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National Industrial Court

Mrs. Mary Omolola Olorunmaiye VS Ahmadu Bello University Hotels Ltd

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

19TH DAY OF FEBRUARY 2019                                   

SUIT NO. NICN/ABJ/26/2016

BETWEEN:

Mrs. Mary Omolola Olorunmaiye

 Claimant/Applicant

AND

Ahmadu Bello University Hotels Ltd

Defendant/Respondent

REPRESENTATION:

  1. M. Oyeghe, Esq; For the claimant
  2. I. Saidu, Esq; For the defendant.

SUMMARY JUDGMENT.

The claimant commenced this action via general form of complaint dated 21/1/16 and filed on the same day. However, on 9/11/17, the claimant was granted leave to amend her originating processes together with the motion on notice for summary judgment. In the amended statement of facts, the claimant is seeking for the reliefs stated hereunder:-

  1. The sum of N3,157,246.00 (Three Million One Hundred and Fifty Seven Thousand Two Hundred and Forty Six Thousand Naira) only being the claimant’s emoluments/gratuity for 34 years of selfless service to the defendant from December 17, 1980 to March 15, 2014.
  2. The sum N73,044.04 (Seventy Three Thousand Forty Four Naira, Four Kobo) only as unremitted pension contribution for a period of 20 months at the rate N3,652.22 (Three Thousand Six Hundred and Fifty Two Naira, Twenty Two Kobo).
  3. An order mandating the defendant to immediately pay the claimant the sum of N3,157,246.00 (Three Million One Hundred and Fifty Seven Thousand Two Hundred and Forty Six Thousand Naira) only been the claimant’s emolument/gratuity for 34 years of selfless service.
  4. An order mandating the defendant to forthwith pay the claimant N73,044.04 (Seventy Three Thousand Forty Four Naira, Four Kobo) only as unremitted pension contribution for a period of 20 months at the rate N3,652.22 (Three Thousand Six Hundred and Fifty Two Naira, Twenty Two Kobo).
  5. 10% Interest on the judgment sum (i.e claimant’s gratuity and unremitted pension contribution) from March 15, 2014 when the claimant retired from service until judgment is delivered and 10% interest until the judgment is fully liquidated.
  6. N3,000,000.00 (Three Million Naira) only as general damages for the defendant’s failure to diligently and honestly remit the claimant’s pension contribution as well as hardship suffered by the claimant for the defendant’s wilful refusal to promptly pay the claimant’s entitlement.
  7. N200,000.00 (Two Hundred Thousand Naira) only as cost of this action.

Vide the amended motion on notice filed along with the amended originating processes, brought pursuant to Order 16 Rule 1 and Order 17 Rule 1 of the National Industrial Court of Nigeria, (Civil Procedure) Rules, 2017, and under the inherent jurisdiction of this court, the claimant/applicant is seeking for an order entering summary judgment in her favour. The application is supported by a 23 paragraphs affidavit. A written address was also filed.

The gist of the facts being relied upon by the claimant in making this application are that; the claimant served the defendant from 17/12/1980 to 15/3/2014, diligently without any blemish. See exhibits MOO1, MOO2, MOO3 and MOO4. That upon her retirement from service the claimant approached the defendant for computation of her gratuity. In response vide exhibit MOO5, which is a letter dated September 15, 2014, the claimant’s  entitlement was put at the sum of N3,157,246.00 (Three Million One Hundred and Fifty Seven Thousand Two Hundred and Forty Six Thousand Naira) only. That all efforts made to get the defendant to pay claimant her entitlement proved abortive, as the defendant was unwilling to pay the indebtedness. Consequently the claimant directed her solicitors to recover her entitlement. Two letters of demand were written to the owners of the defendant demanding the payment of the claimant’s terminal benefit but to no avail as there was no response. See exhibit MOO6 and 7, respectively. It was averred that the failure to respond to the letters of demand is due to reprehensible role of the defendant and the fact that it has no defence to this suit. The refusal to pay the claimant her terminal benefit has caused her untold hardship, as she is presently grappling with penurious life as well as disappointment from her inability to care for her basic needs after working for the defendant for over three decades.

It was also stated that while in the employment of the defendant she was enrolled with Trust Fund Pensions Ltd, as her pension manager and thereafter deducted her monthly pension contribution from her salary on the assumption that the deductions were remitted each month to Trust fund Pensions Ltd, only to find out upon approaching the Trust fund to access her pension, that the defendant has defaulted in remittance of pension contribution.  Vide exhibit MOO8, the defendant promised to pay the remaining unremitted pension to her as soon as its liquidity position improves.

