IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN IN ABUJA
BEFORE HIS LORDSHIP: HON JUSTICE O.O. OYEWUMI
DATED: 4THOF MAY, 2020 SUIT NO: NICN/ABJ/27/2019
FRIDAY ATUFE CLAIMANT
1.LEADERSHIP NEWSPAPERS GROUPLIMITED
PUBLISHER OF LEADERSHIP NEWSPAPER DEFENDANTS
2. SAM NDA- ISAIAH
Julius A, Atanawhemera, with him is Ehis Ejeata for the claimant
DubenAnene,with her is Kaodi Onuohafor the defendant
The claimant by a General Form of Complaint dated 11th February, 2019 and subsequently amended on the 5th November, 2019, filed against the defendants claiming the following reliefs.
1. A DECLARATION that the claimant isentitled to be paid the sum of N1,200,000.00 (One Million, Two Hundred Thousand Naira Only) being the outstanding salaries and emoluments of the claimant being owed by the 1st and 2nd Defendants to the claimant as his former employer.
2. A DECLARATION that the claimant is entitled to be paid his pension deducted funds into his pension Administrator’s account (AXAMANSARDP) by the Defendant from 17th September, 2014 to 22nd October, 2015 being to the claimant as his former employer.
3. An ORDER directing the defendants to pay 21% interest accruable from the outstanding debts to the claimant.
4. AN ORDER directing the Defendants to pay 6% interest after judgement till the outstanding debts is finally liquidated.
5. AN ORDER compelling the defendants to pay to the claimant the sum of N100,000,000.00(One Hundred Million Naira) only as special damages for wrongly withholding the monies and salaries of the claimant and thereby causing untoward financial and emotional anguish to the claimant.
6. GENERAL DAMAGES in the sum of N30,000,000.00 (Thirty Million Naira) only to deter the defendants from engaging in conduct similar to that which formed the basis this law suit as a result of their unreasonable and wickedness against the claimant.
7. EXEMPLARY DAMAGES in the sum of N20,000,000.00(Twenty million Naira)only as a result of untold hardship,loss,pain,distress the claimant underwent as he was denied his fruits of his labour.
8. Cost of the action.
9. AND for such further or other Order this Honourable Court may deem fit to make in the circumstance of this case.
It is the claimant’s case that he was employed by the 1st defendant on the 17th day of March, 2014 as a business editor (Lagos office) and was confirmed after six months vide a confirmation employment letter dated 17th February 2015. He stated that in September 2015 after returning from his cousin’s funeral, which he sought and was granted permission to attend, he was compelled to tender his resignation formally. He tendered his resignation letter dated 10th of September 2015. He continued that the defendants have refused to pay his outstanding salaries of seven and half months and pension deduction funds and emoluments after his resignation.
The defendants in their defence averred that the claimant’s resignation came as a result of a request from its management which had had cause to review its working relationship with the claimant and denied any act of compulsion from the defendants leading to unfavorable working conditions. The defendants admittedthat the claimant informed it that he was bereaved and sortpermission to travel but however stayed away from work longer than expected thereby abandoning his responsibilities. That as result, his employment relationship had to be reviewed and he was asked to resign voluntarily. The defendants pleaded that despite the harsh economic situation in the country the 1st defendant made efforts to meet up with its responsibilities and that in view of the economic hardship, it offered to pay the claimant the sum of N50,000 monthly until the outstanding sum is liquidated but he rejected.
Parties through their counsel on the 5th of November, 2019 orally applied to the Court to try their case on record by virtue of Order 38 Rule 33 of the National Industrial Court Rules 2017. This application was granted by the Court, hence they dispensed with calling witnesses,
Counsel to claimant filed a final written address dated 14th of January, 2020 where counsel raised five (5) issues for determination as follows:
1. Whether there was an employer and employee relationship between the claimant and the defendants, and the same was terminated at the request of the defendants, which led to the orchestrated resignation of the claimant.
