MAUNDIS BIKA NAKAI -VS- FIRST CITY MONUMENT BANK LIMITED

THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YOLA JUDICIAL DIVISION

HOLDEN AT YOLA

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

DATE: DECEMBER 14, 2017

SUIT NO: NICN/YL/02/2016

BETWEEN:

MAUNDIS BIKA NAKAI

CLAIMANT

AND

FIRST CITY MONUMENT BANK LIMITED

DEFENDANT

REPRESENTATION

Parties: Claimant – Present; Defendant – Absent/Unrepresented

Counsel: J. Olu Adebambo, Esq., with S.A Ogunleye, Esq., for the Claimant;

U Danjuma, Esq (holding brief of E.O Akhayere, Esq) for the Defendant.

JUDGMENT

This is a Judgment constituting the ruling on the Claimant’s Application for Summary Judgment, being this court’s final decision on whether or not the hearing of the matter would proceed under Summary Judgment procedure of this court. The Application for Summary Judgment was heard together with the Defendant/Applicant’s Notice of Preliminary Objection, in line with Or.18 Rule 2(3) NICN (CP) Rules 2017, as ordered by the court at the proceedings of 12^th October 2017. In the considered Ruling delivered earlier today, 14^th December 2017 (RULING NO.2), the said Notice of Preliminary Objection challenging the jurisdiction of this court on ground of alleged invalidity of the originating court processes, was dismissed, for lacking merit. That has paved way for the Judgment on the substantive suit; the Application for Summary Judgment.

This matter was first commenced at the Adamawa State High Court in 2014. Following a Ruling on the Preliminary Objection filed by the Defendant’s Counsel challenging the jurisdiction of the State High Court to adjudicate the matter being an employment-related suit, the matter was transferred to this Court; vide the said Ruling delivered on 4^th December 2014, per N.Musa, J of the High Court of Justice, Adamawa State sitting in Yola. Further to the said Order of Transfer of the Suit to the National Industrial Court of Nigeria, the Claimant approached this court and filed fresh court processes on 19^th February 2016. The said Complaint filed was accompanied by other frontloaded processes, viz: Statement of Facts Establishing the Cause of Action; List of Witness; Witness Statement on Oath; List of Document and Copies of the Documents, all dated and filed on 19^th February 2016. On the 19^th February 2016, the Claimant’s counsel also filed a Motion on Notice dated 19^th February 2016, for an Order entering Summary Judgment in favour of the Claimant, as par his claims in the Complaint.

By the Complaint, the Claimant is praying the court for the following reliefs against the Defendant:

(a) The sum of N18, 090,068.50 (eighteen million, ninety thousand,

sixty eight naira, fifty kobo) being the terminal benefits and

other entitlements of the claimant upon his exit from the

employment of the defendant.

(b) 10% interest per annum commencing from August 2014 till

judgment and 10% interest from judgment till final

liquidation.

expenses incurred by the claimant to recover the above-stated

debt from the defendant

(d) Cost of this suit.

In response, the Defendant, filed and served a Statement of Defence dated 24^th October 2016 and filed on 25^th October 2016 along with the Witness Statement on Oath with some Documents annexed, as well as a Notice of Preliminary Objection dated 24^th October 2016, again challenging the jurisdiction of this court on the ground that the State High Court cannot validly make the Transfer Order. As stated earlier, the Preliminary Objection was heard together with the Substantive suit (Application for Summary Judgment) but separate Ruling was delivered.