In the written address lone issue was formulated for determination, to wit:

‘‘Whether the applicant has shown sufficient facts to warrant the grant of this application’’.

  1. M. Oyeghe, Esq; counsel for the claimant in his oral submission before the court relied on the entire depositions in the affidavit in support and the further and better affidavit. Counsel also adopted the written address and reply on points of law as his argument on this application.

It is the submission of counsel in the written address that the answer to the issue for determination is in the affirmative. As careful perusal of the affidavit in support of this application reveals that the defendant’s indebtedness to the applicant as in respect of her terminal benefit, pension contribution deduction, genera damages and cost of this suit are incontestable. The reason being that it was the defendant that computed the entitlement of the claimant exhibit MOO5 and MOO8. It is the submission of counsel that summary judgment procedure is meant for cases of this sort, which from their very nature disclose a glaring and incontestable indebtedness of the defendant to the claimant/applicant. The summary judgment procedure which is akin to undefended list procedure requires that the claim of the applicant be a liquidated money demand. On this contention counsel cited the case of BRIFINALTD V INTER-CONT. BANK LTD (2003) NWLR (pt.814) 540.

Counsel submitted that both the claimant’s entitlement and unremitted pension was agreed by both parties as shown in exhibit MOO8 and MOO5, and more especially as the claimant’s entitlement was computed by the defendant. Counsel also argued that summary judgment is entered in straight forward cases like the instant case before the court, which is legally incontestable. UTC V PAMOTE (1989) 2 NWLR (Pt.103) 244.

In concluding his submission counsel urged the court to enter summary judgment in favour of the claimant.

In reaction to this application, the defendant filed a 5 paragraphs counter-affidavit. The salient averments in the counter-affidavit are to the effect that the claimant was employed by one Arewa Hotes Ltd as contained in the claimant’s letter of appointment. That the claimant’s employer was responsible for the promotion of the claimant and not the defendant. The claimant was supposed to register with a pension administrator in line with pension Act and to continue to liaise with in terms of her emolument. The computation of claimant’s pension was to aid claimant’s pension administrator in releasing her entitlement. The claimant’s pension is only payable by pension administrator and not by the defendant. The defendant has already done its part by computing the amount the claimant is entitled to and also by remitting the monthly contribution to the claimant’s pension administrator that is the Trust Fund Pension Ltd.  The claimant’s averments in the affidavit are vague and the defendant has a defence.

  1. I. Saidu, Esq; counsel for the defendant in adumbration informed the court that he is relying on all the deposition in counter-affidavit and adopting the written address as his argument. In the written address counsel formulated single issue for determination, thus:

‘‘Whether the defendant have furnished facts to make their defence’’.

Counsel begun his submission by making reference to Order 16 Rule 5(1) of the National Industrial Court of Nigeria, (Civil Procedure) Rules, 2017, and submitted that the defendant have furnished enough facts in the counter-affidavit to make their defence to this action and prayed that the court will grant the defendant leave to defend same which will enable this honourable court to hear from both side.

In concluding his argument counsel prayed this court to dismiss the claimant’s application and transfer this suit to the general cause list for trial.

REPLY ON POINTS OF LAW

In response to the counter affidavit of the defendant filed in opposition to this application, the claimant filed a further and better affidavit, wherein it was stated that Arewa Hotel Ltd acted as agent of the defendant, as can be seen in paragraph 2 of exhibit MOO2 upon retirement the defendant issue exhibit MOOFB1 to the claimant as certificate of retirement.

In the written reply on points of law counsel submitted that the defendant has not shown plausible, cogent or reasonable defence to this action. No good defence has been shown.

