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STANDARD CONSTRUCTION LTD v. YAHAYA & ORS (2021)

STANDARD CONSTRUCTION LTD v. YAHAYA & ORS

(2021)LCN/15571(CA)

In The Court of Appeal

(KANO JUDICIAL DIVISION)

On Thursday, June 03, 2021

CA/KN/113/2018

Before Our Lordships:

Hussein Mukhtar Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Between

STANDARD CONSTRUCTION LIMITED APPELANT(S)

And

ABUBAKAR YAHAYA & 97 ORS. RESPONDENT(S)

RATIO:

ARGUMENTS IN APPEAL MUST BE IN CONSONANCE WITH THE ISSUE(S) FOR DETERMINATION

The law is settled to the effect that arguments in an appeal must derive from the issue or issues for determination relating to the grounds of appeal. Therefore, any such argument that is not founded or based on any issue formulated for determination in any appeal or related to any ground of appeal is incompetent and will be discountenanced. In other words, an argument proffered in support of any issue for determination must of necessity be consistent with the issue under which it is being canvassed. See OBIONWU & ORS. VS. INEC (2013) LPELR 22573 and ONYIA VS. MBIKO & ANOR (2014) LPELR 23028.
​Now, the Appellant’s issue one questions the multiple claimants with different monetary claims and award of general damages made by the trial Court. The issue did not touch on either pre-judgment or post judgment interest awarded by the trial Court. I have also gone through the four grounds of appeal together with their particulars and cannot find where the issue of interest was made a subject of challenge in this appeal. The arguments on pre-judgment and post judgment interest is clearly not covered by the grounds of appeal or the issue for determination. While arguing on an issue, it is wrong to embark on the arguments or matters that are outside the complaint as raised in the issue for determination as was done by the Appellant. Consequently, the argument relating to the interest rate awarded by the trial Court is hereby discountenanced and struck out. PER ABUBAKAR MU’AZU LAMIDO, J.C.A.

MEANING OF GENERAL DAMAGES

General damages are those damages which the law presumes or implies in every breach and every violation of a legal right. It is the loss which flows naturally from the defendant’s acts and its quantum need not be pleaded or proved by a plaintiff /claimant since it is generally presumed by law. The manner in which general damages are quantified is by relying on the peculiar facts and circumstances disclosed and awarding what in the opinion and judgment of the Court, is reasonable. See INCAR (NIG.) LTD. VS. BENSON TRANSPORT (1975) 3 SC 117; ACME BUILDERS VS. KADUNA STATE WATER BOARD (1999) 2 NWLR (PT. 590) 288 and ADAMU VS. IGP & ORS. (2013) LPELR 22812.  PER ABUBAKAR MU’AZU LAMIDO, J.C.A.

 

ABUBAKAR MU’AZU LAMIDO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the National Industrial Court of Nigeria, Kano Division delivered on 14th day of December, 2016 by Mani, J. (of blessed memory). At the trial, the Respondents were the Claimants while the Appellant was the Defendant. The claim against the Defendant/Appellant before the trial Court is for the following reliefs:-
1. A DECLARTION that the claimants as ex-employees of the Respondent are each entitled to the entitlement/amount due as respectively contained in the Respondent’s letter and payment schedule dated 15th May, 2014.
​2. AN ORDER of this Honourable Court compelling the Respondent to pay each of the claimants suing his entitlement (amount) due as is contained in the Respondent’s letter and column 6 of the payment schedules dated 15th May, 2014 which is all calculated to be in the sum of N41,762,681.80 (Forty-One Million, Seven Hundred and Sixty-Two Thousand, Six Hundred and Eight-One Naira, Eighty Kobo) with interest thereon at the rate of 21% percent per annum from August 2011 up to judgment and thereafter at the rate of 10% per month until the sum is fully liquidated.
3. AN ORDER of this Honourable Court awarding general damages to the claimants suing in the sum of N5,000,000.00 (Five Million Naira) for Respondent’s willful refusal, neglect and failure to pay the claimants their respective entitlement/amount due consequent upon which the claimants suffered untold hardship and trauma.
4. AN ORDER of this Honourable Court for the cost of action and prosecuting this case.
5. ANY FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances of this matter.

From the above complaint, the claimants/Respondents filed a motion for summary judgment supported by address. The Defendant/Appellant filed its memorandum of appearance, statement of defence, counter-affidavit opposition the motion for summary judgment and a written address.

​After hearing parties on the motion, the trial Court granted the prayers and awarded the sum of N41,762,681.80 being claimed with interest at the rate of 10% per month until the sum is fully liquidated as post judgment interest and the sum of N2,000,000.00 as general damages for hardship and trauma suffered by the claimants/Respondents.

