IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
BEFORE HIS LORDSHIP, HON. JUSTICE S. H. DANJIDDA
ON THE 30TH DAY OF JUNE, 2020
SUIT NO. NICN/ABJ/365/2014
HON. EMEKA MBONU …………………………………..…………...……………CLAIMANT
ETCHE LOCAL GOVERNMENT COUNCIL……….......................…………….DEFENDANT
Olufunke Shankyura holding the brief of Nwala I.A. for the Claimant.
G.Y. Afeese holding the brief of N.C. Okonkwo for the Defendant.
The Claimant initiated this suit against the Defendant by a complaint
with accompanying processes dated 29th November 2014 but filed
on 1st December 2014. The claims of the Claimant against the Defendant are endorsed as follows:
"1. The sum of
N19,168,934.54 (Nineteen Million One Hundred and Sixty- Eight Thousand, Nine Hundred and Thirty- Four Naira Fifty Four Kobo) only, being the outstanding statutory entitlements owed the Claimant under the Rivers State Public and Political Office Holders’ Salaries, Allowances and Fringe Benefits (Amendment) Law, No. 2 of 2007 which outstanding debt the Defendant acknowledged and promised to pay.
2. Post- judgment interest on the aforesaid sum at the rate of 21% from the date of judgment until judgment debt is fully liquidated.
3. The sum of
N4,000,000.00 (Four Million Naira) only being the cost of this action."
Upon being served with the Claimant’s originating processes, the Defendant entered appearance and proceeded to file a statement of defence with accompanying processes dated 15th January 2018 via a deeming order of the Court sought and obtained on 22nd February 2018. On 13th February 2019, the Defendant sought and obtained leave to amend its statement of defence dated 7th January 2019 but filed on 5th February 2019.The Defendant has denied the claims of the Claimant in its entirety and urged the court to dismiss same.
CASE OF THE CLAIMANT
The salient facts of the Claimant’s case are that he was appointed as Council Supervisor on 7th August 2008 by the Defendant. That he diligently served till 30/3/2011. The Claimant stated that there was a shortage in the payment of his monthly salaries which he complained to the Defendant but nothing was done until his tenure lapsed in 2011. The Claimant therefore felt aggrieved and asked this court for payment of his salaries, allowances and entitlements from August 2008 to May 2009 and from June 2009 to March 2011.
CASE OF THE DEFENDANT
The Defendant on the other hand has postulated that the Claimant was appointed as Council Supervisor in August 2008 but was terminated in May 2009 hence the Claimant is not entitled to any allowances or entitlements after May 2009. The Defendant stated also that what the Claimant is claiming as shortage in his monthly salary from 2008 to 2009 is the statutory tax deductions.
Trial commenced de- novo before this coram on 2nd July 2019 after close of pleadings. The Claimant testified for himself as CW1 by adopting his two depositions dated 1/12/2014 and 4/3/2019. Claimant tendered a total of eight exhibits listed below.
1. Exhibits EM01A and B- Today’s Top Newspaper of 28/5/2012 to 5/6/2012 and 28/10/2012 to 30/10/2012.
2. Exhibit EM02- I. A. Iwala & Co. Receipt.
3. Exhibit EM03- Appointment Letter as Supervisor dated 6/8/2008
4. Exhibit EM04- Letter dated 6/8/2008 titled “Re: Allocation of Portfolio.
5. Exhibit EM05- Rivers State Public and Political Office Holders salaries Law.
6. Exhibit EM06A1- A15- 15 letters of various issues
7. Exhibit EM07- Pre- action notice dated 19/10/2014
8. Exhibit EM08- UBA statement of account.
CW1 was thereafter cross examined by counsel to the Defendant and the case of the Claimant was closed after re-examination.
The Defendant opened its defence on 11th October 2019 and one Ubadinna Nnodim gave evidence as DW1 by adopting his deposition dated 11th May 2019 and tendered exhibits ELG01 and ELG02 (Termination letter dated 29/5/2009 and document titled “National PDP Ex- Political, Ex- Councilors Forum).
DW1 was cross examined by the Claimant’s Counsel and as there was no re- examination, the case of the Defendant was closed. The matter was then adjourned to 7th February 2020 for adoption of final written addresses.
