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The Claimant, a retired Judge of the Imo State High Court, brought this action vide a Complaint dated and filed on the 16th day of December 2016. His sole claim against the Defendants is the payment of the sum of N24,444,114.12 (Twenty Four Million, Four Hundred and Forty Four Thousand, One Hundred and Fourteen Naira, Twelve Kobo) only to him being his unpaid gratuity and pension arrears as at 23rd September 2013. By a Motion on Notice brought pursuant to Order 10 Rule 1 and Order 11 Rule 1 (1) of the NIC Rules 2007 and filed same day as the Complaint, the Claimant/Applicant sought an order of this court entering summary judgment against the Defendants/Respondents. The grounds for seeking the order are as follows: (i) The claim relates to liquidated money demand representing the Claimant's retirement benefits/entitlements as contained in the Defendants' letter titled "Authority for payment of Retirement/Death benefits dated 11th September, 2013”. (ii) The defendants have no defence to the Claim. (iii) By virtue of Order 10 Rule 1 and Order 11 Rule 1(1) of the National Industrial Court Rules, 2007, the Claimant is entitled to summary judgment against the Defendants. The motion is supported by an affidavit of the applicant wherein he averred that he was appointed a Judge of the High Court of Imo State on 9th of November, 1995 and after 18 years of meritorious service, he gave notice of retirement from service dated 8th January, 2013 to the National Judicial Council. Following the notice of retirement from service, the Government of Imo State, the Chief Judge of Imo State as well as the Chief Justice of Nigeria acting in his capacity as the Chairman of the National Judicial Council, acknowledged and accepted the notice of retirement vide letters dated 20th May, 2013 and 13th May, 2013 respectively. Subsequently, the office of the Head of Service, Establishment and Pension, Imo State computed and endorsed to the applicant a written authority for payment of his retirement benefits which include gratuity and pension. By virtue of the said written authority, the applicant is entitled to the sum of N17,251,329.62 as gratuity and N6,192,784.50 as pension arrears. The total amount due to him as his retirement benefits is the sum of N24,444,114.12. This liquidated amount of money remained unpaid by the Defendants despite repeated demands. The Defendants have no defence to the claim and they will not pay the sum to the Applicant unless ordered by this Court. The Applicant further averred that he has suffered untold hardships due to the failure of the Defendants to pay him the retirement benefits. In the written address of the claimant’s counsel in support of the motion, counsel formulated a sole issue for determination. The issue is whether this is a proper case for the Claimant to proceed against the Defendants for Summary Judgment for liquidated money demand which the Defendants have no Defence. In arguing the sole issue, counsel submitted that this is proper case by which the Claimant is entitled to proceed against the Defendants for Summary Judgment provided for in the rules of the National Industrial Court Rules 2007. This is because it is a liquidated amount of money which the Defendants have no Defence. Order 10 Rule 1 of the National Industrial Court Rules, 2007 Provides ‘’where a Claimant 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 process”. Counsel cited the case of UBA PLC vs. JARGABA (2007) All FWLR (Pt. 380) 1419 @ P.1429 PARAS. G - H, where the Supreme Court held that: "Summary Judgments are resorted to by the Courts and given to the Plaintiff without the necessity of a plenary trial of an action. They are devices available for prompt and expeditious disposal of controversy without trial when there is no dispute as to either material fact or inferences to be drawn from undisputed facts, or if only question of law is involved". In the instant case, the undisputed fact here is that the Defendants are owing the Claimant N24,444,114.12 (Twenty Four Million, Four Hundred and Forty Four Thousand, One Hundred and Fourteen Naira, Twelve Kobo). It is counsel’s submission that from the facts deposed to in the affidavit in Support of the application and the Exhibits particularly, Exhibit "4" which is the Defendants' own document, there is no dispute to the fact that the Defendants are owing the liquidated amount of money claimed against them. The Claimant has also deposed to an affidavit that the Defendants have no Defence to the claim. Counsel placed reliance on the case of EPE LOCAL GOVT vs. KESHINRO (2009) 4 NWLR (Pt.1131) 405 @ 412 where it was held that: “a liquidated demand is in the nature of a debt. It is a specific sum of money due and payable under and by virtue of a contract. It is liquidated when the sum due are easily ascertainable". According to counsel, in the instant case, the sum of money claimed by the Claimant is a specific sum of money and already ascertained by Exhibit "4". Counsel cited the case of AKPAN vs. A. I. P & INVESTMENT COMPANY LIMITED (2013) 12 NWLR (Pt. 1365) 377 @ 400 paras. B-D, where the Supreme Court highlighted the characteristics of summary judgment. He submitted that this is a proper case for the Claimant to proceed against the Defendants for Summary Judgment as provided for by the Rules. He urged the Court to exercise the power conferred on it by Order 10 Rule 1 of the National Industrial Court Rules 2007 and enter summary judgment in favour of the