Moving the Application, the learned counsel for the Claimant submitted that the Application for Summary Judgment (by way of Motion on Notice) dated and filed on 19^th February 2016 was brought pursuant to Or.10 Rules 1 &5(2) and Or.11 Rule 1 of the National Industrial Court Rules (NICN (CP) Rules) 2007, which are now impari materia with Or.16 NICN (CP) Rules 2017. He further submitted that the Application is praying the court for an Order of Summary Judgment in favour of the Claimant as per the claims of the Claimant as amplified in his Statement of Facts dated and filed on 19^th February 2016. The Motion on Notice is supported by a 30-paragraph Affidavit deposed to by the Claimant himself. Attached to the Affidavit are 13 Exhibits, marked “Exhibits A-K2”. In line with the Rules of the court, Claimant also filed and served Written Address dated and filed on 19^th February 2016. Counsel urged the court to adopt the Written Address as his submissions in support of the Application for Summary Judgment.

It is also the Claimant’s counsel’s submission that despite being duly served with the Motion along with the originating processes, the Defendant did not file and serve any Counter-Affidavit in response to the Application, as required under Or.16 Rule 4 (c) NICN (CP) Rules 2017. Counsel then urged the court to hold that all the averments as contained in the Affidavit in support and the Exhibits attached, are deemed admitted by the Defendant/Respondent. He refers to AMGBARE v. SYLVA [2008] ALL FWLR (pt.419) P. 576 @ 580 ratio 7.

Learned counsel also submitted that the Defendant expressly admitted part of the claims of the claimant in paragraphs 8 and 9(c) of its Statement of Defence dated 24^th October 2016 and also paragraphs 6, 7 and 9 of the Defendant’s Witness Statement on Oath, both filed on 25^th October 2016. According to the Claimant’s counsel: “this admission has clearly shown that the Defendant/Respondent has no defence to this suit, as other averments in the Statement of Defence are mere traverse which does not constitute a defence in law”. He refers to Mor LG v. Lawal [2008] ALL FWLR (pt.440) P.684@700 ratio 8 & 10.

Counsel maintained that the case before the court is a liquidated money demand, and drew the court’s attention to Paragraphs 14, 19, 22,28 and 30 of the Affidavit in Support and Exhibits D,E1 & E2, H1, J and K1, establishing that the Defendant has no defence to the suit. He refers to R.M.A.F.C v. Onwuekweikpe [2010] ALL FWLR (pt.528) 947, ratio 10, and urged the court to enter Judgment in favour of the Claimant.

Responding on point of law (since the Defendant did not file Counter-Affidavit), learned counsel for the Defendant, N.K Dariyem, Esq., contended that filing of Counter-Affidavit is not a requirement under the Or.10 Rule 4 of the 2007 version of the NICN (CP) Rules, under which the Motion was commenced. He further submitted that the Or.10 Rule 5 of the 2007 NICN (CP) Rules (same as Or.16 Rule 5(1) NICN (CP) Rules 2017) enjoins the court to look at the Defence of the Defendant to see whether it has a good defence or not, despite not filing Counter-Affidavit. He urged the court to discountenance the Claimant’s Application for Summary Judgment and allow the Defendant to defend the matter on the merits.

COURT’S DECISION

I have carefully reviewed the submission of both counsel for the parties. In my humble view, the issue in contention is: whether this matter would proceed to hearing under the Summary Judgment procedure of this court 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-in-chief and cross-examination of witnesses and admissibility of documents.

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, equivalent of Or.10 of the 2007 version of the NICN Rules, which was in force when this Application was filed. A key condition is that the Defendant/Respondent must not have a ‘good defence’ to the claim. That is why the Summary Judgment 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 not capable of determination by simple arithmetic calculation or quickly ascertainable agreeable figure.

At this stage of checking if the Defendant has a ‘good defence’ to the claim, 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. The exercise entails mere perfunctory examination of the contents of the pleadings, averments 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. See: Or. 16 Rules 1, 4, 5(1)(2) NICN (CP) Rules 2017.

In Akpan v. Akwa Ibom Property & Invest. Co. Ltd [2013]12 NWLR (pt.1368)SC 377@400, Paras. B-D, the Supreme Court explained the nature and characteristics of Summary Judgment procedure as follows:

“Summary Judgment is a judgment granted on a claim or defence about which there is no genuine issue of material fact and upon which the movement is entitled to prevail as a matter of law. For this type of judgment, the court will only consider the contents of the pleadings, the motions and additional evidence adduced such as documents produced as exhibits by the parties rather one of law. This procedural device allows speedy disposition of a controversy without the need for trial”.