Dissatisfied with the decision of the trial Court, the Respondent/Appellant filed its notice of appeal containing four grounds of appeal. The grounds of appeal area as follows:
GROUND 1
The Court below erred in law, when it entered summary judgment on a lump sum claims whose amount is unspecified in favour of the 98 number (Ninety-Eight) of the claimants, thereby occasioning miscarriage of justice on the Appellant.
GROUND 2
The Court below erred in law when it held:-
“The Respondent did not deny all facts as contained in the affidavit in support, particularly paragraph 3 (r) and paragraph c–q of the statement of fact. Also the respondent never denied making Exhibits F, F1 to F6 which constitute the basis of the claimant’s claim. And that is the evidence on which the claimant’s claim is premised”.
GROUND 3
The below erred in law when it decided:-
“It is pertinent to observe that I agree with the submission of the Counsel of the Respondent that document marked “without prejudice” are inadmissible. However, I total disagree with the Counsel’s submissions that Exhibits F, F1 to F6 are inadmissible”.
GROUND 4
The Court below erred in law, when it entered summary judgment awarding cost of N2,000,000.00 as general damages though not pre-estimated.

Parties thereafter filed their briefs of argument. The Appellant’s brief was filed on 19/10/2020 but deemed on 18/11/2020. While the Respondents’ brief was filed on 25/11/2020. In the Appellant’s brief of argument, two issues for determination were formulated. The issues are:-
1. Whether the trial Court was right to enter summary judgment in a lump sum claim of 98 number Claimants each having unspecified amount of claim on his behalf and proceed to award general damages.
2. Whether Exhibits F and F1 are admissible in law as to be relied on by the trial Court to enter judgment.

The Respondents formulated a single issue for determination couched in the following way:-
Whether having regard with (sic) the facts, evidence and the circumstances of this case, the trial Court was right when it held that the Defendant/Appellant has no defence to the Claimants/Respondents claim and subsequently entered summary judgment in favour of the Respondent.

In arguing issue one in the Appellant’s brief of argument, learned Counsel submitted that the motion for summary judgment brought pursuant to Order 16 of the NICN Rules 2017 invited the trial Court to award summary judgment. However, three fundamental issues raised in the claim do not fall under claims that can be tried summarily under Order 16. These are joint claim involving several claimants, claim of interest both pre-judgment and post judgment and general damages.

He argued that a careful look at the provisions of Order 16 Rules 1 and 2 will show that it do not admit of joint claims by several claimants, whereas the Rules contemplated several Respondents. The language used in the provisions is clear and the Courts are expected to give effect to it. He referred to DALEK (NIG.) LTD. VS. OMPADEC (2007) ALL FWLR (PT. 364) 204 and NPA VS. AHMED (2017) ALL FWLR (PT. 892) 1059.

He argued that a claim for a pre-judgment interest without particulars as to how it was arrived at is improper in a claim for a debt or liquidated money demand. He referred to NIPOST VS. IRBOK (NIG) LTD. (2006) ALL FWLR (PT. 326) 33 and OGBONNA VS. UKAEGBU (2005) ALL FWLR (PT. 288) 1165. Against this background, only claims of debt and liquidated money demand are admissible under the undefended list procedure. He referred to EFFANGA VS. ROGERS (2003) ALL FWLR (PT. 157) 1053.

He also submitted that it was wrong of the trial Court to award a post judgment interest of 10% per month in favour of the Respondents because pre or post judgment interests are matters of judicial discretion subject to following some guidelines. He referred to IDAKULA VS. RICHARDS (2000) ALL FWLR (PT. 141) 2439. Whereas a pre-judgment interest is as of right where it is contemplated by the agreement of parties, however, where there is agreement between the parties on interest, the claimants have a duty to plead and prove that they are entitled to interest. Thus, the award of interest per month is outrageous and not supported by law, custom, rule or practice. He referred to HYDRO WORKS LTD. VS. RIMI LOCAL GOVT. (2002) ALL FWLR (PT. 110) 1887.

​He also contended that the award of general damages is improper since it is a sum which is contestable generally. It is such as the law will presume to be the direct, general or probable consequences of the act complained of that cannot be determined summarily but with direct evidence of damages done. He referred to GAMBO VS. IKECHUKWU (2004) ALL FWLR (PT. 204 178; MAJA VS. SAMOURIS (2002) ALL FWLR (PT. 98) 818 and ODUME VS. NNACHI (1964) ALL NLR 329.

On issue two, he submitted that a summary judgment is a procedure for disposing with dispatch cases where there can be no reasonable doubt that a plaintiff is entitled to judgment and where it is inexpedient to allow a defendant to defend for mere purpose of delay. He referred to SODIPO VS. LEMINKAINEN (1986) 1 NWLR (PT. 15) 220 and WOODGRANT LTD. VS. SKYE BANK PLC (2011) ALL FWLR (PT. 601) 1516. For a claim to qualify under a summary judgment proceeding, it must be a liquidated money demand.

