Mr Abu James & 14 ors-VS- Benue State & 4 ors

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE MAKURDI JUDICIAL DIVISION

HOLDEN AT MAKURDI

BEFORE HIS LORDSHIP, HONOURABLE JUSTICE S. H. DANJIDDA

DATE: ON THE 14TH DAY OF OCTOBER, 2019

SUIT NO: NICN/MKD/32/2019

BETWEEN:

MR. ABU JAMES
MR.KWAGHBEE SWEN
AUDU MUSA DANLAMI
MR. AUDU ADANU SAMUEL
MRS HELEN O. ANEFU
MR. DAVID S. DUNIYA
MR. GABRIEL OGWUCHE ………………………………..CLAIMANTS/APPLICANTS
MR. LUTSA TITUS NYIKAA
MRS FLORENCE EJEH
MR. DAVID OGAH ACHA
MR. JOHN IKPEGWA O.
MR JOSEPH SEGHER
DOKI MOSES ASEMABO
MR MICHEAL EJEH OCHIGBO
MRS. OCHIGBO O. GLORY

AND

BENUE STATE
BENUE STATE GOVERNMENT
BUREAU OF PENSIONS …………..DEFENDANT
LOCAL GOVERNMENT PENSION BOARD, BENUE STATE
THE ATTORNEY GENERAL AND COMMISSIONER

OF JUSTICE, BENUE STATE

REPRESENTATION:

Parties absent

U. Ezeokafor for the Claimants
I. Fiase (PSC) Benue State Ministry of Justice for the Defendants

JUDGMENT

This is a suit commenced by a Complaint filed along with the Applicants’ motion for Summary Judgment dated 25/04/2019 and filed on 6/05/2019. The motion is praying the Honourable Court for the following:

“1. An Order entering Summary Judgment for the claimants severally and individually against the Defendants jointly and severally as claimed in their statement of claims as follows:

a)1^st Claimant N9,490,572.00
b)2^ndClaimant N8,616.001.50
c)3^rd Claimant N8,347,808.30
d)4^th Claimant N12,592,714.30
e)5^th Claimant N2,674,651.00
f)6^th Claimant N10,493,929.50
g)7^th Claimant N16,176,151.33
h)8^th Claimant N20,681,802.80
i)9^th Claimant N11,802,254.40
j)10^th Claimant N11,245,808.00
k)11^th Claimant N2,635,000.00
l)12^th Claimant N10,928,475.70
m)13^thClaimant N4, 736, 078.40
n)14^th& 15^th Claimants N2,053,993.59

TOTAL N132, 475,241.82

Interest on the judgment sum due to each of the Claimants at the rate of 50% per annum.
And for such further order or other order(s) the Honourable Court may deem fit to make in the circumstance.”

A 6-paragraph supporting affidavit of Counsel for the Applicants was filed. The averments of Mr. Mathew A. Awuna, the deponent in paragraphs 3 and 4 are noteworthy. They read thus:

“3. That I am informed by the Claimants/Applicants on the 25^th day of April, 2019 at his office at about 10:00am and I verify believe them as follows:

That they, that is, 1^st, 2^nd, 3^rd, 4^th, 5^th, 6^th, 7^th, 8^th, 9^th, 10^th, 11^th, 12^th and 13^th Claimants/Applicants are retired Civil Servant of the Defendants, who had retired after serving the statutory period of Thirty Five (35) years and/or attaining the statutory retirement age of 60 years.
That the 14^th and 15^th Claimants(sic) the Next of Kin of the Late Mr. Ochigbo Emmanuel Idoko and Administrator of His Estate.

iii. That by the Benue State Pension and Gratuity Law Cap 125 Laws of the Benue State 2004 upon their retirements they are entitled to the payment of gratuity and monthly pensions from the Defendants which amount was calculated by the Defendants and/or her agency saddled with that responsibility.