SUBMISSION OF THE DEFENDANT
Three issues were formulated by the Counsel for the Defendant in the final written address filed on 22nd November 2019. The issues are as follows;
“1.Whether the Claimant was underpaid from August 2008 to May 2009.
2. Whether the Claimant’s appointment was terminated in May 2009 and therefore not entitled to salary and allowances afterwards or whether he remained in service to the Defendant up to March 2011 and therefore entitled to salary and various entitlements from June 2009 to March 2011.
3. Whether the Claimant is entitled to any other allowances including severance/gratuity.”
Whether the Claimant was underpaid from August 2008 to May 2009.
The Counsel’s submission on this issue is to the effect that the Claimant was appointed by the Defendant’s Chairman in 2008 and his salaries, allowances and benefits were provided by the Rivers State Public Office Holder’s Salaries, Allowances and Fringe Benefits (Amendment) Law No. 2 of 2007. Counsel argued that under this law, the sum total of the Claimant’s monthly basic salary and allowances was
N274,373.73 before tax deductions. Therefore the N13,756.73 which was deducted from the Claimant’s salary constitutes his personal income tax which the Defendant was mandated under sections 1(a), 2(1) (a), 3(b), 81 and sixth schedule of the Personal Income Tax Act 2004 to make from the Claimant’s monthly salary and remit same to the Government.
Counsel submitted therefore that there was no under payment of the salaries and allowances of the Claimant between August 2008 to May 2009 as the sum of N13,756.73 so deducted constituted the tax obligation of the Claimant to the Government thus the Claimant is not entitled to same.
Whether the Claimant’s appointment was terminated in May 2009 and therefore not entitled to salary and allowances afterwards or whether he remained in service to the Defendant up to March 2011 and therefore entitled to salary and various entitlements from June 2009 to March 2011.
In arguing this issue, Counsel submitted that the Claimant was not an employee of the Defendant but a political appointee and held office at the pleasure of the Chairman thus the Claimant can be fired at any time via text message, letter, verbally or by proxy and at any time including Sundays or holidays. Counsel argued that the appointment letter of the Claimant contained no terms and conditions of service thus the Claimant was in an “employment at will”. Counsel referred the Court to the cases of N.I.I.A V. Afanfalu (2007) 2 NWLR (pt. 247), Olaniyan V. Unilag (1985) 2 NWLR (pt. 9) 599 and Shitta- Bay V. F.P.S.C (1981) 1 SC 40.
Counsel argued that the Claimant has claimed that he worked from 2008 to 2011 but he was not paid from June 2009 to 2011 and that he wrote several letters of demand to the Defendant (exhibits EM06A-13). The Defendant in denying that the Claimant worked between 2009 and 2011 stated that the Claimant’s appointment was terminated by a circular and a letter dated 29th May 2009 which the Claimant refused to collect. According to Counsel the burden lies on the Claimant to prove by preponderance of credible evidence and not on the weakness of the defence. Counsel cited the cases of Samuel Adenle V. Michael Oygbade (1967) NMLR 136, Mosalewa Thomas V. Preston Holder (1946) 12 WACA 78, Awomuti V. Salami & Ors. (1978) 3 SC105/115, Bafunke Johnson & Anor V. Akinola Maja & Ors. (1951) 13 WACA.
In his contention, Counsel stated that the Claimant has not placed before the court any work he did or any minutes of meetings he attended as an appointee of the Defendant from June 2009 to March 2011. That the Claimants letters of demand which are exhibits before this court were all for the payment of balance of salary and not non- payment of salaries. It is the Solicitor’s letter of 2014 that made mention of salaries between June 2009 to March 2011 for the first time.
Counsel submitted that this is but an afterthought on the part of the Claimant who wants to take advantage of the fact that he refused to collect his letter of termination to turn around and benefit from it by laying claims to salaries and allowances he never worked for.
Furthermore, Counsel argued that the letter written by the Claimant to the Defendant on 30th September 2010 demanding for payment of money owed him by the council shows that he was no longer working with the Defendant.
Counsel urged the court to hold that the Claimant was no longer an appointee of the Defendant from June 2009 to March 2011 and is not entitled to any salaries and allowances.
Whether the Claimant is entitled to any other allowances including severance/gratuity.
