IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO
6TH DAY OF FEBRUARY 2018
SUIT NO. NICN/ABJ/259/2017
BETWEEN:
1. SHETTIMA GANA
2. ALI MODU GUJIBA(for and on behalf of 12 others)
—- CLAIMANTS
AND
MONDAY MARKET CO. LTD
………………… DEFENDANT
REPRESENTATION:
Bulus Adamu for the Defendant
JUDGMENT.
By a complaint dated and filed on 25th August 2017 accompanied with the statement of facts, list of witness, written statement on oath of the witness, list and copies of Exhibits, the claimant prayed for:
1. An order for the immediate payment of the sum of N14,449,157.06 being retirement benefits of the Claimants.
2. An order for the payment of the outstanding leave grants arrears for 2001, 2002, 2003, 2004, 2005, 2007, half of 2012, 2013, 2015 and 2016.
3. An order for the payment of the arrears of N18,000.00 minimum wage for the months of April, May, June, July and August 2011.
4. Cost of this suit.
The defendants entered a conditional appearance on 29th day of September 2017. Vide order of this Court made on 7th day of December 2017, the Defendant filed their statement of defence, list of witness, written statement on oath of the witness, list and copies of documents to be relied on at the trial.
With the filing of defence by the Defendant, the Claimants motion on notice praying for summary judgment dated 18/10/17 filed on 16/11/17, for summary judgment was vide order of this Court made on 07/12/17, struck out for having been withdrawn. The suit was then adjourned to 25/1/18, for hearing.
On 25/01/2018, when this matter came up for hearing, Counsel for the Claimant informed the Court that he has a motion on notice dated 09/12/17, filed on 19/01/18. The motion was brought pursuant to Order 16.5(1), (3) & 17(1) of the Rules of this Court. The motion is seeking for:
1. An order for summary Judgment in suit No. NICN/ABJ/259/2017 subjudice before the Honourable Court for the admitted part of the Claim.
2. Further order(s) the Honourable Court may deem expedient to make in the circumstance of this case.
The grounds upon which the application is predicated are:
1. The Claimants/Applicants filed suit No. NICN/ABJ/259/2017 subjudice before the Honourable Court.
2. The Defendants/Respondents by the statement of defence deemed filed and served on the 7th of December 2017 admitted part of the claim for a total sum of N14,449,157.06 being the severance benefits of the Claimants/Applicants.
The application was supported by a 6 paragraphs affidavit, sworn to by one Mustapha Bukar Mustapha, a Legal Practitioner in the Law Firm of Messrs Aminu A. Sani & Co. solicitors for the Claimants.
In moving the motion on notice G. M. Audu, Counsel for the Claimants relied on all the averments contained in the affidavit in support of the motion on notice. Counsel also adopted the written address filed in line with the Rules of this Court as his argument on the motion on notice.
Counsel submitted that the Claimants/Applicants were former employees of the Defendant compulsorily retired from service on ground of old age with effect from 30th June 2016. That the Claimants/Applicants filed this suit due to the refusal of the Defendant to pay them their entitlement despite several entreaties. Counsel submitted that the Defendant has in its defence filed before this Court admitted part of the claims of the Claimants/Applicants in the sum of N14,449,157.06. Counsel then referred this Court to the provisions of Order 16 Rule 6(3) of the Rules of this Court and submitted that this provision has given this Court power to enter judgment on admitted claim. Counsel relied on PAS (Nig,) LTD V NEW NIGERIA SALT CO. (1990) 6 NWLR (Pt. 159) 771, MOSHESHE GENERAL MERCHANT LTD V NIGERIA STEEL PRODUCTS (1987) 18 NSCC 502. Counsel concluded his submission by stating that the Defendant did not deny that part of the Claimants/Applicants claims in the sum of N14,449,157.06. Counsel urged the Court to enter judgment for the admitted part of the claims before granting leave to prove the denied aspects of the Claims.
Mr. Bulus Adam, the Director of Civil Litigation Borno State Ministry of Justice, who represented the Defendant did not object to the granting of this application as he told the Court that he has no objection.
DECISION:
It is to be noted at the onset that the Defendant did not file counter-affidavit to the affidavit in support of the motion for summary judgment. The failure by the Defendant to counter or contradict the averments contained in the affidavit in support of the motion on notice, amount to acceptance of the facts deposed to in the affidavit in support as true.
To support this finding the Defendant’s Counsel at the hearing of this suit informed the Court that the Defendant has no objection to grant of this application. The acceptance of the facts in the affidavit in support and the non-objection to the application are sufficient proof of this application.
However, it is apt at this juncture to refer to the Rules of this Court that enable this Court to consider granting of this kind of application. Order 15 Rules 2(6) & (7) provides as stated below:
Order 15 Rlue 2
(6) where the defendant admits part of the claim, the claimant may by motion on notice request the court to give judgment against the defendant on the sum of money (where the claim is monetary) or part of the claim admitted by the defendant.
(7) the court may thereafter enter judgment for the payment of the part admitted by the defendant and may order that the action proceeds in respect of the un-admitted or contested part of the claim.