Counsel contended that the defendant has expressly and impliedly admitted indebtedness to the claimant’s gratuity and unpaid pension contribution as averred in paragraphs 3(f) and 3(h) of the counter affidavit. Counsel submitted that the law is trite that facts admitted need not to be proved. Section 121(a) of the evidence Act, 2011 and the case of AWOTE V OWODUNMI (No.2) 1987 2 NWLR PT.376 367, AKPAN V UMOH 1999 11 NWLR (Pt.627 349

It is the submission of counsel that content of document cannot be varied or modified by oral evidence (in this case via counter affidavit). Sections 125 and 128 of the Evidence Act, 2011. Section provided that all facts may be proved by oral evidence except the content of a document. Exhibit MOO8 of paragraph 14 of the affidavit in support of the claimant’s motion on notice is unequivocal that the defendant is indebted to the claimant for unremitted pension contributions. In the same vein exhibit MOO FB2 annexed to paragraph 3c of the claimant’s further and better affidavit is the claimant’s pay slip for the month of February 2014 which shows deduction of N1,807.69 (One Thousand Eight hundred and Seven Naira, Sixty Nine Kobo) as pension contribution from the claimant’s salary equivalent to 7.5%, while same amount of N1,807.69 is to be contributed by the defendant and remitted to Trust Fund Pension Ltd which the defendant defaulted. Exhibit MOO FB3 patently shows Months for which the defendant defaulted in remitting pension contribution for junior staff members of the defendant of which the claimant is one.

It is the submission of counsel that the defendant’s attempt to explain the import of exhibit MOO8 in paragraph 3d of its counter-affidavit is an afterthought and cannot stand the test of law.

Counsel submitted that the claimant is entitled to interest and damages for her unpaid gratuity and unremitted pension contribution as monies wilfully withheld by the defendant. On this submission counsel relied on KOLOKO V NASR (2001) 11 NWLR (pt.725) 537, BRITISH AIRWAYS V ATOYEBI (2015) ALL FWLR (Pt.766) 442.

In concluding his submission counsel urged the court to in line with Order 16 Rule 5(2) of the rules of this court to enter judgment in favour of the claimant as per reliefs sought in paragraph 21 of the claimant’s statement of facts and paragraph 25 of the affidavit in support of the claimant’s motion for summary judgment.

COURT’S DECISION.

The claimant commenced this suit vide general form of complaint dated 21/1/16 and filed on the same day. The originating process was accompanied by statement of facts, list of witnesses, witness statement on oath of the claimant, list of documents, photo copies of proposed exhibits and motion on notice for summary judgment.

Vide motion on notice dated 5/10/17 and filed on 6/10/17, the claimant applied to the court to amend the originating process commencing this suit together with all the processes that accompanied the originating process.

On 9/11/17, leave was granted to the claimant to amend the originating processes and the process already filed were deemed properly filed and served.

On 9/1/18, the motion on notice for summary judgment was heard by the court and it was then adjourned to 5/2/18, for reply by the defendant. On 5/2/18 when this matter came up for reply counsel for the defendant asked for adjournment to enable him put their house in order.

On 15/3/18, counsel for the defendant moved motion for extension of time to file memorandum of conditional appearance and statement of defence out of time. In the absence of objection, the application was granted as prayed.

On 18/5/18, while counsel for the defendant was arguing preliminary objection, Mr. Oyegheh, Esq; counsel for the claimant raised objection on the ground that the cost awarded by this court has not been paid by the defendant. This prompted the matter to be adjourned to 17/7/18.

On 17/7/18, the preliminary objection filed by the defendant on lack of jurisdiction was argued and ruling was entered on 11/10/18, wherein the preliminary objection was dismissed for lacking in merit.

On 28/11/18, the counsel for the defendant replied to the argument for summary judgment and the counsel for the claimant replied on points of law.

I have carefully and painstakingly perused the amended originating processes commencing this suit, the motion on notice for summary judgment filed along with the originating processes, the defendant’s statement of defence, counter-affidavit filed in opposition to the motion on notice for summary judgment as well as the addresses of counsel for both parties.

The issue that calls for resolution, is ‘‘Whether from the facts and circumstances of this case the Claimant/Applicant has made out a case for grant of summary judgment’’.

  1. M. Oyeghe, Esq; counsel for the claimant while relying on the deposition contained in the affidavit in support and the further and better affidavit submitted that the claimant has by this application shows that she is entitled to grant of summary judgment as the defendant has no defence to the action.
  2. I. Saidu, Esq; counsel for the defendant on his part argued that the defendant has defence to the action and urged this court to transfer the matter to the general cause list for hearing.

The present application under consideration was dated and filed on 6/10/17, brought pursuant to Order 16 of the rules of this court. For proper appreciation of the application under consideration, it is apt to consider the provisions of Order 16 of the rules of this Court, which governed summary Judgment. The relevant provision of the Order read as follows:-

ORDER – 16 – SUMMARY JUDGMENT

  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. ……………………………………………
  3. …………………………………………….
  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 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.

