MR. ENOKELA IKWUE VS LOCAL GOVERNMENT PENSION BOARD

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

HOLDEN AT MAKURDI

IN THE MAKURDI JUDICIAL DIVISION

BEFORE HIS LORDSHIP, HON. JUSTICE S.H. DANJIDDA

ON THE 8^TH DAY OF MARCH, 2019

SUIT NO: NICN/MKD/19/2018

BETWEEN:
MR. ENOKELA IKWUE

CLAIMANT/APPLICANT

(suing as administrator on behalf

of the estate of late Ooja Ikwue)

AND

LOCAL GOVERNMENT PENSION BOARD

MAKURDI.
2. THE GOVERNMENT OF BENUE STATE

THE ATTORNEY GENERAL OF BENUE STATE
BUREAU OF LOCAL GOVERNMENT AND

CHIEFTAINCY AFFAIRS.

THE PERMANENT SECRETARY LOCAL

GOVERNMENT PENSION BOARD, MAKURDI

DEFENDANTS/RESPONDENTS

RULING

This is a ruling on the applicant’s motion for summary judgment brought pursuant to Order 16 Rules 1, 2, 3, 4, 5, 6, 7 and 8 of the 2017 Civil Procedure Rules of this Honourable Court. The application dated 11/04/2018 was filed on the 12/04/2018 and prayed this Honourable Court for the following order:-

“1. AN ORDER entering summary judgment for the plaintiff/applicant in the liquidated sum of N10, 801,975.36 (Ten Million, Eight Hundred and One Thousand, Nine Hundred and Seventy-five Thousand, thirty-six Kobo) only.

AN ORDER for such further order(s) as the court may deem fit to make in the circumstance.”

In support of the application is a 16-Paragraph affidavit deposed to by the Claimant/Applicant. Attached to the said Affidavit are 9 Exhibits. The application is accompanied by a written address wherein the applicant raised one issue for determination of whether he is not entitled to the orders sought in this application.

I note and consider that the applicant has also filed alongside this application, the complaint, statement of facts, witness statement on oath and list of documents to be relied upon in line with the provisions of order 16 of the Rules of this court. The averment made by the applicant in his affidavit in support of his application are at par with the facts stated in his pleadings.
Briefly, the background leading up to the present application as averred by the applicant is that the applicant, Mr. Enokela Ikwue was a surviving son of his mother and the administor of her Estate who died on 30th April 2016 as evidenced by Exhibits AA4 and 5. It was averred that prior to the death of the applicant’s mother, she had been in the employ of Makurdi Local Government Education Authority since 1st of March 1983. Her appointment and confirmation letters of appointment were attached as Exhibits AA1 and 2. The applicant also exhibited his late mother’s promotion letter as Exhibit AA3. That the deceased’s death benefits to the tune of N11,001,975.36(Eleven Million, One Thousand Naira, Nine Hundred and Seventy Five Naira, Thirty Six kobo)only, was computed by the Defendants and is attached as Exhibit AA6. It is the Claimant’s case that only N200,000.00 (Two Hundred Thousand Naira) out of his deceased mother’s death benefits was raised and paid by the Defendants to him by cheque. He further averred that he made lodgment of the said amount into his account with Diamond Bank Plc sometime in April 2017. A statement of Account reflecting that transaction is also placed before the court as Exhibit AA7. The Claimant caused a letter to be written to the Defendants on 6th of March 2018 by his counsel, in demand for the unpaid pension and gratuity of his late mother but to no avail. The said letter was attached as Exhibit AA8. The Claimant also averred that he paid his lawyer the sum of N1,000,000.00 (One Million Naira)only, to prosecute this case and Exhibit AA9 was attached to that effect.

In his written address, Counsel to the applicant submitted that the purpose of a summary judgment is to avail the applicant whose claim against the Defendant is predicated upon the recovery of a debt or liquidated money demand, a claim which is patently clear and unassailable. It is also the submission of the applicant that the purpose of summary judgment is to avoid going through the rigors of a full trial. Applicant referred the court to order 16 rule 1 of the rules of this court 2017 and the case of Sodipo Vs. Lemnikamein (1986) NWLR (Pt. 15) 220. Applicant further contended that from the affidavit evidence in support of the application and the totality of the Exhibits attached thereto, the Defendants are owing him as he has dully complied with the law and procedure in bringing the action under summary judgment.

In considering this application, It is apt to refer to order 16 of the 2017 Rules of this court which talks about the summary Judgment procedure. Order 16 provides as follows:

Where a Claimant believes that there is no defence to the claim, an application for summary judgment supported y an affidavit starting 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.
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.
Service of all processes and documents referred to in rule 1of this order shall be effected in the manner provided for under theses rules.
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 the filing of defence, file:
(a) A statement of defence;

(b) Documents to be used in defence;

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

(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.”

I wish to note that the Defendants though being represented by a counsel but did not file any process, not even a memorandum of appearance.
I wish to observe that paragraph 15 of the Affidavit in support of the motion for summary Judgment contains prayers hence offensive to the provisions of section 115(2) of the Evidence Act, 2011.

I wish to note that this matter came up for the 1^st time on the 14/4/2018 and the Defendant’s counsel asked for time to enable the parties settle the matter out of court where the matter was adjourned to 31/5/2018 for report of settlement. However on the 31/5/2018, settlement was said to have broken down and it was further adjourned for hearing. When this matter came up again on 10th of December 2018 for hearing of the claimant’s application for summary judgment, counsel appearing for the Defendants conceded that the Defendants had no defence to the matter. Counsel therefore sought to enter a payment plan. The application of counsel was unopposed by the Claimant counsel hence the court adjourned the matter to 11/01/2019 for report of settlement and/or hearing of the application for summary judgment.
Curiously, on the next adjourned date of 11/01/2019 when the matter came up, the Defendants were unrepresented, and no appearance was entered for them by counsel. It was however reported by counsel for the Claimant that there had been no attempt by the Defendants towards settlement since the last adjournment. Therefore, the motion for summary judgment was heard and the matter was adjourned for ruling upon the said application.

It is apt to state here that a defendant whose affidavit or oral examination by the Judge 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. See U.T.C. (NIG.) LTD Vs. CHIEF J.P. PAMOTEI & ORS (1989) LPELR-3276(SC) Per KARIBI WHYTE, J.S.C.

I must say that the whole purpose of a summary judgment procedure is to ensure justice to a plaintiff and minimize delay where there is obviously no defence to his claim and thus prevent the grave injustice that might occur through a protracted and immensely frivolous litigation. It is to prevent sham defence from defeating the right of a plaintiff by delay and thus causing great loss to a plaintiff. In other words, the summary judgment rules are specially made to help the court achieve their primary objective, i.e. to do justice to the parties by hearing their cases on the merit with utmost dispatch and prevent the frequent outcry that justice delayed is justice denied –

See ALHAJI HASSAN KHALID Vs. AL-NASIM TRAVELS & TOURS LIMITED & ANOR (2014) LPELR-22331(CA)

United Bank for Africa Plc Vs Jargaba (2007) 11 NWLR (Pt 1045) 247, University of Benin Vs Kraus Thompson Organisation Ltd (2007) 14 NWLR (Pt 1055) 441.

It is pertinent to state that the provisions on summary Judgment procedure in the Rules of this Court are adjunct to the course of justice. They are rules of court touching on the administration of justice and the procedure is simply designed to ensure speedier attainment of justice with ease, certainty and dispatch, when it is abundantly clear that the defendant has absolutely no defence to the plaintiff’s case. See order 16 of the 2017 Rules of this court.

It is imperative to state that 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 was held to be a sum of money previously agreed upon by the parties to a Contract if the action is based on contract. It is also a definite settled sum which the Defendant cannot deny. It was interpreted as an ascertained claim or specific amount or an amount of money that could be ascertained by calculation or fixed by any scale or other positive data or mathematics. See Maja Vs. Samouris (2002) LPELR-1824(SC) G.M.O. Nworah Vs. Akputa(2010) LPELR-1296(SC)

It was held by the Supreme Court in Obitude Vs. 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.
The Claimant in his bid to prove his case attached 9 Exhibits to the Affidavit in support of his application. Exhibit ‘AA1’ which is the Appointment letter of his deceased mother establishes that she was the employee of the Defendants. Exhibit ‘AA2’ is her confirmation letter. While Exhibit ‘AA3’ is her Promotion Letter. Exhibits ‘AA4’ and ‘AA5’ indicate that Claimant’s mother is deceased and he is the Administrator of her estate. Exhibit ‘AA6’ is the computation of her death benefit which is not yet paid.

In the face of the foregoing documentary evidence before me coupled with the fact that the Defendants have not countered the facts therein nor filed any statement of defence, I believe that the Claimant’s case has merit and he has complied with the provisions of order 16 of the 2017 Rules of this court and therefore judgment ought to be entered in his favor under the summary judgment procedure.

Overall, I hereby make the following orders in favour of the Claimant against the Defendants:-

That the Defendants shall pay the Claimant the sum of N10, 801,975.36(Ten Million, Eight Hundred and One Thousand Naira, Nine Hundred and Seventy Five Thousand, Thirty six kobo being the total sum of pension and gratuity of his Late mother (Mrs) Ooja Ikwue.
2. That the Defendants shall pay the claimant the sum of N500,000.00 (Five Hundred Thousand Naira)only, being paid as legal fee.
That these sums shall be paid within 30 days from the date of this Ruling.

Ruling is entered accordingly.

__________________________________

Hon. Justice S. H. Danjidda

(Presiding Judge)