He argued that where a defendant in this type of application raises any substantial question of fact which ought to be tried or which required evidence outside the document attached in support of the application, leave to defend should be granted. He referred to UNN VS. ORAZULIKE TRADING CO. (1989) 5 NWLR (PT. 119) 19. The defence on the merit may encompass a defence in law as well as on fact which is not the same as success of the defence in litigation. All that is required is that the defence raises a tribal issue or issues. He referred to ATAGUBA & CO. VS. GURA (NIG.) LTD (2005) ALL FWLR (PT. 256) 1219 and DAVID VS. JOLAYEMI (2011) ALL FWLR (PT. 571) 1545. Paragraphs 5–15 of the counter-affidavit of the Appellant put up a defence of the merits.

He also argued that Exhibit F relied upon by the trial Court did not contain the sum awarded to the Respondents by the trial Court. Also, the origin of Exhibit F1 needed clarification which could have been better explained by oral evidence at the trial than in the manner it was dumped before the Court. He referred to DURUMINIYA VS. COP (1961) NNLR 70 and ACN VS. LAMIDO & ORS. (2012) SCNJ 374. The trial Court made its findings based on Exhibits F, F1–F6 which were not intended to be binding on the Appellant and as such, the documents cannot be relied on to enter judgments. He referred to KOLO VS. FIRST BANK OF (NIG) PLC (2003) ALL FWLR (PT. 179) 1303. He urged the Court to allow the appeal and enter the suit to the general cause for a proper trial.

In arguing the lone issue formulated, learned Counsel to the Respondents submitted that the essence of summary judgment is to expeditiously give judgment to a plaintiff where it is clear that the defendant has no defence to an action. He stated that the Appellant did not disclose any defence on the merit as shown in the counter-affidavit. He referred to IYERE VS. BENDEL FEED (2008) 12 SCNJ 412. The trial Court has meticulously analysed the Exhibits annexed to the application and considered the depositions and came to a correct decision that the Appellant has no defence on the merits.

He also stated that the Appellant never denied owing the Respondents but only shied away from stating the amount he owed. He referred to OBITUDE VS. ONYESOM COMMINITY BANK (2014) 9 NWLR (PT. 1412) 356.

He argued that it would be wrong of the Appellant to canvass an argument that Order 16 of the NICN Rules 2017 talks about a single plaintiff for even under the Interpretation Act, words in a singular include the plural and words in the plural include the singular. He also stated that the case of DALEK NIG. LTD. VS. OMPADEC (supra) and NPA VS. AHMED (Supra) cited by the Appellant are inapplicable.

He also stated that the trial Court never granted pre-judgment interest and even if it did and it is found to be wrong, it is the order granting the pre-judgment interest that is liable to be set aside. He referred to NIPOST VS. IRBOK (NIG) Supra). Also the argument on 10% post judgment interest is not covered under any ground of appeal and the two issues formulated by the Appellant and no leave was sought and granted to the Appellant to raise same. He referred to EMESIANI VS. EMESIANI (2013) LPELR 21360 and DREXEL ENERGY & NAT. RESOURCES LTD. & ORS. VS. T.I.B. LTD & ORS. (2008) LPELR 962.

On the award of general damages by the trial Court, he argued that the Appellant was wrong to suggest that the Respondents did not particularize the nature of the general damages. He stated that paragraphs E–I and Exhibits A–G attached to the affidavit in support at page 36 of the record of appeal proved the nature and described the particulars of damages awarded in favour of the Respondents. Alternatively, he said even where the trial Court erred in awarding general damages, the error is an irregularity not capable of destroying the whole judgment. The part of the error is to be set aside and the perfect aspect of the judgment be affirmed. He referred to GAMBO VS. IKECHUKWU (Supra) and GOVERNOR OF BAYELSA STATE & ORS. VS. ASCOT FLOWLINE (NIG) LTD (2017) ALL FWLR 815.4

On issue two, he submitted that the trial Court was right when it held that the Appellant did not show any defence on the merit to transfer the case to the general cause. He referred to UNIVERSITY OF BENIN V K.T. ORG. LTD (2007) 14 NWLR (PT. 1055) 441; OKAMBAH LTD. VS. SULE (1990) 11–12 SC 47 and MACAULAY VS. NAL MERCHANT BANK LTD (1990) 4 NWLR (PT. 144) 283. He then added that paragraphs 5–14 of the Appellant’s counter-affidavit are unreal and a sham deposed to defeat the real purpose of summary trial. He referred to TASIU VS. ADAMU (2015) ALL FWLR 170.

​On the documents relied upon by the trial Court to enter judgment on the sum claimed, Counsel argued that the Exhibits are clear and explicit on how the sum was arrived. Moreover, it was the Appellant who made the document and it was not denied, challenged or controverted by the same Appellant.

He referred to NIPOST VS. IRBOK (NIG) LTD (Supra). The trial Court merely calculated the amount due for each claimant under column 6 of Exhibit F, F1–F6. The said Exhibits contained a clear admission of the Appellant’s indebtedness to the Respondents and the Appellant should not be allowed to delay paying the Respondents what is due to them. He referred to FOLK SYNTHESIS LTD. VS. GAPUMA (UK) LTD. (2019) ALL FWLR 597.

