Imoter Samuel Kyausu -VS- Boardd MKD & 3 ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE MAKURDI JUDICIAL DIVISION

HOLDEN AT MAKURDI

BEFORE HIS LORDSHIP, HONOURABLE JUSTICE S. H. DANJIDDA

ON THE 29^TH DAY OF OCTOBER, 2019

SUIT NO: NICN/MKD/55/2019

BETWEEN:

IMOTER SAMUEL KYAUSU……………………………………..CLAIMANT/APPLICANT

AND

BENUE STATE LOCAL

GOVERNMENT PENSIONS BOARD

BUREAU FOR LOCAL GOVERNMENT

AND CHIEFTAINCY AFFAIRS ……………………….DEFENDANTS

THE ATTORNEY GENERAL AND

COMMISSIONER FOR JUSTICE, BENUE STATE

THE GOVERNOR OF BENUE STATE

REPRESENTATION:

Parties absent

A.C. Uchui for the Claimant

J.O. Ewurum (PSC) Benue State Ministry of Justice for the Defendants.

JUDGEMENT

The Claimant’s motion for summary judgment forms the basis of the instant ruling. The motion dated 19/07/2019 was filed on 23/07/2019. The prayers as contained on the face of the said motion are thus:

“1. AN ORDER of the Honourable Court entering summary judgment in this suit.

AND for such order(s) as this Honourable court may deem fit to make in the circumstances of this case.”

The case of the Claimant is stated in the 15-Paragraph Affidavit filed in support of the motion. The averments are hereby reproduced for ease of flow:

“1. That I am the 1^st son and Next of Kin of Kyausu D. Alfred;

That the said Kyausu D. Alfred died on 17^th July 2016;
That before he died he had worked with the Benue State Government;
That upon his demise letters of administration were issued to me in my name. The letters of administration dated 30/9/2016 is hereby attached as Exhibit A. V.¹
That upon receipt of the letters of administration, I submitted same to the Permanent Secretary Local Government Pensions Board;
That based on the letters of administration, the computation of my late fathers benefits were made and I obtained a copy of same at the pensions board;
That the computation of death benefits in respect of my late father was based on CONHESS (14/11) with a final salary of One Million, Six Hundred and fifty six thousand, Nine Hundred and Twenty Four Naira (N1,656,924.00) only per annum;
That based on the calculation in (7) above my father’s gratuity stood at Four Million Nine Hundred and Seventy Thousand, Seven Hundred and Seventy Two Naira (N4,970,772.00) only and pension of One Million, Three Hundred and Twenty Five Thousand, Five Hundred and Thirty Nine Naira, Twenty Kobo (N1, 325,539.20) bringing it to a total of Six Million, Two Hundred and Ninety Six Thousand , Three Hundred and Eleven Naira , Twenty Kobo (N6,296,311.20) only;
That the letters of administration were extended on the 20/12/2018 to the tune of Eleven Million, Five Hundred and Ninety Eight Thousand, Four Hundred and Sixty Eight Naira (N11,598,468.00) only;
That the total benefit of my father stands at Seventeen Million, Eight Hundred and Ninety Four Thousand, Seven Hundred and Seventy Nine Naira, Twenty Kobo (N17,894,779.20) only. The letter of further grant dated 20/11/2018 is attached and marked as Exhibit A. V.²
That I have made several demands at the pensions office to pay the benefits to no avail;
That I have taken up the responsibility of my late father to look after my younger siblings, pay their fees and upkeep. And to take care of my mother and other dependants;
That the defendants have no defence to the suit;
That it is in the interest of justice to grant this application;
That I make this oath believing the content to be true and in accordance with the oath laws, 2004.”

A written address of counsel for the applicant was filed wherein counsel posited the lone issue: “Whether or not the claimant/applicant has made out a case to warrant the judgment on the summary judgment procedure.” In submission, counsel stated that the applicant had placed enough material before the court to warrant judgment based on the summary judgment procedure. Counsel cited the case of OBITUDE V. ONYESOM COM. BANK LTD (2014) 4 KLR (pt. 344) 1387 @ 1405 and urged the court to grant the application for summary judgment.

A complaint and other originating processes were filed alongside the application claiming against the defendants as follows:

“a. The sum of Seventeen Million, Eight Hundred and Ninety Four Thousand, Seven Hundred and Seventy Nine Naira, Twenty Kobo (N17,894,779.20) only.”

Briefly, the case of the claimant upon which the claim is based is that: the claimant is the 1^st son and Next of Kin to Kyausu D. Alfred who died on 17/07/2016. The deceased worked with the Benue State Government before his demise. The claimant now armed with letters of administration and the computation of his late father’s benefits is claiming final salary of One Million, Six Hundred and Fifty-Six Thousand, Nine Hundred and Twenty Four Naira (N1,656,924.00) Only , based on CONHESS (14/11); and gratuity of Four Million Nine Hundred and Seventy Thousand, Seven Hundred and Seventy Two Naira (N4,970,772.00) only and pension of One Million, Three Hundred and Twenty Five Thousand, Five Hundred and Thirty Nine Naira, Twenty Kobo (N1,325,539.20). In total, amounting to Six Million, Two Hundred and Ninety Six Thousand, Three Hundred and Eleven Naira, Twenty Kobo (N6,296,311.20) Only.

The Claimant averred that the letters of administration were extended on 20/12/2018 to the tune of Eleven Million, Five Hundred and Ninety Eight Thousand Four Hundred and Sixty Eight Naira (N11,598,468.00) Only. In all, the Claimant has stated that the benefits of his deceased father when put together, stand at Seventeen Million, Eight Hundred and Ninety Four Thousand, Seven Hundred and Seventy Nine Naira, Twenty Kobo (N17,894,779.20) only in the sum claimed.