Claimant accordingly, there being no defence to the suit. The Defendants opposed the motion and filed a counter affidavit of Bruno Nwachukwu, a Litigation Officer in the Ministry of Justice, Owerri. He deposed that the office of Head of Service did not generate the Applicant’s Exhibit 4 as the office of Head of Service is not the Revenue Mobilization Fiscal Allocation Commission or the National Judicial Council. The Claimant is not entitled to the sum of N17,251,329.62 as gratuity or the sum of N6,192,784.50 as pension arrears. The salary, emoluments and allowances of judicial officers are paid by National Judicial Council and these payments are based on the formula developed by the Revenue Mobilization Fiscal Allocation Commission. The pension of a judicial officer varies from time to time depending on the various formula prescribed by the Revenue Mobilization and Fiscal Allocation Commission. The pension claimed by the Claimant can only be ascertained from the National Judicial Council and Government only liaises with National Judicial Council to ascertain what is due to the judicial officers from time to time. The Claimant is not entitled to the sum of money stated in Exhibit 4 of the supporting affidavit. It is the responsibility of the Claimant to ascertain from the National Judicial Council the exact amount of his benefits but that information cannot come from the office of Head of Service of Imo State. This is more so that the Claimant was not an employee of the Imo State Civil Service Commission. The claim of the Claimant is not liquidated. The motion for summary judgment is incompetent and this case is not one to be determined by summary trial procedure. In the written address of counsel for the defendants, a sole issue was formulated for determination. The issue is whether the Claimant’s application is competent. Counsel submitted that in the summary judgment procedure matters, a Defendant is expected to establish that he has a defence on his counter affidavit in opposition to the Motion for summary judgment which is likened to the undefended list procedure on the merit before he can be granted leave to defend. Counsel went on that a defence on the merit can be a defence on points of law or on points of fact. If a Defendant shows that there is any legal impediment to the Claimant obtaining judgment, it automatically qualifies as a defence on the merit even though it's on points of law only. Counsel referred the court to the case of EKPEYONG NTEKIM. ESQ vs. ORON LOCAL GOVERNMENT (2010) 16 NWLR (Pt. 1219) PAGE 209 where the courts were cautioned to be weary on being in a hurry to enter judgment on the undefended list which according to counsel is same as summary judgment in accordance with the rules of this Court. Citing the case of OKPARA vs. GUSAU (2009) 11 NWLR (Pt. 1151) Pg. 4-5 5 RATIO 4, counsel stated that in dealing with the issue of undefended list procedure which according to counsel is likened to summary trial procedure of this Court, the court of appeal has expressly stated that the court should not be hasty to hear cases under the undefended list, it should look into conflicting affidavits and other evidence before embarking or proceeding to treat an action under the undefended list. It is better to hear out the parties. In other words, once there is conflicting affidavit evidence, the burden of proof becomes very necessary and the court should proceed to hear the parties. It is counsel’s submission that this suit does not satisfy the test that it is a proper action to be determined by the summary trial procedure. Counsel referred the court to the case of ENYE vs. OGBU (2003) 10 NWLR Pt. 828 Pg. 403 at Pg. 410 Ratio 6 and submitted that where the indebtedness in issue is contentious and being disputed, it can no longer be recoverable by undefended list procedure or according to counsel, as in this case the summary trial procedure. It is counsel’s submission that the Claimant is not entitled to the sum of N17,251,329.62 (Seventeen Million, Two Hundred and Fifty One Thousand, Three Hundred and Twenty Nine Naira Sixty Two Kobo) as gratuity and N6,192,784.50 (Six Million, One Hundred and Ninety Two Thousand, Seven Hundred and Eighty Four Naira, Fifty Kobo ) as pension arrears. According to counsel, the Salary, emolument and allowances of judicial officers are paid by the National Judicial Council; and the payments of these emoluments are based on the formula developed by the Revenue Mobilization Fiscal Allocation Commission. Such payments are not static but vary from time to time. So also the pension of a judicial officer varies from time to time depending on the various regimes prescribed by the Revenue Mobilization and Fiscal Allocation Commission. To counsel, the Pension as claimed by the Claimant cannot be stated to be an amount fixed at any particular time; it can only be ascertained from the National Judicial Council. Counsel went further that the Claimant has not shown any document from the National Judicial Council stating what the Claimant's pensions and gratuities are. According to counsel, government only liaises with National Judicial Council to ascertain what is due to the judicial officers from time to time or from regime to regime. Again, counsel submitted that the Claimant's emolument was never fixed all through his tenure but varies from time to time. The claim of the Claimant is vague and not ascertained. The Claimant is not entitled to the sum of money as wrongly stated in Exhibit 4 of the supporting