IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT.
BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.
Dated: 16th day of November, 2020
SUIT NO: NICN/PHC/49/2018
BETWEEN:
MR. EUGENE AMALIRI -------------------------------------CLAIMANT
AND
1. P.W. MARINE LTD
2. SEABULK OFFSHORE OPERATORS NIG LTD
3. MR. CHIBUIKE UGWUIBE
(MANAGING DIRECTOR OF P.W MARINE LTD) -----------DEFENDANTS
Representations:
U. B Ubiaka with John Dala for the Claimant.
Lanre Olayinka for the Defendants.
Judgment.
This suit was commenced by way of a General form of Complaint filed on the 12th of April, 2018 along with a verifying affidavit, statement of facts, list of witnesses, witness statement on oath, list of documents and copies of the listed documents to be used at trial.
Arising from the Complaint and Statement of fact, the Claimant’s claims against the Defendants are:
(i) A Declaration that he is still a staff of the Defendants and therefore entitled to payment of his salaries and allowances from July 2016 to date.
(ii) An order of this Honourable Court that the Defendants immediately pay the Claimant his outstanding salaries of balance of 50% of July, 2016 and thereafter his full monthly salaries from August 2016 till the date of filing this suit.
(iii) An order of this Honourable Court that the Defendant pay the Claimant his monthly salary per the above sum from March 2018 till the date of judgment and date of compliance with same.
(iv) An order of this Honourable Court that the Defendant pay the Claimant his Leave Allowance of 10% of Annual Salary for 2015, 2016 and 2017 at N216,000.00 x 3 = N648,000.00.
(v) An order of this Honourable Court that the Defendant pay the Claimant his Christmas Bonus for 2016 and 2017 = N203,000 x 2 = N406,000.00.
(vi) An order of this Honourable Court that the Defendant IMMEDIATELY pay to Stanbic IBTC Pension Managers Limited the sum of N24,000.00 per month for the period September 2015 to July, 2016 at the rate of N12,000.00 per month being 8% Claimant contribution deducted by the Defendants from Claimant’s salary and unpaid to Claimant pension funds manager and N12,000.00 per month being 8% Defendant contribution.
(vii) The sum of N5,000,000.00 only as damages for psychological and economic trauma caused the Claimant by the action of the Defendants.
(viii) Cost of this action.
The said suit was consolidated with suits NICN/PHC/50/2018, NICN/PHC/51/2018 and NICN/PHC/52/2018 on the 29th of October, 2018 with the case-file of this suit being the operative file for all four cases and the proceeding in the said suit to be adopted in all others.
In reaction to the claims, the Defendant filed memorandum of appearance on the 15th of January, 2019 along with statement of defence, list of witnesses, witness statement on oath, list of documents and copies of same.
Trial commenced before this court on the 21st of May, 2019 with the Claimant opening his case. The said Claimant was himself called as the sole witness as CW1 and he adopted his witness statements on oath marked as C1. Through the said CW1, 2 documents were tendered in evidence and admitted under protest as exhibits CW1 (a) – CW1(b).
Arising from the statement of facts and witness statements on oath, the case for the Claimant is that he was employed by the 1st Defendant on 1st May, 2013 as Head of Accounts based on the terms stated in his letter of employment and the 1st Defendant had always paid his salary until the 1st and 2nd Defendant entered a structural and operational agreement after which both defendants became responsible for paying his salaries. Claimant averred further that the Defendants stopped paying his salaries in the month of July, 2016 along with his allowances and Christmas bonuses, while also failing to remit his pension fund since August 2015.
At this point I must state that this case suffered a chequered history of adjournments at the instance of counsel to the Defendants which started from the date trial commenced in this suit and the Defendants by the choice of their Counsel, defaulted in the defence of this suit.
On the 21st of May, 2020 when trial commenced, M.O. Anagor Esq. held the brief of Lanre Olayinka Esq as counsel to the Defendants and after the Claimant opened his case, counsel to the Claimant raised the issue of failure of the Defendants to regularize their processes before the court. Consequently, the case was adjourned for the said regularization and cross examination of CW1.