Thus, in my humble view, under the Summary Judgment procedure, the court is empowered to grant a Claimant quick justice in a matter where the facts are clear and there is no genuine defence to the claims, and dispense with the full trial and calling of witnesses, with the attendant benefit of saving precious judicial time and expense. However, as the justice cannot also be jettisoned for the sake of speed, only clearly qualified matters would be screened to proceed under the Summary Judgment procedure. And once it is found that the Defendant has ‘no good defence’ but adopts a ‘defence’ that seems like a ‘ploy to delay and cheat’ the Claimant of his legitimate judgment, the court would thereupon enter judgment for the Claimant. Consequently, where facts and issues are contentious, the case would be heard and determined through pleadings and oral testimony of witnesses of the contending parties.
These trite principles of law and practice of Summary Judgment procedure have been laid down by the courts in a long line of cases. See: Nishizawa v. Jethwani (1984)12 SC 234; Sodipo v. Leminkainen & Ors. [1986]1NWLR (pt.15)220; Macaulay v. NAL Merchant Bank Ltd [1990] 4 NWLR (pt.144)283; Nwankwo & Anor. v. Ecumenical Dev. Co-Operative Society (EDCS) [2007] 5NWLR (pt.1027)377; UNIBEN v. Kraus Thompson Organization Ltd & Anor. [2007] 14 NWLR (pt.1055)441; Nkwo Market Community Bank (Nig,) Ltd v. Obi [2010]14 NWLR (pt.1213)169; Bona Textile Ltd v. Asaba Textile Mill Plc [2013] 2 NWLR (pt.1338) 357.

For a more elucidated analysis of the applicable principles of law and rules of practice of this court towards resolution of the issue in contention in this Application, I also call-in for aid the provisions of Or.16 NICN (CP) Rules 2017, which is the extant Rule of this court on Summary Judgment procedure. It is reproduced as follows:

“1. 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.

“2. A claimant shall deliver to the registrar as many copies of all the processes and documents referred to in rule 1 of this order as there are defendants or respondents.

“3. Service of all the processes and documents referred to in rule 1 of this order shall be effected in the manner provided for under these rules

‘4. Where a party served with the processes and documents referred to in rule 1 of this order intends to defend the action such a party shall , not later than the time prescribed for defence , file ;

(a) a statement of defence ;

(b) documents to be used in defence;

(c) a counter–affidavit and a written brief in reply to the application for summary judgment ; and

(d) written statement on oath of all witnesses listed to be called by the defendant other than witnesses to be subpoenaed.

‘5.–(1) Where it appears to the court that a party has a good defence and ought to be permitted to defend the claim such party may be granted leave to defend.

(2) Where it appears to the court that a party does not have a good defence the court may thereupon enter judgment for the claimant.

(3) Where it appears to the court that the defendant or respondent has a good defence to the part of the claim, the court may thereupon enter judgment on that part of the claim to which there is no defence and grant leave to defend that part to which there is a defence.

“6. Where there a several defendants or respondents and it appears to the court that any of the defendants or respondents has a good defence and ought to be permitted to defend a claim, and other defendants or respondents do not have a good defence and ought not to be allowed to defend the claim, the former may be permitted to defend the claim and the court shall enter judgment for the latter.

‘7. Where provision is made for written briefs under these rules, each party shall be at liberty to advance before the court oral submissions to expatiate the party‘s written brief for not more than 20 minutes.

‘8.-(1) A party to an action may submit to judgment in respect of any claim by the claimant and seek the leave of the court to defend the part of the claim the party is contesting.

