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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Wednesday 29th January, 2014 SUIT NO: NICN/ABJ/111/2013 Between: Ijewere Claimant AND Voix Network Ltd and Another Defendant REPRESENTATION Parties absent; Obinna Ugwu for the claimant; E. Mudiagha Odje for the respondent; JUDGMENT The claimant/ Applicant in this suit filed a motion for summary judgment dated the 12th day of October 2013. The motion is supported by a 19 paragraph affidavit with exhibits, and a written address. The motion for summary judgment in this suit is brought pursuant to orders 10 (1) and 11 (1) of the rules of this court and under its inherent powers. In his written address, counsel to the claimant/applicant, Mr. Obinna Ugwu who held the brief of Mr. Ikechukwu Ekene raised and formulated a lone issue for determination which is “Whether considering the affidavit in support of this application particularly the anexure (sic) to the affidavit Vis-à-vis the claimant’s statement of facts establishing cause of action, the claimant has established substantial reasons that will empower this Honourable court to grant this prayers” Counsel submitted that the cause of action in this suit falls under the undefended list category and referred the court to the case of Nwankwo Vs. EDCS 2007 29 NSCQR P. 73 at PP 112-113 and urged the court to hold that the defendant / respondent has no defence to the action. Counsel further drew the court attention to the various paragraphs in the supporting affidavit and the exhibits particularly paragraphs 14 and 15 and exhibits J10 and J11. It is the contention of counsel that the claimant also engaged the services of a legal practitioner at the cost of N1,150, 000.00 and urged the court to hold that such cost should be paid by the defendant. Counsel further contended that since the defendant has no valid defence to this action, the court should hold that the suit is undefended and therefore enter summary judgment to the claimant. He called in aid the case of Okoli Vs. Morecab finance Ltd 2007 30 NSCQR Pt. I P. 453 at 486-487. Counsel also submitted that going through the counter affidavit and the statement of defence of the defendant there is no triable issue raised therein and no difficult or recondite issue of law is involved to warrant the suit to be transferred to the general cause list where full scale trial will be ordered. In their denial of the indebted sum counsel submitted, the defendant did not disclose any amount indebted neither did they attached any document to disprove the claims of the claimant. Counsel cited the case of NWCB Nig Ltd Vs. 661 2010 14 NWLR Pt 1213 at 169; Dyeris Vs. Mobile Oil Nig Plc 2010 I NWLR Pt. 1175 at 309 to buttress his argument. In His reply counsel to the defendant Mr. E. Mudiagha Odje filed a counter affidavit of 25 paragraph on the 11th day of November 2013 and a written address dated the 11th of November, 2013 wherein counsel raised and formulated two issues for determination; (a) Whether the defendants have a good defence to this case (b) Whether it will be in the interest of justice to grant defendants leave to defend the claim. On issue one, counsel submitted that since the amount being claimed by the claimant is yet to be ascertained, it is not a liquidated sum and as such it is not the type of case to be regarded as undefended worthy of a summary judgment. Counsel in that vein urged the court to hold that the defendant has a good defence. Counsel contended further that the claimant did not disclose the full facts to the court such as the petty loan given to her by the defendant, the Housing issue and as such parties need to sit down, verify and appraise the amount of money that is outstanding in the claimant’s favour and until that is done, the claimant cannot have a liquidated claim. Counsel contended further that the outstanding salaries have not been effectively computed, determined or agreed to by both parties to this suit, in that there was never a time the claimant and the defendants agreed about the actual amount outstanding to each order. On issue 2, counsel submitted that matters under the summary judgment procedure must be an undisputed money demand. He cited the case of Thor Ltd Vs. First City Monument Bank 2005 All FWLR ; Udo aka Vs. Asuguo 2008 9 NWLR pt. 1096 15 at 30-31 paragraph H-A. Counsel further submitted that once the defendant is able to show in his affidavit that he has a triable and bona fide case or defence, the court is duty bound to allow the defendant to defend the suit by transferring the case to the general cause list. It is counsel contention that the court should not bother itself with the merit of the defence but to be satisfied once the defendant shows good defence. He referred the court to the case of Bawa Vs. Phenias 2007 4 NWLR Pt. 1024 251 at paragraph D- H. Counsel also referred the court to the case of Gani Fawehinmi Vs. NBA (No2) 2 NWLR (Pt. 105) 558 at 622 E-D to show and buttress the argument that letters written in genuine intention to settled cannot be relied or used against the defendant. Counsel therefore urged the court to transfer the suit to the general cause list in the inherent of justice. In reaction on point of law, Mr. Ugwu counsel to the claimant posited that the claimants case is consistent and issue of cost of litigation should be awarded where it is proved that reasonable out of pocket expenses and normal counsel cost have been incurred. Counsel cited the case of Rewane Vs. Okotie Eboh 1960 SC NLR P. 4061; offshore construction Ltd Vs. Shoreline boat Nig. Ltd 2003 16 NWLR Pt. 845 P. 157 at 179. Counsel finally urged the court to enter summary judgment in favour of the claimant. I have carefully and painstakingly gone through the claimants and defendants pleadings, their respective exhibits and submissions; order 10 rule I of the rules of this court stated “Where a claimant believes that there is no defence to the claim, an application for summary judgment supported with an affidavit slating the grounds for the belief shall be filed along with the originating process. The application shall be accompanied with the statement of facts, any exhibits and a written brief” Order 10 rule 