By the subsequent proceeding of the court which was on the 4th of July, 2019, both counsel to the Claimant and Defendants were not in court. J.B. Huoma Esq. however, held the brief of Lanre Olayinka Esq. but did not conduct any business as the motion for regularization had not been filed. From the said date, the Defendant’s counsel unofficially dropped appearance in court despite service of court processes.
At the next adjourned date which was 18th of September, 2019, still no representation was made for the Defendants and no counsel appeared for them either. However, Counsel to the Claimant was in Court and he informed the court that the Defendants have not filed any motion for regularization before the court. Consequently, matter was adjourned to 22nd of October, 2019.
On the said 22nd of October, 2019, no counsel appeared for the Defendants despite proof of service of hearing notice and on the application of counsel to the Claimant, the Defendants were foreclosed from cross examination while the matter was adjourned to 18th of November, 2019 for Defence.
The Defendants were still unrepresented and without appearance of Counsel on the 18th of November, 2019 although the court reckoned that service of hearing notice was not effected on the Defendant. Hence, matter was adjourned to the 15th of January, 2020 for defence with the directive that counsel to the Claimant should ensure hearing notice were served on the Defendants.
By the next adjourned date, the court found that despite the service of hearing notice on the Defendants, no representation whatsoever nor appearance was entered for the Defendants and it was consequent upon the said finding that the Defendants were foreclosed from defence while the matter was adjourned to 24th of February, 2020 for Adoption of Final Address.
Both parties were absent and without representation on the 24th of March 2020 which necessitated the matter to be further adjourned to 13th of March 2020 which was affected by the suspension of sittings due to the outbreak of Covid-19 in Nigeria.
Upon ease of lock down, parties were duly communicated dates for continuation of proceedings with this matter slated for adoption of final written address on the 15th of October, 2020. It was upon this communication that the counsel to the Defendants, who unofficially dropped appearance since 4th July, 2019, sent in an email to the Registry of this court on the 13th of October, 2020 to request for an adjournment of the suit to December, 2020 on the ground that he is out of the Country for medical reasons without substantiating the said ground with any medical certificate or document in proof thereof.
It is also noteworthy that from the record of this court, Counsel is not the only lawyer in his Chambers as he has appeared with J.B. Huoma who had also held his brief severally.
Consequent upon the foregoing, the court permitted Counsel to the Claimant to proceed with adoption of final address as there must be an end to litigation and upon the consideration that this suit has been assigned to this court since October, 2018.
Arising from the final written address which was filed on the 4th of March, 2020, counsel to the Claimant, U.B. Obiaka Esq. formulated a sole issue for determination to wit:
WHETHER THE CLAIMANT IS ENTITLED TO JUDGMENT ON THE FACTS/EVIDENCE IN THIS SUIT.
In arguing the sole issue, counsel submitted that Claimant gave evidence as CW1 in line with his pleadings and tendered relevant documents. He added that the evidence of the Claimant was never challenged by the Defendants inspite of opportunities created by the court for Defendants to do so by way of cross examination. Counsel argued that the law is trite that where a party fails to cross examine the other party on crucial issues, he is deemed to admit the evidence adduced by the party. He cited the case of OLAOYE & ORS v MAKANJUOLA (2018) ALL FWLR (Pt 945) 866 at 905 Paras C-D ratio 17.
Counsel added that the Statement of Defence filed by the Defendant out of time was not regularized and by that, there is indeed in Law no competent Statement of Defence challenging the pleadings of the Claimant and in the entire circumstances of this case, the burden of proof has been discharged. Counsel cited the case of THE ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA (DECEASED) V. EKE SPIFF & ORS (2009) ALL FWLR (Pt.467) 1 at 35-36 Paras H-B.
Counsel concluded by urging the Court to resolve the sole issue in the affirmative and grant the Claims of the Claimant on record.