That upon their retirements the Defendants/Respondents vide the office of the Auditor General of Local Government computed their gratuities and monthly/Annual pensions due to them and made same available to the Defendants for them to be paid same. The said computations for each of the Claimants/Applicants are hereby attached collectively as exhibit 1 to 13 respectively.
That as per Exhibits 1 to 13, their respective outstanding gratuities and pensions are as follows:

1^st Claimant

Gratuity N4, 970, 808. 00

Pension^{at the rate of N125, 549.00}

^{per month from 1/11/2015 – 30/04/2019}

^{i.e. 36 months} N4, 519, 764.00

Total N9,490,572.00

2^nd Claimant

Gratuity N4,970,772.00

Pension ^{at the rate of N110,461.50}

^{monthly from 1/7/2016 -30/04/2019}

^{i.e 33 months} N3, 645, 229.50

Total N8, 616, 001.50

3^rd Claimant

Gratuity N4, 816,044.00

Pension ^{at the rate of N107, 023.16}

^{monthly from 1/7/2016 -30/04/2019}

^{i.e. 33 months} N3, 531, 764.30

Total N8,347,808.30

4^th Claimant

Gratuity N4, 970, 808.00

Pension ^{at the rate of N110,462.41}

^{monthly from 1/8/2013 – 30/04/2019}

^{i.e. 33 months} N7, 621, 906.30

Total N12,592,714.30

5^thClaimant

Gratuity and unpaid pension N2, 674, 651.00

6^th Claimant

Gratuity N4,970,808.00

Pension ^{at the rate of N110,462.41}

^{monthly from 1/3/2015 – 30/04/2019}

^{i.e. 50 months} N5,523,120.50

Total N10,293,929.50

7^th Claimant

Gratuity N5,741,705.00

Pension ^{at the rate of N128,820.33}

^{monthly from 1/8/2012 – 30/04/2019}

^{i.e 81 months} N10,434,447.33

Total N16,176,152.33

8^th Claimant

Gratuity N8, 236, 116.00

Pension ^{at the rate of N183,024.80}

^{monthly from 1/09/2013 – 30/04/2019}

^{i.e 68 months} N12, 445,686.80

Total N20,681,802.80

9^th Claimant

Gratuity N5, 967,432.00

Pension ^{at the rate of N132,609.60}

^{from 1/9/2015 – 30/04/2019}

^{i.e. 44 months} N5,834,822.40

Total N11,802, 254.40

10^thClaimant

Gratuity N6,405,840.00

Pension at the rate of N142,352.00

monthly from 1/7/2016 – 30/04/2019

i.e. 34 months N4,839,968.00

Total N11,245.808.00

11^th Claimant

Gratuity N1,912,500.00

Pension ^{at N42,500.00}

^{monthly from December, 2017}

^{to April 2019 i.e 17 months} N722,500.00

Total N2,635,000.00

12^thClaimant

Gratuity N4,352,940.70

Pension ^{at the rate of N96,712.00}

^{from 01/09/2012 – 30/04/2019}

^{i.e. 68 months} N8,123,808.00

Total N12,475,848.70

13^thClaimant

Gratuity N2, 843, 097.60

Pension ^{at the rate of N65,275.20}

^{from 01/12/2016-30/04/2019}

^{i.e 30 months} N1,958,256.00

Total N4,801,353.60

That consequent upon the failure, neglect and/or refusal of the Defendants to fulfill their statutory obligation of paying the computed gratuities and the pensions, they engaged the service of their counsel to

demand the payment to no avail. The said letters of demand delivered to the Defendants are hereby attached as Exhibit 14 collectively.

vii. That the Late Mr. Ochigbo Emmanuel Idoko, who died on 18^th day of February, 2011 while in active service of the Defendants before his death appointed 14^th and 15^thClaimants as his Next of Kin, consequent upon his death they obtained the letter of Administration for the purpose of collecting the death benefits from the Defendants. The said Letter is hereby attached as Exhibit 15.

viii. That upon obtaining the letter of Administration, same submitted to the Defendants, the Defendants who already calculated the death benefits due to the Late Mr. Ochigbo Emmanuel Idoko, in the total sum of N2,303,993.59 paid total sum of N250,000.00 in two installments to the 14^th and 15^th Claimants out of the death benefits leaving out the sum of N2,053,99359. The said computation is hereby attached as Exhibit 16.

That by the Benue State Pension and Gratuity Law, the death benefits due to the 14^th and 15^th Claimants/Applicants is the Late Mr. Ochigbo’s gratuity and annual pension for five (5) years, that is N961,884.64 plus N1,342,108.95 (N268,421.79) equals N2,303,993.59
That the total entitlement due to each one of them is as stated in prayer one on the motion paper and as stated herein, totaling N132,475,241.82.
That I know upon the facts deposed herein the Defendants have no defence whatsoever to the claims of the Claimants/Applicants.”

