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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS DATE: SEPTEMBER 25, 2014 SUIT NO: NICN/LA/191/2013 BETWEEN MR. ABIODUN OLUFIADE - Claimant AND TRADEWAYS EXPRESS INTERNATIONAL LIMITED- Defendants REPRESENTATION Oge Enyindah for the Claimants. No representation for the Defendant. JUDGMENT On the 12th of April 2013, the Claimant in this case by his General Form of Complaint approached this Court for the following reliefs - i. A declaration that the Claimant is entitled to the payment of his outstanding salaries; salary in lieu of notice of termination of employment; deducted staff Cooperative Contributions and NSTIF/Pension contribution, outstanding allowances, bonus and entitlements from the Defendant; ii. An order of Court directing the Defendant to pay the Claimant forthwith his outstanding salaries, one month salary in lieu of notice of termination of his employment; Staff Cooperative Contribution deductions and NSTIF/Pension deductions, allowances and entitlement all amounting to =N495,963.39 as at 15th September 2011 iii. Interest on the said outstanding sum of =N=495,963.39 at 21% per annum from 15/9/11 until payment iv. =N=1,000,000.00 damages for the hardship suffered as a result of delay in payment of outstanding wages, allowances and entitlements v. The cost of litigation. Claimant's Form 1 was accompanied by Statement of Facts, List of Witness, Claimant's Witness Statement on Oath, List and Copies of Documents to be relied on at trial. This case was initially before my learned brother Obaseki-Osaghae J. Upon his lordship's transfer out of Lagos Division, this case was reassigned by His Lordship the Hon President of this Court to this Court to hear and determine. It is important that l state the fact that Defendant in this case did not enter an appearance, did not file a defence, was not represented throughout the length of trial not even for a day, did not cross examine the witness for the Claimant and did not file any final written address or any address at all in this case. This observation is just an aside as no party is under an obligation to defend a suit against it if it does not wish to do so. The case for the Claimant is that he was a former employee of the Defendant having been employed on 22/9/04 and confirmed on 1/5/07; that he worked diligently with Defendant until 15/9/11 when his employment was terminated; that as at the date of termination of his employment, Defendant owed him outstanding salaries, salaries in lieu of Notice. Bonus, leave allowance, staff cooperative contribution deductions and unremitted pension deductions; that he made demands for these payments by himself and through his Solicitors but Defendant failed to settle the outstanding claims hence this action. On 24/10/13 Claimant opened his case, testified as CW1, adopted his witness statement on oath dated 12/4/13 and tendered 11 documents which were admitted and marked as Doc. 1-Doc 11. Witness urged the Court to grant his claims. Case was adjourned for the Defence to cross examine and open its case. After a couple of adjournments at the instance of the Defendant, the Court, invoking the provisions of Order 19 Rule 10(3) of the National Industrial Court Rules, 2007, closed the case for the Defendant and ordered counsel to file their final written addresses for adoption. Learned Counsel for the Claimant filed his final written address as directed. There is evidence of service of same on the Defendant. Defendant did not file any neither was it represented in Court. Learned Counsel for the Claimant set down two main issues for determination. They are as follows: 1. What is the effect of the Defendant not filing a Defence and not leading a evidence in this case 2. Whether the claimant has made out a good case to warrant judgment in his favour. On issue 1, learned Counsel submitted that the law is trite that where a Defendant fails to challenge the case of the plaintiff by filing a defence and leading evidence in support, the Defendant is in law taken to have accepted the case of the plaintiff as presented. According to Counsel the same principle applies where a Defendant fails to cross examine the witness of the Plaintiff or challenge the evidence of the Plaintiff. Counsel cited Nzeribe v. Dave Eng. Co. Limited (1994)8 NWLR (Pt. 361) 124 at 137-138. According to learned Counsel, not having challenged or contradicted the claim of the Claimant, Defendant