It is clear from the title of Order 16 that it was meant to govern application for summary judgment. The order makes provisions for a special procedure meant to determine a case without embarking on full scale trial of the case. This a short cut procedure of obtaining justice, to obviate the delay of going to the whole hug of full trial with its attendant cost.

In determining whether to grant or refuse application for summary judgment, the court is enjoined to be guided by the overall interest of justice. See NISHIZAWA LTD V TETHWANI (1984) NSCC 877. The grant of application for summary judgment depend on the facts and circumstances of each case as presented before the Court. The application is not granted as a matter of cause, it is only granted in deserving cases. The Court has no discretion to exercise. Thus, why the court in considering application for summary judgment is duty bound to consider all the facts of the case and the processes filed including not only the statement facts but also the statement of defence. The Court has a duty to give consideration to the defence vis-à-vis the statement of claim as well as affidavit filed in support or against the application, if any. See FEDERAL MILITARY GOVERNMENT V SANI (1990) 7 SC (pt ii) 89. Where the defence raised a bona fide defence the Defendant should not be shut out. However, court must not allow a sham defence, aimed at gaining time and prolong litigation under this procedure. The reason being that the procedure for summary judgment are devices available for prompt and expeditious disposal of controversy without trial when there is no dispute as to either material facts or inferences to be drawn from undisputed facts or only if question of law is involved. The rationale is for disposing of case with dispatch, cases which are virtually uncontested see UBA PLC & ANR. V ALHAJI BABANGIDA JARGABA (2007) 5 SCNJ 127, BONA V TEXTILE LTD V ASABA TEXTILE MILL PLC (2012) 12 SC (pt.1) 25. In BELOXXI INDUSTRIES LTD & ANOR. V HWA THAI INDUSTRIES BERHARD LTD (2011) LPELR-3867, (CA), the Court of Appeal while rationalising the procedure for summary judgment has this to say:-

‘‘The concept of summary judgment by nature is one given in favour of the plaintiff without a plenary trial of the action. In other words, the conventional normal procedure requiring the filing of all necessary pleadings, hearing evidence of witnesses and addresses by counsel and upon which a judgment is given are bypassed and not followed. Rather the material upon which such a judgment is based are the writ of summons, the statement of claim, and also the plaintiff’s application for judgment by way of a motion or summons which is supported by an affidavit. A statement of defence could also at times be an additional material accompanied as well as counter affidavit by the Defendant. the procedure serves a quick measure for disposing with dispatch, cases which are uncontested and thus precluding frivolous defences for purpose of mere delay’’.

From the quoted provisions of Order 16 Rule 1, above, it is clear that a Claimant who believes that there is no defence to the claim, can file an application for summary judgment supported by an affidavit stating the grounds for the belief. The application shall be filed along with the originating process. The application shall be accompanied with the statement of facts, any exhibits and a written brief. The provisions of Rule 1 of Order 16 of the Rules of this Court is very clear and unambiguous as to what is required of a Claimant that believes that there is no defence to his Claim.

For the Defendant he is by virtue of Order 16 Rule 4 (a), (b), (c) and (d) of the Rules of this Court required to upon being served with the processes stated in Rule 1 of Order 16 of the Rules of this Court if he intend to defend the action shall not later than 14 days which is the time for filing defence, file a statement of defence, documents to be used in defence, a counter–affidavit and a written brief in reply to the application for summary judgment; and written statement on oath of all witnesses listed to be called by the defendant other than witnesses to be subpoenaed.

When the parties have complied with the provisions of order 16 Rules 1 and 4, the Court is enjoined by the provisions of Order 16 Rule 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. However, by virtue of Order 16 Rule 5(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.

From the clear and unambiguous provisions of order 16 of the rules of this Court, I have no doubt in my mind that both parties and the Court have a duty to perform in respect of application for summary judgment. The fulfilments of the duties will emerged upon consideration of the facts before the Court.

The Claimant filed this application along with his Originating processes as required by Order 16. A careful perusal of the motion on notice filed by the Claimant will revealed that the motion was supported by affidavit sworn to by the Claimant herself, wherein she made reference to exhibits attached to the affidavit in support of the motion on notice for summary judgment. The motion was also accompanied with a written address in aid of the application.

