set up a panel of inquiry into the
matter; and before the panel's meeting, there was a directive that the Claimant
should be redeployed from the YARD to the Defendant's office and the Claimant
was so directed to henceforth resume work at the Manager's office as office
personnel; but the Claimant failed, refused or neglected to do so and that it
is not true that the police at Magodo, after investigation, found out that no
diesel product was lost in the claimant's care.
That the Claimant
was reposted to resume work as office personnel in the Manager's office, he
showed up in the Manager's office for one day (without actually working) and thereafter
was not seen again until 29/12/2017 when the Claimant's employment was duly
terminated; that the only salary that the Claimant could have' been entitled to
be paid is the salary for the month of May 2017 only and subject to
Counter-Claim/Set-Off herein and that the Claimant is not entitled to be paid
any salary for June 2017 - December 2017 for which the Claimant did not work
for and/or earn any salary from the Defendant as the Claimant failed, refused
and/or neglected to work for the Defendant for the stated period; “NO WORK NO PAY” is the contractual term hereby specifically pleaded; the'
Defendant has (and has exercised) a right of lien and set off on the Claimant's
accrued salary for May 2017 in lieu of the twenty-four drums of diesel (i.e.
4,920 litres) which remains contaminated, unclaimed and unaccounted for by the
claimant. Each drum contains 205 litres of diesel; each litre of diesel costs
N197.00 only. The total value for the 4,920 total of litres of diesel products
contained in the aforesaid twenty-four drums is N969,240.00 only.
That the claimant
deliberately withheld from the honourable court the
fact that the Claimant's said Golf car has been retrieved
by (and released to) the claimant sometime in January 2018 and thereby deliberately
attempted to mislead the honourable court; that the
falsely-alleged non-payment of salary has not caused any financial; injury to
the Claimant at all and that at all times material to this suit the Claimant is
not known to the Defendant to be a family man with children and the Claimant's
falsely-alleged financial obligations are woefully self-misconceived; that, in
any alternative event, the Defendant is not to blame at all.
That the intervention of the office of
the Public Defender of Lagos State (OPD) was not a Forum of Neutral
Conciliation or Mediation as the Claimant had intended and did attempt a subtle
blackmail of the Defendant, with the use of “OPD”, into submitting/conceding to
the Claimant's unwarranted demands; and which said demands were both unfounded
and unacceptable to the Defendant; that it is not true that the Claimant is an
impecunious litigant as he drives about in Porsche Volkswagen Golf car which he
operated and owns in a disguised name; that the Claimant's counsel herein (i.e.
Lagos State office of the Public Defender) is a statutory body set up to
canvass for justice free of charge to indigent members of the public and that
the Claimant is not-entitled to the legal services fee claimed by same herein. That
the Claimant's daily inflow of unearned money (other than legitimate salary)
was evidently cut off right from the moment that the Claimant was redeployed
from the company’s depot/yard to the office of the MD/CEO of the Defendant (as
office personnel) as he found himself in a state of stranded "daily
liquidity"; and which state, the Claimant, did not take in good faith and
could not cope with and promptly rejected by refusing to continue to come to
work until the eventual termination of his employment due to reorganization in
the Defendant's company.
That subsequent to the pleaded
termination, the Claimant (by his letter, dated 03/01/2018) did apply to the
Defendant for the release of his Golf car and the payment of an alleged arrears
of salary (stated to be N320,000.00 only) but when the Claimant was confronted
with his liabilities to the Defendant and attendant setoff and subsisting lien
on his Golf car until reconciliations/discharge thereof, the Claimant quickly
abandoned that course of amicable settlement and took to writing (and did
write) a spurious, blackmailing and unfounded complaints against the Defendant
at the Lagos State office of the Public Defender (OPD).
That subsequent to the claimant’s employment
as Haulager, he was duly briefed, trained and instructed as per his schedule of
duty and manner of discharge and performance thereof and in strict compliance
with safety standards and company policy, due diligence, security guidelines,
maximum productivity, mandatory recording/inventory and duty of fall disclosure
and strict accountability; that the Defendant/Counter-Claimant is a Trading
Company which, often times, obtains overdraft/loans to finance its trade in,
inter alia, diesel products and at interest rates of 23.5%; that contrary to
the operational guidelines which require storage and preservation of all
products of the Defendant inside the plastic tanks installed in the Defendant's
Depot/Yard for that purpose, the Claimant negligently and wrongfully abdicated
this duty of industrial diligence; and to the prejudice of the
Defendant/Counter-Claimant.
PARTICULARS
OF WRONGFUL INDUSTRIAL NEGLIGENCE
1.