must be deemed to have accepted same, citing N.E.P.A v. Edegbenro (2002)18 NWLR (Pt. 798) 79. Submitting further, learned Counsel stated that where a party to a suit is afforded a reasonable opportunity of being heard in the manner prescribed under the law, and for no satisfactory explanation he fails or neglects to attend the sitting of the Court, he cannot thereafter be heard to complain of lack of fair hearing. Counsel relied on Nkwocha v. MTN (Nig.) Limited (2008)11 NWLR (Pt. 1099) 439, 459-460. Counsel pointed out that all the processes in this suit and Hearing Notices were served on the Defendant and yet Defendant chose not to attend Court not even for a day. On issue 2, Counsel submitted that Claimant has proved his case through both oral and documentary evidence and that the Defendant failed to contradict the case of the Claimant. Learned Counsel urged the Court to enter judgment in favour of the Claimant. I have carefully considered all the processes filed in this case including the final written address of the Claimant. I also did listen to the oral submission of learned Counsel in Court. In addition l have evaluated the exhibits tendered and admitted in this case. Having done so, l find that a sole issue for the determination of this case is - Whether the Claimant has proved his case to be entitled to judgment in relation to his claims. There is no doubt that Claimant was an employee of the Defendant. Doc. 1, Doc. 2, Doc. 3 and Doc. 6 are sufficient evidence of the existence of master/servant relationship between the parties. The Documents are the Letter of Offer of Employment dated 27/9/04; Letter of Offer of Full Time Employment dated 29/8/06; Letter of Confirmation of Employment dated 27/6/07 and letter of Termination of Employment dated 14/9/11 respectively. The issue really worth considering is what credible evidence has the Claimant put forward in pursuit of his claim. I had stated that the defendant in this case did not enter into its defence and hence did not challenge or controvert the case as canvassed by the Claimant. This is notwithstanding that it had ample opportunity to do so. The law is trite, and Ogunyade v. Oshunkeye (2007)15 NWLR (Pt. 1057) 218 is a good authority, that where evidence given by a party to any proceedings was not challenged by the opposite party who had the opportunity to do so, it is always open to the court seised of the proceedings to act on the unchallenged evidence before it. Such unchallenged evidence must however be cogent and strong enough to sustain the case of the claimant, see Ogoejeofo v. Ogoejeofo (2006) LPELR-2308 (SC). Claimant sought 5 reliefs from the Court. The first is 'A declaration that the Claimant is entitled to the payment of his outstanding salaries; salary in lieu of notice of termination of employment; deducted staff Cooperative Contributions and NSTIF/Pension contribution, outstanding allowances, bonus and entitlements from the Defendant'. Claimant in his statement on oath stated the particulars of the salaries, allowances and job benefits owed to him by the defendant the total sum of which comes to =N=495,963.59. In support of these claims sought, Claimant tendered Doc. 6 a document emanating from the defendant where in the defendant stated that ''Your one month Basic salary in lieu of notice and other outstanding salary due to you would be paid as soon as you are cleared. That document was dated 14/9/11; Doc. 7 are copies of Claimant's pay Slips from January 2005 to March 2011 showing among others claimant's salaries and allowances including Staff Cooperative Contributions; Doc. 8 which is a memo by Claimant dated 10/10/11 to the Management of the Defendant was in demand of his outstanding salaries and other benefits owed by the Defendant. Now, on 12/12/12, Claimant's Solicitors wrote Doc. 9 to the Managing Director of the Defendant demanding 'for unpaid salaries and entitlements-=N=495,963.59' of the Claimant while Doc. 10 dated 21/1/13 was a reminder of Doc. 9. There is no evidence before me that the stated sum for which the Claimant seeks a declaration has been paid. I therefore find and hold that Claimant is entitled to the declaration sought. It is here declared that Claimant is entitled to the payment of his outstanding salaries; salary in lieu of notice of termination of employment; deducted staff Cooperative Contributions and NSTIF/Pension contribution, outstanding allowances, bonus and entitlements