The defendant was on 15/3/18 granted extension of time to file memorandum of conditional appearance, statement of defence its accompanying processes. The defendant on 11/10/18 filed a 5 paragraphs counter-affidavit to the claimant’s motion on notice for summary judgment. Wherein a copy of the statement of defence, witness statement on oath, list of witnesses and a written address were filed along with the counter-affidavit.

By the provision of Order 16 Rule 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 statement of defence, document to be used in defence, a counter-affidavit and a written brief in reply to the application for summary judgment, and written statement on oath of all witnesses listed to be called by the defendant other than witnesses to be subpoenaed.

From the record of the court the originating court processes commencing this suit together with the motion on notice for summary judgment all filed on 21/1/16 at the registry of this court were served on the defendant via courier on 8/2/16. While the amended originating processes together with the motion on notice for summary judgment were served on the defendant on 17/10/17. Albeit, the defendant vide order of this court made on 15/3/18, the defendant was granted extension of time to file statement of defence out of time together with its accompanying processes, same was not the case in respect of the counter-affidavit and written address, these documents were filed on 11/10/18, out of time for filing of defence without leave of court or extension of time sought and granted.

The counter-affidavit and the written address having been filed out of time without leave of court they are incompetent and cannot be use by the court as they are not properly before the court. The further and better affidavit and the written address filed by the claimant to controvert or contradict the averments contained in the defendant’s counter affidavit is as well not properly before the court as there was nothing to warrant filing of the said processes.

In view of my finding that there is no valid counter-affidavit and written address properly filed by the defendant before the court. This means that the defendant has not filed any counter-affidavit and written address that can be used. Therefore, in the absence of any counter-affidavit to controvert of contradict the claimant’s affidavit in support of the motion on notice, I have no choice than to accept the depositions in the affidavit in support of the motion on notice as true. There is no counter-affidavit filed along with the processes as required to be filed by the provisions of Order 16 Rule 4(c) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017. In an application supported by an affidavit, for the Respondent to adequately respond to the issues raised in the affidavit he is duty bound to file a counter-affidavit to controvert and contradict what was averred in the affidavit in support. Where the party that has a duty to controvert or contradict facts deposed to in an affidavit, but failed or neglected to act accordingly, the abdication of the duty by the party will justify the inference that those averments had been admitted and accept as true facts and the court will be justified to act on those uncontroverted averments. DOKUBO-ASARI V FRN (2009) 37 NSCQR 1146, EX-PARTE ADESINA (1996) 4 NWLR (PT.442) 254, AG ANAMRA STATE V OKEKE (2012) 12 NWLR (PT.782) 575, STEPHEN LAWSON-JACK V THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD (2002) 13 NWLR (PT.783) 180.  However, the mere fact that averments in an affidavit are deemed to have admitted cannot bar the Court from securitizing those averments to ascertain their cogency.

The refusal or neglect by Counsel for the Defendant to file valid Counter-affidavit as required of him as far Order 16 Rule 4(c) of the National Industrial Court of Nigeria Rules 2017, clearly shows that Counsel has nothing to counter or contradict. This means Counsel has accepted and admitted the Claimant’s affidavit in support as the truth of the facts in this application.

From the originating Court processes commencing this suit as well as the affidavit in support of the motion on notice for summary judgment, the Claimant’s case is hinged on payment of her gratuity and unremitted pension contribution deductions. A scrutiny of the exhibits attached to the motion on notice for summary judgment will clearly revealed that the claimant upon retirement from the service of the defendant requested for payment of her gratuity. Consequent upon which the defendant notified the claimant of what her entitlement are which amounted to the sum of N3,157,246.00 (Three Million One Hundred and Fifty Seven Thousand Two Hundred and Forty Six Thousand Naira). But she was never paid till date. See exhibits MOO1, MOO2, MOO3, MOO4, MOO5, MOO6 and MOO7. Likewise the claimant’s pension deduction amounting to the sum of N73,044.04, was also never remitted to her Pension Fund Administrator, Trust Fund Pension Limited, by the defendant as required by the Pension Reformed Act. It is interesting to note that the defendant acknowledged and admitted the non-remittance of the claimant’s pension deduction to her pension fund administrator. See exhibit MOO8.

