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<p class="MsoNoSpacing"><b><u><span style="font-family:"Times New Roman","serif";mso-bidi-language:HE">Representation:<o:p></o:p></span></u></b></p> <p class="MsoNoSpacing"><span style="font-size:10.0pt;font-family:"Times New Roman","serif"; mso-bidi-language:HE">Nze R. I. C. Ahaneku for Claimant (in person)<o:p></o:p></span></p> <p class="MsoNoSpacing"><span style="font-size:10.0pt;font-family:"Times New Roman","serif"; mso-bidi-language:HE">C. N. Akowundu, Director of Civil Litigation, Imo State Ministry of Justice, for the Defendants<o:p></o:p></span></p> <p class="MsoNoSpacing"><span style="font-size:10.0pt;font-family:"Times New Roman","serif"; mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" align="center" style="text-align:center"><b><u><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">RULING</span></u></b><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-language: HE"><o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif"">The claims against the defendants as stated in his Statement of Facts are as follows:<o:p></o:p></span></p> <p class="MsoListParagraph" style="margin: 0in 0in 0.0001pt 0.75in; text-align: justify; text-indent: -0.25in;"><!--[if !supportLists]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman"">a.<span style="font-stretch: normal; font-size: 7pt; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif"">The sum of Eleven Million, Fifty Seven Thousand, Four Hundred and Fifty Five Naira, Eighty Nine Kobo (<s>N</s>11,057,455.89) only, being debt owed the claimant by the defendants for services rendered by the claimant in his capacity as the Secretary of Ezinhitte Local Government Council from August 2010 to August 2012.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif"">Interest on the said sum at the rate of 21% per annum from 1<sup>st</sup> May 2011 till date of judgment and thereafter at the rate of 10% per annum until the debt is finally liquidated.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">By a Motion filed along with the originating processes in this suit on the 5<sup>th</sup> day of March 2014, and brought pursuant to Order 10 Rule 1 of the National Industrial Court Rules 2007 and the inherent jurisdiction of the Honourable Court, the Claimant sought an order of this court entering Summary Judgment in this suit. The Application was supported by an affidavit of 28 Paragraphs deposed to by the Claimant, along with exhibits and the originating processes. In the accompanying written address of counsel a sole was distilled for determination which is: <b><i>Whether the Claimant as Secretary of Ezinihitte Local Government Council for two years was entitled to be paid, his accumulated arrears of salaries and other statutory allowances as contained in the Imo State Public Service Circular no SGI/S.99/S.66/T.2/100 of 23<sup>rd</sup> May 2007.</i></b> Counsel argued that the Office of Secretary of Local Government Councils is provided for at Section 33(1) and 37(2) of the Imo State Local Government Administration Law No. 15 of 2000 (as amended). Section 45(1) of the Law (Supra) provides that the Salaries and allowances of the Office of the Secretary contained in Section 33 of the Law No. 15 (Supra) shall be as prescribed by the House of Assembly but not exceeding the amount as shall have been determined by the Revenue Mobilization Allocation and Fiscal Commission. Section 45(2) of the Law (Supra) provides that the Remuneration and Salaries to the Secretary of the Local Government Council and the condition of service other than allowances shall not be altered to his disadvantage after his appointment). <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-font-width:106%;mso-bidi-language: HE">It is the further submission of counsel that Order </span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-font-width: 109%;mso-bidi-language:HE">10 </span><span style="font-size:12.0pt;font-family: "Times New Roman","serif";mso-font-width:106%;mso-bidi-language:HE">Rule </span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-font-width: 109%;mso-bidi-language:HE">(l) </span><span style="font-size:12.0pt;font-family: "Times New Roman","serif";mso-font-width:106%;mso-bidi-language:HE">of the National Industrial Court Rules </span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-font-width: 109%;mso-bidi-language:HE">2007 </span><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-font-width:106%;mso-bidi-language: HE">provides that, where a Claimant reasonably believes that there is no defence to the Claim, an Application for Summary Judgment supported with an Affidavit stating the grounds for the belief shall be filed along with the originating processes. The Application shall be accompanied with the Statement of Facts, any exhibits and a written brief. See also <b>NNABUDE vs. G.N.G (WA) LTD </b></span><b><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-font-width: 109%;mso-bidi-language:HE">(2012) </span></b><b><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-font-width:106%;mso-bidi-language:HE">All F.W.L.R (Pt. </span></b><b><span style="font-size:12.0pt;font-family: "Times New Roman","serif";mso-font-width:109%;mso-bidi-language:HE">619) 1174 </span></b><b><span style="font-size:12.0pt;font-family: "Times New Roman","serif";mso-font-width:106%;mso-bidi-language:HE">at </span></b><b><span style="font-size:12.0pt;font-family: "Times New Roman","serif";mso-font-width:109%;mso-bidi-language:HE">1191</span></b><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-font-width: 109%;mso-bidi-language:HE">. </span><span style="font-size:12.0pt;font-family: "Times New Roman","serif";mso-font-width:106%;mso-bidi-language:HE"><o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-font-width:109%;mso-bidi-language: HE">Counsel argued that </span><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-font-width:106%;mso-bidi-language:HE">Summary Judgment denotes a Judgment usually granted by Court on a Claim where there is no genuine defence or issue of material facts hence the Claimant is so entitled. It is counsel’s submission that before the grant of summary judgment, the Court takes into consideration the pleadings, motions and where necessary additional evidence adduced by the parties to determine whether or not there is a genuine issue of material fact rather than one of Law. Counsel further submitted that the </span><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-font-width:105%;mso-bidi-language:HE">Summary Judgment procedure enables a Claimant obtain quick Judgment in clear cases where the Defendant has no defence to the Claim of the debt or liquidated sum by the Claimant. See <b>IMONIYAME HOLDINGS LTD vs. SONEB ENT. LTD (2010) All F.W.L.R. (Pt. 517) 640.</b><o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-font-width:105%;mso-bidi-language: HE">Counsel contended that in the present case, the Claimant has shown that he was appointed as the Secretary of Ezinihitte Local Government Council, a position with statutory flavour, and also the condition of Service attached concerning the emoluments and other allowances payable to the holder. The Claimant has also in the Affidavit evidence shown that he was paid Salaries only for October, November, December 2010 and January, February, March, April 2011 in a statutory tenure of 24 months beginning from the month of August 2010 and terminating August 2012. It is the submission of counsel that from the facts giving </span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-font-width: 89%;mso-bidi-language:HE">rise to this</span><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-font-width:105%;mso-bidi-language: HE"> Suit as deposed to in the Claimant's Affidavit, this is a case that should be tried under the Summary Judgment procedure for expeditious disposal of the matter and in the interest of Justice. See <b>NKWO MARKET COMMUNITY BANK NIG LTD vs. OB1 </b></span><b><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-font-width:106%;mso-bidi-language:HE">(2010) </span></b><b><span style="font-size:12.0pt;font-family: "Times New Roman","serif";mso-font-width:105%;mso-bidi-language:HE">All F.W.L.R (Pt. 529) Page </span></b><b><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-font-width: 106%;mso-bidi-language:HE">1108 </span></b><b><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-font-width: 105%;mso-bidi-language:HE">PARAS E - F.</span></b><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-font-width:105%;mso-bidi-language: HE"> </span><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-font-width:106%;mso-bidi-language:HE">Counsel </span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-font-width: 105%;mso-bidi-language:HE">urged the court to resolve this matter in favour of the Claimant and make an order for Summary Judgment.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif";mso-font-width:105%;mso-bidi-language: HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-font-width:105%;mso-bidi-language: HE">In opposition to the Claimant’s application for summary judgment, the defendants on the 29<sup>th</sup> day of September 2014, filed a joint statement of defence, and a counter affidavit of 21 paragraphs deposed to by Comfort Onukwugha,</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-font-width:87%;mso-bidi-language:HE"> </span><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">a Senior Litigation Officer in the department of civil litigation, Ministry of Justice, Owerri. In the Reply on points of law filed alongside, counsel for the defendants submitted that the parties in this suit are public officers, except the non-juristic person that was sued as the 3<sup>rd</sup> defendant. Counsel further submitted that the public officers did not act outside the officially assigned responsibilities or unlawfully or without legal justification. The salary to be paid the claimant is salary approved by the House of Assembly of Imo State as provided by law. Counsel submitted that the employment of the claimant is at the pleasure of the Chairman. See section 67(1) of Law No. 15 of 2000 which provides: <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><b><i><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-language: HE">"For every Local Government there