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/589/2017
DATE: SEPT. 25, 2018
BETWEEN:
MR. ILESANMI SUNDAY TEMILADE – CLAIMANT
AND
NEGRIS LIMITED – DEFENDANT
REPRESENTATION:
– for the Claimant;
– 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 4th December 2017, in which he prayed the court to grant him the following Reliefs:
“a. The sum of N2,475,147.84 (two million four hundred and seventy five thousand, one hundred and forty seven naira, eighty four kobo) being the unpaid salaries and entitlement of the Claimant.
b. The sum of N2,000,000.00 (two million naira) as general damages.
c. The sum of N5,000,000.00 ( five hundred thousand naira) as cost of litigation.
d. Interest at the rate of 20% per annum
i. on the sum in (a) above from May 16, 2012 until judgment and thereafter at
the rate of 10% per annum until the final liquidation of the judgment sum.
ii. on the sum in (b) above until judgment and thereafter at the rate of 10% per
annum until final liquidation of the judgment sum.
iii. on the sum in (c ) above from the date of institution of this suit until
judgment and thereafter at the rate of 10% per annum until the final
liquidation of the judgment sum”.
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 4th December 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 are the same as set out in the Originating process and Statement of Facts.( already highlighted).
The Defendant reacted with a Statement of Defence and other frontloaded defence processes dated and filed on 23rd January 2018, as well as the Defendant’s Counter-Affidavit to the Motion for Summary Judgment, deposed to on the 23rd January 2018, wherein it raised the issue of the appropriate name for the Defendant, contending that the Defendant, not being NEGRIS NIGERIA LIMITED but NEGRIS LIMITED, is not the proper party to be before the court as it was never employer of the Claimant.
On noticing the error in the name of the Defendant as pointed by the Defendant/Respondent, the Claimant/Applicant’s counsel considered it a misnomer and sought to correct it. He filed and served a Motion on Notice dated 19th April 2018, praying the court for an Order amending the Defendant’s name on the Originating processes to read ‘NEGRIS LIMITED’. At the proceedings of 25th April 2018, learned Defendant’s counsel, Femi Idowu, Esq, informed the court that the said Amendment sought for by the Claimant/Applicant touches on the issues they have joined in the substantive suit. In acknowledging the principle of practice that court should not at interlocutory stage prejudge an issue that is slated for hearing at substantive level, I invoked Or. 18 R.6 NICN (CP) Rules 2017 and directed that the Motion for Amendment would be heard but the Ruling delivered at the time of delivery of Judgment on the substantive Application for Summary Judgment.
At the resumed proceedings of 4th May 2018, learned Defendant’s counsel, again contended that no form of amendment can cure the error of the Claimant suing a wrong party, but as he did not file counter-Affidavit, he was then directed to supply further details of evidence of existence of NEGRIS NIGERIA LIMITED, as against NEGRIS LIMITED, which he is contesting is the proper party, so as to determine whether the error can be classified under the concept of ‘misnomer’, that can be corrected. Surprisingly, at the next adjourned date, the Defendant’s counsel was absent and did not send across any evidence of existence of another company bearing NEGRIS NIGERIA LIMITED to foreclose the Claimant’s counsel contention that the error in the name of the Defendant was a mere misnomer. Again, the matter was adjourned to afford the Defendant’s counsel the last opportunity to comply with the directive or file normal Counter-Affidavit to challenge the Motion for Amendment. The matter was then set down for Hearing on 16th July 2018.
At the resumed proceedings of 16th July 2018, again, the Defendant’s counsel failed to attend court and did not file any processes or evidence of existence of another different company as he alleged. I had considered the fact that from the records, the Defendant’s counsel was afforded at least three opportunities from the date he raised the issue of existence of a different company with name ‘NEGRIS NIGERIA LIMITED’, to produce any evidence to substantiate the assertion, to guide the court on the issue. The Defendant’s counsel also absented himself from court since then without reason. Claimant/Applicant’s counsel was then called upon to move his both Applications in turn, as the Defendant’s counsel invariably had taken the position to await the outcome of both Applications, which he had same position on, without being involved in the oral arguments any more.