It is the submission of the defendant on issue 3 that the Claimant is not entitled to any arrears of salaries and allowances. Therefore the claims for motor vehicle allowances, official imprest, first 28 days and works monitoring committee must equally fail as these allowances are only earned while an appointee is in office and some are not part of his benefits even while in office.
Counsel argued further that the Claimant admitted under re-examination that he was paid severance/gratuity allowance for his past leadership of the house between 2004 to 2007. Counsel stated that by Exhibits EL 02 the only debt the Claimant admitted to be owed by the Defendant was the severance/gratuity and furniture allowance totaling
N4,855.800 and the payment of severance/gratuity is to be paid once in a lifetime of a public office holder as contained in the Rivers State Public Office Holder’s Salaries, Allowances and Fringe Benefits (Amendment) Law No. 2 of 2007 for executive arm.
Counsel contended that the only debt the Defendant is owing the Claimant is furniture allowance of N2,427,900 hence the Defendant concluded by conceding to the sum of N2,427,900 only in favour of the Claimant.
SUBMISSION OF THE CLAIMANT.
The final written address of the Claimant dated and filed on 29th November 2019 contains a lone issue for determination to wit;
“Whether the Claimant has discharged the burden of proof required of him in this case to be entitled to his claims herein.”
In urging the Court to answer the lone issue in the affirmative, Counsel submitted that it is trite law that by section 131 (1) of the Evidence Act 2011 and a plethora of cases including that of Apena V. Aileru (2015) 24 WRN 1, the burden of establishing facts upon which legal rights and liabilities depend is on the party who asserts.
Counsel submitted that the burden in this case of first proving the existence of facts as stated in his pleadings lies on the Claimant and this was done by the Claimant via his evidence before the court and documents tendered to corroborate same. According to Counsel, the Claimant has shown that his entitlements under the fringe benefits law were not paid to him all through his appointment from 2009 to 2011 and he was under paid from August 2008 to 2009. Counsel argued that the Defendant acknowledged and promised to pay the debts but never paid even upon several demand letters from the Claimant.
It is the submission of Counsel that facts pleaded by the Claimant were not denied by the Defendant thus are deemed admitted. Facts admitted require no further proof. Counsel referred to the case of Hilary Farms Ltd & Ors. V. M/V Malitra & Ors. (2007) 6 SC (pt. 11) 85.
Learned Counsel in further submission stated that the Claimant having discharged the burden by proving the facts stated by him, the onus then to prove the contrary shifts to the Defendant. Counsel referred to section 133 (1) and (3) of the Evidence Act and cases of Mrs. Pauline Asika & 3 Ors. V. Charles Chukwuma Atunanya (208) 17 NWLR (pt. 1117) 484 and Egharavba V. Osagie (2009) 18 NWLR (pt. 1173) 299.
According to Counsel, the evidence led by the defence has not in any way disproved or discredited the facts and evidence established by the Claimant before the court. Learned Counsel submitted that the burden lies on the Defendant to prove their excuses that the shortages from the Claimant’s salaries from August 2008 to May 2009 were tax deductions and that the Claimant’s appointment was terminated in May 2009 thereby not entitled to be paid salaries from June 2009 to March 2011.Counsel referred the court to section 136 of the Evidence Act 2011 and the cases of Amadi V. Amadi (2017) 7 NWLR (pt. 1563) 108 and Sefik & Ors. V. Muna & Ors. (2007) 10 NWLR (pt. 1043) 502.
Submitting further, Counsel argued that exhibit ELG01 which is the letter of termination of the Claimant`s appointment was never served on him and the date on it was 29th May 2009 which was a public holiday. Thus the letter was made just to deny the Claimants his entitlements from June 2009 to March 2011.
Counsel argued further that exhibit EM03 confirms the fact that the Claimant was appointed and he worked till March 2011 when the then Chairman of the Defendant completed his tenure. That in exhibit EM06A7, the Claimant wrote to the Defendant reminding it that his salaries were still running but the Defendant never replied same to refute the claims of the Claimant. Counsel cited the case of Xenon Petroleum & Gas Ltd. V. Idrisiyya (Nig.) Ltd (2006) All FWLR (pt. 312) 2140.