shall be a Secretary to the Local Government appointed by the Chairman of the Local Government and shall hold office at the pleasure of the Chairman." <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">It follows that the appointment of the claimant is at the pleasure of the Chairman and if the Chairman is removed from Office, he cannot claim salaries and allowances beyond the period the chairman was in office. Similarly, counsel argued that the salary to be paid the claimant is salary approved by the House of Assembly of Imo State. See Section 45 of Law No. 15 of 2000. There being nothing to show that the chairman remained in office after May, 2011 and the salary not being that approved by the House of Assembly, the 1<sup>st</sup> defendant acted in pursuance or execution of law or public duty in not continuing to pay claimant salary. Also, counsel submitted that the authorities cited by claimant are not applicable to the instant case. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">On the claimant’s submissions on cause of action, the defendants’ counsel submitted that out of pocket expenses are not included in salaries and allowances of public officers. Approvals of such expenses are subject to availability of funds, it is not a matter of course. Again, counsel argued that the case of Hon. Levi Oguike<b> </b>cited by the Claimant is distinguishable from this instant case. In the instant case, the Chairman that appointed the Claimant as Secretary was removed and he went to court to challenge his removal, the claimant's appointment being at the pleasure of that Chairman, ceased immediately the Chairman was removed from office. Hon. Levi Oguike's case is therefore not applicable as the Claimant has to show that the Chairman that appointed him was in office as at the dates he is now claiming for unpaid salaries and allowances. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">Furthermore, counsel asserted that the Imo State Joint Local Government Account Allocation Committee Law No. 12 of 2000 relied on by the claimant’s counsel was repealed by Imo State Joint Local Government Account Law, 2007, Law No.2 of 2007. Section 10 of Law No. 2 of 2007 provides: <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><b><i><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-language: HE">"The Imo State Joint Local Government Account Law, 2000 is hereby repealed". <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">The extant Law does not contain any equivalent or similar provision as the section 3 reproduced by the claimant. Also, the Committee's function under the Law does not give them power to <b><i>"virtually manage and appropriate the funds of every aspect of Governance in Imo State"</i></b> as submitted by the Claimant. Counsel urged the Court to peruse Exhibit RIC2, and observe that there is nowhere it was stated that it was approved by the House of Assembly; particularly in the light of Section 45(1) of the Imo State Local Government Administration Law, 2000, Law No. 15 of 2000 (as amended), which provides as follows: <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><b><i><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-language: HE">"There shall be paid to the holders of the public offices mentioned in section 33 of this law such salaries and allowances as may be prescribed by the House of Assembly but not exceeding the amount as shall have been determined by the Revenue Mobilization Allocation and Fiscal Commission". <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">Counsel submitted that the document Exhibit RIC2 is not what is required by the law under which the Claimant was employed to convince the court to order that he be paid based on it. Also, there is no document before this court to show that the Claimant has a guaranteed tenure or tenure of two years. Exhibit RIC 1, did not state that the claimant's tenure shall be for two years. In fact, the exhibit did not give him any tenure. The document speaks for itself. Relying on the above submissions counsel urged the court to dismiss this Suit. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">The claimant on the 24<sup>th</sup> day of November 2015 filed a further affidavit of 17 paragraphs in support of his application for summary judgment. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in"><a name="_GoBack"></a><span style="font-size:4.0pt;font-family:"Times New Roman","serif";mso-bidi-language: HE"> </span></p> <p class="MsoNoSpacing" style="margin-left:2.0in;text-indent:.5in"><b><u><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-language:HE">Court’s Decision<o:p></o:p></span></u></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif"">These proceeding were brought by way of summary judgment. The application was accompanied by a Complaint, statement of claim, and written address in support of the application for summary judgment. In the application, the claimant seeks this court to enter Summary Judgment as per his claims against the defendants. The facts of his application, as deposed by him in his affidavit filed in support of the application are that he was appointed the