Counsel further argued that Exhibits F, F1–F6 were never marked “without prejudice” and as such, the trial Court can perfectly act on them. He referred to UNION BANK OF NIGERIA VS. SPARKLING BREWERIES LTD. (2000) 15 NWLR (PT. 689) 200.

In the determination of this appeal, a single issue for determination is sufficient to resolve all the issues raised by Counsel. The issue is:
Having regards to the facts and evidence adduced, whether the trial Court was right to enter a summary judgment against the Appellant and make the orders as contained in the judgment.

​In the determination of the above issue, the Court will take into consideration arguments of Counsel in their respective briefs of argument. The focal point here is Order 16 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017. By its provisions, a claimant who has a claim for recovery of debt or liquidated money demand and who has a reasonable belief that the Respondent has no defence thereto may obtain judgment summarily. Order 16 Rules 1 and 2 provides thus:
16–1 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 exhibit and written brief.
2. The claimant shall deliver to the Registrar as many copies of all the process and documents referred to in Rule 1 of this Order as there are defendants or Respondents.
The law on summary judgment is to the effect that summary judgment is granted on claim for recovery of debt or liquidated money demand over which there is no genuine issue of fact in controversy because the claimant has set out an unassailable case which the defendant has no answer to. In such circumstances, the Court consider the contents of pleadings, the motion together with its affidavit and counter-affidavit and the annexures to see whether there are genuine issues of facts as opposed to law raised therein. See DAVID VS. JOLAYEMI (2011) 11 NWLR (PT. 1258) 320 and BABALE VS. EZE (2011) 11 NWLR (PT. 125 48 and NISHIZAWA LTD. VS. JETHWANI (1984) 12 SC 234.
A party intending to defend an action under Order 16 must comply with Rule 4 upon being served with the processes. Order 16 Rule 4 provides:-
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.
In an action under this rule, a Respondent wishing to defend the suit is expected to 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 witness listed to be called by the defendant other than witness on subpoena. The counter-affidavit must contain a prima facie defence otherwise he will not be allowed to defend the suit and the claimant will be entitled to judgment. See BEN THOMAS HOTELS LTD. VS. SEBI FURNITURE COMPANY LTD. (1989) 1 NWLR (PT.123) 623; MOHAMMED & ANOR VS. OKAFOR & ANOR (2015) LPELR 25909 and HALIRU VS. UNITY BANK PLC (2016 LPELR 41608.

The purpose of summary judgment procedure is always aimed at disposing of cases with dispatch especially in cases which are virtually uncontested. It often applies to cases where there is no reasonable doubt that a plaintiff is entitled to judgment, where it is inexpedient to allow a defendant to defend for mere purpose of delay. See UBA PLC & ANOR VS. JARGABA (2007) 11 NWLR (PT. 1045) 247; UNIVERSITY OF BENIN VS. KRAUS THOMPSON OR. LTD. (2007) 14 NWLR (PT. 1055) 441 and NEW NIGERIAN NEWSPAPERS LTD. VS. AGBOMABINI (2013) LPELR 20741.