2. Whether or not the defendant owes the claimant outstanding seven (7) and half month of N145,000.00 (One Hundred And Forty Five Thousand Naira) only, for each month after deduction, emoluments as advert commissions and 7.5% deductions from the claimants monthly salaries together with another 7.5% contribution from the first defendant, making a total of 15% as pension deduction funds in favour of the claimant.
3. Whether the claimant is entitled to be paid his arrearsof salaries, emoluments and pension deductions funds prior to or after the employer and employee relationship has been determined.
4. Whether or not the defendant are liable to pay the claimant with interest and monetary damages, having suffered denial and delay in receiving same till now as earnings of his hardworking, sweat from the defendants.
5. Whether the argument of the defendant to strike out the name of the 2nddefendant from the suit sued as a necessary party in this action, is sustainable.
Learned counsel to the claimant argued on issue one that there is no argument as the defendants admitted this fact in their statement of defence and final written address, that there was indeed an employment relationship between them and that they were responsible for his resignation and he is entitled to his salaries, emoluments and Pension. He cited Section 20 of the Evidence Act, 2011, the case ofKwara State Ministry of Health & Anor v. MallamIssah Electrical Enterprises LPELR -9097 (CA) @ PP22-23, PARAS F-B.
On issue two counsel submitted that the documentary evidence frontloaded before the Court are clear enough to ascertain the amount owed to the credit of the claimant. N1,200,000.00 (One Million Two Hundred Thousand Naira) only, are accumulated arrears of seven (7) and half months salary of N145,000.00 (One Hundred and Forty Five Thousand Naira) only after deductions and emoluments amount while the pension deduction funds are calculated at a percentage of 7.5%, deductions from the monthly salaries and another 7.5% totaling 15% to be credited as pension deduction funds in favour of the claimant. He urged the Court to so hold.
On issue three, counsel citing the cases of Shena Security Co Ltd v Afropak (Nig) Ltd &Ors  LPELR-3052 (SC) and Ola v INEC & Anor  LPELR-9854 (Ca) @ Pg18-20, Paras F-D stated that the claimant is entitled to be paid salaries, emolument and pension deducted funds having rendered services to the defendant.
On issue four learned counsel to the claimant argued that the defendant intentionally withheld his seven (7) and half months salaries, emoluments and pension deducted because its benefiting from free funds of hardworking, sweat of the claimant, that his claims for interest stems from breach of contract and failure on the defendants to pay him his entitlements despite his demand for it. Counsel also contended that a party cannot be denied his entitlement merely because his pleadings are not couched in technical terms. He cited the cased ofCBN &Ors vOkojie LPELR-24740 (SC) @ pg 42-43, PARAS D-A.
Counsel argued on issue five submitted that the 2nd defendant in this suit, is a proper/necessary party in accordance with who should be a party. That the 2nd defendant alter ego of the 1stdefendant who represent the first defendant. He cited the case of Mma INC &Anor v Nma  LPELR 20618 SC @ Pp 48-49 Paras D-B.Counsel therefore urge the Court to hold the 2nddefendant as the alter ego of the 1stdefendant.
Defendants filed its final written address dated 25th of November, 2019 where in counsel on their behalf formulated three (3) issues for determination.
1. Whether the claimant has proved his case on the merit to be entitled to reliefs a and b sought.
2. Whether the claimant is entitled to his claims for damages, interests and cause of action.
3. Whether the claimant’s suit as presently constituted discloses a cause of action against the 2nd defendant.
Arguing on issue one, counsel submitted that the claimant failed to state the actual amount he received as monthly salary and pension deductions and he also failed to lead any evidence nor did he tender any documents to this effect. He cited the case of UTB (Nig) v. Ozoemena  3NWLR (Pt 1022 at 448), counsel submitted that the burden of proof is on the claimant and must rely on the strength of his case and not weakness of the defence. He relied on the case of Akande v Adisa  15 NWLR (Pt 1324) 538 at 558. He urged the Court to hold that the claimant has failed to prove his claim in this regard and therefore must fail.