Consequent upon the foregoing, I have taken a careful look at the processes filed by the Claimant in the instant suit and the general circumstance of the case including the exhibits tendered by the Claimant. I have also taken into account the submissions of learned Counsel to the Claimant made through the Claimant’s final written address and find that the sole issue for determination is to wit:
Whether or not in view of the facts and evidence before the court, the Claimant is entitled to the reliefs sought.
In resolving the sole issue for determination, I must posit that in the circumstance of this case, the judgment that will arise from the determination of the said sole issue is a default judgment in view of the default of the Defendants to enter defence after filing memorandum of appearance and statement of defence in defence of the instant case. The court in EMUEZE & ORS v. GOVERNOR OF DELTA STATE & ORS (2014) LPELR-23201(CA) stated the nature of default judgment when it held that:
"Instructively, the term default Judgment denotes a binding Judgment in favour of either party based upon some very technical procedural principles regarding the failure to take action by the other party within a statutorily stipulated time limit. Most often, a default Judgment is granted in favour of a Plaintiff when the Defendant fails to respond to a writ of summons or fails to enter an appearance before a court of competent jurisdiction. Thus, what actually constitutes the fault is the party's failure to take necessary action as required by law, thereby resulting in the court entering [default] Judgment regarding the amount pleaded in the original writ of summons or statement of claim, where filed. See WIKIPEDIA: Legal Definition of Default Judgment." Per SAULAWA, J.C.A. (P. 36, paras. A-D)
In addition to the foregoing, the Rules of this Court empowers this court to enter judgment in default of the appearance of the Defendant or default of filing defence where the claim is for pecuniary damages. See generally Order 35 of the Rules of this Court.
It is consequent upon the foregoing that this Court shall consider the claims of the Claimant vis-à-vis the evidence before the court.
A consideration of the claims as put forward by the Claimant and gleaned from the statement of fact is for a declaration that he is still an employee of the Defendants and an order for the payment of his unpaid salaries, unpaid allowances, unpaid Christmas bonuses and remittance of his pension contribution.
Upon consideration of the said claims, it is imperative to state that the Claimant bears the burden to proof that he is entitled to the said claims notwithstanding the absence of defence.
With specific regards to the declaratory relief sought in relief one, the court in P.D.P v. Abubakar (2007) 3 NWLR (Pt. 1022) 515 at 546 - 547 Paras. D - A (CA) held that:
“In civil cases, before a court can grant a declaratory relief sought by a plaintiff he must plead and lead evidence to entitle him to the declaration sought. An admission by the defendant will in no way relieve the plaintiff from the onus placed on him of proving his claim. The plaintiff has the bounding duty to satisfy the court by evidence, and not through admission in the pleading of the defendant, that he is entitled to the declaration sought…” Per. Adekeye JCA.
With regards to other reliefs sought, it must be reckoned that the Claimant will fail if there are no cogent and convincing evidence placed before this court to earn the said reliefs. This is because the burden of proof lies on the party who alleges as elaborately held by the court in the case of FASUBA v. ADUMASI & ANOR (2015) LPELR-24548(CA) that:
"By virtue of Section 135 of the Evidence Act Cap. 112 LFN 1990 (now Section 131 Evidence Act 2011) whoever desires any court to give judgment as to any legal right liability or dependent on the existence of facts which he asserts must prove that those facts exist. And, when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. In other words, he who asserts must proof. Furthermore, in civil cases, the ultimate burden of establishing a case is as disclosed in the pleadings. The person who would lose the case, if on completion of pleadings and no evidence is led, has the general burden of proof. So it is that the burden of proof lies upon the party who substantially asserts the affirmative of the issue. See: A. K. Fadillarah v. Arewa Textiles Ltd (1997) 8 NWLR 546; Murana Elemo & Ors V Fasasi Omolade & Ors (1968) N.M.L.R 359." Per OWOADE, J.C.A. (Pp. 27-28, paras. C-A).
