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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA BEFORE HIS LORDSHIP HON JUSTICE M. N. ESOWE DATE: 2ND MARCH, 2015 SUIT NO.NICN/ABI/145/2014 BETWEEN : MR NATHANIEL SAMUEL …………………………………… CLAIMANT AND GENERAL METAL PRODUCTS LTD …………………………….. DEFENDANT REPRESENTATIONS 1. CLIFF OTYASOWIE, Esq., for the Claimant 2. RICHARD ANEKE, Esq., for the Defendant R U L I N G The Claimant herein took out this Complaint under the undefended list procedure dated the 3rd day of June, 2014, against the Defendant. Claimant’s Application seeks for the following reliefs: 1. An Order entering judgment for the Claimant/Applicant against the Defendant/Respondent in the sum of N640, 986.62 (six hundred and forty nine thousand, nine hundred and eighty six naira, sixty two kobo) only, being the Claimant/Applicant’s final entitlements owed the Claimant/Applicant by the Defendant/Respondent as at 27th August, 2013. 2. Interest on the judgment sum at the rate of 10% per annum from the date of judgment until final liquidation. 3. The cost of this action. The said sum of N640,986.62 (Six Hundred and Forty Thousand Nine Hundred and Eighty Six Naira Sixty Two kobo) only being the Claimant’s alleged final entitlements owed the Claimant by the Defendant as at 27TH August, 2013 was broken down as follows: Entitlements Trip to Akwa Ibom - N91, 600.00 Gratuity-5 years - N136, 384.62 Transport to site — N400, 000.00 Leave allowance 2012 - N42, 552.00 Less indebtedness I month basic salary in lieu of notice - N29, 550.00 Balance - ---------------------------------- N640, 986.62 (c) Interest on the judgment sum at the rate of l0% per annum from the date of judgment until final liquidation. (d) The cost of this action. MATERIAL FACT: Claimant was employed by the Defendant in September, 2006 as a casual worker and placed on an initial monthly salary of N20, 000.00 (Twenty Thousand Naira). After the lapse of 3 months, the Plaintiff’s appointment was confirmed by the Defendant as its full- fledged staff with a monthly salary of N34, 313.00 inclusive of transport, housing, utility, children education and meal subsidy. To this extent, the letter of confirmation of Appointment attached to the affidavit in support of the Claim, was admitted in evidence and marked as Exhibit A In the course of the Claimant’s services to the Defendant his salary was increased in 2011 to N35, 730.70, and was also increased in 2012 to N47, 050.00. The Claimant worked with and for the Defendant until the 8th day of October, 2012 when he resigned his appointment. A copy of the said letter of resignation is attached to the affidavit in support of this application and marked as Exhibit B. The aforementioned letter of resignation was accepted by the Defendant via a letter with reference No. JBO/ORA/HO/0309/2012 dated 21st December, 2012. After the Claimant’s resignation he made a passionate appeal to the Defendant to pay his entitlements which he initially considered to be in the sum of N859, 700.00 from 2006 to 2012. He referred the Court to a copy of Claimant’s letter to the Defendant dated 3rd June, 2013, attached to the affidavit in support and marked Exhibit C. The Defendant in response to the Claimant’s letter aforementioned stated in a letter dated 27th August, 2013 that upon confirmation and approval by the General Manager (Marketing), the true position of the Claimant’s final benefit is as shown in the final benefit computation sheet. Showing the following as the Claimant’s final entitlement/benefit: ENTITLEMENTS TRIP TO AKWA IBOM -------- N91, 600.00 GRATUITY-5 YEARS -------- N136,384.62 TRANSPORT TO SITE ----------- N400, 000.00 INDEBTEDNESS I MONTH BASIC SALARY IN LIEU OF NOTICE - N29, 550.00 Balance ---------------------------------------------- N598, 434.62 Significantly, the letter stated above was signed by the Defendant’s General Manager and her Permanent/Admin officer. A copy of the said letter is attached to the Affidavit in support of this claim and marked as Exhibit D. Upon the receipt of Exhibit D, the Claimant contacted the Defendant to inform them that his leave allowance for the year 2012 being N42, 552.00 was omitted from the computation as shown in Exhibit D, that he did not proceed on leave in 2012 -and accordingly entitled to allowance in lieu of leave. The Defendant agreed to pay up the leave allowance for the year 2012 being N42, 552.00 which was omitted from their computation in addition to the N598, 434.62 contained in Exhibit D. That by Exhibit D in addition of the leave allowance the Claimant’s final entitlement is as follows: ENTITLEMENTS TRIP TO AKWA IBOM N 91, 600.00 GRATUITY-5 YEARS N136, 384.62 TRANSPORT TO SITE — N400, 000.00 INDEBTEDNESS I MONTH BASIC SALARY IN LJEU OF NOTICE--- N 29, 550.00 Balance ---------------------------------------- - N598, 434.62 LEAVE ALLOWANCE 2012 -------------------- = N 42, 552.00 TOTAL --------------------------------------------- =N640, 986.62 ISSUE FOR DETERMINATION: Having regard to the facts and circumstances of this case as contained in the affidavit in support of the claim, counsel to the Claimant submitted that the issues for determination are: a. The