REPRESENTATION DARLINGTON ONYEKWERE for the claimant with CHIMDINDU ONYERI PHILIP A. AKINSOTU for the defendant R U L I N G The Claimant commenced this action via Complaint filed on 8th June, 2016 along with the Statement of Facts, List of Witnesses, Witness Statement on Oath, claiming as follows: A. The sum of N8, 000,000 (Eight Million Naira) only being the Claimantâ€™s unpaid salary arrears for 10 (ten) months (from January, 2015 to October, 2015) at the rate of N800, 000 (Eight Hundred Thousand Naira) per month. B. The sum of N800, 000 (Eight Hundred Thousand Naira) only being the Claimantâ€™s two years leave allowance at the rate of N400, 000 (Four Hundred Thousand Naira) only per annual leave. C. The sum of N1, 000,000 (One Million Naira) as cost of this suit. D. Post Judgment interest at the rate of 10% per month on the Judgment sum. The Claimant filed an APPLICATION FOR SUMMARY JUDGEMENT on 26th February, 2016 and dated same day supported by a 5 paragraph affidavit deposed to by Tajudeen Ayeni, claiming the following: 1. The sum of N8, 000,000 (Eight Million Naira) only being the Claimantâ€™s unpaid salary arrears for 10 (ten) months (from January, 2015 to October, 2015) at the rate of N800, 000 (Eight Hundred Thousand Naira) per month. 2. The sum of N800, 000 (Eight Hundred Thousand Naira) only being the Claimantâ€™s two years leave allowance at the rate of N400, 000 (Four Hundred Thousand Naira) only per annual leave. The claimant filed a WRITTEN ADDRESS IN SUPPORT OF APPLICATION FOR SUMMARY JUDGMENT wherein one sole issue was reised: Whether the Claimant is entitled to summary judgment against the Defendant. Learned Counsel to the claimant D. I. Onyekwere Esq. submitted that this action is an action for liquidated money demand which means a debt or other specific sum of money usually due and payable, which amount must have already been ascertained or capable of being ascertained as a mere matter of arithmetic without any further investigation. MAJA V SAMOURIS (2002) 7 NWLR (PT. 765) 78 AT 102 PARAS C-D; AKPAN V A.I.P & INV. CO. LTD (2013) 12 NWLR (PT. 1368) 400 PARAS D-E. Referring the Court to Exhibit A attached to the affidavit, argued that the parties in this case expressly agreed in the contract of employment the specific sum payable to the Claimant as his remuneration, and as such, this amount can in no way be disputed, as there is nothing more that needs to be further done to determine the quantum of extent of the Defendantâ€™s liability. Maja v Samouris (Supra). He further submitted that in order to save time and cost, it would be a significant victory for the Claimant and justice for the court to grant their prayers. UHENIBE V PARKES (2014) 3 NWLR (PT. 1395) 510 PARAS CD; TAMTI V. N.C.S.B (2009) 7 N.W.L.R (1141) 641. It is counselâ€™s submission that it is a trite principle of law that silence signifies consent and that this is quite evident in this case seeing that all efforts made by the Claimant to resolve the issue of non-payment of his remuneration has been met with utter silence of the Defendant. Furthermore, that the Defendant never replied the said letter or in any way denied its liability to the Claimant as contained in the said letter. Section 15 of the Labour Act. The Defendant filed a 6 paragraph COUNTER AFFIDAVIT IN RESPONSE TO SUMMARY APPLICATION on 24th June, 2016 and dated same day, deposed to by Nnena Okoroafor. With a WRITTEN ADDRESS IN SUPPORT OF COUNTER AFFIDAVIT wherein they raised one sole ISSUE: Whether defendant has fulfilled the conditions precedent for the dismissal of the summary application and if the defendant has shown cause why this matter should be heard on its merit? Learned Counsel Philip Akinlosotu Esq submitted that for a grant to dismiss a summary injunction the law is that such mere general denial of indebtedness will not suffice, that the affidavit should state why the defendant is not indebted in full or in part, and then state the true position. Per Uwaifo, JSC in SANUSI BROS. (NIG.) LTD. V. COTIA E.I.S.A. (2000) 11 NWLR (PT. 679) 566; Order 10 sub 5 (1) of the National Industrial Court Rules, 2007. Furthermore, that to show that a defendant has a good defence to the claim on the merits, the defendant must disclose facts to satisfy the court, usually by affidavit and that to achieve this, he is required to condescend upon particulars and the defence must not be seen as â€œfrivolous and practically moonshineâ€. Per Lord Lindley in CODD v. DELAP (1905) 92 L.T. 810. Submitting that it is trite that for a defence to be good, the fact that a defendant has served a Statement of Defence can only be sufficient to allow him defend the claim if it is not a sham defence. Per Wali, JSC (P. 17, PARA. B). in SANUSI BROS. (NIG.) LTD. V. COTIA E.I.S.A. (supra). It is defendant counselâ€™s submission