AJAYI BOLADALE EUNICE -vs- ANYIAM –OSIGWE GROUP LIMITED

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP, HON.JUSTICE N.C.S OGBUANYA

SUIT NO: NICN/LA/567/2017

DATE: APRIL 25, 2018

BETWEEN:

AJAYI BOLADALE EUNICE – CLAIMANT

AND

ANYIAM –OSIGWE GROUP LIMITED – DEFENDANT

REPRESENTATION:

C.M Ohamuo Esq- for the Claimant;

Kennedy Anyiam-Osigwe, Esq – for the Defendant

JUDGMENT

The Claimant commenced this action vide a General Form of Complaints along with the requisite frontloaded processes dated and issued on 20^th November 2017, in which she prayed the court to grant the following Reliefs in her favour:

“

AN ORDER that the Defendant pay[s] to the Claimant 10 months arrears of salary in the sum of N750,000 (seven hundred and fifty thousand Naira)
AN ORDER that the Defendant pay[s] to the Claimant the sum of N101,000 (one hundred and one thousand Naira) being money ostensibly deducted from the Claimant’s salary as tax
AN OEDER(sic) that the Defendant[s] to the Claimant the sum of N283,000 (*two hundred and eighty three thousand Naira) only being the Claimant’s gratuity/retirement benefits
General Damages: One million Naira (N1,000,000) only for the pains, embarrassment and financial underwent by the Claimant as a result of the withholding of the entitlement
Costs of the action assessed at N500,000 (five hundred thousand Naira)”.

Desirous of having the matter heard under the Summary Judgment procedure of the Rules of this Court (Or.16 NICN (CP) Rules 2017),as required by the Rules for an Application for Summary Judgment, the Claimant also accompanied the Originating processes with a Motion on Notice for Summary Judgment along with the requisite Affidavit in Support, Exhibits and Written Address, all dated and filed on the same 20^th November 2017, requesting for an Order of the Court entering Summary Judgment in the Claimant’s favour.

The Reliefs set out on the face of the said Motion for Application for Summary Judgment, which are markedly but inexplicably different from the ones set out in the Originating process and Statement of Facts, are as follows:

“

AN ORDER that the Defendant pay[s] to the Claimant 10 months arrears of salary in the sum of N750,000 (seven hundred and fifty thousand Naira)
AN ORDER that the Defendant pay[s] to the Claimant the sum of N101,000 (one hundred and one thousand Naira) being money ostensibly deducted from the Claimant’s salary as tax
Interest at the rate of 21% per annum until the final liquidation of the debt
AND for such further Order (s) as the Honourable court may deem fit to make in the circumstances”.

The grounds upon which the Application is sought are that:

“

The Claimant and Defendant entered into an agreement by which the money owed the Claimant would be paid by the end of June 2017
By a letter dated 14/4/2017 the Defendant undertook to liquidate the salary component of the sums owed by the end of June 2017, and
The Defendant has not paid any money at all in liquidation of the debt.”

The afore-stated processes were duly served on the Defendant, but the Defendant neither entered appearance nor filed any process to contest the case. In fact, incidents of two dates of the proceedings are worth highlighting to buttress the Defendant’s apparent deliberate choice not to defend this suit. At the proceedings of 29^th January 2018, when the Claimant’s lead counsel, C.M Ohamuo,Esq., expressed his readiness to move the Application for Summary Judgment, having shown that the processes were duly served on the Defendant and also the Hearing Notice for the matter slated for Hearing of the Application for Summary Judgment, learned counsel, Peace T. Obasi, Esq, was allowed to announce appearance (though unrobed) as an external Solicitor to the Defendant, and passionately pleaded for an adjournment to enable them file necessary processes for the Defendant. In the circumstance, the hearing was lifted and the matter further adjourned to 5^th March 2018, upon a cost of N20,000 awarded against the Defendant in favour of the Claimant.