Defendant in response to the Claimant’s letter stated in a letter dated 27 August, 2013 that upon confirmation and approval by the General Manager (Marketing) the true position of the Claimant’s final benefit is as shown in the final benefit computation sheet. Showing the following as the Claimant’s final entitlement/benefit: ENTITLEMENTS TRIP TO AKWA IBOM ------------------------------- N 91, 600.00 GRATUITY-5 YEARS ------------------------------- N136, 384.62 TRANSPORT TO SITE --------------------------------- N400, 000.00 INDEBTEDNESS I MONTH BASIC SALARY IN LIEU OF NOTICE------ N 29, 550.00 Balance ---------------------------------------------------- N598, 434.62 LEAVE ALLOWANCE 2012 ----------------------------- = N 42, 552.00 TOTAL ……………………………………………………… = N640, 986.62 WRITTEN ADDRESS OF IN SUPPORT OF THE APPLICATION To counsel, the letter mentioned above was signed by the Defendant’s General Manager and her personnel/Admin officer. He submitted that the Defendant has no defence whatsoever to the Claimant’s case; particularly having regards to the plaintiff’s depositions in the Affidavit and the annexure attached thereto Having regard to the deposition contained in the affidavit in support of this claim as well as all the Exhibits attached thereto, counsel submitted that the plaintiff has thus satisfied the requirement of Order 10 rule 1 of the Rules of this court. This Court was urged to enter a summary judgment for the Claimant and grant all the claims of the Claimant. What is more, it is trite Law that summary judgment like the undefended list procedure is a special procedure which is designed to expedite the hearing of a suit for a debt or liquidated money demand. ISSUES FOR DETERMINATION Counsel identified the relevant issues for determination as: 1) Whether the Claimant is entitled to a summary judgment granting him the sum of N640, 986, 62 (Six Hundred and Forty Thousand Nine Hundred and Eighty Six Naira Sixty Two kobo) only. 2) Whether the Claimant is entitled to 10% post judgment interest. LEGAL ARGUMENT ON ISSUE ONE: “Whether the Claimant is entitled to a summary judgment granting him the sum of N640, 986.62 (Six Hundred and Forty Thousand Nine Hundred and Eighty Six Naira Sixty Two kobo) only.” Counsel submitted that this is a proper case for which the Claimant is entitled to a summary judgment. That the law is settled as provided for under Order 10 rule 1 of the Rules of this Court, which provides thus: “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. The application shall be accompanied with the statement of facts, any exhibits and a written brief”. He referred to the case of Ikpong vs. Udobong (2007) 2 NWLR (Pt. 1017) 184 at 202 paras. C — E where the Court of Appeal per Omokri, JCA held as follows: “The undefended list procedure is a truncated form of the ordinary civil hearing peculiar to Nigeria adversary system where the ordinary hearing is rendered unnecessary due in the main to the absence of an issue to be tried or the quantum of the plaintiff’s claim disputed to necessitate such hearing. The procedure is designed to expedite the hearing of a suit for a debt or liquidated money demand and to ensure a quick dispensation of justice to prevent sham defences.” Counsel further contended that based on the affidavit evidence before this Honourable Court, the Claimant’s case is straight forward and the claim herein is a liquidated money demand in which the Claimant strongly believe that the Defendant has no defence to his claims. That the Court of Appeal in the case of Osifo vs. Okogbo Community Bank Ltd (2006) 15 NWLR (Pt. 1002) at 273, Paras. F — H where the court per Aderemu, JCA states as follows: “Where a writ of summons is placed before a court in respect of claim to recover a debt or liquidated money demand accompanied by another process setting forth the grounds upon which the claim is based and stating that in his (plaintiff) opinion there is no defence thereto the trial judge is under a duty in law to examine those processes presented very carefully to ensure firstly that the plaintiff complied with the provisions, of the rules under which summons was founded.” A critical look at the Claimant’s Complaint, application for summary judgment and affidavit in support reveal that the Claimant has satisfied the requirement of Order 10 Rule 1 of the Rules of this Court. He thus submitted that the Claimant herein, having deposed to material facts in his affidavit evidence which shows that he has fulfilled and met all the requirement of the law regarding the grant of this application. In the circumstances, the Court was urged to enter a summary judgment for the Claimant in the interest of justice. In line with the foregoing, this Court was urged to resolve ISSUE 1 in favour of the Claimant and grant the reliefs as contained in the Complaint herein. ISSUE TWO “Whether the Claimant is entitled to 10% post judgment interest’ Counsel further submitted that the Claimant in this case is entitled to 10% post judgment interest. It is trite law that a Claimant in a suit, as in this case has the right to claim l0% post judgment interest in regard to his claim. Post judgment interest is expressly provided