In attempt to discharge the burden placed on the Claimant, I reckon that CW1 tendered Exhibit CW1 (a) and CW1(b) and I also reckon that in the course of the said exhibits being tendered, M.O. Anagor Esq. who held the brief of Counsel to the Defendant conceded to the admissibility of Exhibit CW1 (a) while objecting to that of Exhibit CW1(b) on the ground that same was not tendered by the maker and being a computer generated document, no foundation was laid.
Counsel to the Claimant contended in reaction that admissibility of a document is governed by two conditions i.e. pleading and relevance. He added that the document is pleaded and is relevant and CW1 laid the requisite foundation by stating that he went to the bank himself to obtain the document.
Consequently, Exhibit CW1(b) was admitted under protest and it is incumbent on this court to consider the status of the said exhibit CW1(b).
In considering the status of the said exhibit admitted under protest, I must state that I have taken a look at the said document and find that same is a Zenith Bank statement of account, bearing the name of the Claimant with the account number: 1001342267. The said statement of account bears the stamp of the Bank on every page and is signed at the last page making it regular on the face of it.
I have also considered the argument of counsel to the Claimant and find that indeed the said document was pleaded in paragraph 6 of the statement of fact and particularly captured the account number as reflected on the said exhibit. In addition, the said statement of account is intended to establish the monies paid into the account of the Claimant as salaries hence same is considered relevant to this suit.
In addition to the foregoing, I must state that the said document was issued to the claimant hence same does not require the maker to be the one to tender the document. Moreso, as CW1 is not the maker of the document, he need not satisfy the condition for tendering a computer generated document.
In the light of all the foregoing, I take into account the provision of section 12 (2) (b) of the National Industrial Court Act 2006, which permits this court to set aside the rule of evidence in the interest of justice. Upon a consideration of the pleading and relevance of the exhibit CW1(b), the objection of counsel to the Defendant is discountenanced and the said exhibit CW1(b) is accordingly admitted in evidence.
The consequence of the foregoing is that the claims of the Claimant are to be decided upon the strength of exhibits CW1(a) which is an offer of contract of employment issued to the Claimant by the 1st Defendant and exhibit CW1(b) which is the Claimant’s Zenith Bank statement of account.
Having said that, I reckon that relief (i) is for “A Declaration that he (the Claimant) is still a staff of the Defendants and therefore entitled to payment of his salaries and allowances from July 2016 to date”.
In seeking for the said declaration, I reckon that Claimant posited that he was originally employed by the 1st Defendant while the 1st and 2nd Defendant had a structural and operational reorganization which made both of them become responsible for the payment of his salary. Claimant added that the 1st Defendant paid salaries into his account via Zenith bank while the 2nd Defendant paid him from its Diamond bank account.
In view of the foregoing, I find that Exhibit CW1(a) was indeed an offer of employment issued to the Claimant with the employment commencing on the 1st of May, 2013. While there is no letter of employment issued by the 2nd Defendant, I have taken a look at the statement of account tendered as CW1(b) to find that indeed the 2nd Defendant paid into the Claimant’s account the sum of N187,450 on 08/08/2016. The said payment is a form of interposition by the 2nd Defendant which alters the existing relationship between the Claimant and 1st Defendant.
The foregoing finding without a doubt shows that there existed an employment relationship between the Claimant on the one hand and the 1st and 2nd Defendants on the other hand. The said finding clearly indicates a situation of triangular employment relationship which the court emphasized in the case of Oyetayo v Zenith Bank Plc. (2012) 29 NLLR (Pt. 84) at 420. Where the court held that:
“Our Law admits that during the pendency of an employment relationship, the character of that relationship may be altered as between the parties with or without the interposition of third party. It is in this sense that the triangular employment relationship evolved”. Per B. B. Kanyip (PNICN).
In addition, Exhibit CW1(a) manifestly shows that the Claimant is to be paid salary on monthly basis. Consequent upon the absence of proof that the relationship no longer exists, this court finds the Claimant entitled to the declaration sought in relief one and same is accordingly granted.