affidavit. According to counsel, it is the National Judicial council that would ascertain how much is due to the Claimant and that the National Judicial Council has not ascertained the entitlements of the Claimant before he instituted this action in Court. Again, to counsel, it is the responsibility of the Claimant to ascertain from the National Judicial Council the exact sum of money he is claiming, as the information cannot come from the document purporting to have come from the office of Head of Service of Imo State, as the Claimant was not an employee of the Imo State Civil Service Commission. Counsel went on that the Claimant's claims were not determined by Revenue Mobilization Allocation and Fiscal Commission; the Claimant is not entitled to all the claims; the Defendants deny liability to the Claimant either in the sum claimed or in any other sum at all; and the motion for summary judgment is incompetent, in that this case is not one to be determined by summary trial procedure, as the claim of the Claimant is not liquidated. Also, that the Claimant is not entitled to the any of the reliefs sought in this suit. Counsel urged the court to refuse the application, as the Defendants have shown that they have a defence to the action. She added that there is no computation under the Pensions Act to show a prima facie claim. Rather, there is a prima face defence, in that the alleged sum of money being demanded is not a liquidated sum. Counsel again submitted that judges are included in the group of Judicial Officers in the Revenue mobilization and fiscal Commission whose payment are guided by the provisions of Sections 124(1), 153(1) (n) & (2) and part I 3rd Schedule to the 1999 Constitution of the Federal Republic of Nigeria and the Revenue Mobilization Allocation and Fiscal Commission Act, cap. R7 Vol. 14, Laws of the Federation of Nigeria 2004. That it is not in dispute that the salaries, remuneration and entitlements due and payable to the Claimant as judicial officer shall not exceed that fixed and determined by the Revenue Mobilization Allocation and Fiscal Commission (RMAFC) and that the Claimant is not claiming in line with the prescribed statutory provisions; and that it will be a breach of Defendants’ Fundamental Right to fair hearing in the light of the averment should judgment be entered based only on the affidavit and counter affidavit of the contending parties. COURT’S DECISION The Applicant’s suit and the motion for summary judgment were filed under the 2007 Rules of this court. That Rule has now been repealed by the 2017 Rules which came into effect on 5th January 2017. The Applicant brought the motion for summary judgment under Order 10 of the 2007 Rules. The corresponding provision in the 2017 Rules is in Order 16. The provisions of the orders in both rules are the same. The rules of the orders relevant to the application are as follows: RULE 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 RULE 4. Where a party served with the processes and documents referred to in Rule 1 of this Order intends to defend the action such a party shall, not later than the time prescribed for defence, file : (a) 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. RULE 5. (1) Where it appears to the Court that a party has a good defence and ought to be permitted to defend the claim such party may be granted leave to defend. (2) Where it appears to the Court that a party does not have a good defence the Court may thereupon enter judgment for the Claimant This rule permits a Claimant who believes there is no defence to the claim to bring an application for summary judgment. However, where a Defendant has filed a defence and counter affidavit to the application and it appears to the court that the 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 this application, the Applicant claims the sum of N24,444,114.12 being his unpaid gratuity and pension. He averred in the affidavit in support of the motion that his claim is a liquidated claim and the Defendants have no defence to the claim. His case is that he retired from the Judicial Service of Imo State in March 2013 by his notice of retirement dated 8th January, 2013 to the National Judicial Council. After his retirement, the office of the Head of Service, Establishment and Pension, Imo State computed his retirement benefits which include gratuity and pension, in a written authority to him wherein it was indicated that he is entitled to the sum of N17,251,329.62 as gratuity and N6,192,784.50 as pension arrears. The total amount due to him as his retirement benefits is the sum of N24,444,114.12. This liquidated sum, being his retirement benefits, has not been paid to him by the Defendants despite repeated demands. The said written authority referred to by the Applicant is Exhibit 4 of the Applicant’s affidavit. It is a document from the Pension Section, Office of the Head of Service of Imo State titled “Authority for payment of Retirement/Death benefits” and dated 11th November 2013. It is stated in the 1st paragraph that approval has been given for the payment of the recalculated retirement benefits of the Claimant. The document which was signed by the Head of Service, indicated, on the reverse page, the sum of N17,251,329.62 as gratuity and the sum of N6,192,784.50 as pension arrears. Has the Defendants shown any defence of the claim and ought to be allowed to defend the suit? In the counter affidavit of the Defendants, they made 2 key points why the Claimant is not entitled to the claim. First