At the next adjourned date (5^th March 2018), another counsel, U.C Onyeabor,Esq announced appearance for the Defendant, and informed the court that she is not working in the same office with the counsel that appeared at the last adjourned date (Peace T. Obasi, Esq), and that the said counsel merely held brief for their law firm – (Anyiam Osigwe& Co). I quickly re-checked the case file and confirmed that no counsel had entered appearance or filed any process in response to the suit for the Defendant, despite the express provisions in the Rules of this court regarding entering Appearance by filing of Memorandum of Appearance, to show the exact counsel on record and service address of counsel representing the Defendant. See: Or.9 R.1& 2 NICN (CP) Rules 2017. The said counsel also informed the court that the settlement of the matter was almost finalized awaiting execution of the terms of settlement by the parties. Surprisingly, the Claimant’s counsel stated that there was no on-going settlement between the parties as he is not aware of any such, even as he is the Claimant’s counsel. He further urged the court to allow him to move the pending Motion on Notice for Summary Judgment, Counsel further informed that the Defendant was yet to pay the cost of N20,000 awarded against it at the last adjourned date. In response, learned counsel for the Defendant, again, surprisingly, could not give further details of the purported settlement she earlier informed the court was ongoing, of which the Claimant’s counsel debunked. She rather asked for another adjournment of which was vehemently opposed by the Claimant’s counsel, and in a short Bench-Ruling, I refused the adjournment as baseless, and set down the Application for Summary Judgment for Hearing.

Moving the Application, learned Claimant’s counsel, C.M Ohamuo, Esq., introduced the Motion on Notice dated and filed on 20^th November 2017, brought pursuant to Or.16 and Or.34 R.4 NICN (CP) Rules 2017, and the inherent jurisdiction of the Honourable court. He stated that the Application was based on three grounds stated in the Motion paper, and supported by a 20-paragraph Affidavit in Support deposed to by the Claimant herself. And attached with 7 Exhibits, marked “Exh.B1-B7”. He adopted the Written Address dated and filed on 20^th November 2017, wherein he raised a sole issue for determination- whether the Claimant is entitled to an Order entering Summary Judgment in her favour?

Counsel then argued that the Rules of this court permit the court to enter summary judgment in certain circumstances. He stated that from the averments of the Claimant in her pleadings and Affidavit in Support of the Application, the Claimant is basically asking for payment of 10 months arrears of salary owed to her by the Defendant while she worked in the Defendant company, amounting to the sum of N750,000, and the sum of N101,000, being money deducted from the Claimant’s salaries as Tax, but which is not clarified as to the particular tax, as the only employee Tax known to her – the PAYEE, was already deducted. And that Exh. B7 did not show the type of tax/ purpose of the tax. He referred to paragraph 15 of the Affidavit in Support. Counsel further stated that in course of attempts to settle this matter, as deposed to in Paragraph 15 of the Affidavit in Support, Exh. B7 was issued by the Defendant to the Claimant, clearly admitting the indebtedness and stated the time line for repayment. On the whole, counsel urged the court to hold that the Claimant has set out a case which circumstance requires an Order of court entering summary judgment in her favour. On the issue of claims on interest and for costs, counsel, urged the court to use its discretion to grant.

Responding to the Application, learned Defendant’s counsel, U.C Onyeabor, stated that the Defendant has no objection and not opposing the Application for Summary Judgment, even though the Defendant was mindful of settlement. The matter was thereafter adjourned to Ruling/Judgment on 25^th April 2018.

COURT’S DECISION

I have followed the proceedings and listened carefully to the submissions of the learned counsel and had done a detailed review of the processes filed, particularly the Affidavit in support of the Application for Summary Judgment, the Exhibits attached and the Written Address settled by the Claimant’s counsel, since the Defendant neither formally entered Appearance nor filed any process in response to the Suit, despite being duly served with the originating court processes along with the said Motion for Summary Judgment dated and filed on 20^th November 2017, as well as Hearing Notices at the relevant dates of the proceedings in this court. And was also granted along adjournment (from 29^th January 2018 to 5^th March 2018) as requested by a counsel on its behalf, who even strayed into the court unrobed, yet was granted audience. I say this, because, fair hearing is often a mundane but fundamental constitutional pre-requisite to validity of any judicial adjudication, but easily satisfied by just giving the other party an opportunity to present its case. And once satisfied, the decision of court is then anchored on solid rock of fairness and remains unshaken by any adverse complaint by the defaulting party thereafter. See:Ukwuyok v. Ogbulu[2010] 5 NWLR (Pt. 1187) CA. 316@ P 334, paras. C-F, wherein the Court held that:

“The rule pertaining to fair hearing simply means that parties must be given the opportunity to present their case, but no more no less. It is not the rule that no matter the circumstance, the court must sit on its hands, wait at all costs and at all times for a party to present his case. If this is the rule, then cases will never be determined. Therefore, at some point, the court must put its foot down”.