​The Appellant argued that a joint claim by numerous claimants is foreign to summary judgment procedure in that Order 16 of the NICN (Civil Procedure) Rules recognized only a claimant. The Respondents on the other hand are of the opinion that the Rules do not prohibit joint claimants in an action or summary judgment procedure.
The word plaintiff has been defined in Blacks Law Dictionary, 6th Edition page 1150 as “a person who brings an action; the party who complains or sued in a civil action and is so named on the record. A person who seeks remedial relief for an injury to rights”. A plaintiff in an action should be one who has a right of action, the person who has been injured by the acts of another. See GREEN V. GREEN (1987) 3 NWLR (PT. 61) 480 and OGUNSANYA VS. DEDE (1990) 6 NWLR (PT. 156) 347. A claimant on the other hand has been defined in Blacks Law Dictionary, 9th Edition page 282 as “one who asserts a right or demand, or one who asserts a property interest in land, chattels or tangible things”. The two words are used interchangeably depending on the rules of a particular Court in Nigeria. See REPTICO S.A. GENEVA VS. AFRIBANK (NIG) PLC (2013) LPELR 20662; REGISTERED TRUSTEES OF EKET COMMERCIAL MOTORCYCLISTS ASSOCIATION VS. EKET L.G.C. & ORS ​ (2013) LPELR 21998 and AKINBODE VS. OYEBAMIJI & ANOR. (2014) LPELR 24410.
Now, a careful look at Order 16 Rule 1 of the NICN (Civil Procedure) Rules will reveal that the word claimant in the singular is used as opposed to word Respondents or defendants in the same rule. But does that mean that multiple persons who have a cause of action against an individual cannot jointly sue for reliefs? It is to be noted that this can be simply answered by reference to Order 13 of the NICN (Civil Procedure) Rules. It provides that:-
13–1 Parties generally
All persons may be joined in one action as claimants in whom any right to relief is alleged to exist whether jointly or severally and judgment may be given for such claimant(s) as may be found to be entitled to relief and for such relief as the claimant may be entitled to without any amendment.
​From the above, it can be seen that the Rules allow multiple claimants in one action so long as a right to relief is alleged to exist in favour of those persons. There could be more than one plaintiff/claimant in a case, as the above rule did not put any limit to the number of claimants in a case. In other words, there could be multiple plaintiff and defendants in a case. There could also be co-plaintiffs and co-defendants. In whatever way it goes, the law is that the plaintiffs present a common cause of action with a common set of reliefs. And that is why all persons who are plaintiffs in the same suit cannot set up conflicting claims between themselves. Plaintiffs/claimants must act together. They must present a common cause of action with common set of reliefs. See EJEZIE VS. VS. ANUWU (2008) 12 NWLR (PT. 110) 446 and UNION BANK PLC VS. UGBE & ORS. (2019) LPELR 47893.
​The Respondents in the present appeal were all one time staff of the Appellant and have several months salaries unpaid by the Appellant hence the suit seeking for the Court to compel the Appellant to pay all outstanding salaries and allowances due to the Respondents who are 98 in number. Now, from the claim, it can be seen that there is no conflict in as far as the claim is concerned. The Respondents have presented a common cause of action with a common set of reliefs and as such, are entitled to jointly sue the defendant and seek for the reliefs in their claim.
It is also to be noted that by Order 1 Rule 10 (1) of the NICN (Civil Procedure) Rules, the provisions of the Interpretation Act are applicable to the rules. It provides thus:-
Order 1 Rule 10 (1) The rules of the NICN shall be interpreted in accordance with the Interpretation Act, CAP 123, Laws of Federation of Nigeria.
Section 14 of the Interpretation Act provides that:
14. In an enactment:-
a. Words importing the masculine gender include females;
b. Words in the singular include the plural and words in the plural include the singular.
In the circumstances and taking into cognisance the provision of Section 14 (b) of the Interpretation Act, there is truth in the submission of Counsel to the Respondents that multiple persons are empowered to jointly institute an action as claimants. The law did not prohibit that and the Rules of Court encourage it. Therefore, the contention of the Appellant on the point is without merit and is hereby discountenanced.

​The Appellant also argued on the award of interest by the trial Court. He argued that a prayer for pre-judgment interest without particulars as to how it is arrived at is not within the purview of summary judgment. The Respondents argued that the issue of interest awarded by the trial Court has not been challenged in any of the Appellant’s grounds of appeal and it is not also part of any other two issues formulated. The Appellant merely raised it in his argument which is not allowed.

The law is settled to the effect that arguments in an appeal must derive from the issue or issues for determination relating to the grounds of appeal. Therefore, any such argument that is not founded or based on any issue formulated for determination in any appeal or related to any ground of appeal is incompetent and will be discountenanced. In other words, an argument proffered in support of any issue for determination must of necessity be consistent with the issue under which it is being canvassed. See OBIONWU & ORS. VS. INEC (2013) LPELR 22573 and ONYIA VS. MBIKO & ANOR (2014) LPELR 23028.
​Now, the Appellant’s issue one questions the multiple claimants with different monetary claims and award of general damages made by the trial Court. The issue did not touch on either pre-judgment or post judgment interest awarded by the trial Court. I have also gone through the four grounds of appeal together with their particulars and cannot find where the issue of interest was made a subject of challenge in this appeal. The arguments on pre-judgment and post judgment interest is clearly not covered by the grounds of appeal or the issue for determination. While arguing on an issue, it is wrong to embark on the arguments or matters that are outside the complaint as raised in the issue for determination as was done by the Appellant. Consequently, the argument relating to the interest rate awarded by the trial Court is hereby discountenanced and struck out.

On the award of N2,000,000.00 general damages, the Appellant contended that since the claim is contestable, it is not proper under a summary judgment procedure. The Appellant further argued that the Respondents did not particularize the nature of the general damages they sought for and were granted by the trial Court. The Respondent argued that their deposition proved the nature and particulars of the general damages they sought for.

​General damages are those damages which the law presumes or implies in every breach and every violation of a legal right. It is the loss which flows naturally from the defendant’s acts and its quantum need not be pleaded or proved by a plaintiff /claimant since it is generally presumed by law. The manner in which general damages are quantified is by relying on the peculiar facts and circumstances disclosed and awarding what in the opinion and judgment of the Court, is reasonable. See INCAR (NIG.) LTD. VS. BENSON TRANSPORT (1975) 3 SC 117; ACME BUILDERS VS. KADUNA STATE WATER BOARD (1999) 2 NWLR (PT. 590) 288 and ADAMU VS. IGP & ORS. (2013) LPELR 22812.