A written address of counsel for the applicants filed in support of the application posed a sole issue for the consideration of this Honourabe Court, to wit:

“Whether considering the nature of the claim in the suit, same is one for which the Claimants/Applicants are entitled to summary judgment as per the claim.”

Arguing the issue, counsel stated that the case of the claimants is not in dispute; they are retirees of the Defendants. They are entitled to the payment of their retirement benefits as per the law. That the claimants’ claims are based on the computations done by the 2^nd Defendants and/or her agency which constitute an admission of the Claimants’ entitlements. That as a consequence, there is no need for a full trial.

Counsel also submitted that the Rules of Court entitle the claimants to the award of interest on the judgments sum. Counsel therefore urged the court to grant post judgment interest at a rate no less than 10%. Counsel Cited the cases of BOLANLE DAUDU V. ACCESS BANK PLC (2016) ALL FWLR (PT. 831); BERLITT V. KACHALLA (1995) 12, SCNJ; and DR. OLATUNJI V. OWENA BANK LTD (2008) ALL FWLR (PT. 435).

Reacting to the Claimant’s motion for summary judgment, the Defendants caused a 10 – paragraph Counter affidavit to be filed in reply to the applicants’ application. Abraham Shie, an employee of the 1^st and 2^nd Defendants in the capacity of Senior Administrative Officer deposed to the said Counter Affidavit. Paragraphs 5 to 9 of the Defendants’ counter affidavit which are most relevant are hereunder excerpted:

“5. That I know as a fact that the 4^th Respondent/Defendant is charged with the responsibilities, schedules and duties of computation, management and payment of gratuities and pensions of retired civil servants.

That I know as a fact the Applicants paragraph 3(i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), 4, 5, 6, of the affidavit in support of the motion for summary judgment is not true.

That M. I. Fiase Esq of Counsel with the Ministry of Justice informed me on the 15^th July 2019 and I verily believe him as follows:
a)That the 3^rd Defendant/Applicant is not a juristic person and/or legal personality and cannot sue or be sued as it is not a creation of a statute.
b)That Suit No: NICN/MKD/32/2019 filed on the 06/05/2019 by the Applicants is incompetent before this Honourable Court.
c)That the insinuations and speculations contained in paragraph 3 of the affidavit in support must be strictly proved by the Applicants.
d)That Applicants’ paragraphs 3(iv), (v), (vi), (vii), (viii) of the affidavit in support of motion for summary judgment with attachments of documents which are photocopies are inadmissible evidence and cannot be acted or relied upon or used for proof of their case.
e)That the Respondents have substantial legal issues to raise in regards to the Applicants case having a good defence already filed before this Court.
f)That the Applicants are not entitled to interest at the rate of fifty percent (50%) from the date of Judgment until same is fully liquidated.
That I know as fact that the 4^th, 6^th, 7^th, 8^th, 11^th and 12^th Applicants have been enjoying their monthly pension payment, their case is rather a twist and misrepresentation of facts and not the truth.
That I know as a fact that the Respondents/Defendants are not liable to the claim and Applicants/Claimants are not entitled to reliefs sought in and shall urge on the Honourable court to dismiss this suit, hence the grant of the application will be prejudicial to the Respondents.’’

In a written submission filed in support, counsel asked the court to determine whether or not with the counter affidavit which has shown a good defence and has raised substantial points of law, the Defendants are entitled to leave to defend the matter on merits?

Counsel placed reliance on Order 16 Rules 1 and 4 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 arguing that the Defendants had complied with the letter of the law as to the prescriptions of filing relevant and required processes and documents. Counsel submitted on the strength of the Counter Affidavit that a good defence is disclosed that raises substantial points of law that ought to be tried. Counsel prayed tothe court to grant the defendants leave to defend and return the case to the general Cause List.

Learned counsel for the applicants on the other hand while adumbrating submitted that the Counter Affidavit filed did not join issues with the Claimant and that even if the name of the 3^rd Defendant is struck out that will not affect the claim against the other defendants.