With regards to Reliefs two and three, I reckon that they are for an order of this court directing the Defendants to pay to the claimant his outstanding salaries from July 2016 to February, 2018 on the one hand and then from March 2018 to date of judgment. The said reliefs reads thus:
(ii)“An order of this Honourable Court that the Defendants immediately pay the Claimant his outstanding salaries of balance of 50% of July, 2016 and thereafter his full monthly salaries from August 2016 till the date of filing this suit”.
(iii)“An order of this Honourable Court that the Defendant pay the Claimant his monthly salary per the above sum from March 2018 till the date of judgment and date of compliance with same”.
In consideration of the said reliefs, I reckon that the Claimant tabulated the expected salaries as claimed with Table A capturing the salaries from July to December 2016 and that of July being 50% at the rate of N93,725.00 while that of August to December is alternately N187,450.00 and N186,000.00. Table B is for the salaries of January to December, 2017 with the alternate sums of N187,450.00 and N186,000.00. except for the month of February which is the sum of N184,550.00. Lastly is Table C which is for salaries owed for January and February, 2018 put respectively at N187,000.00 and N184,550.00.
Bearing the foregoing finding in mind, it must be said that a claim for salaries comes within the realm of special damages as same must not only be specifically pleaded but must be strictly proved. This position was maintained in the case of JULIUS BERGER NIGERIA PLC & ANOR v. UGO (2015) LPELR-24408(CA) where the court held that:
“special damages are based on measurable Naira amounts of actual loss, and it is for this reason that they are expected to be specially pleaded and strictly proved. In actual fact special damages are damages that are reduced to a "sum certain". See the case of NGILARI vs. MOTHERCAT LTD (1999) LPELR-1988. Per OHO, J.C.A. (P. 91, paras. A-G)
While I have restated how the Claimant particularized the claim for salaries owed to him by the Defendants, with regards to proof, I reckon that the Claimants original salary from the letter of offer of employment is N150,000.00 and while the Claimant did not state when his salary changed to the sums of N187,450, N186,000 and N184,550, I must state that these latter sums are variously found to be paid to the Claimant by the 1st and 2nd Defendants although it was not stated by the Claimant why the sums paid as salaries are at variance.
Notwithstanding the variance, it is evident from Exhibit CW1(b), the Zenith Bank statement of account of the Claimant that the last time the Claimant was paid a money with a narration reading as salary was on the 20th December, 2016. In view of this finding, I take into account the particulars of salaries paid into the Claimant’s account from January – December, 2016 which the statement of account covers. The said particularization was averred in paragraph 9 of the statement of fact and therein the Claimant presented a table of the month for which his salaries were paid and the respective dates. Claimant posited that the salary for January was paid on 3/2/16 and that of February was paid on 29/3/16; that of March was paid on 15/4/16 while that of April was paid on 12/5/16. That of May was paid on 8/8/16 while that of June was paid in two halves of N93,000.00 on 16/8/16 and 20/9/16 and lastly that of July 2016 paid at 50% on the 20/12/16.
I have taken a look at the statement of account and confirmed the particularized payments as tabulated and consequently considers the claim of the Claimant in respect of salaries for the period of July 2016 to be remaining unpaid by 50% while that of August – December, 2016 remain unpaid in full. For the months of January 2017 – February 2018, there is no evidence before this court in proof that the sums are unpaid as the statement of account tendered by the Claimant covers only the period of 15th December, 2015 to 31st December, 2016.
The foregoing notwithstanding, I must hold that the Claimant is entitled to salaries for whatever month is owed as same is a vested right once it is due for payment. The court in the case of Tamti v N.C.S.B & Anor (2011) 23 NLLR (Pt.65) 178 at 205 held to this effect that:
“An employee’s salary becomes due and his right to it is vested at the end of each month. Hence, the employer cannot dismiss or terminate the employees employment with retrospective effect with the view of denying him his vested right to his salary and allowance”. Per Uwani Musa Aba Aji, J.C.A.