In a civil claim, though a Court has a discretion to award general damages and where an award is made, an appellate Court can interfere with the award of damages by the trial Court under some circu7mstances. In GAMBO VS. IKECHUKWU (2003) LPELR 12414 AT 12–13; Bulkachuwa, JCA (as he then was) held that:-
“Award of damages particularly general damages in an exercise of the trial Court’s discretion. And before an appellate Court can interfere with the decision of a trial Court on the award of damages, it must be satisfied of the following:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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1. that the trial Court acted on a wrong principle;
2. that the amount awarded was so high or so small as to make it an erroneous estimate of the damages the plaintiff is entitled to;
3. that the award is arbitrary;
4. that there was a wrong exercise of judicial discretion; or
5. that injustice will result if the appellate Court does not interfere”.
See BALA VS. BANKOLE (1986) 3 NWLR (PT. 27) 141; NZERIBE VS. DAVE ENGINEERING CO. LTD. (1994) 8 NWLR (PT. 361) 124; ONWU VS. NKA (1996) 7 NWLR (PT. 458) 1 and EBE VS. NNAMANI (1997) 7 NWLR (PT. 513) 479.
The gamut of the Appellant’s argument centered on the fact that general damages cannot be granted under the summary judgment procedure. I agree. That would amount to either a double compensation or still by its very nature general damage is at the discretion of a Court and at large. It is a claim which requires evidence being given. In GAMBO VS. IKECHUKWU (2003) LPELR 124 14 AT 15; Oguntade, JCA (as he then was) held thus:
“The claim for N1,000,000.00 general damages could not be categorized as one for liquidated money demand. Being a claim for general damages, it is at large and at the discretion of the Court. It is therefore a claim in respect of which evidence ought to be given. It could not be heard on the undefended list procedure”.
See AHMED VS. DANPASS (2014) LPELR 24620 and FASTECH (NIG.) LTD VS. ZAMFARA STATE GOVERNMENT & ORS. (2019) LPELR 48135. The award of N2,000,000.00 general damages by the trial Court under the summary judgment proceeding is a wrongful exercise of judicial discretion by the trial Court as the Court acted on a wrong premise that it can award such damages in the circumstances of the case. The said award is hereby set aside.

Now, on the final point arising from this appeal, it is the Appellant’s argument that Exhibits F, F1–F6 which were made and addressed to a third party (not a party to this case) and which were made in the course of settling the dispute between parties to this appeal are inadmissible in evidence and a fortiori, the trial Court cannot rely heavily on the documents to enter judgment against the Appellant. He also argued that there is nowhere in the documents where the sum awarded can be found. The Respondents on the other hand argued that the documents were not marked “without prejudice” and as such they are admissible in law and that the documents were not dumped to the Court in view of their depositions in the affidavit in support.
The law is settled that offers of comprise made expressly or impliedly “without prejudice” cannot be given in evidence against a party as admissions; the law on grounds of public policy is aimed at protecting negotiations bona fide entered into for the settlement of disputes. See Phipson on Evidence 12th Edition page 295. The policy of the law here seemed to be geared towards encouraging settlement and it would be most unfair that advantage should be taken of the willingness of a party to negotiate and in the cause of that negotiation admission are made that without prejudice communications should not be disclosed. See ASHIBUOGWU VS. A.G. BENDEL STATE 1988) 1 SC 248; FAWEHINMI VS. NBA (NO. 2) (1989 2 NWLR (PT. 105) 588; AKANBI VS. ALATEDE (NIG.) LTD. (2000) 1 NWLR (PT. 639) 125; KOLO VS. FIRST BANK OF NIGERIA PLC (2003) 3 NWLR (PT. 806) 216 and ASHAKA CEMENT PLC VS. ASHARATUL MUBASHSHURUN INVESTMENT LTD. (2016) LPELR 40196.
​It is clear that a document marked “without prejudice” is inadmissible in evidence. However, the same consequence would seem to apply to other documents made in the course of negotiations even where they are not so marked “without prejudice”. In ASHAKA CEMENT PLC VS. ASHARATUL MUBASHSHURUN INVESTMENT LIMITED (Supra) AT 23; Abiru JCA held that:
“In other words, an offer or admission made in a written document in the course of negotiation between parties to resolve a dispute is inadmissible against the party that made it in a subsequent litigation on the subject matter of the dispute, whether or not that document was marked “without prejudice”.
See ASHAKA CEMENT PLC VS. ASHARATUL MUBASHSHURUN INVESTMENT LTD. (2019) LPELR 46541 (SC) and AMCON & ANOR. VS. ISRAEL AEROSPACE INDUSTIRIES LTD. & ANOR. (2019) LPELR 47324.

Now, upon a letter of complaint written by some of the Respondents to the public complaint and Anti-Corruption Commission of Kano State, the Appellant was asked to comment on the complaint vide Exhibit B. It is not in doubt that Exhibit B gave rise to series of correspondences between the Public Complains Commission and the Appellant. Exhibit F was specifically addressed to the “Chairman, Public Complains and Anti Corruption Commission, Kano and it is titled; RE SETTLEMENT OF EX-STAFF ENTITLEMENTS. Exhibit F1–F6 contains list of the Appellant’s staff and their entitlements.