under Order 21 rule 4 of the National Industrial Court Rules which provide as follows: “The Court at the time of delivering the judgment or making the order may direct the time within which payment is to be made or other act is to be done and may order interest at a rate not less than 10% per annum to be paid upon any judgment.” In the circumstance, it is submitted that this Court has the power to award 10% post judgment interest and he urged the Court to award same in the interest of justice. Finally, this Court was urged to hold that the Claimant’s claim succeeds and accordingly enter judgment in favour of the Claimant’s. DEFENDANT’S WRITTEN BRIEF IN REPLY TO THE APPLICATION FOR SUMMARY JUDGMENT INTRODUCTION This is the Defendants reply to the Claimant’s application dated the 3rd day of June, 2014 seeking for the reliefs already reproduced above: In addition to this reply the Defendant has also filed a Statement of Defence and witness Statement on Oath. BRIEF FACTS According to the Defence, by its letter dated 27/08/20 the Defendant calculated the Claimant’s final entitlements to be N598, 434.62 (five hundred and ninety eight thousand and four hundred and thirty four naira and sixty two kobo). Due to financial constraints the Defendant was unable to pay the Claimant’s entitlements, causing the Claimant to file this action. During the pendency of this action, on the 23rd day of July, 2014 in particular, the Defendant met with the Claimant and made a part payment of the sum of N448, 825.97 (four hundred and forty eight thousand and eight hundred and twenty five naira and ninety seven kobo) out of the said N598, 434.62 to the Claimant. The payment was made through the cheque marked Annexure 1 annexed to the statement of defence. The Claimant accepted this sum and undertook to withdraw this suit as a result of the payment. He also accepted the mode proposed by the Defendant for the payment of the remaining unpaid sum of N149, 608.69 (one hundred and forty nine thousand and six hundred and eight naira and sixty nine kobo). All these representations were put into writing and signed by the Claimant in the letter of undertaking marked Annexure 2 annexed to the statement of defence. The Claimant has however disregarded this agreement. ISSUE FOR DETERMINATION “Whether a triable issue has been raised by the Defendant.” ARGUMENT The Court of Appeal, in the case of J.V. (NIG) LTD V ALMAJIR (2010) 7 NWLR (PT 1193) PG 292 AT PG 310 H had this to say about triable issues: “…It is not necessary for the trial court to decide at that stage whether the defence has been established. The court is simply required to examine the facts averred to in the defendant’s affidavit in support of the notice of intention to defend to determine if those facts prima facie support a defence on the merits” In its statement of defence, the Defendant placed the following pertinent facts before the court: 1. It does not owe the Claimant the sum of N640, 986.62 (six hundred and forty nine thousand, nine hundred and eighty six naira, and sixty two kobo). 2. It no longer owes the Claimant the sum of N598, 434.62 (five hundred and ninety eight thousand and four hundred and thirty four naira and sixty two kobo). 3. What it owes the Claimant is the sum of N149, 608.69 (one hundred and forty nine thousand and six hundred and eight naira and sixty nine kobo). 4. The said sum of N149, 608.69 is not yet due for payment. The parties have, during the pendency of this action, agreed to a mode of payment of the said sum. That agreement is annexed. 5. The Claimant bound himself to withdraw this action. From the foregoing, he submitted that the Claimant is not entitled to a summary judgment since the Defendant has presented to the court facts which prima facie support a defence on the merits. That the issue of whether or not the sum of N149, 608. 69 has become due is a triable issue. Counsel submitted that it suffices as a defence in these proceedings. On the nature of the defence required of a Defendant in summary judgment proceedings, it has been held that: “A defendant’s affidavit disclosing a defence on the merit does not need to show a cast iron defence. What is required in the affidavit is that there is a prima facie defence on merit to the action”. ADDAX PET. DEV. (NIG.) LTD V DUKE (20 10)8 NWLR (PT 1196) PG 278 at 304 E. Counsel urged the court to agree with him and further commended to the court the case of J.V. (NIG) LTD V ALMAJIR (supra) at pg 313 G-H where the courts described the sort of attitude with which the courts should undertake the exercise of determining if a defence of the merits have been made out: “In the peculiar or special procedure provided under the undefended list, the general attitude of the courts should be and is one of liberal approach in the determination of whether an affidavit which accompanies a notice of intention to defend discloses a defence of the merit to warrant the transfer of the suit to the general cause list for determination.” To counsel, judgment can only be entered for the Claimant after the court has determined that the said sum of N149, 608.69 is in fact due and in order to make such determination the matter has to go