Secretary of the Ezinihitte Local Government Council by the Executive Chairman of the Council on 23/08/2010. His appointment is statutory as it is covered by the Imo State Local Government Administration Law No. 15 of 2000 and Imo State Establishment Circular SGI/S.99/S.6/T.2/100 dated 23/5/2007. His appointment was also approved by the majority of the Legislative Council of Ezinihitte Local Government Council. By the provision of the Imo State Local Government Administration Law the tenure of the Local Government Council under which he served was two years commencing from 9/8/2010. He was entitled to the following payments by virtue of the Imo State Establishment Circular No. SGI/S.99/S.6/T.2/100 of 23/5/2007: (i) Basic Salary- <s>N</s>67,441.67; (ii)Accommodation- <s>N</s>36,418.00; (iii) Utilities- <s>N</s>24,279.00; (iv) Domestic Staff- <s>N</s>60,697.50; (v) Entertainment- <s>N</s>24,279.00; (vi) Newspaper allowance- <s>N</s>l0,116.25; (vii) Personal Assistant- <s>N</s>20,232.50; (viii) Vehicle Maintenance- <s>N</s>60,697.50. His total take home pay every month was <s>N</s>305,951.17. He was only paid his monthly emoluments for October, November, December 2010, and January, February, March and April 2011. His monthly Salary for September 2010 and May, June, July, August, September, October, November, December 2011 and January, February, March, April, May, June, July, August 2012 totaling the sum of <s>N</s>5,201,169.89 were not paid to him. The total monthly Salaries ordinarily due to him for the two years expected tenure of the elected Local Government Administration in Imo State is <s>N</s>7,342,828.08 at <s>N</s>305,951.67 per month for 24 months. Out of these total Salaries for the tenure, he was only paid <s>N</s>2,141,658.19. His outstanding salaries for the months he was not paid is the sum of <s>N</s>5,201,169.89. In addition to this, he was also entitled to a Furniture Allowance of <s>N</s>2,427,900.00, being 300% of his Annual Basic Salary on assumption of office as the Secretary to Council. On completion of his tenure, he was entitled to Severance Allowance of <s>N</s>2,427,900.00 calculated at 300% of his Annual Basic Salary. The following out of pocket expenses, which were approved by the Ezinihitte Local Government Council, were not paid to him: <s>N</s>40,500.00, <s>N</s>34,300.00, <s>N</s>30,100.00, <s>N</s>29,400.00. The total sum was <s>N</s>134,300.00. As the Secretary of Ezinihitte Local Government Council, he was also entitled to be paid imprest of <s>N</s>50,000 only per month for the two years period of his tenure but he was not paid for September 2010, May, June, July, August, September, October, November, December 2011 and January, February, March, April, May, June, July, August' 2012 totaling <s>N</s>850,000.00. He averred that the total sum owed to him in view of all the debts he mentioned to be the sum <s>N</s>11,057,455.89 as at the time he left office as Secretary to Ezinihitte Local Government in August 2012. The Claimant also said he made efforts to get payment but to no avail. To the best of his knowledge and belief, the Defendants have no defence to his claim hence he is entitled to Summary Judgment.<o:p></o:p></span></p> <p class="MsoNoSpacing"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Times New Roman","serif"">The defendants filed a counter affidavit in opposing the application for summary judgment. In the Counter affidavit deposed to by one COMFORT ONUKWUGHA, a Senior Litigation Officer in the department of civil litigation, Ministry of Justice, Owerri, it was deposed that the claimant is not the immediate past Secretary of the Ezinihitte Local Government Council because the Council was dissolved on 3rd June, 2011. The claimant's appointment is at the pleasure of the Chairman of the Local Government which Chairman was no longer in Office after the 3rd day of June 2011. The Chairman who appointed the Claimant and the other 26 Local Government Council Chairmen challenged the dissolution of the Local <br> Government Councils in Imo State and their removal from Office in Suit No. HOW/312/2011: BARR. ENYINNA ONUEGBU & 26 ORS vs. ATTORNEY- GENERAL OF IMO STATE & 30RS. T</span><span style="font-size: 12pt; font-family: "Times New Roman", serif;">he appointment of the claimant does not have statutory flavour and the tenure of the Local Government Council under which the claimant was appointed, is not the same with the tenure of the claimant. The tenure of the appointment of the claimant is not two years but at the pleasure of the Chairman. It is the House of Assembly who approves the salaries and other allowances being paid to the public officers appointed under Local Government Administration Law No. 15 of 2000. The claimant was paid his monthly emolument until the tenure of the Chairman that appointed him as Secretary was dissolved. The defendants further averred that the claimant did not show any document approved by the House of Assembly to establish his claims.