4 states; “Where a party served with the processes and documents referred to in rule I of this order intend to defend the action such a party shall, not later than time prescribed for defence file. (a) Statement of defence (b) Documents to be used in defence; and (c) A written brief in reply to the application for summary judgment. Order 10 rule 5 (I) says: 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. Order 10 rule 5 (2) has this provision “Where it appears to the court that a party has no good defence the court may there upon enter judgment for the claimant” The above principles shall guide the determination of this application for summary judgment and the superior courts have not left us in the dark as to the interpretation and application of these principles. The purpose of undefended list procedure is to enable the claimant initiating the action, to obtain summary judgment without resort to trial where the case is patently clear and unassailable. See the case of Akpan Vs. AIP and Inc. Co. Ltd 2013 12 NWLR (Pt 1368) 377. Before a claimant can be entitled to the benefits of a summary judgment, the amount involved must be a liquidated money demand i.e, 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 investigation. Therefore, wherever the amount being claimed by a claimant can be ascertained by calculation or fix by any scale of charges or other positive data, it is said to be liquidated. In the case of Maja Vs. Samouris 2002 7 NWLR (Pt 765) at 78, the court gave some specific examples that may be used in determining a liquidated sum. These include: (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. See also the cases of Johnny Vs. Edoja 2007 All FWLR (Pt. 365) 527; Effanga Vs. Rogers 2003 FWLR (Pt. 157) 1058. Nkwo Market Community Bank Nig Ltd Vs. Obi 2010 14 NWLR (Pt. 1213) 169. Claim one of the claimant roads: “A sum of N3,557, 000.00 being the sum of money owed the plaintiff by the defendant which money accrued from the plaintiff’s salaries and allowances while in the defendants’ employ”. The claimant was employed in July 2009 as a legal officer by the defendant through exhibit JI with a salary of N3m per annum. Within Eight months of the employment the salary was increased to N3. 6m per annum. She was on this salary up till the time of resignation of her employment in August 2011. By paragraph 4 of the supporting affidavit of the claimant and by paragraph 10 of the statement of facts, the claimant worked with the defendant for one year without a single month salary. These facts have not been controverted by the defendant in any way in their pleadings. In a letter of demand written by the claimants solicitor dated the 5th of June 2012 titled; “Demand for the payment of N3557.000.00 only being the salary arrears and other entitlements belonging to Barrister Judith d. Ijewere”, the defendant replied as follows; “On or about May 2012, your client was offered the sum of N1.5M in full and final settlement of our indebtedness to her, to which she rejected. She also (at the initial stage) rejected an offer of N2M in full and final settlement as the N2M was to be paid instalmentally ………………….. But be that as it may, we are still interested in having this matter settled amicably. The company has thus decided to pay her the sum of N2.25M in full and final settlement of all her claims against the company ….. In the circumstance sir, we implore you to impress upon your client to accept this officer, she is an insider and knows exactly how it has been with us and all that the company is going through” There is nowhere in the reply of the defendant to the claimant’s solicitors letter wherein a specific denial of the claimants request was made. Moreover, the letter is not headed “without prejudice“ to indicate that it was not meant to be relied upon in a litigation process. The defendant deposes in their paragraph 15 of counter affidavit that the claimant was a beneficiary of petty loan from the defendant. secondly it was also contended in defence that claimant PAYE was not deducted from the amount claimed; thirdly it was also depose to in the counter affidavit that the claimant had an outstanding to settle in the housing facility enjoyed by the claimant. It is my considered view that since there is no evidence in form of payment voucher, pay slip or any other endorsement to reflect these positions in the defence, these cannot be considered as a good defence. Moreover, the defendant letter of 27th June 2012 replying the claimants solicitors letter wherein he offered certain amount as full and final settlement did not contain any such defence or set-off. By paragraph 24 of the defendant witness statement on oath, it was stated that the claimants’ resignation was accepted in good faith without raising any subsisting claims, deductions or set off that the defendant may be entitled to; In view of the authorities cited in this ruling, I hold that the claim of the claimant is definite, specific, ascertained, settled, fix and liquidated being arrears of salary and allowances as agreed in letter of employment and salary review. A perusal of the entire gamut of the defendants defence reveals no good defence to this claim and I so hold. The provision of order 10 rule 5 (3) of the rules of this court has this to say; “Where it appears to the court that the defendant correspondent has a good defence to part of the claim, the court may thereupon enter judgment for that part of the claim to which there is no defence and grant leave to defend that part to which there is a defence” The second claim of the claimant being an ancillary claim to the main claim cannot be said to have fallen under the undefended list procedure as the cost of prosecuting this suit was never agreed or contemplated by the parties. Consequently leave is hereby given to the defendant to defend this aspect of the claim. On the whole judgment is hereby entered for the claimant as against the defendant in the sum of N3557,000.00 being the sum of money owed the plaintiff by the defendant as accrued salaries and allowances . It is also ordered that this sum shall attract 10% interest per annum until the entire judgment sum is liquidated. Hon. Justice P.O Lifu ( JP.) Judge