The case of the Claimant as can be garnered from the processes filed by the Claimant is that she was employed by the Defendant, sometime on 5^th April 2013, as a Front Desk Officer, and worked for about 4 years. That , she worked diligently but was owed salaries for 10 months, from November 2015 to September 2016, and she then resigned after serving due notice, which resignation was duly accepted by the Defendant, but then, her outstanding salaries and entitlements were unpaid by the Defendant. And that, certain sums of money were deducted from her salaries as tax , but which was not explained as to the type of tax , as the deduction was said to be different from PAYEE which she knew was adeductible tax from her salary. That, what prompted the suit was the failure of the Defendant to settle the outstanding claims after a peaceful meeting she held with the Defendant’s Representative sometime on 14^th April 2017, wherein the Defendant acknowledged the indebtedness and promised to pay, but neglected and failed to pay, as promised based on their agreed payment plan in the said meeting (Exh.B7). She thereafter approached the Office of the Public Defender of the Lagos State Ministry of Justice, who commenced and prosecuted this Suit as her counsel.

In determining this Application, I also adopt the sole issue raised for determination by the learned Claimant’s counsel, C.M Ohamuo, Esq- whether the Claimant is entitled to an Order entering Summary Judgment in her favour? In my humble view, what is in contention is whether this matter would proceed for hearing under Summary Judgment procedure or would be heard under the General Cause list. The essential distinguishing feature of hearing under the Summary Judgment procedure is that it would be based on Affidavit evidence and witness would not be called, unlike under General Cause list which involves oral hearing and calling of witnesses and tendering of exhibits, with the attendant procedural technicalities of examination and cross-examination of witnesses.

However, to achieve a hearing under Summary Judgment procedure which is quick-pace process, certain conditions must be met by the Applicant pursuant to Or.16 NICN (CP) Rules 2017. A key condition is that the Defendant has ‘no defence’ to the claim. That is why the Summary Judgment procedure is most suitable for ‘liquidated claim’, unlike contested claim or ‘unliquidated claim’, which sum in issue has not been determined prior to litigation of the claim or amenable to be ascertained by simple arithmetic calculation during the trial. Nevertheless, at this stage, the success of the defence is not in issue, as that would be determined at the trial when leave to defend is granted to the Defendant. Thus, the exercise entails a mere perfunctory examination of the contents of the pleadings and exhibits by parties to ascertain whether the Defendant has made out a ‘good defence’ to be granted leave to defend. Otherwise, if the Defendant does not have a ‘good defence’, the court may thereupon enter judgment for the Claimant.

These trite principles of adjudication under the Summary Judgment procedure have severally received judicial ascent as laid down by the courts in a long line of cases over the years, at least in the last three decades. See: Sodipo v. Leminkainen& Ors.[1986]1NWLR(Pt.15)220; Macaulay v. NAL Merchant Bank Ltd[1990] 4 NWLR (Pt.144)283; Nwanko& Anor v. Ecumenical Dev. Co-Operative Society (EDCS) U.A [2007]5NWLR(Pt.1027)377; UNIBEN v. Kraus Thompson Organization Ltd& Anor [2007]LPELR-8685(CA); Imoniyale Holdings Ltd & Anor v. Soneb Enterprises Ltd [2010] 4NWLR (Pt.1185)561; Bona Textile Ltd v. Asaba Textile Mill Plc[2013] 2 NWLR (Pt.1338) 357; Akpan v. Akwa Ibom Property & Invest. Co Ltd [2013]12 NWLR (Pt.1368) SC 377; Carling Int’l (Nig.) Ltd v. Keystone Bank Ltd [2017]9NWLR (Pt.1571)CA 345; U.B.N. Plc v. GAP Consultants Ltd [2017] 11 NWLR (Pt. 1577) C.A. 357

Trial under the Summary Judgment procedure is also very peculiar, as an absence of Counter-Affidavit by the Defendant does not automatically grant judgment to the Claimant by inference of evidential rule of admission, which can only be inferred after due examination of the relevant processes and a finding of fact made on the appropriateness of hearing the matter under the procedure. In Maundis Bika Nakai v. FCMB (Suit No. NICN/YL/02/2016, (Unreported) the Ruling of which was delivered on 14^th December 2017), I took the view and held that despite non-filing of Counter-Affidavit by the Defendant, processes filed and forming part of the record of the court can be examined in determining whether the action would be properly heard under the Summary Judgment procedure. See: Akpan v.Akwa Ibom Property & Invest. Co Ltd [2013]12 NWLR (Pt.1368) SC 377 @ 397, Para.F-G. I therefore adopt the same approach in resolving the sole issue set out for determination in this matter.

Thus, an examination of the Claimant’s sole processes becomes imperative as a preliminary step towards resolution of the issue. A dispassionate review of the Affidavit in Support and Exhibits attached by the Claimant reveals the appropriateness of hearing this matter under the Summary Judgment procedure of this court. From the analysis, the Claimant clearly narrated her employment history and laid basis for her claim and particularly explained by documentary evidence the liquidated nature of the claim and the admission of the Defendant. Of particular note is Paragraph 15 of the Affidavit in Support and Exh.B7.

For clarity, Defendant’s letter to the Claimant acknowledging the said indebtedness and expressing proposal for payment plan, marked as Exh B7in the Claimant’s averment in the said Paragraph 15 of the Affidavit in Support, is set out below in full:

“

9A, RAYMOND NJOKU STREET, S.W. IKOYI LAGOS TEL 234(01903 8013-4, 234 (01)0709 814 1797-8 Fax: 234(01)903 8008

Miss BoladaleAjayi

Opposite Mobile Filling Station

Chairman Bus Stop

Igbobgo 8aiyeko

Ikorodu,

Lagos

Dear Miss Ajayi

SETTLEMENTOF OUTSTANDING SALARIES

We refer to the meeting held with you on the 12^th April, 2017 on the settlement of your outstanding salaries and allowances following your resignation from the company.

We hereby convey to you the decision reached at the meeting.

That youroutstanding salaries and tax deductions stands at N851,000

(i) Outstanding salaries N750,000

(ii) Tax deducted N101,000

N851,000

That the said amount of N851, OOOshall be paid in three installments beginning with N300, OOOeffective 21^stApril, 2017. The next two installments of N300, OOOandN251, OOOshall be in May and June, 2017 respectively.
That other non-salary benefit due to you shall be settled before the end or 2017.

We thank you for your co-operation.

Yours faithfully,

forAnyiam-OsigweGroup

Charles Egbevwie

Head HR/Admin

“

In the saidParagraph 15 of the Affidavit in Support, the Claimant averred as follows:

“15. I was later invited to come to the Defendant’s Office for a meeting. I held meetings with the Defendant’s representative at the Defendant’s office on 12/4/2017 wherein the Defendant admitted owing me the arears of salaries and further undertook in writing to pay the arrears of salary and tax deducted from my salary in three installments ending in June 2017. The letter admitting liability dated 14/4/17 is attached and marked Exhibit B7”.

It is this averment that anchored the letter from the Defendant wholly admitting the indebtedness with a promise to repay based on a set out payment plan, which the Defendant reneged and did not honour. Hence this suit. Or.16 R. 1 NICN (CP ) Rules 2017 states:

“Where a Claimant believes that there is no defence to the claim, an application for summary judgment supported by an affidavit stating the grounds for the belief shall be filed along with the originating process. The application shall be accompanied with the statement of facts, any exhibits and a written brief”.

Flowing from the analytical review of the averments in the Paragraph 15 of the Affidavit in Support and the content of Exh.B7, it is clear that the Claimant’s claim is a ‘liquidated claim’, and therefore qualifies for hearing under the Summary Judgment procedure of this court as stipulated under Or.16 R. 1 NICN (CP) Rules 2017. I so hold.

By Or. 16 R. 5(2) NICN (CP) Rules 2017, “where it appears to the court that a party does not have good defence the court may there upon enter judgment for the claimant”. To this end, having made a finding and holding that this suit can be appropriately heard under the Summary Judgment procedure of this court and the Defendant not setting up any defence (not to talk of not being ‘good defence’), the content of Exh. B7 again, becomes helpful in determining whether to grant judgment for the Claimant in respect of the Reliefs sought for.

As pointed earlier, the head claims of Reliefs outlined and sought for by the Claimant in her Motion for Summary Judgment omitted three Reliefs relating to claim for damages, terminal benefits and assessed cost of the proceedings, as contained in the endorsement of claims in the Originating Court process (General Form of Complaint) and the Statement of Facts filed. The later Reliefs in the Motion for Summary Judgment invariably have superseded the ones set out in the originating and frontloaded processes, for the purposes of Hearing under the Summary Judgment procedure.. Accordingly, only the Reliefs set out in the Application for Summary Judgment would be considered. They are set out as follows: “

AN ORDER that the Defendant pay[s] to the Claimant 10 months arrears of salary in the sum of N750,000 (seven hundred and fifty thousand Naira)
AN ORDER that the Defendant pay[s] to the Claimant the sum of N101,000 (one hundred and one thousand Naira) being money ostensibly deducted from the Claimant’s salary as tax
Interest at the rate of 21% per annum until the final liquidation of the debt
AND for such further Order (s) as the Honourable court may deem fit to make in the circumstances”.

It is an established principle of adjudicatory procedure and applicable rules of evidence that what is admitted need no further proof, and such would be sufficient to ground the decision of court as per the admitted facts.In Adebiyi v. Umar[2012] 9 NWLR (Pt. 1305) CA. 279@ (P. 296, para. F, it was held that:

“The rules governing affidavit evidence and pleadings is that when a fact(s) asserted, is not denied or controverted by the adverse party, who has a duty to do so, the same is deemed to be admitted by him (adverse party), and the court would be justified to rely on the fact and use it to settle the issue in controversy, if the asserted fact(s) is plausible. That is the purport of section 75 of the Evidence Act”.

Accordingly, having not denied the content of the Exh.B7 (which actually emanated from the Defendant) and the Claimant’s averment in the Affidavit in Support, particularly the paragraph 15 thereof, the court can freely accept same as the true state of events between the parties. On that note, I find and hold that Exh.B7 and the averments in the Affidavit in support of the Claimant’s Application for Summary Judgment constitute an admission on the part of the Defendant in support and proof of the Claimant’s case. Consequently, Reliefs (1) and (2) succeed and hereby granted. I so hold. On the Relief (3) relating to claim for interest of 21%, the Claimant did not make sufficient averment to provide basis for claim for pre-judgment interest, which ranks as special damages that is required to not only be specifically plead same but also to provide sufficient evidence to ground its award. See: Intercontinental Bank Ltd v. Brifina Ltd [2012] 13 NWLR (Pt.1316) SC 1 @ 23 Para, F, where the apex court held that:“where interest is claimed, it must be proved before it can be granted”. I therefore find and hold that the claim for pre-judgment interest having not been proved is accordingly refused.

On the whole and for avoidance of doubt, the Claimant succeeds to the extent of the grant of the following Reliefs:

Payment to the Claimant of the outstanding 10 months arrears of salary in the sum of N750,000 (seven hundred and fifty thousand Naira);
Payment to the Claimant the sum of N101,000 (one hundred and one thousand Naira) being money ostensibly deducted from the Claimant’s salary as tax;
Cost in the sum of N20,000 (twenty thousand naira) earlier awarded in the course of the proceedings.
The above sums shall be payable to the Claimant within 1 (one) month of this judgment, failing which it attracts 10% interest rate per annum until fully liquidated.

Judgment is entered accordingly.

……………………………………..

Hon. Justice N.C.S Ogbuanya

JUDGE

25/4/18