The defendant’s defence as can be gathered from the statement of defence and witness statement on oath is to the effect that the claimant is not employee of the defendant therefore is not the one to pay claimant her gratuity and pension. The defendant in putting up this defence relied on the letter of appointment of the claimant which was issued by Arewa Hotels Ltd. Albeit, the letter of appointment of the claimant shows that the claimant was employed by Arewa Hotels and not the defendant, in paragraph 2 of the said letter clearly establish that the claimant is to serve Kongo Conference Hotel. The position taken by the defendant in claiming that the claimant is not its employee but that of Arewa Hotels Ltd, seems to have gloss over the content of the letter of appointment which unequivocally that the appointment of the claimant was to serve Kongo conference Hotel which changed its name to Ahmadu Bello University Hotels i.e the defendant in this case.

In line with exhibit MOO1 the claimant resumed at the defendant and in the course service of the defendant was promoted to various positions in the defendant and retired as a Confidential Secretary to the Managing Director after serving for 34 years. See exhibits MOO1, MOO2, MOO3 and MOO4.

Assuming but without conceding that the claimant was not employed by the defendant as the  defendant want the court to believe, the subsequent conduct of the defendant in allowing the claimant to service the defendant at various positions for 34 years, paying her salaries approving her leave approving her application for retirement, computing her terminal entitlement and admitting not remitting the pension contribution deductions to the claimant’s pension fund administrator all goes to establish legal contractual relationship of Master and Servant that existed between the claimant and the defendant during the period of her 34 years of service of the defendant. The claimant cannot therefore be heard to denounce that master and servant relationship. The law is that contract of employment need not to necessarily be in writing it can be oral or by conduct of parties. This position is supported by the provision of Section 91(1) of the Labour Act which defines an “employer” to mean “any person who has entered into a contract of employment to employ any other person as a worker either for himself or for the service of any other person, and includes the agent, manager or factor of the first-mentioned person and the personal representatives of a deceased employer”. See also the Supreme Court decision in Shena Security Co. Ltd v. Afropak (Nig.) Ltd & ors [2008] 4 – 5 SC (Pt. II) 117. In the present case even if the defendant denied the efficacy of exhibit MOO1 to have established employment contract between the parties in this case, the law will never the less hold that the relationship that existed by conduct. In the circumstance the defendant will be estopped from denying such relationship.

The modern trend in the employment industry has opened new vistas in recognising new forms of employment relationship. The traditional view on employment which assumes a relationship between an employee and a single employer is fast losing its unitary nature. In consequence thereof this court will in appropriate cases, give recognition to existence of contract of employment even where there is no direct recruitment by an employer. For instance, the courts have upheld the fact of co-employer status between two employers in relation to an employee as was the case in Onumalobi v. NNPC and Warri Refining and Petrochemical Company [2004] 1 NLLR (Pt. 2) 304. And in PENGASSAN v. Mobil Producing Nigeria Unlimited [2013] 32 NLLR (Pt. 92) 243 NIC the NICN acknowledged the reality of triangular employment relationships.

In view of the foregoing, it is patently clear that with the admission of the defendant to the claims of the claimant as per exhibit MOO1 – MOO4, the defendant has no good defence to the claimant’s claim. To hold otherwise will amount to giving the defendant the opportunity to prolong this litigation. The interest of justice tilt in favour of granting summary judgment in favour of the claimant. I have no hesitation in coming to the conclusion that the defendant has no defence to the claimant defence, in the circumstance the claimant is entitle to summary judgment. Furthermore, the absence of challenge to the claimant’s application, has made the claimant to be entitled to grant of her application for summary judgment.

From all I have been saying above the claimant is entitle to summary judgment claimant only to the extent stated hereunder:-

  1. The defendant is hereby directed to pay to the claimant The sum of N3,157,246.00 (Three Million One Hundred and Fifty Seven Thousand Two Hundred and Forty Six Thousand Naira), being the claimant’s gratuity for serving the defendant for over 4 decades.
  2. The claim for payment of the sum of N73,044.04, being unremitted pension deduction is allowed. But, the money is to be remitted to the claimant’s pension account with Trust Fund pension Ltd her pension fund administrator. Who shall in turn process the claimant’s pension and paid to her.
  3. The defendant is hereby directed to pay the sum of N200,000.00 (One Hundred Thousand) Naira, to the claimant as cost.
  4. All sums payable under this judgment shall be paid within 21 days from today. Failure to pay the judgment sums within 21 days shall attract interest in the sum of 10% per annum until full payment.

Summary judgment entered accordingly.

 

Sanusi Kado,

Judge.

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