that in granting an Order for Summary Judgment, the Court must be mindful of whether the issues raised by the defendant are sufficient enough to enter into a defence and are triable. MACAULAY v. NAL MERCHANT BANK LTD. (1990) 4 NWLR (PT. 144) 28, per Agbaje, JSC (P. 35, PARAS. B-G). He submitted that where an employee absconds from his place of employment and neglects and or refuse to obey the lawful order of his employer such action attracts summary dismissal. UBN PLC v. SOARES (2012) 11 NWLR (PT. 1312) 557. On the 13th February 2017 parties adopted their written addresses and adumbrated their respective position. And the matter was adjourned for this ruling. Courtâ€™s Decision Having carefully summarized the position of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this ruling and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether the claimant is entitled to his claim in summary judgement. The position of law as regards Summary judgments has been stated by the Court of Appeal in GREENTEK LTD V ACCESS BANK PLC (2015 Legalpedia CA PP3K) (suit number: CA/L/124/2014) Where Iyizoba JCA held following â€œ... the case of THOR LIMITED V FIRST CITY MERCHANT BANK LIMITED (2006) 1 WRN, PG. 1 @ PG 18; (2005) 14 NWLR (PT. 946) 696 @ 710-711 H-A â€œThe summary judgment procedure which is similar to the undefended list procedure is designed to enable a party obtain judgment especially in cases of liquidated demand without the need for a full trial, where the other party cannot satisfy the court that it should be allowed to defend the action. The object of the order is to enable a plaintiff obtain quick judgment when there is no defence to the action. See also NISHIZAWA LTD V JETHWANI (1984) 12 SC 234; MACAULAY V NAL MERCHANT BANK (1990) 4 NWLR (PT. 144)283; PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD V REIN MASS G.M.B.H. (1997) 3 NWLR (PT. 493) 248. Also see MR. EMMANUEL MADUIKE v. TETELIS NIGERIA LIMITED (2015 Legalpedia CA TNKE) (suit number: CA/L/339/10)Where it was held that â€œA summary judgment is a procedure for disposing with dispatch, cases which are virtually uncontested. By nature, it is one given in favour of a plaintiff without a plenary trial of the action. Evidently, there is a bypass of the regular procedure of the trial court relating the trial of a matter.â€ Per A. Obaseki-Adejumo, J.C.A. In the case of AKPAN V. A.I.P. & INV. CO. LTD. (2013) 12 NWLR (PT. 1368) 377 S.C. The Apex Court held thatâ€ Summary judgment is a judgment granted on a claim or defense about which there is no genuine issue of material fact and upon which the movement is entitled to prevail as a matter of law. For this type of judgment, the court will only consider the contents of the pleadings, the motions and additional evidence adduced such as documents produced as exhibits by the parties rather than one of law. This procedural device allows speedy disposition of a controversy without the need for trialâ€. BONA TEXTILE LTD. V. ASABA TEXTILE MMILL PLC. (2013) 2 NWLR (PT. 1338) 357; NKWO MARKET COMMUNITY BANK (N IG.) LTD. V. OBI (2010) 14 NWLR (PT. 1213) 169 referred to.] (P. 400, paras. B-D) The rules of this court with regard to summary judgment in order 16 rule 5 require that a defendant present a good defence to defray a summary judgment and then the court may grant such a defendant leave to defend the claimant suit. Order 16(6) provides for part judgement. The defendants have submitted that the claimant absconded from their employ and did not work at all during the period for which the claimant is presently claiming. I find that this argument if established is a good defence to the claimant case, both claims as it goes to the foundation of the claimantâ€™s case effecting both his entitlement to salary and other allowances. The application for the Summary judgement is hereby dismissed this suit has to be heard and determined on the merit. I make no order as to costs. This case is adjourned. ............................................... Hon. Justice E. N. Agbakoba Judge. RESEARCHED AUTHORITIES SUMMARY JUDGMENT PROCEDURE - DUTY OF A JUDGE IN DETERMINING WHETHER OR NOT A DEFENDANT HAS A GOOD DEFENCE â€œIn determining whether or not the defendant has a good defence, the judge is enjoined to consider the pleadings which invariably are embodied in the affidavit evidence and all the exhibits filed by the partiesâ€. PER C. E. IYIZOBA J.C.A NASCO TOWN PLC & ANOR v. MR. FESTUS UDE NWABUEZE (2014 Legalpedia CA O8YH) (suit number: CA/L/949/12) SUMMARY JUDGMENT-NATURE OF "A summary Judgment is one that is given in favour of a Plaintiff without a plenary trial of the action. Although not preceded by a trial, a summary Judgment is one on the merits". PER AUGIE, JCA SUMMARY JUDGMENT-WHETHER CAN BE SET ASIDE BY THE COURT THAT GRANTED IT "A summary