In the light of the foregoing authority and declaration that the Claimant is still a valid employee of the Defendants in the absence of any proof that the employment is terminated, the Claimant is entitled to any outstanding salaries which has become due for payment.
Consequently, the reliefs sought in reliefs (ii) and (iii) cannot be granted as prayed and in their stead, this court makes an order directing the Defendants to pay to the Claimant the 50% balance of his salary for the month of July, 2016, the full salary for the months of August – December 2016 and any other month which is due and payable to the Claimant.
Relief (iv) is for “An order of this Honourable Court that the Defendant pay the Claimant his Leave Allowance of 10% of Annual Salary for 2015, 2016 and 2017 at N216,000.00 x 3 = N648,000.00.”.
The facts relating to the said claim is that the Claimant was last paid his leave allowance for the Year 2014 on the 22nd of December, 2015 in the sum of N216,000.00 while that of 2015,2016 and 2017 remain unpaid.
In consideration of the said claim, I have taken a look at Exhibit CW1(a) to find that clause 5 of the offer of contract employment makes provision for ‘Leave Entitlement’ and the clause reads in part that “an employee proceeding on annual leave shall be entitled to receive a leave allowance of 10% of his annual salary”.
Bearing the foregoing in mind, I have had to consider if the sum of N216,000.00 claimed by the Claimant as leave allowance per year is indeed the 10% of the Claimant’s annual salary and upon the consideration I find that it is impracticable to ascertain a 10% in the absence of the exact sum which makes the Claimant’s annual salary. This is particularly in view of the fact that the sums paid to the Claimant as monthly salaries comes in three different sums as shown in Exhibit CW1(b).
In the face of the impracticability to compute a 10%, I reckon that Exhibit CW1(b) bears the payment of the sum of N216,000.00 on the 22/12/15 by 1st Defendant although without a narration for what the said money was for. That notwithstanding, I find that on the strength of exhibit CW1(a), the offer of contract employment issued to the Claimant, the Claimant is entitled to be paid leave allowances as owed and the said offer of employment is a contract binding on the Defendants. In this regard, the court in the case of CALABAR CEMENT CO. LTD. VS. DANIEL (1991) 4 NWLR (PT.188) 750 at 760 held that:
“…in a contract of service, parties are bound by the terms of the contract. Where the terms of the contract are clear and unambiguous, the parties cannot move out of them in search for more favourable terms or greener pasture”. Per Tobi J.C.A (as he then was).
Consequent upon the foregoing, I find that the Claimant is entitled to relief four in the extent to which this Court makes and Order directing the Defendants to pay to the Claimant all the leave allowances owed.
Relief (v) is for “An order of this Honourable Court that the Defendant pay the Claimant his Christmas Bonus for 2016 and 2017 = N203,000 x 2 = N406,000.00.”
The claim for Christmas Bonus takes the same course of finding as that of leave allowance in view of the fact that the claim streams from exhibit CW1(a). While the Claimant states that the leave bonus is in the sum of N203,000.00, I have taken a look at exhibit CW1(a) which is the basis for the agreement to pay Christmas bonus. The said Exhibit by clause 4 provides for Christmas Bonus and states that: “The bonus of one full month’s salary will be paid together with the December Salary”.
Upon a consideration of the said clause, it is doubtful how the sum claimed for Christmas bonus by the Claimant is in the sum of N203,000.00 especially considering the fact that the salaries claimed by the Claimant for a month is in variables of N187,450.00, N186,000.00 and N184,550.00.
While I am not oblivious of the fact that the Claimant posited that the sum of N203,000.00 that was paid into his account on the 22/12/2015 was his Christmas bonus for the year 2015, I must state that the said payment does not bear a narration to that effect and the consideration of Exhibit CW1(a) does not lend credence to the fact that the said sum is Christmas bonus.
That notwithstanding, there is no gainsaying that the Claimant is entitled to Christmas bonus upon the consideration of exhibit CW1(a), the only contention is in what sum as the sum claimed is not in accordance with that stated in ExhibitCW1(a).