At all
times material to this suit, the Claimant/Respondent is under (and
contractually owe the Defendant/Counter-Claimant) a very strict industrial duty
of diligence and care, as the Counter-Claimant's, Haulager (and as admitted by same at paragraph 6 of the Claimant's STATEMENT OF FACTS), to ensure that diesel products are
appropriately stored, preserved and/or rehoused in (and supplied from) the
plastic tanks which are specifically installed in the company’s yard for that
purpose; and so as to ensure quality, accountability, safety, transparency and
security of both the products and the company facility/premises as well as to
forestall all incidents of theft, fire outbreak, unexplained disappearance,
siphoning, evaporization, contamination, wastage, shortfalls, loss, unwholesome
and sharp practices and sabotage; And, inter alia, by insisting on due
compliance therewith or reporting incidents of non-compliance therewith or
dereliction of duty thereto-pertaining to the company management;
2.
For reasons
known to the Claimant/Respondent, he failed, refused and/or neglected to keep
appropriate, correct/accurate records, and to take stock of diesel products;
and to appropriately store and rehouse remnants of Diesel products in the
specially constructed and installed plastic tank containers for that purpose;
and to the prejudice of the Defendant/counter-Claimant.
3.
The
Claimant also failed, refused and/or neglected to ensure or to insist on
compliance with storage guidelines and company policy of the
Defendant/Counter-Claimant thereto-pertaining;
4.
The
Claimant failed, refused and/or neglected to report incidents of noncompliance
with aforepleaded mandatory storage regulations, rules, guidelines and/or
instructions pertaining to exclusive and mandatory storage of diesel products
in the plastic tanks (installed for that purpose) by any other staff or worker
or supplier in the company yard, at all times
material to this suit. When asked by MD/CEO, the Claimant feigned
ignorance and said he did not know how the diesel product disappeared from the
installed plastic tanks into the 24 drums (each containing of 205 litres) in
the yard.
5.
And the
Claimant did wrongfully condone the said non-compliance and/or did wrongfully
connive at and collude with the wrongful defaulters.
6.
Whereof RES
IPSA LOQUITUR is hereby specifically pleaded.
7.
The
Claimant knew and/or ought reasonably to have known the requirements of
mandatory compliance' therewith and the implications/ consequence of
non-compliance/ default therewith.
8.
The
Defendant also pleads wrongful UNFAIR TREATMENT by the Claimant.
9.
Consequent
upon the aforepleaded storage of diesel products in drums other than in the
plastic tanks (which are exclusively, specifically and scientifically installed
for that specialized purpose) wrongful loss and/or shortage of diesel products
(and whether by mysterious disappearance, compromise, theft, siphoning,
sabotage, contamination, wastage, evaporization or otherwise) was thereby
inflicted on the Defendant/Counter-Claimant: The total of 4,920 litres of
Diesel product was rendered contaminated, wasted and unaccounted for and up to
the value of N969,240.00.
10.
Consequent
upon the Claimant's aforepleaded wrongful abdication of duty of industrial
diligence in appropriate storage and accountability and appropriate
recording/entries/stock-taking of diesel products, there was thereby occasioned
the above-pleaded, shortfall/loss in the Defendant/Counter-Claimant's Diesel
products which could not be accounted for by the Claimant/Respondent (as
Haulager of the Defendant); and as per the quantity and value already pleaded
above.
11.
The Claimant
has absolutely no defence or justification for his aforepleaded industrial
negligence and/or deliberate abdication of duty of compliance therewith and/or
dereliction of duty of whistle-blowing at all times material to this suit.
The Claimant is liable to
indemnify/compensate the Defendant/ Counter-Claimant fully for the
above-pleaded loss as well as for general and special damages
hereto-pertaining.
RIGHT/EXERCISE
OF LIEN AND SETOFF
That its entitlement and right of lien
(and effective exercise of the said right of lien) and SETOFF in the Claimant's
salary for the month of May 2017 otherwise
the property of the Claimant; and up to the value of being the cost (exclusive
of accruing INTEREST thereon) of the above-pleaded litres of diesel products
and which said loss the Defendant/Counter-Claimant has wrongfully suffered
consequent upon the Claimant's aforepleaded/industrial negligence and/or
wrongful conducts/unfair treatment and that it has suffered (and is still
suffering) special and general damages:
PARTICULARS
OF DAMAGES
1.
Loss of
4,920 litres of diesel product (contained in 24 drums; each drum containing 205
litres): total value = N969,240.00 only (at the rate of N197.00 only per litre
of the said diesel product.
2.
Interest on
the aforesaid sum of N969,240.00 only at the rate of 23.5% per month and
commencing from 28/5/2018 until final liquidation of judgment debt to the
Counter-Claimant (which is a trading company, inter alia, in diesel product).
3.
legal
services fees = N750,000.00
4.