In urging the Court to take judicial notice of the documents frontloaded and attached to the complaint especially the appointment letter bearing the sum of N260,617.00, Counsel cited the case of Uzodima V. Izunaso (2011) 17 NWLR (pt. 1275) 30.
It is the submission of learned counsel that the Defendant only made evasive denial of the claims of the Claimant and that does not suffice to debunk the evidence of the Claimant. Counsel cited the cases of UBA Plc V. Jargaba (2007) 11 NWLR (pt. 1045) 247 and Isikwenu V. Iroh (2013) 11 NWLR (pt. 1365) 256.
It is the contention of Counsel that the Defendant erroneously submitted that the Claimant was paid any severance/gratuity which is not the true position of the case. That, according to Counsel such submission of the Defendant's Counsel did not arise from the pleadings and therefore not admissible. Counsel relied on the case of Idaghir V. Okagbare (2015) 11 WRN 55.
Counsel argued that the Defendant never raised or pleaded res judicata as required by order 30 rule 7 and 8 of the Rules of this Court and section 174 of the Evidence Act. Counsel referred to the case of Eze V. Ekweremuo (20110) LPELR- 4025 (CA) and Waliki V. Anguwa (2015) 48 WRN 156.
Learned Counsel submitted that exhibit EM05 which provides for the salaries and entitlements of the three arms of government did not define who a public office holder is to warrant the conclusion that the Claimant was a public office holder when he served as a supervisor. Counsel referred to the case of Oni V. Fayemi & Ors. (2019) LPELR- 46622 (CA) on the meaning of a Public Officer.
It is the further submission of Counsel that exhibit ELG02 is neither signed by the within persons named nor dated to determine if it was made during the pendency of this suit by an interested party. Exhibit ELG02 is therefore inadmissible under section 83 (3) of the Evidence Act 2011. Counsel therefore urged the court to expunge this exhibit.
According to Counsel, exhibit ELG02 has no evidential value and cannot be used to discredit or disprove exhibit EM05. Thus the Defendant has failed to discharge the burden of the assertion that the Claimant’s appointment was terminated on May 29 2009 therefore the Claimant is entitled to all the sums claimed by him. Counsel relied on the case of Uzo V. State (2016) 34 WRN.
Counsel further submitted that the Claimant is entitled to post judgment interest as they have not been challenged nor discredited. Counsel cited the cases of Hilary Farms Ltd. & Ors. V. M/V Malita & Ors. (supra) and NIPOST V. Irbok (Nig.) Ltd (2006) 8 NLWR 982, CBN V. Ahmed (2004) 15 NWLR (pt. 897) 591 and Crown Flour Mills Ltd V. Olokun (2008) 4 NWLR (pt. 1077) 254.
In further submission, Counsel argued that the Claimant is entitled to the sum of
N4,000,000.00 paid to his counsel for the recovery of the debt owed him by the Defendant. According to Counsel if not for the debt, the Claimant would not have incurred the solicitor’s fees. More so is the fact that the Defendant has not denied or challenged this head of claim which has been supported by the receipt from the law firm of the Claimant`s Counsel. In support of this assertion, Counsel cited the cases of Naude V. Simon (2014) All FWLR (pt. 53) 1878, Rewane V. Okotie- Eboh (1960) SCNLR 641, Lonestar Drilling Nig. Ltd. V. New Genesis Executive Security Ltd. (2011) LPELR- 4437 and Order 55 Rule 5 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017.
DECISION OF THE COURT
Having carefully perused the pleadings and submissions of counsel with the evidence adduced and exhibits tendered by the parties, I think the issue to be determined by this Court is, whether by the evidence before the court the Claimant has established his claims on balance of probability as to be entitled to judgment.
The nature of the Claimant's claims before this court is for the payment of his entitlements while he served as a council supervisor with the Defendant and for post judgment interest and solicitor’s fee. The Claimant has tendered a total of eight exhibits to show that he was appointed a Council Supervisor by the Defendant in August 2008 and he was paid salaries up to May 2009 when the Defendant stopped paying him. According to the Claimant even the salaries paid to him from August 2008 to May 2009 was short of
N13,756.73 for each month. And from June 2009 to March 2011, no salary or entitlement was paid to him by the Defendant.