Consequently, relief five is granted only to the extent that this Court makes an order directing the Defendants to pay to the Claimant all the sum owed as Christmas bonus.
Relief (vi) is for “An order of this Honourable Court that the Defendant IMMEDIATELY pay to Stanbic IBTC Pension Managers Limited the sum of N24,000.00 per month for the period September 2015 to July, 2016 at the rate of N12,000.00 per month being 8% Claimant contribution deducted by the Defendants from Claimant’s salary and unpaid to Claimant pension funds manager and N12,000.00 per month being 8% Defendant contribution.
The basis of this claim is the allegation made by the Claimant in paragraph 8 of the statement of fact that the Defendants make 8% deductions from his salaries and deliberately fail to remit same along with the Defendants’ 8% contribution to his pension fund managers.
In the face of the said allegation, it rests upon the Claimant to prove that indeed the Defendants were making deductions from his salaries and that they failed to remit to his pension fund managers. The law is trite that he who asserts must prove. See INTERCONTINENTAL BANK PLC v. DAYEKH BROTHERS LTD (2014) LPELR-23485(CA). To discharge the burden, the Claimant will have to establish how much his salary per month ought to be and how much was paid to him monthly in order to show that the difference of what was paid and what he ought to earn is 8%.
In the light of the incongruity surrounding how much the Claimant’s exact salary is out of the three various sums presented before this court, it is clear that the Claimant failed woefully to establish an 8% deduction from his salaries. In addition, the Claimant did not place any evidence before this court in relation to his pension account wherein contributions were supposed to be made and which was not done from September, 2015 to July 2016.
Consequently, it is the finding of this Court that the Claimant has failed to established that he is entitled to relief six and same is accordingly refused for dearth of evidence.
Relief (vii) is for “The sum of N5,000,000.00 only as damages for psychological and economic trauma caused the Claimant by the action of the Defendants”.
Upon a consideration of the said relief, I must say that the law is trite that in civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleading. See the case of OLUDE v. ADEESO (2015) LPELR-25587(CA) and sections 132 and 133 (1) of the Evidence Act, 2011.
Bearing the foregoing in mind, I find that there is no iota of fact or evidence in relation to the Claimant suffering any psychological or emotional trauma and without much ado, I find the said relief to be unmeritorious and same is accordingly refused.
Relief (viii) is for “Cost of this action” which is perhaps left to the discretion of this court. In this wise, I find it apposite to state that the court indeed has the discretion to award cost to the successful party assuage the expenses incurred. In this regard, the Supreme Court in NNPC v. CLIFCO NIG. LTD. (2011) LPELR-2022(SC) held that:
"The award of cost is entirely at the discretion of the court. Costs follow the event in Litigation. It follows that a successful party is entitled to costs unless there are special reasons why he should be deprived of his entitlement. In making an award of costs the court must act judiciously and judicially. That is to say with correct and convincing reasons. See Anyaegbunam v. Osaka 1993 5 NWLR pt.294 p.449 Obayagbona v. Obazee 1972 5 SC p.247" Per. RHODES-VIVOUR, J.S.C (P. 26, paras. E-G).
Bearing the forgoing in mind and considering the entire circumstance of this suit and also the fact that the Claimant is to an extent the successful party, this court is inclined to award cost in favour of the claimant. Consequently, this Court makes an Order directing the Defendants pay to the Claimant the sum of N100,000.00 as cost of action.
Having considered all the reliefs sought, the sole issue formulated for the determination of this suit is largely resolved in favour of the Claimant to the effect that in view of the facts and evidence before the court, the Claimant is entitled to the reliefs sought in the extent to which they have been granted.
In the light of the foregoing, the Claimant is found to be entitled to the reliefs (i) - (v) and (viii) in the extent to which they have been granted by the declaration and order of this court.
Judgment is accordingly entered.
…………………………………………………………
HON. JUSTICE Z. M. BASHIR.
JUDGE