The documents under attack were made in the course of negotiations between the Appellant and the Public Complains and Anti-Corruption Commission, Kano State who were acting on behalf of the Respondents and from the wordings in the documents, they contained admission which were made by the Appellant in the course of the negotiations. This will undoubtedly qualify the documents for protection under the law. See UBA PLC VS. I.A.S. CO. LTD. (2001) ALL FWLR (PT. 75) 578; UNIVERSITY OF ABUJA VS. AMCON (2019) LPELR 47306 and BEVERLY DEVELOPMENT & REALTIES LTD. VS. TEC ENGINEERING CO. (NIG) LTD (2020) LPELR 52023.

​One point worthy of consideration is that the documents were not addressed to the Respondents, but to some other body which none of the Respondents can be said to belong. Therefore, as far as the law on this issue is concerned, the Respondents are third parties. The “without prejudice” rule is intended to act as a shield that protects any information said or communication made under it from being disclosed to third parties. See FIDELITY BANK PLC VS. VERVE (NIG) LTD. (2019) LPELR 48855. The Respondents to my mind cannot seek to benefit from the said documents not addressed to them even though the benefit of the contents of the document would eventually be enjoyed by the Respondents.

The Respondents explained that not all the names in Exhibits F1–F6 joined in the prosecution of the suit. The list contained more names than the number of the Respondents. How did the trial Court arrive at the figure and also the fact that all the 98 Claimants are on the said Exhibit? It seems learned Counsel for the Appellant is right that the trial Court did the sorting out of the names of the claimants/Respondents, did the calculations to see the total figure each claimant is entitled to and the total figure the Defendant/Appellant owed the Respondents. I think this is what is called a cloistered justice, there been no evidence or deposition to highlight all those areas germaine to the case of the Respondents. It is for the Respondent to make out their case and not for the trial Judge to aid them in making up for the deficit or lacuna in their case no matter how sympathetic the Court is towards the plight of the Respondents.

This aspect of the case where the gamut of the trial Court’s judgment can be found ought to have been proved by oral evidence. It is only through oral evidence that the Respondent can explain who is entitled to be paid, how they are entitled to be paid and what they are entitled to be paid. The affidavit did not state all these and the trial Court is wrong to have ventured to fill in the gaps for the Respondents. See DURUMINIYA VS. COP (1961) NNLR 70 and ACN VS. LAMIDO & ORS. (Supra).

In the circumstances, since the fulcrum of the trial Court’s decision centred on Exhibits F, F1–F6, the admissibility of which were earlier discussed, it seems there is merit in this appeal. The appeal is hereby allowed. The trial Court ought to have granted leave to the Appellant to defend. The judgment of the trial Court is hereby set aside and an order for retrial is hereby made. The case is transferred to the general cause list to be heard on the merits.
I make no order as to cost.

HUSSEIN MUKHTAR, J.C.A.: I have had the advantage of reading, in advance, the judgment of my learned brother Abubakar Mu’azu Lamido, JCA. I agree with the reasoning therein for the conclusion that the appeal is meritorious.

I therefore allow the appeal and adopt all the consequential orders in the judgment.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now, the lead judgment delivered by my learned brother, Abubakar Mu’azu Lamido, JCA. His Lordship has ably considered and resolved the issues in contention in the appeal. I agree with the reasoning contained therein.

The lower Court entered judgment in favour of the Respondents on a motion for summary judgment filed pursuant to Order 16 Rules 1 and 2 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017. The whole purpose of the 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. A sham defence is an unreal, fake and deceitful defence. No amount of sophistry or technical pyrotechnics can launder a sham defence into a real defence to a plaintiffs pleaded facts and verifying evidence. 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 -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, Ifeanyichukwu Trading Investment Ventures Ltd Vs Onyesom Community Bank Ltd (2015) 17 NWLR (Pt 1487) 1, Matab Oil & Gas Ltd vs Fundquest Financial Services Ltd (2020) 17 NWLR (Pt 1752) 1.