The Defendant has in its defence stated that the sums claimed as shortage by the Claimant were tax deductions and that the Claimant was relieved of his appointment on 29th May 2009 hence not entitled to any salaries or allowances for that period.
By the provisions of sections 131, 132 and 133 of the Evidence Act 2011, the burden of proving the existence and non- existence of a fact is on the party who would fail if no evidence is adduced in his favour. In the case of Adeyemo & Anor V. Akintola (2003) LPELR-10905 (CA), His Lordship, Omage, JCA held;
The onus of proving that a loss is sustained or that damages are suffered lies on the Plaintiff. See Kuku v. Olushoga (1962) 1 ALLNLR 625.See also Lawrence V. Olugbemi & Ors. (2018) LPELR-45966(CA), Aerobell (Nig.) Ltd. & Ors. V. Fidelity Bank (2018) LPELR-45338(CA) and Nnameka Okoye & Ors. V. Ogugu A. Nwankwo (2014) 15 NWLR (pt. 1429) 63.
The responsibility is that of the Claimant to advance evidence such as his pay slips or payment voucher to show if actually the sum of N13,756.73 was not tax deductions but under payment. Exhibit EM08 which is a very faded bank statement of the Claimant for the period of 1st May 2009 to 31st July 2009 shows monthly salary from the Defendant to the Claimant on 5th May 2009 to be
N260,195.49. This figure is less than the figure in exhibit EM03 (Letter of Appointment) by N421.52 only. The salary of a supervisor contained in exhibit EM05 is N274,373.73 and when N260,617 is subtracted, a figure of N13,756.73 will show. This N13,756.73 is what the Claimant is alleging should be part of his salary.
The Claimant did not deem it fit to present the bank statement for the whole period of August 2008 to March 2011 to show how the deductions were made. By exhibit EM03, the Claimant was appointed a Supervisor by the Defendant and he contends that he remained in service until March 2011 when the Chairman of the Defendant completed his tenure. In as much as there is no evidence of service of exhibit ELG01 (the purported letter of termination), the Claimant did not as much lead evidence to support his claim that he continued to work as a Supervisor beyond May 29, 2009.
All the letters of demand written by the Claimant to the Defendant which are exhibits EM06A1-15 were demands for either payment of shortage of salaries, payment of imprest, reimbursement of out of pocket expenses, accommodation allowances and fringe benefits. The Claimant never demanded for non- payment of his salaries while he worked from June 2009 to March 2011. Both the Claimant and the Defendant gave evidence before this court that the appointment of the Claimant is at the pleasure of the Chairman of the Defendant hence his appointment can be terminated at any time.
To prove entitlements, an employee must refer the court to the exact Law, instrument or document. And a claim for entitlements of salary or allowances is a claim for special damages which must be specifically pleaded and strictly proved with compelling evidence. See the case of NNPC V. Clifco Nig. Ltd (2011) LPELR-2022 (SC).
By the case of Mogaji V. Odofin (1978) 4 SC 91 and that of Bello V. Eweka (1981) 1 SC 101 at 102, a court of law is enjoined to weigh evidence with probative value as presented by the parties on imaginary scale to see which side the scale will tilt.
I consider the evidence as put forward by both parties and find that the burden of proof which is solely on a party who asserts the affirmative is not weighty to tilt the scale in favour of the Claimant as regards his claim for the alleged deductions made on his monthly salaries from August 2008 to May 2009 and also for his claims of salaries and allowances from June 2009 to March 2011. In the case of Nwavu V. Okoye (2008) LPELR-2116 (SC). His Lordship Muhammad JSC opined as follows:
The general concept of BURDEN OF PROOF in civil proceedings postulates the obligation placed by law on a plaintiff to present evidence in proof of the fact in issue. In other words, the burden of proof is on the person who is expected to supply the evidence required in proof of his claim i.e. ONUS PROBANDI. Thus, the person who asserts a fact must prove it.