Learned defence counsel argued on issue two that the claimant’s claims C to H are for interest, damages and cost of action. Counsel stated that the claimant has failed to place any evidence for the Court to grant his claims for damages. Moreover, failure to pay salaries does not attract damages. He cited the case of Ogbu v. Ozor  ALL FWLR (Pt 906) and submitted that he failed to lead any evidence at trial to establish his claim as such should be deemed abandoned. Counsel respecting the claimant’s claim for cost of the suit stated that it isagainst public policy to pass on the burden of cost of instituting an action to the other party and also that such claim is special in nature which requires strict proof, which is lacking in this instant suit. He cited in support the case of Guinness Nigeria Plc v. Emmanuel Nwoke  15NWLR (Pt 689) 135. Counsel submitted that pre-judgement interest is not granted as a matter of course, custom or usage known and contemplated by the parties as the Court on prejudgment interest and what the party claiming must show to succeed. On claim for post judgment interest, counsel stated that the claimant failed to plead any particular upon which his claim will stand. Counsel then urged the Court to so hold.
On issue three, Counsel argued that the law stipulate that a plaintiff can only sue persons whom he has cause of action against and going by the claimant’s statement on oath and his claim, it clear that the suit is for payment of outstanding salaries, it is also clear that the claimant was employed by the 1st defendant and not the 2nd defendant therefore the claimant salaries can only be paid by the 1st defendant. Furthermore, the suit for the alleged outstanding salaries can only be instituted against the 1st defendant and no one else. He cited the case of Adigun v Gov of Osun State  FWLR (Pt150) 1717 @ 1727.
Having carefully read the processes filed by the parties as well as the arguments of the counsel in their final written addresses, it is in my humble opinion that the issue that will determine this suit is whether or not the claimant has proven his claims as to entitle him to the reliefs sought:
The crux of this suit lies in the fact that the defendants reviewing its working relationship with the claimant directed him vide a letter dated 9th of September, 2015 to resign his employment with it. The claimant by a letter dated 10th of September, 2015 resigned and it was accepted on the 21st of October, 2015 by the defendants. Sequel upon these the claimant claims against it as stated above.
Before discussing this issue, it is pertinent to determine the defendants’grouse, which is that this suit does not disclose any cause of action against the 2nd defendant as the employment relationship was strictly between the claimant and the 1st defendant.The defendants equally submitted by paragraph 6.6 of their written address that “the claimant in attempt to embarrass the 2nd defendant by adding him as a party got his name wrong Mr. Sam Nda-Isaiah, and not Abraham Nda-Isaiah is the Chairman of Leadership Group which had other companies under it”The claimant in response vide paragraph 8.3 of his written address stated that the 2nd defendant is a proper/necessary party as he is the alter ego of the 1st defendant in whose interest will be affected by the outcome of this action. It is a settled principle of law, that there are three main groups of Parties that can be sued, namely: Proper parties; necessary parties and desirable parties. See Green v. Green  NWLR (Pt. 61) 481.Proper parties are those who, though not interested in the claimant’s claim, are made parties for some good reasons. Desirable parties are those who are not only interested in the claimant’s claim but may be affected by the result. Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceedings could not be fairly dealt with. In other words the question to be settled in an action betweenthe existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff. The Supreme Court Per, Ariwoola JSC, in Global West Vessel Specialist Nig. Ltd v. Nigeria NLG Ltd &Anor  LPELR-41987(SC); succinctly captured who a proper party is in this words "It has long been held that proper parties are those who though not interested in the plaintiff's claim, are made parties for some good reasons, for example, in an action instituted to rescind a contract, any person who was active or concurring in the matters which gave the plaintiff the right to rescind, is a proper party to the action. Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceeding could not be fairly dealt with. In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff. See Chief Abusi David Green v. Chief (DR) E. T. Dublin Green (1987) NWLR (pt. 61) 481 (1987) LPELR SC206/1986; Amon v. Raphael Tuck & Cons (1956) 1 WB 357; Re Vandervills Trust (1971) A.C. 812; Re Vandervelle (1969) 3 All ER 497."See also Babayeju v. Ashamu  9 NWLR (Pt. 567) 546 SC; and Sifax Nigeria Limited &Ors v. Migfo Nigeria Limited &Anor LPELR-24655 (CA).The reasoning in all these cases points to the fact thata necessary party is someone whose presence is necessary as a party and the only reason which makes him a necessary party is that he should be bound by the result of the action which cannot be effectually and completely settled unless he is a party.. A person can be made a party to a suit when sufficient cause of action has been disclosed against him and he should therefore be heard before any decision is taken which might affect him.It is on record that the claimant on the 5th of November, 2019 filed a Motion joining the 2nd defendant in this suit by substituting the name of one Abraham Nda-Isaiah which corroborates with the argument of the defendants in their written address thus- “the claimant in attempt to embarrass the 2nd defendant by adding him as a party got his name wrong Mr. Sam Nda-Isaiah, and not Abraham Nda-Isaiah is the Chairman of Leadership Group which had other companies under it.”Now in this instance, the 2nddefendant as agreed by parties is the Chairman of the 1stdefendant. The 2nddefendant is a natural person and the alter ego of the 1stdefendant who does and carries out functions on behalf of the 1stdefendant. I therefore findthat the joining of the 2nddefendant along with the 1stdefendant as parties in this suit is proper. He is a necessary party in this suit. It is in this light and all I have stated supra, that I find the argument of the defendants unmeritorious and hence discountenanced. I so hold.
Now, is the claimant entitle to the sum of N1,200,000.00 being the outstanding salaries and emoluments owed him by the defendant? The claimant by paragraph 14 of his pleading stated that the defendants have refused to pay him his salaries of seven and half months, plus pension deduction funds and emoluments since hisemployment contract with the defendant was determined. The defendants in response stated by paragraphs 14, 15 and 16 of their pleadings that it did not refuse to pay the claimant his outstanding salaries rather the economic recession affected its income but however it has made efforts to meet up with its responsibilities when it offered to pay the claimant the sum of N50,000 monthly until the outstanding sum is discharged but he rejected. It is settled law that proof is about disputed facts and not otherwise. Factsadmitted need no further proof. This well-settled position of the law also finds statutory expression in Section 123 of the Evidence Act 2011. See the caseslaw authority of Barau&Orsv. Consolidated Tin Mines Ltd &Ors  LPELR 46806; Ogiemudia v. Agharhumwundoghiomwan  LPELR 46136 CA.From the foregoing, it apparent on record and by the admission of the defendants in their pleading that they owed the claimant seven and half months’ salary, in the sum of N1,200,000.00, that I have no hesitation in making a finding that the claimant is entitled to the sum of N1,200,000.00 being the outstanding salaries and emoluments owed to him by the defendant. I so hold.
Next, is the claimant claim that he is entitled to be paid his pension deducted funds from his salary into his pension Administrator’s account (AXAMANSARDP) by the Defendant from 17th September, 2014 to 22nd October, 2015. The defendants stated that the claimant in his pleadings did not make any averment as to what the amount deducted as his pension was. That he neither tendered any document nor led evidence in this regard. It is a notorious principle of law that he who asserts must proof see Section 131 of the Evidence Act, 2011 and the cases of Akinbade&anorv Babatunde&anor  LPELR 43463 SC; Ebo&Anor v Okeke&Ors  LPELR 48090 CA.The question that follows that is, has the claimant in this present, proven his entitlement to his claim for pension? I have carefully perused the documents on record and I find, none of the documents tendered by the claimant on record evidence of deduction of pension from his salary, he neither tendered his pay slip nor was his employment letter to show that there was an actual deduction of his salary as pension by the 1st defendant.Not even his RSA pension statement was presented before the Court, to aid it in considering his claim. The Court of Appeal in Wema Bank PLC v. Arison Trading & Engineering Company Ltd &Anor LPELR-40030CA;aptly puts it thus- “To succeed, the plaintiff must rely on the strength of his own case, as declaratory orders are not granted even on the admission of the Defendant; though where a weakness in the Defendant's case supports the case of the Plaintiff, such a plaintiff may rely on it to strengthen his own case. Ultimately, the burden is on the plaintiff all through to prove by credible evidence that he is entitled to the declaration sought”It is evident from the record that the claimant has failed woefully in substantiating his claim for pension. I find it unequivocal in holding that the claimant is not entitled to his relief two, and same must be dismissed. I so find and hold.
