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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA BEFORE HIS LORDSHIP HON. JUSTICE M. N ESOWE DATE: 3RD FEBRUARY, 2015 SUIT NO. NICN/ABJ/307/2013 BETWEEN MR. NICK OLA ………………………………… PLAINTIFF AND 1. VOIX NETWORKS LIMITED 2. MR. EMEKA ONYEMA ……………… DEFENDANTS REPRESENTATIONS 1. N. E. O. NGELE Esq., for the Claimant 2. UGOH AGUGAM Esq., for the Defendants J U D G M E N T By a Complaint and Claim WHEREOF THE CLAIMANT CLAIMS; (a) A DECLARATION of this Honourable Court declaring that the plaintiff is entitled to the sum of N1, 821,000.00 (One Million Eight Hundred and Twenty One Thousand Naira) being the total amount of the plaintiff’s total arrears of salary owed by the Defendants from August, 2009 to July, 2012 and which the Defendants severally admitted in their interactions and correspondences with the plaintiff. (b) AN ORDER of this Honourable Court directing the Defendants jointly and severally to immediately pay to the Plaintiff the sum of N1, 821, 000.00 (One Million Eight Hundred and Twenty One Thousand Naira) being the total amount of the plaintiff’s total arrears of salary owed by the Defendants from August, 2009 to July, 2012. (c) Cost of this suit at the rate of N380, 000.00 (Three Hundred and Eighty Thousand Naira) only. (d) AN ORDER of this Honourable Court directing the Defendants jointly and severally to pay to the Plaintiff 10% interest on the judgment sum. INTRODUCTION The plaintiff via Order 10 Rule 1 of the National Industrial Court Rules 2007 commenced this action in compliance of the Rules of this Court and prayed for Summary Judgment. The plaintiff in support of the application for summary judgment and in addition to the originating process filed his statement of facts, a 17 paragraph affidavit and attached Exhibits. Brief summary of facts of this suit is clearly stated in the plaintiff’s statement of facts and the supporting affidavit. STATEMENT OF FACT: The 1st Defendant in this case is a Limited Liability Company with RC.N0:423103 while the 2nd Defendant is the Managing Director of the 1st Defendant, and has played pivotal role in the firm of the Defendant. The 1st Defendant is in the business of Telecommunication and Information Technology with its business address at No.15 Kolda Street, Off Adetokunbo Ademola Crescent, Wuse II, Abuja. Following the plaintiff’s employment as a General Secretary of the Defendants, he recorded and ensured effective and enhanced service delivery in the company which resulted to the confirmation of his employment on the 6th of January, 2003 and later promoted to several positions following the confirmation of his employment. The plaintiff stated that the Defendants started delaying payment of his salary which later matured to non-payment of his salary until the Defendants ended up owing the Plaintiff the sum of N1,821,000.00 (One Million Eight Hundred and Twenty One Thousand Naira) from 2009 to July, 2012. Furthermore, the plaintiff’s inability to meet up with the family needs, in addition to severe and intense hardship as a result of his non-payment of arrears of salary necessitated his resignation from the employment of the Defendants on the 27th day of July, 2012. The plaintiff’s several effort to recover the said money proved abortive, this made the plaintiff to approach his solicitor N.E.O. Ngele & Co. to officially place a demand letter on the Defendants. The effort made by the plaintiff’s solicitor to recover his salary arrears from the Defendants also yielded no fruit as the Defendants profusely refused to pay the said money hence this suit, wherein the plaintiff claim as follows; ISSUE FOR DETERMINNATION: The plaintiff’s lone issue for determination is; “WHETHER THE PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT OF HIS CLAIM AGAINST THE DEFENDANTS AS A RESULT OF NON-PAYMENT OF HIS SALARY ARREARS” ARGUMENT OF ISSUE: It is the position of the law that, for an application under the undefended list to be commenced it must relate to liquidated money demand or for a debt. However, for an action for a summary judgment to succeed under the undefended list the following must be observed; a. A belief by the Claimant/Plaintiff that there is no defence to the claim. b. An Application for a summary judgment, supported with the following; (i) An affidavit stating the grounds for the belief and exhibit if any. (ii) The statement of facts. (iii) And a written brief. He referred to Order 10 Rule 1 of the National Industrial Court Rules. In the same vein, the Court has, in plethora of cases stipulated conditions to be adhered to by the plaintiff for an action to succeed under this procedure as follows; (i) To make an application to the court for the issue of the writ; (ii) To support the application with an affidavit, setting out the grounds upon which his claim is based; and (iii) Stating in his affidavit that in his belief the defendant has no defence to the action. He referred to the case of DALKO VS. U.B.N.PLC (2004)9NWLR (Pt.862) at p.123. The first condition to be considered is whether this claim is based on liquidated money demand or debt. For a clearer understanding, the BLACK’S LAW DICTIONARY 8TH EDITION. defines the term “debt” as a liability on a claim, or a specific sum of money due by agreement or otherwise, or the aggregate of all existing claims against a person, entity or state. “ This action is no doubt, one on recovery of the sum of N1.821.000.00 (One Million Eight Hundred and Twenty One thousand Naira) being the plaintiff’s accumulated salary arrears unpaid by the Defendants, which, all efforts made by the plaintiff to recover the said money from the Defendant were unfruitful, and as such decided to approach this Court for the recovery. This position was clearly deposed to in paragraph 18, 19, and 20 of the plaintiff’s affidavit stating grounds for belief. Based on the above it is our position that this action is properly instituted, referring to EVONG VS. MESSRS