Nuisance,
embarrassment, harassment and blackmail
TOTAL = N3,000,000.00
That the claimant/respondent lived a
manifestly ostentatious and lavished lifestyle which was obviously
unsupportable by his legitimate monthly salary earnings of N40,000.00 only per month and that not long
after the Claimant started working as Haulager of the Defendant, the Claimant
started living real big"; and he bought a Porsche Golf car (which
ownership he initially disguisedly and falsely ascribed to another person else
unnamed by him) and generally, lived life as a wealthy merchant; Little wonder
that immediately upon being redeployed (as Haulager) from the company
Depot/Yard at Oregun to work at the Manager’s office (as Office Personnel), the
Claimant snubbed the new posting with impunity and disdain and is now feigning
hardships allegedly due to non-payment of salary (which he never worked for nor
earned.
That absolutely at
no time whatsoever did the Claimant/Respondent tell the Defendant/Counter Claimant
that there was need to provide tanks to store the diesel products" and
either as alleged or at all and the Counter-Claimant never "turned a deaf
ear" to the Claimant/Respondent either as alleged or at all: At all times
material to this suit, there were (and there still are) installed sufficient
storage- tanks in the Counter-Claimants DEPOTS to receive, contain and
discharge all of the Counter-Claimant's diesel products. For the avoidance
of doubt, the Counter-Claimant does not place order for, nor take delivery of
or store, petroleum products (inclusive
of diesel products) in any excess of the
capacity of its installed storage tanks (there is a very strict duty of
industrial/environmental safety and Guaranteed Quality of products observed by
the Defendants/Counter-Claimant which can never be compromised). That the counter-claimant's
counter-claim herein is neither gold-digging nor lacking in merit and that is
not liable to be (and should not be) dismissed either with substantial cost, or
any cost at all or without any cost at all. That the Reliefs sought as per the
Claimant's Writ of Summons & Statement
of Fact are liable to be dismissed (and should be dismissed) as unwarranted,
speculative, gold-digging and lacking in merits.
Under cross examination by the
claimant’s counsel, DW said that the claimant report to him and that the tasks
assigned to the claimant by any officer pass through him; that the claimant is
the defendant’s only haulager with the assistance of some drivers; that the
written report of the investigation is with the defendant’s H/R and does not
know whether it is before the honourable court; that his terminated employment
was based on negligence.
There was no re-examination by the
defendant’s counsel. The defendant thereafter closed its case.
The parties were directed to file their final written addresses. The defendant/counterclaimant’s
final written address is dated and filed 13th September, 2023 while
the claimant’s final written address is dated and filed 3rd October,
2023. The defendant/counterclaimant’s Reply on point of law is dated and filed
27th October, 2023.
Learned counsel
on behalf of the defendant/counterclaimant formulated two (2) issues for the
court’s determination viz:
1.
Whether the Claimant has proved his claims evidentially (as per his
Originating Plaint and Statement of Facts) and sufficient to entitle him to the
judgment of this honourable court in his favour.
2.
Whether, on the other hand, judgment should be entered in favour of the
Defendant/Counter-Claimant, due regards being had to it's Evidence led during
trial.
It is the
defendant/counterclaimant’s counsel submission on issue one (1) that apart from the claimant’s witness
Written Statements on Oath cited above, which the Defendant duly denied,
controverted & disputed), the Claimant has failed woefully to prove his
pleadings which are fundamental & material to entitle him to the
judgment of the Honourable Court in his favour; that not all the secondary documentary exhibits canvassed
during the trial by the Claimant ought to be admissible to the extent that no
foundation for their admissibility was properly laid; that the
Defendant is also mindful of the Claimant's "alien Evidence" resorted
to by the Claimant during cross-examination (which evidence was not pleaded nor
canvassed in Claimant's witness' Written Statement on Oath); that all these
evidence ought to be (and should be) jettisoned, discountenanced & expunged
from the Records of, and consideration
by, the Honourable Court. He cited the case of Nsigge vs Mgbemena (2007) 30
NSCQR 840.
Continuing,
counsel submitted that the claimant is not a witness of truth as his
credibility was thoroughly shaken under cross examination by the defendant’s
counsel; that the probative value of the claimant’s evidence led during trial
has therefore failed to discharge the statutorily mandatory standard and burden
of proof in civil cases. He referred the honourable court to Sections 131; 132;
133; 134 &136 of the Evidence Act, 2011 and cited the case of Abubakar Vs
Joseph (2008) 34 NSCQR 1200.
That the
Claimant's Claim & Evidence of having worked for the
Defendant/Counter-Claimant for June - December 2017 defies good logic &
natural course of events: After his protest-withdrawal from work and in view of
his false allegation of physical manhandling and prosecution with the use of
police (inclusive of forcible seizure of Golf Volkswagen Car) supposedly by the
Defendant, it is clearly most improbable & impracticable for the same Claimant
to have worked with the Defendant for the alleged period of June-December 2017
(as the Claimant falsely alleged).
On Relief
2 and 3 of the claimant’s claims; the defendant’s counsel submitted that none of the Grounds or facts warranting
those claims for general damages was specifically proved and that the
Claimant's professional legal services in this Suit was rendered free of charge
by the Office of the Public Defender which is a statutory organization
established by the Government of Lagos State to render such services free of
charge to members of the Lagos State Public (inclusive of the Claimant); The
Claimant is therefore not entitled to the alleged cost of action herein and
either as self-assessed by the Claimant (i.e. N500,000.00 only) or at all and
that it is also contrary to section 19 of the National Industrial Court Act
2006.
On issue two (2); counsel urged the
honourable to hold that the Defendant/Counter-Claimant has discharged the
burden of proof placed on it by Sections 131-133 of the Evidence Act, 2011 and more
particularly, that, in so doing, the Defendant/ Counter-Claimant has duly met
with the standard of proof of its Counter-Claim required of it by S.134 of the
Evidence Act, 2011, on the balance of probabilities. He cited the case of Mogaji
vs Odofin (1978) 4 SC 91.
On Damages, set off and entitlements pertaining to
the Defendant/Counter-Claimant's surcharge and exercise of right of lien;
counsel urged the honourable court to hold that the defendant/Counter-Claimant has proved serial breach of
the employment contract by the Claimant/Respondent and that the Defendant has
proved by credible evidence facts warranting its setoff, surcharge and exercise
of right of lien over and pertaining to the Claimant’s Salary for the truth of
May 2017; and, that, the defendant has by credible evidence (inclusive of the
claimant's own admission) proved theft or loss of the said drums of diesel oil
under the employment superintendence of the claimant/respondent as the Haulager
thereof; and that, the defendant has proved act, of negligence by the Claimant/
Respondent (inclusive of reps Ipsa Loquitor) thereto-pertaining; as well as
special & general damages and, respectively for which the Claimant/
Respondent is liable to the Defendant / Counter-claimant's Counterclaim in
this Suit. He cited the case of Gonzee Nig. Ltd vs NERDC 22 NSCOR
749.
Learned counsel on behalf of the claimant formulated two
(2) issues for the court’s determination viz:
1.
Whether the
Claimant is entitled to the reliefs sought.
2.
Whether the
defendant/Counter claimant is entitled to her counter claim/Set-off
It is the claimant’s
counsel submission on issue one (1) that the
Claimant is entitled to his arrears of salaries including the one-month salary
in lieu of notice; that parties are in agreement that the Claimant was deployed
to the office and was not placed on suspension; that it is the duty of the
employer to provide job for the employee who is available, ready and willing to
work and pay the agreed wages. Thus, the resort of the Defendant to the policy
of “no work no pay” is a lame
excuse as same is not borne out of any rule of law as disclosed by the facts of
this case nor borne out of the contract of employment which regulates the
relationship between the parties; that by virtue of exhibit IA4, the claimant
was not relieved of his employment because of any wrongdoing that may involve
abandonment of duty. He referred the honourable court to Section 17 of the
Labour Act.
Continuing, counsel posited that the Claimant having given positive
evidence of his regular attendance to the office, the burden now shifts to the
defendant to disprove this assertion; that the defendant has an office
attendance register which it failed to produce for the inspection of the honourable
court which would have shown that the Claimant attended the office until his
termination in December 2017. He cited the case of Baba -
Iva v Sikelu 2005 LPELR-7448(CA) Pp16
para-B-D and urged the honourable court to
invoke the provision of Section 169 (d) of the Evidence Act on withholding of
evidence and to order the defendant to pay the claimant’s arrears of salaries.
On the claimant’s claim for damages and
costs; counsel argued that going by the facts that the defendant caused
hardship on the claimant by its wrongful act, the defendant also did not pay
salary in lieu of notice of termination of employment in accordance with
exhibit IA1; that the claimant has incurred costs of coming to court
since 2018, borne the cost of photocopies, cost of service of court processes,
cost of transcripts and other incidental costs due to the fact that the Defendant
truncated the efforts to resolve this matter amicably and out of court through
mediation.
On issue
two (2); the claimant’s counsel submitted that the law is settled that he who alleges must
prove and must prove with credible evidence; that there is no iota of evidence
to support the allegations of the Defendant/Counter claimant as to entitle her
to the reliefs sought in its counter claim. That aside the inconsistent
statements in the witness statements and unreliable testimony during cross
examination, the defendant provided no evidence to support this allegation of
suspicion of stealing against the Claimant nor proffer any evidence to discharge the burden of proof that
shifted on it to prove the existence of the official mandatory policy on the
storage of the diesel in the plastic tanks nor produced evidence whatsoever to
show the price of diesel per litre as at May 2017 in arriving at its imaginable
reliefs. He cited the case of FBN Plc v Mainasara 2004 LPELR-7368 (CA) Pp
23-24 para-D-A and urged the honourable
court to reject this claim in its entirety.
On the counter claimant’s claim for
interest and solicitors’ fees; counsel submitted that there is no
basis for this claim of interest on a transaction which the Defendant did not
establish nor prove; that interest is not claimed as a matter of right and that
the solicitor's fees is gold digging as there is nothing in the evidence to
justify the award of such relief. He urged the honourable court to
discountenance reliefs 7 and 8.
On the claim for damages; counsel
submitted that the counter claimant did not place any material before the honourable
court to establish any damage it suffered in the hands of its employee but rather,
it is the Claimant that had suffered damages by having his salaries withheld,
beaten, tortured, dehumanized and falsely imprisoned; that had his vehicle
seized and confiscated, his employment wrongfully terminated. He urged the
honourable court to so hold.
On Reply on point of law; the
defendant/counterclaimant’s counsel submitted that the Claimant has a statutory
duty to prove the averment in his pleadings, (i.e. the claimant worked with the
Defendant for the months of June-December 2017, both months inclusive; and
which said averments are denied as untrue by the Defendant's pleadings) and
that the Claimant's Counsel's submission, per-emptory facts-findings & unfounded insinuations) does not
constitute evidence in proof of Claimant's case. He cited the case of Wema Bank
vs Anisere (2003) 8 F.R. 93and
urged the honourable court to so hold.
There is no doubt that from the entire pleadings
of both parties, the evidence led, authorities cited and arguments of counsel,
the issues for determination in this case are
1.
Whether the claimant is entitled to the reliefs
sought.
2.
Whether the defendant is entitled to its
counterclaim
Before I
go into the main case , it is necessary to look into the objection raised
by the defendant on the admissibility of secondary exhibits
tendered during trial by the claimant. The submission is that they are not admissible
as no foundation was laid for the admissibility of same . The defendant is not
specific on the documents he refers to
as secondary exhibits tendered by the claimant . In paragraph 5.03 of the defendants final
address it opens with ‘’ Not all the secondary documentary exhibits canvassed
during the trial by the claimant ought to be admissible ‘’ The learned counsel
to the defendant has not told the court which of the exhibits tendered by the claimant he
seeks to object to the admissibility and
the meaning of ‘’ secondary documentary exhibits ‘’ . The objection is
accordingly discountenced and dismissed.
The case of the claimant is that he was
employed as a Haulager on the 26th of August 2014 .His job description was to off load diesel
direct from the truck to a short truck in oregun being a place for storage of
the diesel products for the defendant . He was called by the Md to account for loss
of some drums of diesel in the yard and was eventually beaten and locked up in
a truck at Ibadan expressway and his golf Volkswagen seized by the company . He
was not paid his salary from May to December 2017 before his employment was terminated on the 29th
December 2017 . The defendant disagrees with the claimants contention as the
defendants submission is that the
missing / contaminated diesel is all linked to the claimant as he lived an
ostentatious lifestyle and after his deployment , he could not continue with
the lifestyle . In proof of his claim
the claimant tendered letter of employment (exhibit AI 1), Bank statement / tax
invoice (exhibit IA2), delivery note (exhibit IA3), letter of termination ( IA4) ,
request for payment and release of vehicle ( IA5) photocopy of ID card ( IA 6) .
The defendant did not tender any document
The first issue is whether the claimants
employment was terminated in accordance with the terms of employment and whether the claimant has been able to prove
the wrongful termination . By Keystone bank plc v Yiggon (2013) LPELR
-22131 (CA) the Court of
Appeal held
And in a
case of wrongful dismissal, all that the employer needs to show to succeed is
that the reasons for termination of appointment or dismissal are true where the
employer has given reason, but the employer is not obliged to give any reason,
See Fakuade v O.A.U (supra).
Part of The
letter from the defendant terminating the
claimant employment is reproduced hereunder
27th December , 2017
Dear Rahman Ismaila
LETTER OF
TERMINATION
Following the current restructuring going on in
the company , the management regrets to inform you that your services would no
longer be required effective immediately
This is
owing to the current harsh market realities
Kindly submit all the companys properyies in your
possession to the human resources Department
An employer
is not bound to give reasons for terminating the appointment of his employee,
but where he gives reason the onus lies on him to establish that cause or give
reason at the trial to the satisfaction of the court . See S.P.D.C
( nig ) ltd v Olanrewaju ( 2002) 16 NWLR
( Pt 792) 38 CA , The claimant was dismissed for restructuring and the
reason being the harsh market realities , it lies on that employer to justify
the reason if challenged. See Angel
Shipping & Dyeing Ltd V Ajah (2000) 13 NWLR (pt. 6985) 532 (CA) and
Afribank v (Nig) Plc v Osisanya (2000) 1 NWLR (pt. 642) 592 CA.
Having
given the reason of harsh market
realities the onus lies on the defendant to establish same. The law is trite
that he who asserts must prove. See section 131 of the Evidence Act 2011, See
Afroctas (Nig) Co Ltd & Anor v Skye Bank & Anor (2017) LPELR – 43397
(CA). The evidence before the court
being Haulager in the defendants company
, the Md paid a surprise visit to the site and discovered that about 24 drums
of 205 litre were secretly hidden in
different containers and in different places in the yard which warehoused the
diesel. And the claimant is bound to know about the movement , quantity and ownership
of all diesel products as those drums were found to be tucked away . They did
not allege any case of theft against the defendant and that the claimant was
neither beaten nor locked up as alleged leading to the seizure of his golf car
. He was subsequently posted to resume work as office personnel . What the claimant
is being alleged of is attempt to remove 24 drums of 205 litre diesel but his
employment was terminated based on restructuring and harsh economic condition. In the first paragraph, it states '’’ following the current restructuring
going on in the company , the mangemnt regrets to inform you that your services
would no longer be required effective immediately ‘’ In other words termination of his employment was with immediate effect. The
reason for the termination is as a result of restructuring . The crux of this
matter therefore has been whether the defendant can in accordance with the laid
down principles of giving reason for termination apply same to the claimants
termination on ground of restructuring . It is not a matter for argument that
the claimants termination was not founded and same proved on the reason of restructuring
as reason for termination was given but
did not adduce satisfactory evidence . While termination is envisaged in such a
master / servant relationship and reason given it must be shown that such
reason is justified which Is not the case here as there is no proof of
restructuring
Having
regard to the pleadings and evidence before the court , it cannot be said that
the defendant has proved the reason for termination as there is no evidence
before the court that there is current restructuring in the defendants company
The
next issue to be resolved is whether the claimants employment has been validly terminated ? In
paragraph 12 of the statement of facts the claimant averred that his
appointment was terminated on 29th December 2017 with immediate effect. There is no doubt that the parties herein are
governed by exhibit IA 1 . Exhibit IA 1 provides
for the procedure for termination of the claimants appointment. A close look at
exhibit IA 4 in the 1st paragraph states ‘’ that your services would
no longer be required effective immediately. Where a contract of service provides for
termination by either giving a specified and pre – agreed period of notice that
poses no problem as to how the contract comes to an end when either party
exercise his right to give notice of intention to bring the contract
relationship to an end,. This is because an employer who hires an employee
under the common law has the corresponding right to fire him at any time which
must be done within the four walls of the contract between them . Where the
employer in terminating or dispensing with the services of an employee does so without due regard of the
terms and conditions of the contract of employment between the parties the termination will be declared wrongful .
The principle was restated by the Supreme court in SAMUEL ISHENO V JULIUS
BERGER NIG PLC ( 2008) 6 NWLR ( part
1084 ) 582 AT 609 H 610 . The defendant did not comply with the terms of
contract as exhibit IA 1 under
termination provides ‘’ either party could terminate the employment with one
month notice in writing or one month salary in lieu of notice ‘’ The termination in exhibit IA 4 was with
immediate effect and runs contrary to the provision in exhibit IA 1 .
The defendant cannot midway change the contract of employment terms. See
Longe V First Bank of Nig Plc (2010) LPELR -1793 (SC) where the Apex court held
that every contract of employment contains the terms and condition that will
regulate the employment relationship such as terms on determination, notice,
wages, benefits are usually contained in the expressed contract of service or
implied into it by common law. Having
terminated the claimants employment with immediate effect, contrary to the
terms of employment the claimant is entitled to salary in lieu
I accordingly find and hold that the claimant
is entitled to one month salary in lieu of notice .
The next issue for determination is whether
the claimant is entitled to 8 months salary arrears of N320,000from May 2017 to
December 2017 . The claimant in paragraph 12 of the statement of facts averred
‘’ The cw avers that he continued to show up to work judiciously without being
paid any salary from may , 2017 until his appointment was terminated on 29th
December , 2017 via a letter of termination ‘’ . The defendant would in
response to this the defendant vehemently denied that the claimant worked from
May to December . Their position as per paragraph 10 of the statement of
defence and counterclaim / setoff is that the claimant was reposted to resume
work as office personnel in the mangers office but after showing up in the
mangers office for one day ( without actually working ) the claimant thereafter
was not seen again until 29/12/207 when the employment was duly terminated and
having refused to work for the defendant for the stated period the contractual
term of ‘’ no work no pay ‘’ was applied
to set off on the claimants accrued salary for may 2017 in lieu of the 24 drums
of diesel 9/ i.e 4,920litres ) which remains contaminated , unclaimed and
unaccounted for by the claimant . where
is the contractual term of no work no pay inserted in the parties contractual
agreement
Let me
state that the evidence of the defendant on the issue of missing 406 litres of
diesel is at variance with the pleadings of the defendant . The defendants witness
had in his testimony told the court that
the cw was negligent but was
issued a query which is not before the court . Dw stated under cross examination that the
policy of the defendant is to store diesel in
plastic tanks but in response as
to whether there is evidence that the
defendant has plastic tanks in the office and he answered no . on has what gave rise to the claimant being
reposted to from the yard in Oregun as a haulager to a personnel officer is that
after the unscheduled visit of the Md to Oregun yard it was discovered that 24
nos of 205 liters of drum was hidden in various secretive areas of the depot .
The claimant had no satisfactory explanation to as the mandatory policy and
industrial practice of the defendant is specific on storage as same cannot be
stored in drums or containers other than plastic tanks installed by the
defendant in the depot . This averment by the defendant cannot be true as
Dw specifically testified under cross
examination that the defendant had no
plastic drums in the depot. The law is that an employer has the right to
discipline an employee on any infraction discovered except where he decides to
condone same . In this case the
defendants action of not disciplining the claimant on discovery of 40 tanks set
aside cannot be taken as condoning as there is clearly nothing to show that a
misconduct has been established to bring it within the contemplation of the
principle of condoning in Arinze v First bank ( Nig ) ltd ( 2000) 1 NWLR 9 pt
(639) 78 CA thus
‘’The
principle in E.C.N. v Nicol ( 1968) 1 ALL NLR 201 which says that where na
employer does not complain about an employees conduct , the employer is
regarded as condoning the servants act and cannot use it as a ground for
dismissal on a subsequent occasion’’
If the
defendant discovered that 29 gallons of
diesel totaling 205 liters of drum were kept aside what action did the defendant take
. I must also observe again that although counsel for the defendant argued that
the claimant agreed that he was involved
with the saga of diesel put in different places in the yard , he failed to tell
us what evidence he has placed to show such admission . This to
me is a mere allegation without proof and what Arinze v first bank ( supra )
seeks to bring out is that the principle enunciated above does not apply where
what is proffered as evidence is
shrouded in technicality by the facts that are spiced with quibbles . this is
what the defendant did having not presented any evidence to support the
allegation levelled against the claimant
The description by the defendant
of the liters of drum is unclear and how they arrived at the exact liter . That
the claimant was taken to Magodo police station is not supported aby any
evidence . The defendant did not tender any document to support their
allegations / counterclaim . it is trite
law that facts deposed to in pleadings must be substantiated and proved by
evidence , in the absence of which the averments are deemed abandoned as
evidence must be led to prove the facts relied on by party or to sustain
allegations raise in pleadings See
Aregbesola v Oyinlola ( 2011) 9 NWLR ( pt 1253) 458 at page 594 . There is no
evidence to substantiate the allegation of litres of diesel being hidden with intent
to transport the tanks resulting in loss to the defendant . see Kwande & Anor v mohammed & ors
2014 LPELR 22575 (CA) where the court
succinctly stated that pleading s do not constitute evidence ‘’ The filing and
exchange of pleadings is the bedrock of the trial in civil actions . Pleadings
are facts as perceived by the party relying on them . They do not constitute
evidence . it is therefore wrong for any party to treat an averment in a
pleading without evidence as evidence of matters averred therein . See
OMO-AGEGE V OGHOJIAFOR & ORS ( 2010) LPELR – 4775 ( CA) and CAMEROUN AIRLINES V MIKE OTITUIZU ( 2011) 4
NWLR 512’’ As pleadings alone cannot
establish the facts pleaded without evidence , failure to prove pleaded facts
would leave the pleadings abandoned and liable to be struck out . The defendant
has inherently abandoned the pleading as there is nothing for the pleadings to
stand on . In this case , the defendant has not led evidence to establish the
allegation of any misconduct not even a query . The evidence of DW under cross
examination neither established all the line of allegation against the claimant
which are missing , stolen mismanaged .,
improperly stored or preserved diesel product whereby the said diesel product
was rendered contaminated, wasted and unfit for marketing by the defendant.
These allegations are not supported by evidence .
The next issue is whether the claimant is
entitled to the payment of his salary
from may to December 2017 when his employment was terminated . The
claimant claims the sum of N320, 000 as
salary for eight months .The defendant’s argument is that the claimant
employment has been properly terminated and that he stopped coming to work
since May 2017 while the claimant’s
argument is that he remains an employee until the termination of his employment
in December 2017 as he continued working with the defendant . Exhibit IA4 is
the letter of termination , thus the issue of termination without notice being
wrongful has already been decided earlier in this judgment . In SPDC ( NIDG ) LTD V RSNNIE & ANOR ( 2018) LPELR on
burden of proof held thus ‘’ In civil cases the general burden of
establishing the case lies on the plaintiff , but this burden is not static as
it may fall on the defendant as the case progresses . see ADEGOKE V ADIBI /9
19920 5 NWLR ( PT 242 ) 410
The
duty of the defendant is to show that the claimant abandoned the office after
his posting to the new department as the law is that he who asserts must prove . The
defendants averment in paragraph 6 of the statement of defence and counterclaim
/set off that the on the spot explanation
of the claimant to the managing director of the defendant was not satisfactory
or convincing and was full of incoherence and self contradictions are all mere averments
without evidence .
There is no clear picture of what
happened when he was sent to the new department and the action taken by the
defendant as the defendant submit that while the claimant is entitled to his
salary for may , he is not entitled to salary after that till December without
explanation . The defendant has not referred to the particular date the
claimant stopped work and how he decided
to come in December only to collect his letter of termination .Suffice to say
however that the story of the claimant is more believable as a claimant who abandoned
his job cannot be given letter after 6 months as the defendant has not told the
court that his whereabout was unknown . Can the claimants absence from work for
6 months stand in the face the defendants
contention that he abandoned his work
and is only entitled to May 2017 salary
. In the absence of any reasonable
explanation on the claimants purported
absence from work for a long period of six months with no query or
termination being disciplinary measures which the law provides for, the story
of the claimant is more believable .
This means that the claimant is entitled to be paid the backlog of his salary from May 2017 to December 2017 . By exhibit IA
1 under consideration is 40,000 a month and for 8
months comes to 40 x 8 = N320,000. I find and hold that the claimant is entitled
to the sum of 320,000 being 8 months salary
Relief 2 is for General damages in the
sum of N500,000 for the financial hardship and d discomfort suffered by the
claimant for unpaid salary arrears . The claimant averred in paragraph 16 that
the non payment of the claimants salaries has caused financial obligations
being a family man with children . the defendants response is that the claimant
is not a family man with children , This court by virtue of section 19 (d) of the NICA can award damages , I hereby award damage of 3 months salary
On the issue of cost , it is a t the
discretion of the court .
Now to the counterclaim of the
defendant , the
defendant/counterclaimant claimed as follows:
1.
A DECLARATION that the Claimant did not work for the
Defendant and, therefore, is not entitled to payment of monthly salary
(otherwise payable to him by the Defendant/Counter-Claimant) for the respective
months of June - December, 2017 (both months inclusive) and either at the
monthly rate of N40,000.00 only or at all.
2.
A DECLARATION that the Claimant's salary for the month of
May 2017 (otherwise payable to the Claimant by the Defendant) is properly and
appropriately deductible, deducted and withheld by the Defendant/counter-Claimant
as a SET OFF and as part-payment of the indebtedness of the Claimant to the
Defendant/Counter-Claimant and as per the sum of N969,240.00 only being the
total value of loss of 4,920 litres of diesel products negligently inflicted on
the Defendant/Counter-Claimant by the Claimant (and as already pleaded above).
3.
A CONSEQUENTIAL ORDER of forfeiture of the aforesaid
salary of N40,000.00 only for the month of May 2017 by the Claimant to the
Defendant/counter-Claimant; and accordingly.
4.
A DECLARATION that the Claimant/Respondent is liable to
fully compensate and indemnify the Defendant/Counter-Claimant for the
unaccounted loss/shortfall/contamination/wastage/disappearance/ evaporization
in the quantity of 4,920 litres of diesel (which monetary value is N969,240.00
at the rate of N197 per litre) and all INTEREST accruing upon said trade
capital commencing from 27/5/2017 until final liquidation of the judgment debt
hereof.
5.
The sum of N969,240.00 only being the total value of
4,920 litres of diesel products of the Defendant/Counter-Claimant which is
contaminated, wasted and unaccounted for by the Claimant (and minus the
Claimant's salary for the month of May, 2018: N40,000.00 only).
6.
INTEREST at the rate of 23.5% (or any other rate adjudged
by the Hon. court) on the aforesaid N969,240.00 only per month and commencing
from 27/05/2017 until the final liquidation of the judgment sum herein.
7.
The sum of N750,000.00 being professional legal services
fee incurred by the Defendant/Counter-Claimant in defending this suit and
prosecuting this counter-Claim/setoff.
The sum of
N1,320,760.00 only being general damages for industrial negligence, nuisance,
embarrassment, harassment, malignment, official and judicial blackmail and, to
wit, malafide gold-digging.
The defendant counter claimant adopts
paragraph 1 – 17 of the statement of defence and counterclaim/ set off . As earlier held in this judgment , the
defendant has not proved entitlement to any of the counterclaims . The
counterclaims are hereby refused and dismissed
For the
avoidance of doubt the court hereby make the following orders
1.
The defendant shall pay to the claimant the sum of
N40,000 being one month salary in lieu of notice
2.
The defendants shall pay the sum of N320,000
(three hundred and twenty Thousand Naira
Only) to the claimant being his arrears of salary from May to December 2017
3.
The defendant
is ordered to pay to the claimant
general damages in the sum of 120,000 being equivalent 3months
salary
4.
I award cost of N 100, 000 (hundred thousand Naira) to be paid by the defendant
to the claimant.
5.
All sums are to be paid within 30 days from the
date of this judgment, thereafter, the sums shall attract interest at the rate
of 10% per annum.
Judgement
is entered accordingly.