​The rules regarding summary judgment are designed to enable a plaintiff to obtain summary judgment without trial in respect of liquidated money demands and in those cases where the plaintiff’s case is unassailable and the defendant cannot show a defence which will lead to a trial on its merits — Okoli Vs Morecab Finance (Nig) Ltd (2007) 14 NWLR (Pt 1057) 37 at page 70C. The learned authors of the Black’s Law Dictionary defined a liquidated money demand as “a claim for an amount previously agreed on by the parties or that can be precisely determined by operation of law or by the terms of the parties’ agreement.” In Maja Vs Samouris (2002) 7 NWLR (Pt 765) 78 at page 102, Iguh, JSC explained the distinction between the terms “liquidated demand” and “unliquidated demand” thus:
“A liquidated demand is a debt or other specific sum of money usually due and payable and its amount must be already ascertained or capable of being ascertained as a mere matter of arithmetic without any other or further investigation. Whenever, therefore, the amount to which a plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or other positive data, it is said to be ‘liquidated’ or made clear….. The term is also applied to sums expressly made payable as liquidated damages under a statute…….
But in every other case, where the Court has to quantify or assess the damages or loss, whether pecuniary or non-pecuniary, the damages are unliquidated… Accordingly, the amount ultimately recoverable in a claim for unliquidated damages is incapable of prior ascertainment and may only be known at the end of the trial as same is based on the estimate or opinion of the trial Court…”
These mean that there are two steps to the applicability of the summary judgment procedure and these are (i) the plaintiff’s claim must be liquidated and there must be no reasonable doubt as to the efficacy of the claims; and (ii) the defendant must not have a plausible defence to the claim of the plaintiff. The first step must be present before the second step can be inquired into and where either of them is not present, then the summary judgment procedure cannot be used. In other words, before the defendant can be called upon to depose to an affidavit which must condescend upon particulars and deal specifically with the plaintiffs claim, the plaintiff has a concomitant duty to first of all satisfy the Court that his claim is a liquidated demand supported with an affidavit disclosing credible and reliable facts backed up with authentic and credible documents which would warrant the Court to give him judgment where the defendant’s affidavit does not disclose facts which would at least throw some doubt on the plaintiff’s case. This is in keeping with the principle of burden of proof that says that in civil suits, a plaintiff ought to succeed on the strength of his case and not on the weakness of the defendant’s case —Aubergine Collections Ltd vs Habib Nigeria Bank Ltd (2002) 4 NWLR (Pt 757), S.P.D.C (Nig) Ltd vs Arho-Joe (Nig) Ltd (2006) 3 NWLR (Pt 966) 173 and David vs Jolayemi (2011) 11 NWLR (Pt 1258) 320. Where the case of a plaintiff under the summary judgment procedure is not unassailable, the question of whether or not the defendant disclosed a defence on the merits does not arise —Alhaji Muktari Uba & Sons Ltd Vs Lion Bank of Nigeria Plc (2006) 2 NWLR (Pt 964) 288, Nigerian Postal Services Vs Insight Engineering Company Ltd (2006) 8 NWLR (Pt 983) 435.

The claim of the Respondents was for the sum of N41,762,681.80 being the total of the entitlements due to each of them as contained in a letter and in column 6 of the Payment Schedule attached to the said letter dated 15th of May, 2014 and addressed by the Appellant to the Public Complaint and Anti-Corruption Commission of Kano State together with interest and the N5 Million as general damages for the Appellant’s willful refusal, neglect and failure to pay the said entitlement and by reasons of which they suffered untold hardship and trauma. It is clear, from the above definition of a liquidated money demand, that the claim for general damages was not one for a liquidated demand and ought not to have been entertained by the lower Court under the summary judgment procedure. The award of N2 Million as general damages by the lower Court under the summary judgment procedure was inappropriate.

Further, the document upon which the Respondents predicated their claim for entitlements was the response of the Appellant to the petition written by some of the Respondents against the Appellant to the Public Complaint and Anti-Corruption Commission of Kano State and which was forwarded to it by the Commission and document was addressed to the Commission, not the Respondents. The Public Complaint and Anti-Corruption Commission of Kano State is a fact finding body and it is settled law the findings of a fact finding body are merely advisory, and not binding – Military Governor, Oyo State vs Adekunle (2005) 3 NWLR (Pt 912) 294, Amaechi Vs Governor of Rivers State (2017) LPELR 43065(CA), Chukwudi Vs Momah (2017) LPELR 42675 (CA). Similarly, the evidence produced before such a body, both oral and documentary, are not admissible or useable in subsequent civil proceedings — Ogunbadejo Vs Owoyemi (1993) LPELR 2312(SC), Elemoro Vs Abiodun (2014) LPELR 23195(CA), Ntung Vs Longkwang (2018) LPELR 45624(CA). The document was thus not available to the Respondents to rely on in their case before the lower Court and the reliance placed thereon by the lower Court in entering judgment for the Respondents was wrongful.

​The Respondents did not make out a case that was unassailable and in respect of which there was no reasonable doubt to its efficacy. The lower Court was in error in entertaining their claims under the summary judgment procedure. It is for these reasons and the fuller exposition of the law in the lead judgment that I too find merit in the appeal and I hereby allow same. I set aside the judgment of the National Industrial Court sitting in Kano and delivered in Suit No NICN/KN/01/2017 by Honorable Justice Lawal Mani on the 8th of June, 2017 and grant the Appellant leave to defend the claims of the Respondents. I direct that the case file be remitted to the National Industrial Court sitting in Kano for a hearing of the claims of the Respondents on the merits. I abide the order on costs in the lead judgment.

Appearances:

ADAMU ABUBAKAR ESQ. WITH HIM, LAMINU BALA, ESQ. For Appellant(s)

S. S. UMAR ESQ. ACArb WITH HIM, SUNUSI UMAR SADIQ For Respondent(s)