On 15/08/2019 a memorandum of appearance was filed for the 1^st to 4^th Defendants by J. I. Wombo Esq. Chief Legal Officer, Ministry of Justice, Benue State. In company of the Memorandum of Appearance, Learned also filed a joint statement of defence for the 1^st – 4^th Defendant. Added to that, there is equally the 1^st – 4^th Defendant’s Counter Affidavit to the Claimant’s Application for Summary Judgment. The said Counter Affidavit comprises 5-Paragraphs and is deposed to by Abraham Shie, the Principal Litigation Officer in the Department of Civil Litigation, Ministry of Justice Makurdi. His depositions in Paragraphs 3 and 4 thereof are relevant. In substance, the deponent averred that the Defendants have filed their statement of Defence as well as other relevant processes and that the Defendants are intent on defending this suit.

In his written submission, counsel for the Defendants relied on Order 16 Rules 4 and 5 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 to say that the Defendant were in compliance with the requirement of law and that the court should refuse the Claimant’s motion for summary judgment and grant the Defendants leave to defend the suit.

Looking at the Statement of Defence, the Defendants made sweeping denial of the claims put forward by the Claimant and challenged him to strict proof of same. In their defence the Defendants have contended that the statutory funds allocated to them by the federal and state governments have not been forthcoming despite repeated demands. Furthermore, that the claimant’s claim should not be granted as the operations of the defendants will in all likelihood be grounded as a result and undermine the public interest.

Exhibit MOJ1 is a letter dated 11/04/2018 which the Defendants have pleaded in their Defence. It purports to be an appeal by the Chairman of the Benue State Local Government Pension Board to the Executive Governor, Benue State for settlement of court cases and Garnishee Orders.

OPINION OF THE COURT

The purpose of summary judgment procedure is usually aimed at dispensing with dispatch cases which are virtually uncontested and thus, also applies to cases where there can be no reasonable doubt that a claimant is entitled to judgment and where it is inexpedient to allow a Defendant to defend for the mere purposes of delay. It is for the plain and straight and not for the devious and crafty. SEE AGRO MILLERS LIMITED V. CONFIDENTIAL MERCHANT BANK (NIG) PLC (1997) 10 11 NWLR (PT. 525) 469; GTB PLC V. SOLOMON (2016) LPELR-40342(CA).

It is trite law that where a defendant apparently has no defence, a summary judgment procedure would suffice. Onu, J.S.C. in the case of PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LTD. V. RHEIN MASS UND SEE SCHIF FARTS KONTOR GMBH (1997) LPELR-2899(SC) stated that summary judgment is a judgment that is given without taking the defence of the defendant. I align myself with this reasoning.

In the case of UBA & ANOR V. JARGABA (2007)11 NWLR (PT. 1045) 247Tobi JSC, lucidly explained the rationale for the summary judgment provision thus:

“For an action to be transferred from the undefended list to the general cause list there must be a defence on the merit and detail and particulars of defence must be set out. It must not be a half hearted defence. It must not be a defence which is merely fishing for skirmishes all over the place. It must be real defence on the merit and not a counterfeit of it… The undefended list proceeding is a truncated form of ordinary civil hearing peculiar to our adversary system where the ordinary hearing is rendered unnecessary due in the main to the absence of an issue to be tried or the quantum of the Plaintiff’s claim disputed to necessitate such a hearing… The Undefended list procedure is designed to secure quick justice and avoid the injustice likely to occur when there is no genuine defence on the merits to the plaintiff’s case. The procedure is to shorten the hearing of a suit where the claim is for liquidated sum.”

With due regard accorded to the affidavit evidence of both parties captured above, particularly the exhibits attached, it is clear that the defendants have not staked a defence to the claims of the Claimant. The law is that a general denial is not a sufficient traverse of specific averments. In the instant case, there was no valid traverse of the averments in the statement of fact by the averments of the defendants in the Statement of Defence. A positive and distinctive allegation in the statement of facts must be specifically denied. This is called a specific traverse. In a special traverse, the defence shall explain or qualify the denial of facts in a statement of claim. SEE: MTN COMMUNICATION LTD V. AMADI(2012) LPELR-21276(CA). To this end, I find that the averments in the Defendants’ Statement of Defence amount to an admission of the facts averred in the Statement of facts.

In the light of the foregoing, I am of the view that this Court can rightly grant the claimant’s suit, especially given as I am satisfied that the Defendant’s affidavit, does not disclose a Defence or the likelihood of any defence on the merit to the Claimant’s suit.

Even if I were to assume all the facts in favour of the defendants, they still do not amount to a defence in law. Besides, looking at the document pleaded (i.e. Exhibit MOJ1) by the Defendants, there does not appear to be any defence in law to the action given by the Defendants. The Claimant’s right to the benefits of his deceased father cannot and will not abate simply because the Defendants have a backlog of unsettled claims. If anything, this should serve as a wakeup call to the Defendants to be diligent and proactive in settling their obligations. It is therefore fairly apparent that the defendants have not shown that the case raises a triable issue hence I hold that the Claimant’s motion for summary judgment succeeds. Judgment is hereby entered against the Defendants jointly and severally in favour of the claimant to the tune of (N17,894,779.20) Seventeen Million, Eight Hundred and Ninety Four Thousand, Seven Hundred and Seventy Nine Naira, Twenty kobo) That the judgment sum shall be paid within 30 days from today failing which 10% interest shall accrue per annum until the entire judgment sum is fully liquidated.

________________________________

Hon. JUSTICE S. H. DANJIDDA

(PRESIDINGJUDGE)