is that the salary, emoluments and allowances of judicial officers are paid by National Judicial Council. The 2nd point is that the claim of the Claimant is not prescribed by the Revenue Mobilization Allocation and Fiscal Commission. In the counter affidavit of the Defendants and the written address of their counsel, the Defendants contend that the salary, emoluments and allowances of judicial officers are paid by the National Judicial Council. The obvious object of this position is a denial of responsibility for the claim of the Claimant and to shift same to the NJC. The Defendants however failed to prove the assertion. They did not furnish the court with any fact to establish their allegation that the NJC is responsible for the payment of salary, emoluments and allowances to the Claimant. In addition, what the Defendants alleged that NJC pays is salary, emoluments and allowances but what the Claimant claims in this suit is pension and gratuity. These payments are not the same as salary, emoluments or allowances. Therefore, the Defendants have not shown that the NJC is responsible for the payment of the Claimant’s pension and gratuity. Let me add that the Claimant was a High Court Judge in the Judicial Service of Imo State. In the appointment of State High Court Judges, the NJC is merely to recommend to the State Governor. See Section 271 (2) of the 1999 Constitution. The appointor of a State High Court Judge is the State Governor and the place of assignment is the Judicial Service of that state. The Claimant was a judge of the Imo State High Court. He also retired from the service of Imo State. It cannot therefore be contended by the Defendants that the NJC is responsible to pay the Claimant’s pension and gratuity. The functions of the NJC in Section 21, Part 1 of the Third Schedule of the 1999 Constitution with relation to states judicial officers is limited to recommending to the State Governor, the appointment or removal from office of the Chief Judges of the States and Judges of the High Courts of the States, the Grand Kadis and Kadis of the Sharia Courts of Appeal of the States and the Presidents and Judges of the Customary Courts of Appeal of the States and to exercise disciplinary control over such officers. The functions of NJC do not include payment of the retirement benefits of State High Court judges. The responsibility for these entitlements is that of the state in whose judicial service the Judge served. The Defendants have also said the Claimant is not entitled to his claim because it was not prescribed by the Revenue Mobilization Allocation and Fiscal Commission. It was also averred in the counter affidavit of the Defendants that the pension of a judicial officer varies from time to time depending on the various formula prescribed by the Revenue Mobilization and Fiscal Allocation Commission. The Defendants have also confused the claim of the Claimant with remuneration or allowance. What the RMAFC is empowered in Section 32, Part 1 of the Third Schedule of the 1999 Constitution to determine with respect to public, political and judicial office holders is the remuneration and allowances of such officers. The claim of the Claimant in this action is for pension and retirement Gratuity. The RMAFC does not determine or prescribe the amount to be paid for these items. In the 2007 Remuneration package of the RMAFC, pension and retirement gratuity of judicial officers are not covered. The points canvassed by the Defendants in defence of the claim are not strong points. I find that the Defendants have offered no reasonable defence to the claim. The effect is that they have no defence to the claim. It will be useless and a waste of time to allow them to defend the claim. From the averments in the affidavit of the Claimant, I find that the sum claimed is liquated and owed to him by the Defendants. The Defendants did not deny the Claimant’s allegation that the sum has not been paid to him. The Claimant retired since March 2013 and as at the time of filing this action in December 2016, his gratuity and pension have not been paid to him. This act of the Defendants is unfair and dishonest. The Claimant served in the Judicial Service of Imo State for 18 years, and on retirement he is being made to beg and struggle for his pension and gratuity. Instead of the Defendants to own up to their misdeed to the Claimant and find a way to settle him, they rather put up a most incredible defence that the Claimant ought to be paid his retirement benefits by the NJC. The defence is vague and lacking in substance. In such a case, it is proper for the court to proceed on summary judgment. See PROGRESS BANK PLC vs. CONTACT POINT HOLDINGS LTD (2001) FWLR (Pt. 52) 2093 at 2103. I find no reason whatsoever to refuse this application for summary judgment. Accordingly, the Claimant’s application for summary judgment is granted. The court further makes the following orders: 1. The Defendants are ordered to pay to the Claimant the total sum of N24,444,114.12 (Twenty Four Million, Four Hundred and Forty Four Thousand, One Hundred and Fourteen Naira, Twelve Kobo) only, being the amount of his gratuity and arrears of pension as at 23rd September 2013. 2. Cost of N200,000.00 (Two Hundred Thousand Naira) only, is awarded in favour of the Claimant. 3. These sums must be paid to the Claimant within 30 days from today, failing which interest at 10% per annum will become payable until the judgment sum is fully liquidated. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge