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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Tuesday 11th February, 2014 SUIT NO: NICN/ABJ/92/2013 Between: Chika Paschal Anosike Claimant AND Voix Networks Limited Defendants REPRESENTATION Parties are absent; Nnaemeka Nwankwo Esq. for the claimant; E. Mudiagha Odje for the defendant. RULING /JUDGMENT By a Motion on Notice dated the 11th of April 2013, the claimant /applicant prayed this court to enter summary judgment in his favour in the sum of N6, 409, 000 being the outstanding net salary arrears between January 2009 and July 2012 due to him from the defendant; He also sought for 20% interest on the amount awarded from date of judgment until payment is completely made. In the alterative the claimant / applicant sought for this court order entering part- judgment in the sum of N5228,181, the sum already admitted by the defendant as the outstanding salary of the claimant/applicant. The claimants/applicants application is brought pursuant to orders 10 rule I and 5 (3) of the National Industrial Court Rules and the Inherent jurisdiction of this Honourable Court. The application is supported by a 30 paragraph affidavit deposed to by the claimant himself, ten exhibits and a written address dated the 11th of April 2013. In the said written address, counsel to the claimant/applicant Mr. Akinyemi Olujinmi submitted that the summary judgment procedure under order 10 of the National Industrial Court rules of 2007 is the same as the undefended list procedure which is for recovery of debt or liquidated money demand; Counsel contended that the essence of this undefended list procedure is to fast tract justice delivery where the plaintiffs claim is unarguable, undisputed both in law and fact; counsel call in aid the case of Macaulay Vs. NAL Merchant Bank Ltd 1990 4 NWLR Pt. 144 Sc 283 PP 324-325 G-E; Counsel further contended that due to the non-payment of the claimant salary for some of the months between August 2004 and February 2013, the claimant made a demand in writing for the payment of his arrears of salary but the defendant did not accord that demand letter a courtesy of a reply. Counsel urged this court to regard that silence on the part of the defendant as an admission by conduct or representation since there was a duty on the defendant to reply such a letter and since the defendant has failed in that duty there is an irrebutable presumption in favour of the claimant. Counsel cited the case of Gwani Vs. Ebule 1990 5 NWLR Pt. 149 P.201 at 217 G-H. Counsel submitted further that the defendants solicitor’s letter in reply to the claimants solicitors demand letter as reflected in exhibit A8 attached to the supporting affidavit did not disclose any good defence at all. Consequently he submitted further, the defendant should not be allowed to dribble and frustrates the plaintiff and cheat him out of justice. Counsel referred the court to the case of Nishizawa Vs. Jethwani 1984 12 SC 234. Counsel finally urge the court to enter judgment in favour of the claimant to the tune of N6,409.000 as against the defendant and posited further that the defendants counter affidavit should be discountenanced as mere Inability to pay or hard ship cannot be a defence or be regarded as a good defence in summary judgment proceedings. Counsel referred the court to the case of Thor Ltd Vs. FCMB Ltd 2005 14 NWLR Pt. 946 at 696 and 714 paragraph B-F. Mr. Olujinmi, the claimant’s counsel also contended that filing a counter claim to an undefended list proceeding as done by the defendant in this case cannot be regarded as a defence on the merit or a good defence as a counter claim is a separate and independent cause of action. Counsel call in aid the case of Dada Air Services Ltd Vs. Sudan Airways Ltd 2005 3 NWLR Pt. 912 at 394, 793. In the alternative prayer of the motion for summary judgment, counsel urged the court to regard the admission in exhibit 10 of the supporting affidavit as an admission as such admission by counsel on behalf of his client in civil matters bind the parties. Counsel referred this court to the case of Nigerian Wire Industry Plc Vs. European Trade Finance Plc 1997 6 NWLR Pt. 510 page 632 at 650 paragraph C –F. Counsel then urge the court to enter judgment in the sum of N5,228.11. 00 as part payment of the entire indebtedness. In His reply to the motion for summary judgment, the defendant through his counsel E. Mudiaga Odje Esq. filed a 24 paragraph counter affidavit deposed to by one Yomi Onadeko, a legal officer with the defendant and a written address. In His written address Mr. Odje formulated two issues for determination namely: (1) Whether the defendant has a good defence to this case (2) Whether it will be in the interest of justice to grant defendant leave to defend the claim. On issue one, counsel submitted that order 10 rule 5 (I) of the rules of this honourable court enjoins the court to grant leave to the defendant to defend the suit where he has a good defence as in this case. Counsel contended that the controversies surrounding the actual amount owed the claimant by the defendant will obviously necessitate calling of witness in this case in a full scale trial; counsel submitted further that parties to this dispute has never sat down to verify how much is to be paid and how it is to be paid in a bid to resolve the issues complained of in this suit and since this has not happened, the sum being claimed by the claimant cannot be a liquidated money demand. Counsel posited further that the refusal of the claimant to resume work two months after his study leave couple with his failure to give the required one month notice of disengagement from the services of the defendant amounts to a breach of the terms of employment as he has not also given one month salary in lieu of notice. Counsel contended further that the purported resignation of the claimant was done in bad faith as he has not done his hand over report to the defendant. He therefore submitted further that the claimant who rushed to this court for equity has not done equity as he has comes to this court with a filthy hands expecting to enforce a contract of which he himself is in breach; In His summary of his submissions on issue one, counsel outline them as follows: (a) The actual amount of outstanding salaries have not been settled. (b) The claimant has not given a brief report or hand over notes about the facility he managed and how he managed them which is strictly claimants responsibility. (3) There was never a time the claimant agreed to exhibit maturity, cooperation and respect in his employment with the defendant. On issue two, Mr. Mudiagha Odje submitted that matters under the summary judgment procedure must involve undisputed claim and a liquidated money demand. Counsel cited the cases of Thor Ltd Vs. FCMB 2005 ALL FWLR He submitted further that since the defendant has a good defence as shown in his counter affidavit, he should be granted leave to defend the suit on the merit. He referred this court to the case of Udoaka Vs. Asuguo 2008 9 NWLR Pt. 1091 15 at 30 -31 paragraph H – A. Counsel further referred the court to the case of Bawa Vs. Phenias 2007 4 NWLR (Pt. 1024) 251 at paragraph D-H to buttress his argument to the effect that where the defendant has shown a prima facie defence, and raises triable issues in good faith as shown in the defendant counter affidavit and statement of defence he should be granted leave to defend. Counsel submitted also that admissions made during negotiations for a peaceful settlement are not admissible in law as the policy of the law is to encourage settlement and undue advantage should not be taken of any person who is willing in good faith to promote settlement. Counsel cited the case of Fawehinmi Vs. NBA (No 2) 2 NWLR Pt. 105 page 558 at 622 E-D. Counsel finally urged the court to grant the defendant leave to defend and transfer the suit to the general cause list. In His reply to defendants solicitors submission on point of law, Mr. Olujinmi contended that the case of Fawehinmi relied upon by the defendant’s counsel is completely irrelevant and highly in applicable to this case and therefore urged the court to discountenance the argument in that aspect and enter judgment in favour of the claimant/applicant. I have carefully gone through the motion for summary judgment, the respective affidavits of the parties, the claims of the claimant and the counter claim of the defendant. The claimant /applicant motion for summary judgment dated the 11th of April 2013 is for the sum of N6, 409.000 being outstanding net salary arrears between January 2009 and July 2012. Alternatively, he is praying for a part judgment in the sum of Five million two hundred and twenty eight thousand, one hundred and eighty one Naira N5,228,181 in favour of the claimant as admitted by the defendant. Summary judgment under order 10 of the rules of this court is the same as the undefended list procedure in the civil procedure rules of various courts in the country. The purpose of undefended list procedure is to enable the plaintiff who is initiating the action or suit to obtain summary judgment without resort to trial where the case is patently clear and unassailable. See the case of Akpan Vs. AIP and Inv. Co. Ltd 2013 12 NWLR (Pt. 1368) 377. For this type of judgment, the court will only consider the content 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 of trial see the case of Bona Textile Ltd Vs. Asaba Textile Mill Plc 2013 2 NWLR (Pt. 1338) 257; NKWO Market Community Bank Nig. Ltd. Vs. Obi 2010 14 NWLR (Pt. 121 3) 169. This procedure can only accommodate a liquidated sum. i.e. it must involve a liquidated money demand. When then can we say a sum of money demanded from a party is liquidated? In the case of Maja Vs. Samouris 2002 7 NWLR (Pt. 765) 78; it was held that a liquidated money means “a debt or other specific sum of money usually due and payable which amount must have already been ascertained or capable of being ascertain as a mere matter of arithmetic without any other further investigations. Therefore, whenever the amount being claimed by a plaintiff can be ascertained by calculation or fix by any scale of charges or other positive data, it is said to be liquidated” See also the cases of Johnny Vs. Edoja 2007 All FWLR (Pt. 365) 527 Nortex Nig. Ltd Vs. Franc Tools Co. Ltd 1997 4 NWLR (Pt. 501) 603 at 609. Yau Vs. City Security Ltd 2003 FWLR (Pt. 501) 603 at 609. Effanga Vs. Rogers 2003 FWLR (Pt. 157) 1058. In essence, a liquidated sum must include and mean any of the following; (1) a sum of money previously agreed (2) a definite settled sum which the defendant cannot deny (3) ascertained claim or specific amount. (4) Amount that can be calculated by a scale, or by a data or by arithmetic or amount already fix. The defendant in this case stated in paragraphs 13 of the statement of defence and paragraph 17 of defendants witness statement on oath that the claimant employment was terminated on 11th October 2012. The claimant /applicant stated and depose in paragraph 28 of his affidavit in support of motion for summary judgment that his claims do not include the period from August 2012 to February 2013. The issue of resignation or termination of appointment therefore cannot be an issue in this ruling. By the content of exhibit A 10 attached to the claimant/applicant’s motion for summary judgment, the defendant/ respondent in his letter of 10th April 2013 through his solicitor in Paragraph 3 stated as follows: “Nevertheless, we make bold to state that the total amount owed your client by our client from our record is the sum of N5,228,181.00 (Five million, two hundred and twenty –eight thousand, one hundred and eighty one naira) only. Please find attached a copy of your clients outstanding salary report” Indeed this is a bold admission. The said salary report has a total net pay of the sum of N5,228,181.00. This admission, the defendant’s counsel contended was done in the process of negotiating settlement in good faith and therefore the document or exhibit is not admissible under the evidence Act and by the authority of Fawehinmi Vs. ABA No 2 (Supra). I do not think so. The letter in question proceeding from the defendants counsel is not headed “without prejudice”. Moreover it was an unequivocal admission with an attachment called “outstanding salary for Chika Anosike”. This fact is therefore unassailable and I so hold. The defendant also contended that because he has a counter claim, a summary judgment cannot be obtained by the claimant. I do not share this view. It does not matter that there is a counter claim. The moment there is an admission by the defendant of part of the plaintiff’s facts under monetary claim, the plaintiff can apply for part judgment in respect of the sum already admitted. Notwithstanding that there is a counter claim, the trial court could still enter judgment for the sum already admitted by the defendant. In the case of Arab Chem Ltd Vs. Owoduenyi 2013 10 NWLR (Pt. 1361) 89, at 100 paragraph B, C-H. The court of Appeal sitting in Kaduna held: “Where a claim is for a definite sum allegedly owed by a defendant and the defendant admits owing part of the sum, no difficulty should arise in the court entering judgment for the sum admitted, leaving the balance to be contested” I am bound by this precedent. It should also be emphasized that admissions made do not require to be proved as no better proof is required than that which a party wholly and voluntarily owns up to. It is also trite law that where admission is pleaded, judgment can only be entered on the basis of the same where it is specific, categorical and certain in its admission of liability. See the cases of NBA Ltd Vs. Guthrie 1993 3 NWLR (Pt. 284) 64 3; Abdulkarim Vs. Incar Ltd 1984 10 SC I . The law is settled that the entire pleadings must be looked to decide whether there was an admission. See the case of Titiloye Vs. Omoniyi Olupo(1991) 9 -10 SCNJ 122 1991 7 NWLR (Pt. 205) 5 19; F.A.B.S. Ltd Vs. Ibiyeye (2008) 14 NWLR (Pt. 1107) 375 at 413 paragraph H-A. In this instant case, there is an express admission made in a formal manner and communicated to the applicants counsel which was a reply to the applicants counsel’s earlier letter. This case, at this point of admission, was not yet filed in court: the admission made was unequivocal wherein the graphic details of how the defendant incurred the debt was analysed and the total properly entered as net amount owed. The circumstances of this case therefore is radically different from the decision in Fawehinim Vs. NBA (No.2 ) (Supra) heavily relied upon by the defendant /respondent counsel which is not on all fours with this case at hand. Consequently, since N5,228,181.00 is admitted and the balance contested, this contested sum and the counter claim of the defendant shall therefore proceed to trial as leave is hereby granted to the defendant to defend same. Judgment is hereby entered in the sum of N5228,181 only in favour of the claimant as against the defendant. ---------------------------- - Hon. Justice P.O Lifu JP. Judge