to trial. In support of this assertion he presented the case of ADDAX PET. DEV. (NIG.) LTD V DUKE (2010)8 NWLR (PT 1196) PG 278 AT 303 H where the court held that. “Under the undefended list procedure, where triable issues are raised, which need to be resolved, the only way they can be fairly and reasonably resolved, is transferring the case to the general cause list and calling oral evidence, which implies trial on the merit.” He therefore urged the court to try the matter. CONCLUSION In the light of the following: 1. The part of the claim admitted by the Defendant is not due for payment; 2. This fact prima facie supports a defence on the merits; 3. The Defendant needs not show a cast iron defence; 4. The courts adopt a liberal attitude in finding that a defence has been made out. Counsel submitted that there is enough reason for the Claimants application for Summary Judgment to be refused and for the matter to go to trial. He therefore answered the issue for determination in the affirmative and urged the Court to agree with him. After a careful study of this case, the submissions of the parties and the authourities referred to by them, the Court made the following observation: That after the Application for summary Judgment, and during the pendency of this case, the Claimant entered a fresh agreement with the Defendant whereby: i. The Defendant conceded to owing the Claimant only the sum of N598, 434.62k out of the N640, 986.02k being claimed by the Claimant. ii. The Defendant paid to the Claimant, and the Claimant received and acknowledged the receipt of a Zenith Bank cheque dated the 5th June 2014, for the sum of N448,825,97K (annexure1); and iii. The Claimant undertook to withdraw the suit in Court on the ground that his Balance of N149, 608.69k will be paid on a latter date. (annexure2) He also accepted the mode proposed by the Defendant for the payment of the remaining unpaid sum of N149, 608.69k. ISSUES FOR DETERMINATION The court shall consider the following issues: i. Whether the Claimant is entitled to a summary judgment granting him the sum of N640, 986, 62 (Six Hundred and Forty Thousand Nine Hundred and Eighty Six Naira Sixty Two kobo) only. ii. “Whether a triable issue has been raised by the Defendant.” iii. Whether the Claimant is entitled to 10% post judgment interest. ISSUE 1 In this case, the Defendant denied owing the Claimant the sum of N640, 986.62k, but N598, 434.62k. There was an agreement during the pendency of this case (out of Court), and in the agreement, the Claimant did not refer to the deficit in his claims. He neither withdrew this case nor change the sum of money he is claiming. Upon his acceptance of the lesser sum than is in his claim, and indicating that the Defendant owes him a lesser amount than he claimed; the Application for summary Judgment on the sum claimed in the Claimants Claim can no longer be tried as such. So on Issue 1, the Court holds that the Claimant is not entitled to a summary judgment granting him the sum of N640, 986, 62 (Six Hundred and Forty Thousand Nine Hundred and Eighty Six Naira Sixty Two kobo) only, but the sum agreed by both parties as the outstanding amount. Equity leans against double portions. ISSUE 2 “Whether a triable issue has been raised by the Defendant.” 1. The part of the claim admitted by the Defendant is not due for payment; and the Defendant does not concede to the entire sum claimed. This fact prima facie supports a defence on the merits; Judgment can only be entered for the Claimant after the court has determined that the said sum of N149, 608.69 is in fact due, and in order to make such determination the matter has to go to trial. In the case of ADDAX PET. DEV. (NIG.) LTD V DUKE (2010)8 NWLR (PT 1196) PG 278 AT 303 H the court held that. “Under the undefended list procedure, where triable issues are raised, which need to be resolved, the only way they can be fairly and reasonably resolved, is transferring the case to the general cause list and calling oral evidence, which implies trial on the merit.” The Defendant needs not show a cast iron defence. In the Court of Appeal case of J.V. (NIG) LTD V ALMAJIR (2010) 7 NWLR (PT 1193) PG 292 AT PG 310 H, the Court had this to say about triable issues: “…It is not necessary for the trial court to decide at that stage whether the defence has been established. The court is simply required to examine the facts averred to in the defendant’s affidavit in support of the notice of intention to defend to determine if those facts prima facie support a defence on the merits” In the light of the following, the Court rules that a triable issue has been raised by the Defendant.” Issue 3 a. Whether the Claimant is entitled to 10% post judgment interest. This issue is pre-mature at this stage. On the whole, the Court holds that triable issues have been raised, which issues need to be resolved. The Court holds that the only way they can be fairly and reasonably resolved, is by the transferring the case to the general cause list and calling oral evidence, in other words, the Court orders trial on the merit. This is the RULING of this Court, and it is entered accordingly. ……………………………………… HON. JUSTICE M. N. ESOWE