OBONO, OBONO & ASSOCIATES (2012)6 NWLR (PT. 1296) P.285 AT 405 PARAS.A-B However, on the Second Condition to be considered which is, whether there is a belief by the Claimant/Plaintiff that there is no defence to the claim, the Plaintiff submit thus: That the plaintiff in his statement of fact stated that the Defendants owe him the sum of N1,821.000.00 (One Million Eight Hundred and Twenty One Thousand Naira) as a result of his accumulated salary arrears from 2009 to 27th July 2012 which was also repeated in paragraph 22 of the plaintiff’s affidavit stating grounds for belief. The plaintiff also stated that effort made to recover the said money from the Defendants proved abortive, the Defendant in its position never deemed it fit to object to the claim of the Plaintiff or in alternative reason why he failed to pay the said sum even when the Plaintiff’s solicitor wrote demanding for the immediate payment of the plaintiff’s salary arrears yet nothing was done by the Defendants. Based on the above position the Plaintiff is convinced that the Defendants have no defence or real defence to this claim, which the Plaintiff clearly deposed to in paragraph 22 of his affidavit stating grounds for belief. He referred to Order 10 Rule 1 of the National Industrial Court Rules and DALKO VS. U.B.N.PLC (2004)9NWLR (PT.862) at p.123. Thirdly, on the next condition to be considered is, whether there is an application before the Court for summary judgment supported with an affidavit stating the grounds for the belief and exhibit, a statement of facts and a written address. He submitted that the plaintiff has complied with the requirement to be met, for one to be entitled to summary judgment as plaintiff has brought application supported with affidavit stating the grounds for the belief and exhibit, in addition is the statement of facts which is accompanied with this written address. He referred also to Order 10 Rule 1 of the National Industrial Court Rules Furthermore, the Supreme Court has drawn the attention of Courts not to allow Defendant who has no real defence to an action to file vexatious applications targeted at dribbling and frustrating the plaintiff from obtaining judgment so as to recover his money from the Defendant. Reference was made to a. OKOLI VS. MORECAB FINANCE (NIG) LTD (2007)14 NWLR (PT.1053)37 SC.; b. BATURE VS. SBN LTD (1998)4 NWLR (PT.546) 433. c. Nya V. Edem (2000) 8NWLR (PT. 669) 349 Following the above submission counsel further submitted and prayed the Court to grant the plaintiff’s claim as prayed as the Defendants has no defense or real defence in this suit, See Order 10 Rule 5(2) of the National Industrial Court Rules and award the immediate payment of the plaintiff salary arrears at the sum of N1, 821,000.00(One Million Eight Hundred and Twenty One Thousand Naira); 10% interest on the judgment sum as the Court has in the case of UBANA VS. S.P.D.C.(1998)3NWLR(PT.542)493 decided that money judgment attract interest even when it is not claimed; and finally cost of this suit at the sum of N380,000.00 (Three Hundred and Eighty Thousand Naira) the receipt of which was exhibited in paragraph 24 of the affidavit stating grounds for belief in view of the fact that cost follows event. The Court has considered the process for Summary Judgment before it and the antecedents of this Judgment. It is obvious and unfortunate that the Defendants in this matter decided to treat this Court with utter contempt. In spite of numerous Hearing Notices issued and served on them, counsel for the 1st Defendant only appeared once in court-to file a Motion for extension of time to file his processes. Meanwhile he did not file any Memorandum of Appearance. There is evidence in the Court’s file, proof of service of the originating processes on the Defendant. The Court shall now consider the sole issue presented by the Claimant for consideration, that is: “WHETHER THE PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT OF HIS CLAIM AGAINST THE DEFENDANTS AS A RESULT OF NON-PAYMENT OF HIS SALARY ARREARS” From the evidence before the Court, this claim is based on liquidated money demand by the Claimant for the recovery of the sum of N1.821.000.00 (One Million Eight Hundred and Twenty One thousand Naira) being the plaintiff’s accumulated salary arrears unpaid by the Defendants. (See paragraphs 10, 11, 12 andl3 of Statement of Facts; and paragraph 11, 12, 13 and 14 of the affidavit stating grounds for Relief.) The Plaintiff also clearly deposed to in paragraph 22 of his affidavit stating grounds for belief that the Defendants have no defence or real defence to the Claimant’s claim. It is also obvious that all efforts made by the plaintiff to recover the said money from the Defendant were unfruitful, and as such decided to approach this Court for the recovery. This position was clearly deposed to in paragraph 18, 19, and 20 of the plaintiff’s affidavit stating grounds for belief. The above actions of the Claimant are in line with the actions of a party seeking summary Judgment as contemplated by S10 (1) of the NICR 2007. S10 provides as follows: 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. To the Court therefore, this action is properly instituted. See Onyemelukwe vs. West African Chemical C. Ltd (1995) 4 NWLR (part 387) 46. See also EVONG VS. MESSRS OBONO, OBONO & ASSOCIATES (2012)6 NWLR (PT. 1296) P.285AT405 PARAS.A-B. The written brief of the Claimant has been reproduced earlier; and with no defence to counter same, the Court sees the brief as manifestly clear, patently unambiguous and reasonable. The Court hereby Orders the immediate payment by the Defendant, of the plaintiff salary arrears at the sum of N1, 821,000.00 (One Million Eight Hundred and Twenty One Thousand Naira) to the Claimant. The Court further orders 10% interest on the judgment sum from this day of judgment. The Claimant is awarded a cost of N50, 000.00k. Judgment is entered accordingly. ………………………………….. HON. JUSTICE M. N. ESOWE