On the Motion for the Amendment, learned Claimant/Applicant’s counsel drew the court’s attention to his two pending Motions; one dated 19th April 2018 and the other dated 7th June 2018. He applied to withdraw the one dated 19th April 2018, leaving the one of 7th June 2018 for the hearing. The Motion dated 19th April 2018 was accordingly struck out as withdrawn. Moving the Motion, counsel stated that it was brought pursuant to Or.13 R.5 NICN (CP) Rules 2017, and prays for Amendment of the name of the Defendant to reflect NEGRIS LIMITED, which is its correct name not ‘NEGRIS NIGERIA LIMITED’. In support of the Motion is a 10-Paragraph Affidavit deposed to by Taiwo Abolarin, counsel in the matter for the Claimant. Also filed is a Written Address dated 7th June 2018, wherein a sole legal issue was raised as to whether the court can amend the Defendant’s name on the originating process? Counsel adopted his said Written Address and pointed that the Defendant’s counsel did not file Counter-Affidavit but only stated that he would oppose it on point of law on the ground that the error is not a misnomer that can be so corrected. He further stated that the Defendant’s counsel was duly served with the process. He urged the court to uphold his submissions and grant the amendment.
On the substantive Application for Summary Judgment, learned counsel drew the court’s attention to the Motion on Notice dated and filed on 4th December 2017, praying the court for an order entering final Judgment for the Claimant in the manner stated in the Motion, and the Affidavit in Support, deposed to by Ilesanmi Sunday, the Claimant himself. Counsel stated that the Application is brought pursuant to Or.16 R.1 NICN (Civil Procedure) Rules 2017. Counsel pointed that he raised one issue in the Written Address dated and filed on 4th December 2017- whether the Claimant is entitled to Summary Judgment against the Defendant. He submitted that the claim is a liquidated claim, and there is no defence by the Defendant. He refers to Paragraphs 5-12 (for liquidated claim) and Paragraph 15 (exhibit E – letter of 6th February 2017 -admission). Counsel argued that although the Defendant opposed the Application for Summary Judgment, it only stated that they are NEGRIS LIMITED and not NEGRIS NIGERIA LIMITED., and that is the main crux of their defence , and no other defence was provided in answer to the claim , to raise a triable issue. Learned Claimant’s counsel further submitted that since the Defendant’s counsel could not provide any contrary evidence of existence of another company called ‘NEGRIS NIGERIA LIMITED’, and sequel to the Motion for Amendment already heard, counsel urged the court to grant the reliefs against NEGRIS LIMITED, the appropriate name for the Defendant.
Ruling on the Motion for Amendment of the Claimant’s processes to correct the Defendant’s name was reserved along with the Judgment on the Substantive Application for Summary Judgment, to be delivered on 25th September 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 Addresses of both counsel, as well as the Motion for Amendment and supporting processes, of which the Defendant did not respond to.
As indicated earlier while invoking Or.18 R.6 NICN (CP) Rules 2017, to differ the Ruling on the Motion for Amendment until the Judgment on the Substantive Application, I will first deal with the Ruling on the Motion for Amendment. I have reviewed the tenor of the Motion for Amendment and submissions made by the learned Claimant’s counsel in respect thereof, as well as the counsel for the Defendant’s stance that the error sought to be corrected is not a misnomer, and no correction can cure same. Interestingly, this stance taken by the Defendant’s counsel was left bare as he neither made any effort to canvass legal support for, by filing Written Address on Point of Law, nor did he even administratively through the bar (without Affidavit/process) oblige the court with any evidence of his assertion that there are two different companies; one bearing NEGRIS LIMITED and the other NEGRIS NIGERIA LIMITED, and that the Claimant could not have been mistaken but deliberately sued a wrong party as Defendant, and such does not qualify for correction under the concept of misnomer. Counsel also did not come to court after three adjournments, even to orally canvass his position on this vital legal issue determining the fate of this Application, but rather prefers to stay aloof and lay judicial ambush, and waiting to afterwards mount rooftop to howl and yowl of lack of fair hearing targeted at upturning an otherwise deserving decision.
I say this, because, the concept of ‘fair hearing’; a mundane but fundamental constitutional pre-requisite to validity of any judicial adjudication, is often overreached and mischievously resorted to as a magical catapult deployed by a disgruntled party to shoot down flying judicial decision, but little did such perpetrator know that the principle of fair hearing in judicial proceedings is easily satisfied by just giving the other party an opportunity to present its case. And once satisfied, the decision of the 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 any 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”.
On that basis I will proceed to deal with the Motion for Amendment of the name of the Defendant to reflect its correct name in the court processes, and properly bring it within the ambit of the court’s jurisdiction in respect of the claims against it as a Defendant in this suit. In my view, the sole issue for determination is whether the error in the Defendant’s name in the Claimant’s processes is a misnomer that can be corrected to bring the name of the Defendant properly before the court? The concept of misnomer has been clarified in A.B Manu & Co. v. Costain (WA) Ltd [1994]8NWLR (Pt.360); (1994) LPELR 14550(CA), wherein it was held that “Misnomer can be said to be a mistake in name- giving incorrect name to person(s) in the Writ of Summons. It occurs when a mistake is made as to the name of a person who sued or was sued or when an action is brought by or against the wrong name of a person. See the English Supreme Court Practice (White Book) 1988 Or.15 R.6- 15/6/13”. The issue as to whether an amendment can be allowed to correct an error of misnomer in court process, has been settled by the Supreme Court in Agbule v. W.R & P. Co Ltd (Agbule’s case) [2013] 6 NWLR (Pt. 1350) SC 318 @ Pp. 341-342, Paras. D-A, wherein the apex court, relying on the earlier case of Afolabi & 2 Ors.v. Adekunle & Anor (1983) SC98; 2SCNLR 141, held that:
“It is the duty of court to aim at and to do substantial justice and allow such formal amendments, in the course of the proceedings, as are necessary for the ultimate achievement of justice and the end of litigation. Although the rules of court should be followed by parties to a suit, justice is not a fencing game in which parties engage themselves in an exercise of out-smarting each other in a whirligig of technicalities to the detriment of the determination of the substantial issues between them. Therefore, the power of courts to correct a misnomer is inherent. The court under its inherent powers has the jurisdiction to correct such inconsequential errors which do not require any formal application to be made. In the instant case, the wrong use of the respondent’s name did not overreach or put the respondent to any form of disdain in absence of any earlier complaint thereof. The use of the name was at best a misnomer which did not occasion any negative effect”.
See also: Olu of Warri v. Esi (1958) SCNLR 384; Maersk Line v. Adide Investment Ltd [2002]11 NWLR (Pt. 778) 317.
I hasten to adopt the reasoning of the apex court in the Agbule’s case, which I find applicable to resolve the sole issue raised for determination in this Application. The application therefore succeeds. Accordingly, an order is hereby made correcting the misnomer, that is to say, ‘NEGRIS NIGERIA LIMITED’ wherever it appears on all the processes to read ‘NEGRIS LIMITED’. I so hold.
THE APPLICATION FOR SUMMARY JUDGMENT
I now turn to Judgment on the substantive Application for Summary Judgment.
The case of the Claimant as can be garnered from the processes he filed, is that he was employed by the Defendant, which business is installation and maintenance of elevators. That he rendered dedicated service to the Defendant for 14 years between 1st May 1998 and 6th November 2012. And that on 1st November 2012, he was handed over a ‘Notice of Disengagement’ on the basis of ‘staff rationalization’, but without any accompanying terminal benefits. He nevertheless waited patiently for payment of his entitlements, not until after 3 years of his disengagement, sometime on 13th February 2015, he received a letter from the Defendant indicating his computed terminal benefit which was stated to be N1, 495,510.92. Not satisfied with the sum, he replied via a mail on 29th March 2016 demanding for computation of other outstanding sums, of which in a Reply mail dated 27th April 2016, the Defendant through one Mrs. Pat Aroh summed up his entitlements to be N2,475,145.84. That the said sum was again delayed and not paid after another two years, which prompted him to brief his Solicitors for recovery of his said terminal benefits. The Defendant responded by a letter dated 30th January 2017 and admitted the indebtedness and promised to pay by end of 2017, of which he rejected by his Solicitors’ letter dated 6th February 2017 and demanded payment within one month. That the Defendant replied by a letter dated 3rd March 2017 and now promised to pay within the third quarter of 2017. This offer was accepted by his Solicitors’ letter of 6th May 2017, but the Defendant failed and refused to pay the outstanding entitlement which led to this Suit. The said documents were attached and marked as Exhibits in the Affidavit in Support.
The Reliefs set out in the Application for Summary Judgment by the Claimant are follows:
“a. The sum of N2,475,147.84 (two million four hundred and seventy five thousand, one hundred and forty seven naira, eighty four kobo) being the unpaid salaries and entitlement of the Claimant.
b. The sum of N2,000,000.00 (two million naira) as general damages.
c. The sum of N5,000,000.00 ( five hundred thousand naira) as cost of litigation.
d. Interest at the rate of 20% per annum
i. on the sum in (a) above from May 16, 2012 until judgment and thereafter at
the rate of 10% per annum until the final liquidation of the judgment sum.
ii. on the sum in (b) above until judgment and thereafter at the rate of 10% per
annum until final liquidation of the judgment sum.
iii. on the sum in (c ) above from the date of institution of this suit until
judgment and thereafter at the rate of 10% per annum until the final
liquidation of the judgment sum”.
The Defendant on its part reacted to the processes by filing its Statement of Defence and other defence processes including Counter-Affidavit in opposition to the Application for Summary Judgment, on the ground that the Claimant sued a wrong party; the Defendant not being NEGRIS NIGERIA LIMITED but NEGRIS LIMITED. In other words, the Defendant anchored its defence on the legal ground of being sued as a wrong party in a wrong name, not minding the consequential effect of possible correction of the misnomer by an order for Amendment.
In determining this Application, I also adopt the sole issue raised for determination by the learned Claimant’s counsel, T. Abolarin, Esq- whether the Claimant is entitled to Summary Judgment against the Defendant? 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, spanning 1986-2017. 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. Also, presence of Counter-Affidavit does not automatically raise ‘triable issue’ to warrant the matter being transferred to General cause list for trial by pleadings. All depends on dispassionate scrutiny of the averments and exhibits of the contending parties. In Maundis Bika Nakai v. FCMB (Suit No. NICN/YL/02/2016, (Unreported) the Ruling of which was delivered on 14th December 2017); Ajayi Boladale Eunice v. Anyiam-Osigwe Group Ltd (Suit No.NICN/LA/567/2017 (Unreported) the Judgment of which was delivered on April 25 2018), 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 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 and the Defendant’s Counter-Affidavit reveals the appropriateness of hearing this matter under the Summary Judgment procedure of this court. From the analysis, the Claimant clearly narrated his employment history and laid basis for his 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.F’.
The Claimant avers in Paragraph 15 of the Affidavit in Support that: “In response to my Solicitor’s letter, the Defendant in a letter dated 30th of January 2017 admitted the nonpayment of my outstanding salaries and entitlements to the tune of N2, 475,147.84 (two million four hundred and seventy-five thousand, one hundred and forty seven naira, eighty four kobo) and promised to pay before the end of the year. The copy of the letter is herewith attached and marked Exhibit F”. The Claimant further averred in paragraph 16 of the Affidavit in support that he rejected the promise for payment by end of year and the Defendant in reply to his Solicitor’s letter rejecting the proposed year end payment, promised to pay in the third quarter of the year 2017, as averred in paragraph 17 of the Affidavit in Support.
For clarity, Defendant’s letter to the Claimant acknowledging the said indebtedness and expressing intention to pay but without concrete payment plan, marked as Exh F in the Claimant’s averment in the said Paragraph 15 of the Affidavit in Support , is set out below in full:
“NEGRIS LIMITED Rc.35405
ALLSEASONS PLAZA: Topez Block (1st Floor) 24, Lateef Jakande Road, Agidinbi, Ikeja
30th January, 2017
Afe Babalola & Co
Emmanuel House,
Plot 1, Block 4,
CMD/Jubliee Road,
Behind Mobil Filling Station,
Magodo GRA, Lagos.
Attention: Abibat Bankole Apena
Dear Sir,
RE: RETIREMENT ENTITLEMENTS OF MR. ILESANMI SUNDAY
A DEMAND FOR PAYMENT OF ALL ENTITLEMENTS
The above subject refers.
We acknowledge receipt of your letter dated 18 January 2017 and have duly noted the contents therein. We affirm that your client was a staff of the company, his employment was terminated on the 6th November 2012 and his retirement entitlements to the sum of N2,475.147.94 has remained unpaid.
We apologize for the delay in settling the retirement benefits of your Clients. We sincerely regret our inability to pay your clients’ entitlement benefits. Our Company has not done any viable business in the last 5 years, and as a result there has been no source of revenue inflow, this is a fact which is in public domain and your Client is very much aware. Nonetheless, the Company has been working tirelessly on improving its current financial situation, to enable us pay retirement benefits owed.
We appreciate your Client and his service to the Company. However, we are optimistic that before the end of the year, we will be able to meet up with the existing financial obligations owed to our Clients. We crave your client’s indulgence to bear with us and we deeply regret any inconvenience this may cause your Client.
Please be assured of our deepest regards.
Yours faithfully,
Cyprain Ifada
Legal Officer
“
Or.16 R. 1 NICN (CP) Rules 2017 providing for Summary Judgment procedure 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.F, setting up a ‘liquidated claim’, I find that the Claimant’s claim is suitable and 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.
To this end, it is time to examine whether the Defendant has set up any ‘good defence’ to the claim. Or. 16 R. 5(2) NICN (CP) Rules 2017 states: “where it appears to the court that a party does not have good defence the court may there upon enter judgment for the claimant”. From the records, although the Defendant filed a 13-paragraph Counter-Affidavit, its plank of defence was on the fact that the Defendant was not the proper party as its name is not NEGRIS NIGERIA LIMITED but NEGRIS LIMITED, and thus, there was no employment relationship between the Claimant and NEGRIS LIMITED. In Paragraph 11 of the Counter-Affidavit, the Defendant avers that: “The Claimant’s allegation in paragraph 15 of the Affidavit that the Defendant admitted the non-payment of the Claimant’s entitlements to the tune of N2, 475,147.84 in a letter dated 30th January 2017 is untrue. A careful look at the said letter would show that same was written by Negris Limited and not by Defendant herein (Negris Nigeria Limited). The Defendant did not admit owing the Claimant the sum of N2,475,147.84 or in deed any other sum of money to Claimant, who made the misleading allegation in a bid to deliberately use this Honourable court to unwittingly extort money from the Defendant who never had an employer/employee relationship or any relationship whatsoever with the Claimant”. The Defendant went on in Paragraph 12 of the Counter-Affidavit and made a holist denial of any employer/employee relationship between the parties, when it averred that “The Defendant is a total stranger to the employer/employee relationship that constitutes the pith or forms the basis of the Claimant’s claims in this suit”.
With this stance by the Defendant, the stage is set to examine the nature of defence proffered so as to determine whether a ‘good defence’ has been established to prevent the imminent award of judgment against the Defendant. From the defence presented in the Counter-Affidavit, the Defendant is not denying any employment relationship between the Claimant and NEGRIS LIMITED. Nor is it denying that no such amount of terminal benefit is owed and acknowledged by NEGRIS LIMITED as evidenced by exh.F attached to the Affidavit in Support. What that means is that if the Defendant is NEGRIS LIMITED, there is no answer to the claims.
As it stands, based on my earlier Ruling granting the Claimant leave to correct the misnomer of the erroneous description of the Defendant as NEGRIS NIGERIA LIMITED, the correct Defendant on record is now NEGRIS LIMITED. In Emepso J Cont. Ltd v. Corona S. & Co [2006] 11 NWLR (Pt. 991) 365, the Supreme Court per Mukhtar JSC (as she then was, later CJN), held that “It is settled law that a misnomer occurs when the correct person is brought to court under a wrong name”. Such is capable of being corrected by simple Amendment which has been done. See: Commerce Assurance Ltd v. Alli (1992) 4SCNJ 145, which held that “where an amendment relates to a mere misnomer it should be granted as a matter of course”. In Folkynthesis Ltd v. Gapuma (UK) Ltd (Gapuma’s case) [2017] 8 NWLR (Pt.1566)150 @P.164 Para.B-C, it was held that: “Where defendant had earlier admitted the debt in his correspondence, he should not be allowed longer time to continue to delay the settlement of the debt. In the instant case, the appellant admitted being indebted to the respondent in the amount contained in the respondent’s letter”.