On the issue of the claimants’ documents being public documents and not certified, counsel relied on Section 12 of the NICN Act 2006 and Order 5 Rule 6 of the Rules of Court and the cases of IRIMAGHA v. BROWN & ORS(2018) LPELR-44623(CA) @ 11-18; APC V. BISEC (2015) ALL FWLR PT 717 @ P. 1385, in urging the court to disregard the contention of the Defendants.

DECISION OF THE COURT

Briefly, the facts leading to this application as disclosed in the claimants’ complaint dated and filed on 6/05/2019 is that the 1^stto 13^thClaimants are Civil Servants who retired from the service of the Defendants either upon attaining the statutory retirement age of 60 years and/or putting 35 years in the service of the Defendants. The 14^thand 15^thClaimants are the Next of Kin/Administrators to Late Mr Ochigbo Emmanuel Idoko who died in active service with the Defendants. The Claimants aver that upon confirmation of their retirement, their gratuities and pensions were calculated and verified but not paid. That despite repeated demands for payment, the Defendants have refused, failed and/or neglected to pay them their gratuities and pensions as particularized and reflected in the application for Summary Judgment.

Summary judgment procedure is similar to the undefended list procedure, in the sense that it is designed to enable a party obtain judgment especially in liquidated demand cases, without the need for a full trial where the other party cannot satisfy the court that it should be allowed to defend the action: see THOR LTD. V. FCMB LTD. (2005) LPELR-3242 (SC).

Cases that can be placed for Summary Judgment procedure are such cases that involve recovery of debt and or liquidated money as in the instant case. The term liquidated money demand or liquidated sum means a debt or other specific sum of money usually due and payable, which amount must have already been ascertained or capable of being ascertained as a mere matter of arithmetic without any other further investigation. Therefore, whenever the amount being claimed by a plaintiff can be ascertained by calculation or fixed by any scale or charges or other positive data; it is said to be liquidated. See the case of AKPAN V. AKWA IBOM PROPERTY & INVESTMENT COMPANY LTD. (2013) LPELR – 20753 (SC), (2013) 12 NWLR (PT.1368) 377 AT 400,

The question of whether or not a matter qualifies for summary judgment procedure turns upon the court’s exercise of discretion and on assessment of the capability and viability of the intended defence to the action. In essence, this court is required to determine whether or not the defendants have a defence to the applicants’ summary judgment application.

There is however a caveat to the nature of the defence that the court can accept; such that is direct, cogent and on the merit. The caveat to the Summary Judgment procedure is intended to act as a safety net; to afford a defendant the opportunity to adequately put across his case against the Claimant who has brought a Summary Judgment application.

It was held by the Supreme Court in Obitude V O. C. B. (2014)LPELR-22693(SC) that the principles governing an application for summary Judgment is that a Defendant who has no real defence to a suit should not be allowed to frustrate or cheat the plaintiff out of judgment and what is required of the Defendant is to establish that he has a good defence by showing or disclosing in his statement of defence and counter affidavit such triable issues to entitle him to be granted leave to defend the action. It is not enough for the Defendant to merely deny the claim but he must set out the details and particulars of the defence.

It is not in doubt that the Defendants have a right to be heard, but for the purposes of this procedure, the law requires first, an ascertainment by this Honourable Court as to whether such defence is fit for purpose. It is a condition precedent to the exercise of the power of this Honourable Court to make a determination either way. That said, it will be inexpedient to allow a defendant to defend for mere purpose of doing so where there is seemingly no defense on the merit.

Going by the Defendants’ Counter affidavit to the Claimants’ application for summary judgment, the Defendants averred only that the 3^rdDefendant is not a juristic person and cannot sue or be sued as it is not a creation of a statute. That the Suit is incompetent before this Honourable Court. That the Applicants’ paragraphs 3(iv),(v),(vi),(vii),(viii)of the affidavit in support of motion for Summary Judgment with attachments of documents which are photocopies are in admissible evidence and cannot be acted or relied upon or used for proof of their case. That the Respondents have substantial legal issues to raise in regards to the Applicants case having a good defence already filed before this Court.

That some of the Applicants have been enjoying their monthly pension payment and their case is rather a misrepresentation of facts and not the truth.