I have read through the provisions of exhibit EM05 which is the Rivers State Public and Political Office Holders Salaries, Allowances and Fringe Benefits (Amendment) Law No. 2 of 2007. Even though the law is not paginated, I have seen the schedule of salaries, allowances and fringe benefits as regards a supervisor. The figure presented therein as N274,373.73 is what the Claimant is entitled to as salary before tax deductions. The furniture allowance, Vehicle Loan and Severance Gratuity is on the next page. The furniture allowance is to be paid while the officer is in office. The Vehicle loan is a loan which when collected must be repaid by such officer before he/she leaves office. The Severance/gratuity is to be paid once in the lifetime of the officer. Now the question is whether the Claimant was paid the furniture allowance, and the severance/gratuity allowance.
While the Claimant denied payment of these two heads of allowances, the Defendant asserted that the Claimant was paid the severance/gratuity allowance while he served as a Councilor between 2004 and 2007 in the previous administration. The Defendant tendered exhibit ELG02 which is a computation of debts owed the Claimant and other Councilors during that period and also argued that since severance/gratuity is paid once in a life time of an officer, the Claimant is only entitled to furniture allowance which the Defendant conceded to in its submissions.
I need to state that the Defendant has not established the fact asserted that it has paid the severance/gratuity due to the Claimant. The fourth document attached to exhibit ELG02 titled “National PDP Ex- Councilors Forum, Etche LGA Chapter: 2008-2011, Request for payment of Outstanding Severance/Gratuity and other statutory entitlements”, shows the name of the Claimant as serial No. 1 under the list of Supervisors. The figure of balance left unpaid to the Claimant as contained therein is
N4,855,800. There is no evidence from the Defendant that any amount was paid to the Claimant unless on the face of Exhibit ELG 02 where the name of the Claimant appears as No. 7 and the amount said to be paid was N1,795,228.00 while the total balance unpaid was N3, 335,850.00.
I observed that, furniture allowance and severance package is what made up of the sum of N4, 855,800. The Defendant had argued that the Claimant under re-examination admitted that he was paid his severance package, but I have perused the record and what I am able to see under re-examination of CW1 is thus; “ I sued the Defendant in 2011 in respect of my entitlement when I served as a House Leader between 2004 and 2007.”
From the above piece of evidence, I cannot find that the Claimant admitted that he collected his severance/gratuity.
By a plethora of judicial decisions, the courts have been enjoined to desist from deciding cases before them on speculations as that would occasion a miscarriage of Justice. See Gwandu V. FRN (2014) LPELR-23992 (CA).
In Takuma & Anor V. Liman & Ors. (2009) LPELR-5000(CA), the Court of Appeal reiterated that:
Courts are enjoined not to decide matters on the basis of speculation but to act on the evidence adduced and canvassed by the parties. See TANKO V. NONGHA (2005) ALL NWLR (PT. 286) 774 at 787 -788. We shall restrain (sic) ourselves from engaging in such speculation.
Similarly in Okadigbo & Ors. V. Ojechi & Ors. (2011) LPELR-4687(CA), His Lordship Oseji, J.C.A. held that;
It is trite that a court of law has no business to act on speculation or guesswork. It must act on concrete evidence produced before it. In order words, it is out of place for a court to base its decision on speculation or conjecture….
On the claim for the cost of this suit, I go with the opinion of the Supreme Court that, that kind of claim is an unusual one and difficult to accept in this country as things stand today. That the issue of damages as an aspect of solicitors fees is not one that lends support in this country. I find that there is no justification for the grant of same. See the case of Nwanji V. Costal Services (Nig.) Ltd (2004) 11 NWLR (pt. 885) 552.
From the foregoing therefore, this court is bound by the established principles of law as regards the requirement of proof in civil matters especially for monetary claims, judicial decisions of superior courts and evidence presented. I therefore find that the Claimant has tilted the balance of probability in his favour only as regards his severance/gratuity and furniture allowances. For the avoidance of doubt, I hereby order as follows;
1. That the Defendant shall pay the sum of
N4,855,800.00 (Four Million Eight Hundred & Fifty Five Thousand, Eight Hundred Naira) only as severance/gratuity and furniture allowance to the Claimant within 30 days of this judgment.
2. That the claim for arrears of salaries from June 2009 to March 2011 with the interest claimed fails and is hereby dismissed.
3. The claim for cost of this suit is refused.
4. Failure to liquidate the judgment sum within 30 days shall attract 10% interest per annum until it is fully liquidated.
Judgment is entered accordingly, I make no order as to cost.
HON. JUSTICE S. H. DANJIDDA