(2) Where a party submits to part of the claimant‘s claim in line with sub-rule 1 of this rule, the court shall enter judgment for the claimant accordingly and thereafter grant leave to the defendant to defend the contested part of the claim‘.

I now turn to reviewing of the submissions of both counsel for the parties. On the submission by the J. Olu Adebambo, Esq, for the Claimant, to the effect that since the Defendant did not file Counter-Affidavit, the court should therefore deem the Claimant’s averments as admitted by the Defendant, and the oral counter Reply on point of law by N.K Dariyem, Esq, for the Defendant, that the court is entitled to look at the pleadings filed and exchanged by the parties even if the Defendant did not file a Counter-Affidavit, I agree with both Counsel to the extent of which their respective submissions were helpful in resolving the issue set out for determination in this matter. While I agree with the Claimant’s counsel that the averments in the Claimant’s Affidavit are deemed admitted by the Defendant in absence of a Counter-Affidavit, nevertheless, such admission is only to the extent of averments that are clearly in support of the Application for Summary Judgment under consideration. I so hold.

Conversely, I agree with the Defendant’s counsel, and hold that despite not filing Counter-Affidavit, the court is entitled to look at the pleadings already in the court’s record in determining whether the matter is suitable for Summary Judgment procedure. In the Akpan v. Akwa Ibom Property & Invest. Co. Ltd (supra)@ P.397, Paras.F-G, the Supreme Court considered similar argument of counsel in respect of failure to file Notice of Intention to Defend in Undefended List Procedure, equivalent of Counter-Affidavit which is the expected response by the Defendant in Summary Judgment procedure. The Apex Court, per Galadima JSC, held thus:

‘It is incorrect that when a defendant fails to file notice of intention to defend a suit on the undefended list, the court must automatically enter judgment for the plaintiff. The trial court is bound to scrutinize the plaintiff’s claim to ensure that is one that could be heard under undefended list procedure‘.

See also: Ben Thomas Hotels Ltd v. Sabi Furniture Ltd. [1989]5 NWLR (pt.123)523.

The learned Claimant’s counsel, also in his submission anchored his argument on the concept of ‘liquidated money demand’ to show that the Defendant has ‘no good defence’ to the claim, and cited and relied on the case of R.M.A.F.C v. Onwuekweikpe (supra). I hasten to disagree with the submission of the Claimant’s counsel placing reliance on the ONWUEKWEIKPE’s case (supra) which merely dealt with effect of un-replied business correspondence as constituting admission, but did not decide the core issue in contention in this Application; whether the Claimant’s claim is a ‘liquidated money demand’, that would foreclose the Defendant from having a ‘good defence’ to the claim?.Accordingly, since the authority cited and relied on by learned Claimant’s counsel is not relevant to the facts and circumstances of this Application, it is not helpful in resolving the pertinent issue for determination. I so hold.

The Supreme Court had the occasion to define the concept of ‘liquidated money demand’ in the Akpan v. Akwa Ibom Property & Invest Co. Ltd (AKPAN’s case) (supra) @ 400 Para.D-F, as follows:

“Liquidated money demand 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 of charges or other positive data; it is said to be liquidated. Similarly, where the parties to a contract as part of the terms of their agreement fix the amount payable on the default of one of them or in the event of breach by way of damages such sum of money is classified as liquidated damages’.

In the AKPAN’s case (supra)@P.393-394, Paras. G-E, relying on the earlier Supreme Court’s decision in Maja v. Samouris [2002]7 NWLR (PT.765)78, the Apex Court, per Galadima JSC stated that, in ‘liquidated money demand’: “…there is nothing more that needs to be further done to determine the quantum of extent of the defendant’s liability”. His Lordship concluded thus: “.. All said and done, the bottom line is that the amount claimed must be ascertainable and if based on a contract, it must have been accepted upon by the parties thereto‘. See also: BLACK’S LAW DICTIONARY (8^th Edition), P.246, which defined the ‘liquidated money demand’ to mean: ‘An amount previously agreed on by the parties or that can be precisely determined by operation of law‘.

On appraisal of the application of the foregoing analyzed relevant authorities on the issue set forth for determination, and a dispassionate review of the processes filed and exchanged between the parties, which the court is entitled to look at in considering an application of this nature, even without a Counter-Affidavit, I find that the core contention between the parties in this suit, is the actual value of the terminal benefits which the Claimant should be entitled to upon his exit from the services of the Defendant.

In paragraph 17 of the Claimant’s Affidavit in Support of Motion on Notice for Summary Judgment, the Claimant himself averred as follows: “That the said Officer in charge acknowledged the fact that the purported terminal benefits is lower than expected but could not give me satisfactory explanation on same. A copy of the E-mail communication between me and Moyosere Thomas is hereby attached and marked Exhibit G”.

On going through the said ‘Exhibit G’, it becomes apparent that there is serious contention on the actual value of the said entitlement contrary to the representation of the Claimant in his said paragraph 17 of his Affidavit in Support of the Motion on Notice. The said “Exhibit G” which is an E-mail exchange from Moyosere Thomas, HR Business Partner-North Region of the Defendant, reads:

“Dear Nakai, How are you today? Sincere apologies for not responding yesterday. Gratuity calculation done is for 7 years as you had about 60 days to clock 8 years. The EOS has also been reviewed again and all calculations done are accurate. The existing loans were deducted from the total which is why you have N1, 388.029.50. Also recall that you have been on PIP since H1 2013 with an appraisal score of 43.85 and H2 was 18.84. The Zonal Head also confirmed he had spoken to you severally on performance and there has been no significant improvement. I quite understand that that (sic) this amount might appear quite low, but please take time to go through it well, it went lower as a result of the existing loans. I hope this explanation suffices. Thanks. Have a great weekend. Kind Regards”.

I hold the view that even if a Counter-Affidavit is not filed by the Defendant as contended by the learned Claimant’s counsel, the contents of “Exhibit G” which is supplied by the Claimant himself clearly show that this matter does not involve ‘liquidated money demand’, as it is contentious and not as straightforward as envisaged by the applicable principles guiding the utilization of the Summary Judgment procedure of this court (extensively analyzed above). The contents of the “Exhibit G” alone, in my view, raise ‘triable issues’, which would require full hearing of witnesses. I so hold.

The Claimant’s counsel in his submission also alluded to some admission of part of the claims by the Defendant in its Statement of Defence and Witness Statement on Oath. However, the Claimant’s counsel seemed not to be interested in getting a splinter Judgment on the part of the claim said to have been admitted by the Defendant as envisaged by Or.16 Rule 5(3) NICN (CP) Rules 2017. He rather preferred to use the submission to anchor his argument that the Defendant has ‘no good defence’ to the claim. According to the learned counsel: “this admission has clearly shown that the Defendant/Respondent has no defence to this suit, as other averments in the Statement of Defence are mere traverse which does not constitute a defence in law”. Interestingly, the Defendant did not also on its own side submit to judgment in respect of any such admitted claim, as envisioned by Or.16 R.8 (1) and (2) NICN (CP) Rules 2017, to warrant the court to enter judgment for the Claimant on the part of the sum said to have been admitted by the Defendant, and then grant the Defendant leave to defend the part of the sum the Defendant is contesting. This aspect of the provisions of the rules on Summary Judgment is therefore deemed abandoned by the both parties. I so hold.

On the whole, I find that this matter requires full hearing to determine the rights of the parties on the issue in contention. This matter is therefore not suitable for hearing under the Summary Judgment procedure of this court. Accordingly, the Defendant is hereby granted leave to defend the matter on oral hearing in line with Or.16 Rule 5(1) NICN (CP) Rules 2017.

The matter is therefore set down for hearing based on the pleadings filed and exchanged by the parties in accordance with the earlier Ruling of this Court on 14^th November 2017.