from the Defendant. The second relief is for an order of Court directing the Defendant to pay the said sum of =N=495,963.59 to the Claimant. Having made declaration in respect of the first relief sought by the Claimant, making this order sought is a matter of course. The declaration made above is the foundation upon which the second relief sought is laid. The Defendant is here ordered to pay to the Claimant forthwith his outstanding salaries, one month salary in lieu of notice of termination of his employment; Staff Cooperative Contribution deductions and NSTIF/Pension deductions, allowances and entitlement all amounting to =N495,963.39 as at 15th September 2011. The third relief sought is for interest on the said outstanding sum of =N=495,963.39 at 21% per annum from 15/9/11 until payment. In relation to pre-judgment interest, N.M.B. Ltd v. Aiyedun In. Ltd (1998)2 NWLR (Pt. 537) 221 is a good authority for the proposition that the law treats the holder of such funds as a borrower of it on which interest must be paid. With regard to post-judgment interest monetary judgment attracts interest even where none is claimed, see Diamond Bank Ltd v. P.I.C. Ltd (2009)18 NWLR (Pt. 1172) 67. In any event award of post-judgment interest is sanctioned by the Rules of this Court, see Order 21 Rule 4, National Industrial Court Rules, 2007. I thus hold that the judgment sum awarded in this case shall attract 10% interest from 15th September 2011 until the entire sum is fully paid. The fourth relief is for the sum of =N=1,000,000.00 as damages for the hardship suffered as a result of delay in payment of the outstanding wages, allowances and entitlements. In paragraph 16 of his Statement of Facts and also on paragraph 16 of Claimant's witness statement on oath, Claimant averred that the indebtedness to him from the Defendant has lingered for over three years and has caused him serious hardship in the maintenance and upkeep of his wife and children. Through out of the entire hearing of this case, there was no reference to this stated facts by the Claimant or his Counsel not even in the 6-page written address of learned Counsel to the Claimant. The law is long well established and settled that an averment in pleadings is no evidence and cannot be so construed. Averments are designed mainly to set out and in perspective the evidence that a party is likely to present so that the other side would not be caught unaware or unprepared. Except where averments in pleadings are admitted, they must be proved by cogent, credible and admissible evidence. See Nigerian Advertising Services Limited & Anor. v. U.B.A Plc & Anor. (2005)14 NWLR (Pt. 945) 421, (2005) LPELR-2009 (SC). I find no evidence before me in proof of this relief. There is therefore no basis upon which this Court can grant same. It is refused accordingly. The fifth relief is for the cost of this action. No specific sum is sought and applied for by the Claimant. No specific sum is also proved. The law is however trite that cost follows event. The need for this action would not have arisen in the first place had Claimant been paid his due by the Defendant. Seventy Five Thousand Naira (=N=75,000.00) is awarded as cost of this action. Finally and for the avoidance of doubt; 1. It is here declared that Claimant is entitled to the payment of his outstanding salaries; salary in lieu of notice of termination of employment; deducted staff Cooperative Contributions and NSTIF/Pension contribution, outstanding allowances, bonus and entitlements from the Defendant. 2. The Defendant is here ordered to pay to the Claimant the sum of Four Hundred and Ninety Five Thousand, Nine Hundred and Sixty Three Naira and Thirty Nine Kobo (=N495,963.39) being his outstanding salaries, one month salary in lieu of notice of termination of his employment; Staff Cooperative Contribution deductions and NSTIF/Pension deductions, allowances and entitlement all amounting to same as at 15th September 2011. 3. Defendant shall pay interest of 10% on the judgment sum awarded in this case from 15th September 2011 until the entire sum is fully paid. 4. Relief 5 for damages is refused same not having been proved. 5. Defendant shall pay the sum of Seventy Five Thousand Naira only as cost of this action. The entire judgment sum awarded in this case shall be paid within 14 days from the date of this judgment. Judgment is entered accordingly. ____________________ Hon. Justice J.D. Peters Presiding Judge