On the issue of whether the 3^rdDefendant can be sued, I find that the Defendants’ contentions on the issue are misconceived. In Carlen V University of Jos (1994) NWLR (Pt. 323) 631, It was held by the Apex Court that although, the University of Jos Act has not expressly conferred on the council of the University nor the Vice-Chancellor such a right to sue and be sued eo nominee but such right or obligation can be derived by implication from the Act. That by the nature of the functions, powers, duties and responsibilities conferred by other sections of the Act, it cannot be doubted that in their exercise of these functions and powers, right of third parties would necessarily be affected and it would amount to injustice if such third parties cannot seek redress for any wrong done to them. See also the case of Provost, Alvan Ikoku College of Education V Amuneke (1999) NWLR 49

At any rate, this court is in as good a position to form its own views of the facts with or without the 3^rdDefendant. It follows that even if the 3^rdDefendant is left out of consideration, the conclusion is that, the statement of defence has disclosed no other question other than mere technicality & law.

Moreover, the 3^rdDefendant is at best adnominal party. In PADAWA V. JATAU (2002) LPELR-5380; (2003) 5 NWLR (PT.813) 247, Muhammed, JCA (as he then was) stated thus: “A party is referred to be nominal or formal, who, having some interest in the subject-matter before the Court will not be affected by any judgment but is none the less joined in the matter to avoid procedural defects.”

On the issue of admissibility of the documents attached to the affidavit in support of the claimant’s motion for summary judgment, I think section 12 of the National Industrial Court Act, 2006 takes care of that situation and is apt. It gives the court power to depart from the provisions of the Evidence Act in the interest of justice and admit the documents.

It is not enough for the Defendant (s) to simply have some technicality in hopes that it avails it a defence that will be adjudged sufficient. By the standard imposed by law, a defence worthy of consideration is such that goes to address the merits of the claim. Judging from the Defendant’s counter Affidavit to the claimant’s motion for Summary Judgment the likelihood of there being a defence on the merit in this case is remote.

It is manifest from the defendants’ counter affidavit and statement of defence that there does not appear to be any defence on the merit to any of the Claims upon which this court will refuse the Claimants’ application for summary Judgment.

Throughout the Defendants’ counter affidavit and written address against the claimant’s application for summary judgment, no cogent reason was advanced rendering the claimant’s supporting affidavit to the application for summary judgment ineffective.

It was held in UTC Nig. Ltd V Pamotei (1989) NWLR (Pt. 103) SC 244 that a Defendant whose affidavit does not disclose that he has a good defence to the action on the merits or disclose sufficient facts to entitle him to defend the action generally will fail to stop the plaintiff from entering summary judgment.

The Defendants made a general denial and it is the law that general denial amounts to insufficient denial or no denial at all.

Looking at the state of the pleadings filed by both parties, I find it necessary to find that there is little hope of a defence manifesting on the horizon to the claims of the Claimants. The Counter Affidavit filed by the Defendant sought to contain enough facts and particulars to satisfy the court to move the case to the general cause list. The law is settled that even where a statement of defence is filed, as in this case, the claimants are still within their right in filing the application for Summary Judgment if the statement discloses no defence. The Defendants failed to raise a positive defence to suggest that the Claimants’ claim lacks merit. SEE MACAULAY V. NAL MERCHANT BANK LTD., (1990) 4 NWLR (PT.144) 283.

It is the respectful view of this court that after all the technical issues have been disposed of, there is nothing left in the pleadings of the Defendants that could be regarded as an answer to the applicants’ claim. This court therefore holds that the answer to the question is in the negative.

Arising from the above, I am satisfied that the Claimants have placed before the court the necessary particulars concerning the liquidated demand and are therefore entitled to final Judgment under the summary Judgment procedure which is simply designed to ensure speedier attainment of justice with ease, certainty and dispatch because it is abundantly clear that the Defendants have absolutely no defence to the claimants’ case. See order 16 of the 2017 Rules of this court.

On the whole, I come to the conclusion that the Claimant’s Motion for Summary Judgment has merit. Accordingly, the Defendants shall pay to the claimants the total sum of N132,475,241.82 (One Hundred and Thirty-Two Million, Four Hundred and Seventy-five Thousand Two Hundred and Forty-One Naira Eighty Two kobo) as gratuities and pensions as reflected in relief one of the motion for summary judgment within 30 days from today failing which 10% interest shall accrue and be paid per annum until the judgment sum is fully liquidated.

Ruling is entered accordingly. I make no order as to cost.

________________________________

HON.JUSTICE S. H. DANJIDDA

(PRESIDING JUDGE)