Judgment, therefore, unlike a default Judgment, cannot be set aside by the Court that granted it or any Court. It is only on appeal that this can be done". PER AUGIE, JCA. DR. OLADIPO MAJA V. MR. COSTA SAMOURIS (2002 Legalpedia SC 7TGC) (suit number: SC. 72/1997)  3 S.C. 37 WHETHER SUMMARY JUDGMENT CAN BE GIVEN IN RESPECT OF DECLARATORY RELIEF WITHOUT HEARING EVIDENCE A declaratory claim is not only a discretionary relief, the court has a discretion whether or not to grant a motion for judgment in default of defence in respect of such a claim, the fact that the plaintiff is entitled to such judgment on the face of his Statement of Claim notwithstanding. It therefore seems to me that the court may in the overall interest of justice properly insist on oral evidence in the case of applications for judgments in default of defence in a declaratory action- Iguh J.S.C. MR. EMMANUEL MADUIKE v. TETELIS NIGERIA LIMITED (2015 Legalpedia CA TNKE) (suit number: CA/L/339/10) NATURE OF A SUMMARY JUDGMENT â€“ A SUMMARY JUDGMENT IS ONE GIVEN IN FAVOUR OF THE PLAINTIFF WHERE THE CASE IS VIRTUALLY UNCONTESTED. â€œA summary judgment is a procedure for disposing with dispatch, cases which are virtually uncontested. By nature, it is one given in favour of a plaintiff without a plenary trial of the action. Evidently, there is a bypass of the regular procedure of the trial court relating the trial of a matter.â€ PER A. OBASEKI-ADEJUMO, J.C.A. SUMMARY JUDGMENT â€“ DUTY OF THE COURT IN A SUMMARY JUDGMENT PROCEDURE â€œThe procedure ensures the preclusion of frivolous defences for purpose of mere delay. Primarily, the court takes into consideration the pleadings, the motions and where necessary, additional evidence adduced by parties to determine whether or not there is a genuine issue of material fact, rather than one of law. See Project Ninetheen Limited & Anor v Aziz/Stacons And Associates (2014) LPELR 23736; Akpan V Akwa Ibom Property Investment Company Ltd (2013) LPELR - 20753; UBA v Alhaji Babangida Jargaba  11 NWLR (PT.1045) 247; Beloxxi Industries Ltd & Anor v Hwa Tai Industries Berhaard Ltd (2011) LPELR - 3867; Okambah Ltd V Alhaji Ganiyu A. Sule  11 - 12 SC 47; Thor Ltd v FCMB Ltd  14 NWLR (Pt.946) 696â€. PER A. OBASEKI-ADEJUMO, J.C.A. DEFAULT JUDGMENT â€“ DEFINITION OF DEFAULT JUDGMENT â€œI shall adopt the definition of 'default judgment" as espoused in U.T.C (Nig.) Ltd V Pamotei (1989) 2 NWLR (PT.103) 244 at 282 - 283, wherein the Supreme Court, PER KARIBI-WHYTE JSC said: "The word default qualifies the noun 'judgment' as used in this appeal seems to me to mean a judgment obtained by a plaintiff in reliance on some omission on the part of the defendant in respect of something which he is directed to do by the rules. The word is used very widely to signify situations where a person has omitted to do what he is required to do having regard to the law governing his actions to the relations he occupies. In ordinary parlance, it means not doing what is reasonable in the circumstances" See also Bello v INEC  8 NWLR (PT 1196) 342 SC; Emezue & Ors v Gov. of Delta State (2014) LPELR - 23201 (CA).â€ PER A. OBASEKI-ADEJUMO, J.C.A. SUMMARY JUDGMENT AND DEFAULT JUDGMENT â€“ DISTINCTION BETWEEN SUMMARY JUDGMENT AND DEFAULT JUDGMENT â€œDistinguishing between a summary judgment and a default judgment, this court, PER AUGIE JCA in Nasco Town Plc. & Anor v Nwabueze (2014) LPELR - 22526 at 19 - 20 said: â€œFirstly, a summary Judgment is not the same as a default judgment, which is a judgment rendered in consequence of the non-appearance of the Defendant. A Default judgment is entered upon the failure of a party to appear or plead at the appointed time - See Akinriboya v Akinsole  3 NWLR (PT.540) 101. Such judgment, based solely on default of pleadings or non-compliance with the rules of procedure, is not one on the merits and can, on good grounds being shown, be set aside by the Court on application by the Defendant - See Adeloye v Olona Motors (Nig.) Ltd  8 NWLR (PT.769) 445 and Malgwi v Gadazama  11 NWLR (PT.678) 258." PER A. OBASEKI-ADEJUMO, J.C.A. SUMMARY JUDGMENT â€“ MEANING OF SUMMARY JUDGMENT â€œA summary judgment is a judgment on the merits based on legal rights from mere matters of procedure. It is not a judgment based on some procedural error as in failure to enter appearance by a party or file necessary pleadings.â€ PER A. OBASEKI-ADEJUMO, J.C.A. DEFAULT JUDGMENT â€“ CONDITIONS FOR SETTING ASIDE A DEFAULT JUDGMENTâ€“ ORDER 20 (12) HIGH COURT OF LAGOS STATE (CIVIL PROCEDURE) RULES. â€œBy the tenor of the rules, the trial court will only be competent to set aside a judgment given in default and in this case, such judgment can only be set aside under Order 20 (12) of the rules - on ground of fraud, non-service or lack of jurisdiction.â€ PER A. OBASEKI-ADEJUMO, J.C.A.