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">In response to the defendants’ counter affidavit, the claimant filed a further affidavit where he averred that the 2<sup>nd</sup> Defendant acted in excess of his Statutory Powers when he dissolved the democratically elected Local Government Councils in Imo State but the Court of Appeal sitting in Owerri in Appeal No. <i>CA/OW/215/2011 </i>declared that the Local Government Councils in Imo State are still the democratically elected Chairmen of their respective Local Government Councils until their tenure of Office expires and restrained the 2<sup>nd</sup> Defendant from interfering with the rights and privileges of the democratically elected Government of Ezinihitte Local Government Council. The Executive Chairman who appointed him as Secretary of the Ezinihitte Local Government Council, remained in office as the democratically elected Chairman till 9/8/2012 when the tenure expired ad he continued to perform his duties as the Secretary of the Ezinihitte Local Government Council till 9/8/2012. The claimant annexed some documents to show both the council and himself performed their functions In August 2012.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">Having already summarized the submissions and arguments of counsels on both sides with respect to this application, I will now proceed to determine the application. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify;tab-stops:.5in 1.0in 1.5in 2.0in 2.5in 3.0in 3.5in"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">Before I proceed to determine the application, I will briefly comment on the points of objection contained in paragraph 20 of the defendants counter affidavit. In this paragraph the defendant has contended that the Suit is statute barred, the 3<sup>rd</sup> defendant is not a juristic person and that there is no reasonable cause of action against the defendants. These objections have already been separately argued and ruled upon by this court in a ruling given on 28<sup>th</sup> April 2015. Therefore, since they have been overtaken, I need not determine the objections again in this ruling.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">In view of the affidavit evidence of the parties and the submissions of the counsels in their addresses, the issue in this application is whether or not the claims of the claimant is one to be granted on summary judgment. Order 10 of the NIC Rules 2007 which regulate summary judgment proceeding in this court provide in its Rule 5 that where it appears to the court that a defendant has a good defence and ought to be permitted to defend the claim, he may be granted leave to defend but where it does not appear to the court that there is a good defence, the court may thereupon enter judgment for the claimant. In the instant application, the duty imposed on this court under the rule is to determine whether the defendants have a good defence to the claim and ought to be permitted to defend the claim or to enter judgment for the claimant straight away if no good defence is shown. I have examined the affidavit evidence of the parties and I am of the view that the defendants have shown a good defence and ought to be permitted to defend the claim. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:4.0pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">The claimant said he was a past Secretary of the Ezinihitte Local Government Council having been so appointed by the Executive Chairman of the Council on 23/08/2010. His two years tenure expired in August 2012 but some monies, representing arrears of salaries, allowances, imprest and out of pocket expenses, were not paid </span><span style="font-size: 12pt; font-family: "Times New Roman", serif;">to him. The total money owed to him by the defendants as at the time he left office in August 2012 was the sum of <s>N</s>11,057,455.89 which sum he is entitled by way of summary judgment because in his belief, the<b> </b></span><span style="font-size: 12pt; font-family: "Times New Roman", serif;">defendants have no defence to the claim. </span><span style="font-size: 12pt; font-family: "Times New Roman", serif;">But the defendants, in their counter affidavit, averred that the claimant was not the immediate past Secretary of the Ezinihitte Local Government Council as the Council was dissolved in June, 2011 and the Chairman was no longer in office after the 3<sup>rd</sup> day of June 2011. Since the claimant's appointment is at the pleasure of the Chairman of the Local Government, he too was not in office from June 2011. The claimant was paid his monthly emolument until the tenure of the Chairman that appointed him as Secretary was dissolved. The Chairman who appointed the claimant and 26 other Local Government Council Chairmen litigated the dissolution of the Local Government Councils in Imo State and their removal from Office. Although the claimant in his further affidavit averred that the Court of Appeal reinstated the sacked councils, the question which has been raised is whether the Local Government Council, and by extension the claimant, was reinstated and entitled to the salaries and allowances from June 2011. I must mention that the Court of Appeal judgment annexed by the claimant is not helpful in concluding that the Local Governments Councils were reinstated. The full judgment was not annexed by the claimant. Just a few pages of the judgment of one of the Justices was annexed. Until I see and read the full judgment, I cannot rely on it. Furthermore, I observe that the tenure of the Council under which the claimant served ordinarily terminated in August 2012. Exhibits RIC 2, RIC 3 and RIC 3 annexed by the claimant to his further affidavit were made in July and August 2012. I find a lot of issues which cannot be resolved relying on the affidavit of the parties if I am to do justice between the parties in this case. The issues raised in the affidavits of the parties will best be resolved in oral evidence. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">It is my view that the defendants have raised germane issues and have also shown that they have a defence to the claim. Therefore, I think this case is a proper one to go to trial. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.0pt;font-family:"Times New Roman","serif"">The general principles of law governing summary judgments is that once the defendant shows that there is a genuine fair case for defence, or reasonable grounds for setting up a defence or even a fair probability that he has a bona-fide defence, he ought to be given leave to defend. In showing cause why a defendant should be allowed to defend an action, a complete defence need not be shown, it is necessary for the defence to show that there is a triable issue or question, or that for some other reasons there ought to be trial.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.0pt;font-family:"Times New Roman","serif"">Where the defendant files a statement of defence before or at the time of filing the affidavits to show cause why he should be let in to defend the action, the court in its determination cannot ignore the defence but should rather examine same and if necessary, rely thereon in deciding whether or not to let the defendant defend the action. See the case of <b>F.M.G vs. SANNI (1990) 4 NWLR 688.</b><o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.0pt;font-family:"Times New Roman","serif"">The defendants in this case entered appearance on the 21<sup>st</sup> day of March 2014 and later filed a Notice of Preliminary Objection on the 8<sup>th</sup> day of April 2014, which was subsequently resolved. The Defendants filed a Statement of Defence albeit out of time on the 26<sup>th</sup> May 2016. Same was however duly regularized in court without objection on the 27<sup>th</sup> day of May 2016.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:4.0pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.0pt;font-family:"Times New Roman","serif"">I do not think that the court should ignore the intervening events outlined above. It is proper for the court to consider all materials before it, irrespective of its weakness or impropriety or otherwise. In the Court of Appeal case of <b>BELOXI INDUSTRIES LTD & ANOR vs. HWA TAI INDUSTRIES BERHARD LTD. (2011) LPELR-2867(CA)</b> OGUNBIYI, J.C.A<b> </b>held that it is not necessary for the trial judge to consider whether the defence has been proved. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">The defendants are accordingly granted leave to defend the claim. Consequently, the application for summary judgment is dismissed. The case will now proceed to hearing. No order as to cost.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">Ruling is entered accordingly.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><b><span style="font-size: 12pt; font-family: "Times New Roman", serif;">Hon. Justice O. Y. Anuwe<o:p></o:p></span></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Times New Roman", serif;">Judge<o:p></o:p></span></p> <p class="MsoNoSpacing"><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-language:HE"> </span></p> <span style="font-size:11.5pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman";mso-ansi-language:EN-US;mso-fareast-language:EN-US; mso-bidi-language:HE"><br clear="all"> </span> <p class="Style" style="line-height:.05pt;mso-line-height-rule:exactly"><span style="font-size:1.0pt;font-family:"Times New Roman","serif";mso-bidi-language: HE"><o:p></o:p></span></p> <p class="MsoNoSpacing"><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-font-width:105%;mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing"><span style="font-size:12.0pt;font-family:"Times New Roman","serif""> </span></p> <p class="Style" style="margin-top:5.75pt;margin-right:0in;margin-bottom:0in; margin-left:.5in;margin-bottom:.0001pt;line-height:.05pt;mso-line-height-rule: exactly"><span style="font-family:"Times New Roman","serif";mso-bidi-language: HE"> </span></p> <p class="Style" style="margin-left:.5in;text-indent:-.5in;line-height:.05pt; mso-line-height-rule:exactly;mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-size:1.0pt;font-family:"Times New Roman","serif";mso-bidi-language: HE">1.<span style="font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-family:"Times New Roman","serif"; mso-bidi-language:HE"> <br clear="all"> </span><span style="font-size:1.0pt;font-family:"Times New Roman","serif"; mso-bidi-language:HE"><o:p></o:p></span></p>