Furthermore, the claimant is praying for 21% interest accruable from the outstanding debt and 6 % interest after judgment until the outstanding debt is finally liquidated.The defendants argued that the claimant did not lead any evidence to establish any basis to ground these claims. It is trite that where a party’s principal claim succeeds, theaccessory claim that is appendages to it will also succeed, this principle traces its paternity to the Latin maxim;Accessoriumseguiturprincipale-meaning an accessory thing goes with the principal to which it is incidental. As regards the issue of interest, broadly, there are two categories of situations in which a Courtis empowered to award interest in a case;first, where interest is claimed as of right on the basis of agreement or contemplation by the parties, under a recognized commercial practice or custom or under the principle of equity where the relationship between the parties dictates. See Balogun v. E.O.C.B. Nigeria Limited (2007) 5 NWLR (1028) 584.Rhodes Vivour JSC in the case of Union Bank of Nigeria v. Awmar Properties Ltd  LPELR-44376(SC), whilst quoting with approval the sound and apt reasoning of Lord Denning MR in Harbtt's Plasticine Ltd v. Wayne Tank & Pump Corporation Ltd (1970) 1 ALL ER p.225; where he said;
It seems to me that basis of an award of interest is that the defendant has kept the plaintiff out of his money and the defendant has had the use of it to himself. So he ought to compensate the plaintiff accordingly.
He went on to state that “If the case is of a commercial nature and money should have been paid sometime ago, but was not paid, it ought to carry interest. A person deprived of his money must be compensated”.The claimant has evinced on record that the defendant has kept his salary for 7 and half years and the defendant admitted to owing him the said amount to N1,200,000.00. Claimant has been denied the use of his earned salary, which is a debt that ought to have been paid to him since June 2016, which vide paragraph 16 of his statement of facts has foisted on him grave financial difficulties, including his inability to pay his children school fees and to meet some other financial obligation. This is a natural consequence of withholding an employee’s salary which is his life wire or means of his livelihood. It will then not be out of place to grant the claimant’s prayers by awarding interest on the judgment sum of N1,200,000.00. This is moreso, in view of the inflationary rate of the Naira which has for a long time been unstable.I have held supra that the claimant’s claim for the sum of N1,200,000is uncontroverted and thus succeeds, therefore his claim for 21% interest on the outstanding debt owed to him succeeds. Also by Order 47 Rule 7 of the National Industrial Court Rules, 2017, this Court can award post judgment interest at a rate not less than 10% per annum to be paid upon any judgment.The claimant in this suit is claiming 6% a rate lesser than what the Court can grant, his claim for 6% interest is thus discountenanced.It is in this light that I find that claimant’s claim for 21%interest succeeds. I so find and hold.
Regarding claimant’s claim of the sum of N100,000,000.00(One Hundred Million Naira) only as special damages for wrongly withholding his monies and salaries and thereby causing untoward financial and emotional anguish to the claimant.Defendants submitted that the claimant has failed to plead specific facts and any evidence at trial to establish the claim should be abandoned, same should be regarded as abandoned. It is the law that special damages are matters of strict proof and are not awarded just on sentiments. See the cases of Kemtas Nig. Ltd v. Fab Anieh Nig. Ltd  All FWLR (Pt.384) 320 at 345 paras A. (CA), The Shell Petroleum Development Company of Nigeria Limited v. Chief TA Tiebo&Ors  LPELR-3203 (SC).The Supreme Court in the case of Ighedo&Anor v. PHCN  LPELR-43863 (SC) per Ariwoola JSC pp.55-56 para C gave a succinct exposition of the rules that apply to when and how special damages should be awarded thus: “ It is trite law that where the precise amount of a particular item has already occurred or so becomes crystallized or becomes clear before the trial, either because it already occurred or so because it can be measured with complete accuracy, this exact loss must be pleaded as special damages”. Also PerMuhammed JSC in Ajigbotosho v RCC  LPELR- 44774 SC pp20-21, paras E-A;stressed the importance of proving every item claimed before an award of special damages may be granted. The Claimant in this suit who is claiming special damages must establish his entitlement vide credible evidence.I find this lacking in the claimant’s pleading. An examination of the evidence before this Court discloses at nowhere that he is entitled to the sum of N100,000,000.00 as special damages, The details of his emotional anguish was not pleaded and no documents in prove of same. Differently put, claimant did not proffer any evidence from a medical personnel or psychologist or receipts of payments of any kind to evince that he did infact suffered any emotional anguish. He equally, failed to particularizeand specifically prove the claim forspecial damages. It is upon this premises that I find no basis for the grant of this relief and thus hold that the claimant’s claim for special damages fails.
Claimant also claims the sum of N30,000,000 as general damages.The law is trite, the claim of general damages need not be specifically pleaded and or claimed like special damages. General damages are damages which the law implies or presumes to have accrued from the wrong complained of or as the immediate, direct and proximate result of or the necessary result of the wrong complained of. It is awarded by the Court where it cannot point at any measure to assess the loss caused by the wrong complained of except the opinion and judgment of a reasonable man.Tec Engineering Co. (Nig ) Ltd & Anor v. Salisu  46654 CA. In this instant suit, the defendant having wrongfully withheld the claimant’s salary for failing to pay same as at when due, entitles the claimant to damages for the wrongful withholding of his salary. I therefore, resolve this claim in his favour and award the sum of N100,000.00 as general damages to the claimant.
The claimant claims also exemplary damages in the sum of N20,000,000.00.Exemplary damages, otherwise known as punitive damages is usually awarded to meet the end of punishment. A claim for exemplary damages need not be expressly pleaded. It is sufficient if the facts pleaded supports the award of exemplary damages. See the cases of CBN &Ors v. Okojie  LPELR-24740 (SC),  14 NWLR Pt. 1479 at 321 SC. Thus, the claim for exemplary damages must be shown to have resulted from the malicious act of a party before it can be awarded.See the case of Ukpai v Omoregie&Ors  LPELR 47206 CA. From the above, there is nothing to evince that the defendant's conduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, cruelty, insolence, flagrant disregard. Therefore the claimant’s claim in this regards fails. I so find and hold.
With regards to its claim for Cost of the action.It is the law that cost is at the discretion of the Court which must be done judicially and judiciously. See the cases of Mekwunye v Emirates Airlines  LPELR 46553 SC; First Bank v Oronsaye  LPELR 47205 CA.It is settled law by Order 55 Rule (1) of the National Industrial Court of Nigeria Rules, 2017 that cost is awarded at the discretion of the Court. I have awarded general damages to the claimant, it will thus amount to double compensation if I award any cost to the claimant. This is so, in view of the fact that his claim did not succeed in the most part against the defendant. It is in consequence that I hold that claimant’s claim for cost fails.
In sum, I find that claimant’s case succeeds in part, thus I make thesedeclarations and orders-
1. That the claimant is entitled to the sum of N1,200,000.00 as his outstanding salaries and emoluments.
2. That claimant claim for pension fails.
3. That the claimant is entitled to 21% interest accruable on the outstanding debt.
4. That the claimant is entitled to the sum of N100,000.00 as General damages.
5. Claimant claim for 6% post judgment interest fails.
6. That his claim for special damages and exemplary damages fail.
7. All the judgment sum is to be paid within 14 days failing which it is to attract 10% interest.
8. No award as to cost.
Judgment is entered accordingly
Hon. Justice Oyewumi Oyebiola O.