The above quoted provisions of the Rules of this Court clearly and unambiguously donate power to this Court to consider and grant this kind of application if the Court is satisfied that there is indeed an admission of part of the claims by the Defendant. For purposes of determining whether there is admission or not the Court will consider the facts that were alleged to be the admission and the surrounding circumstances. The Claimant/Applicants have in their paragraph 3 of the affidavit in support of this application averred that the Defendant in her paragraph 3 of the statement of defence admitted part of the claims of the Claimants/Applicants in the sum of N14,449,157.06.
I shall now scrutinize the relevant paragraphs of the statement of defence in order see whether there is indeed admission on part of the Defendant. The relevant paragraphs of the statement of Defence are:
1. The defendant admits paragraphs 1, 2, 3, 4, 5, 8, 9 and 10 of the Claimants statement of facts.
2.
3. The defendant avers that apart from the entitlement of the claimant mentioned in paragraph 8 of their statement of fact the claimant are not entitled to any other claim in form of leave grant or N18,000.00 minimum wage which was not paid to them.
I shall also reproduce relevant averment in the Claimants/Applicants statement facts in connection with the issue of admission. They are:
8. Following the brief of the Claimants, we wrote and demanded that total benefits of the Claimants from the defendant which they responded on two separate letters dated 19/4/17 and 16/5/17 as follows:
1. Shettima Gana – N1,202,360.54
2. Yusuf Suleiman – N965,604.10
3. Isa Guze – N936,780.00
4. Babagana Abatcha – N962,206.56
5. Ali Ladan – N1,104,818.40
6. Ali Modu Gujba – N989,424.48
7. Ali Haruna – N1,847,051.71
8. Rawa Gana – N1,847,051.71
9. Daufa Adamu – N1,056,989.86
10. Ibrahim Mohammed – N410,029.80
11. Ali Samanja – N1,005,984.00
12. Musda Abba – N875,352.00
13. Ramat Abdullahi – N622,752.00
14. Mustapha Zanna – N622,752.00
9. The Claimants aver that they were employed by the Defendant on the following dates:-
1. Shettima Gana – 10/08/1995
2. Yusuf Suleiman – 20/07/1987
3. Isa Guze – 22/01/1986
4. Babagana Abatcha – 03/06/1985
5. Ali Ladan – 1985
6. Ali Modu Gujba – 26/06/1985
7. Ali Haruna – 17/04/1985
8. Rawa Gana – 05/07/1985
9. Daufa Adamu – 29/01/1989
10. Ibrahim Mohammed – 12/02/1998
11. Ali Samanja – 17/04/1985
12. Musa Abba – 12/05/1986
13. Ramat Abdullahi – 20/07/1989
14. Mustapha Zanna – 27/10/1994
10. The Claimants aver that the Defendant formerly excluded 4 Ex-servicemen from the computation of the benefit until their attention was drawn before a defendant wrote a letter dated 16th of May, 2017 stating the total benefits of the 4 Ex-servicemen.
Admission has been defined by section 20 of the Evidence Act 2011, as a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact and which is made by any of the persons, and in the circumstances, mentioned in the Act. See MILITARY GOVERNOR ONDO STATE V KOLAWOLE (2000) FWLR (pt 3) 395, VICTABIO VENTURES V W. VAN DER ZWAN & Z. N. B. V. (2009) all FWLR (PT 490) 756. BLACKS LAW DICTIONARY EIGHT EDITION at page 50 states ‘’admission is a concession or voluntary acknowledgment made by a party of the existence of certain facts. Admission is also any statement of assertion made by a party to a case and offered against that party, an acknowledgement that facts are true;
Taking into consideration the definition of what is an admission as well the pleadings of the parties can it be said that the above paragraphs of the statement facts and defence have sufficient materials to ground admission. The criteria for doing that has been provided in the case of VICTABIO VENTURES V W. VAN DER ZWAN & Z. N. B. V. (supra) where the Court of Appeal held that for an admission to qualify as basis for entering judgment under the rule, it must directly and unequivocally touch upon or relate to the reliefs in the matter. Admission which is incidental to the main relief cannot qualify as basis for entering judgment on the basis of admission. The court went on to hold that it is indisputable; admission can be made either in the pleadings or in any other court process or document. It must however, be clearly devoid of any ambiguity. The voluntary acknowledgment of a debt must be relevant to the adversary’s case.
Regarding the case at hand the defendant has categorically and in plain and unambiguous words as per paragraphs 1 and 3 of the statement of defence admitted part of the Claimants claims in the sum of N14,449,157.06, being severance benefits of the Claimants.
In view of the foregoing, finding I am satisfied that with the state of pleadings the Defendant has admitted part of the claims of the Claimant. Consequently, I hereby enter judgment in the sum of N14,449,157.06 being total sum admitted by the Defendant as entitlement of the Claimants. The un-admitted or contested part of the claim shall proceeds to trial.
The Defendant shall pay the judgment sum within 30 days from the date of this judgment.
Sanusi Kado,
Judge.