It is important to note that a sham defence is not allowed in Summary Judgment proceedings. The Defendant’s counsel who filed Memorandum of Appearance and prepared the Defendant’s processes in the name of NEGRIS NIGERIA LIMITED was quite sure that he was acting for NEGRIS LIMITED as there is no evidence of another company known as NEGRIS NIGERIA LIMITED, and he failed (albeit absconded from the proceedings) when directed by the court to provide any such evidence if it exists. In my view, the learned Defendant’s counsel merely set up for the Defendant, the sham defence of denial of any employment relationship between the parties as an answer to the obvious and acknowledged indebtedness of the Defendant. What would be the worry of NEGRIS LIMITED if truly it is not the Defendant in this suit? In any case, having corrected the misnomer, the Defendant before the court is NEGRIS LIMITED, and I find from the records, that there are ample evidence of employment relationship between it and the Claimant, with the outstanding indebtedness it owed the Claimant; its erstwhile employee, whom it laid off since November 2012 without paying all its owed salaries and terminal entitlements despite repeated promises to pay. In the Gapuma’s case (supra)@P.165, para.D-E, it was held that: “A sham defence is a mere pretence and not a real defence; one that is crafted or contrived to buy time and not to meet the ends of justice. In the instant case, the defence put up by the appellant was a classical example of a sham defence and which was rejected by the court”. In the same vein, I find no merit in the defence put forward by the Defendant in answer to the Claimant’s claims against it. I reject same as it does not constitute a ‘good defence’ required by the Rules of this court. I so hold.
I will now consider the Reliefs sought for by the Claimant, to enter judgment appropriately in line with Or. 16 R. 5(2) NICN (CP) Rules 2017: Relief (a) is the substantive relief sought for by the Claimant which is the principal sum of N2, 475,147.84 (two million four hundred and seventy five thousand, one hundred and forty seven naira, eighty four kobo) being the unpaid salaries and entitlements of the Claimant. 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.F (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.F 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, Relief (a) succeeds and is hereby granted. I so hold.
Relief (b) is for the sum of N2,000,000.00 (two million naira) as general damages. The law is that general damages are actionable per se and arises upon breach. I find that the breach here is the Defendant’s refusal to honour the full payment of the Claimant’s terminal entitlements and outstanding salaries since it served the Claimant Notice of Disengagement with effect from 6th November 2012, despite its repeated promises to pay. In the circumstance, I award the sum of N1000,000(one million naira) as general damages against the Defendant in favour of the Claimant.
Relief (c) is for the sum of N5,000,000.00 ( five hundred thousand naira) as cost of litigation. I find that beyond putting this line in the process, nothing was presented to show the entitlement to cost which ought to be treated as special damages, with proper averments on available credible evidence to establish same. Having failed to take such desirable step in the proceedings, this relief fails, and is accordingly discountenanced and dismissed. I so hold.
Relief (d) is for pre-judgment and post-judgment claims of interest at the rate of 20% per annum- i. on the sum in (a) above from May 16, 2012 until judgment and thereafter at the rate of 10% per annum until the final liquidation of the judgment sum. ii. on the sum in (b) above until judgment and thereafter at the rate of 10% per annum until final liquidation of the judgment sum. iii. on the sum in (c ) above from the date of institution of this suit until judgment and thereafter at the rate of 10% per annum until the final liquidation of the judgment sum”. I find that the Claimant did not make sufficient averment to provide basis for claim for pre-judgment interest, which ranks as special damages that is required not only to be specifically pleaded but also require 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 Supreme Court held that: “where interest is claimed, it must be proved before it can be granted”. I therefore hold that the claim for pre-judgment interest having not been proved is accordingly refused. On the claim for post-judgment interest, I will quickly restate the position I had taken in West African Cotton Co. Ltd v. Oscar Amos (Unreported Suit No. NICN/YL/10/2015, Judgment of which was delivered on June 13 2018); Yusuf Moshood Ayangbade v. UBA Plc (Unreported Suit No. NICN/YL/03/2016, Judgment of which was delivered on July 6 2018), to the effect that award of post-judgment interest is guided by the Rules of the court and based on the discretion of the court upon review of the circumstances of the case, and it would be presumptuous, speculative and role-swapping, for a party to fix the rate of post-judgment interest claimed. Accordingly, same is hereby discountenanced. I so hold.
On the whole and for avoidance of doubt, the Claimant succeeds to the extent of the grant of the following Reliefs:
1. Payment to the Claimant of the outstanding salaries and terminal entitlements in the sum of N2, 475,147.84 (two million four hundred and seventy five thousand, one hundred and forty seven naira, eighty four kobo).
2. Payment to the Claimant the sum of N1000,000 (one million naira) as general damages against the Defendant.
3. The above sums shall be payable to the Claimant within 2 (two) months of this judgment, failing which it attracts 10% interest rate per annum until fully liquidated.
Judgment is entered accordingly.
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Hon. Justice N.C.S Ogbuanya
JUDGE
25/9/18
