IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP: HON. JUSTICE M. N. ESOWE

 

DATE: APRIL 25, 2024                            

SUIT NO.: NICN/LA/497/2022

 

BETWEEN

CAPTAIN FALILOU DIAGNE                                 CLAIMANT/APPLICANT

 

AND

1.   OIL & INDUSTRIAL SERVICES LIMITED       DEFENDANTS/RESPONDENTS

2.   PRIME GULF INTERNATIONAL (UK)                       

 

REPRESENTATION

Not present

Chukwuebuka Okeke, Esq, Dayo Bello, Esq with Onyinye Igweam, Esq for the 1st Defendant

 

RULING/JUDGMENT

1.     INTRODUCTION

2.      The Claimant is Helmsman, Seafarer, Ship Captain and former employee of the 1st and 2nd Defendants who at various times at the instance of the 2nd Defendant and 1st Defendant served as Captain of the ship known as “MV King David.” In the course of his employment, the Claimant was owed several months salaries and or emoluments which are still outstanding despite repeated demands to pay. A personnel of the Defendants had in an email addressed to the Claimant notified the Claimant of the Defendants intention to pay his outstanding salaries, proposing a payment plan which the Claimant was urged to accept. Notwithstanding the admittance to owing the Claimant and the proposal to pay the outstanding salaries, the Defendants are yet to pay the Claimant the sums owed him completely.

 

3.      Consequent upon the above, the Claimant as per his General Form of Complaint and Statement of Facts seeks the following against the Defendants jointly and severally:

 

a)     AN ORDER of this Honourable Court directing, mandating, or compelling the Defendants to pay the Claimant the sum of $67,975.00 (Sixty-seven Thousand, Nine Hundred and Seventy-five United States Dollars) being outstanding salaries due from the Defendants and payable to the Claimant.

 

b)    General damages in the sum of N25,000,000.00 (Twenty-five Million Naira) only against the Defendants.

 

c)     The cost of the action.

 

4.      Upon service of the General Form of Complaint on the Defendants, Counsel from the Law Firm of SB Hamid & Co made two (2) appearances in Court for the Defendants, and sent in an application (by letter) for adjournment) while still notifying the Court of the intentions of the Defendants to settle this matter amicably. The records of the Court shows that the Defendants are yet to file and serve any processes with respect to the Claimant’s claims before the Court. This perhaps moved the Claimant’s Counsel to move his application for summary judgment filed on 23.12.2022. The said application brought pursuant to relevant Rules of Court and under the inherent jurisdiction of the Honourable Court seeks the following:

 

a)     AN ORDER of this Honourable Court granting leave to the Claimant/Applicant to apply for an order entering Summary Judgment against the Defendants/Respondents in favour of the Claimant/Applicant as per reliefs set out in the Complaint and Statement of Facts filed contemporaneously with this application.

 

b)    AN ORDER of this Honourable Court entering Summary Judgment against the Defendants/Respondents in favour of the Claimant/Applicant as per reliefs contained in the Complaint and Statement of Facts filed contemporaneously with this application in the total sum of $67,975.00 (Sixty-seven Thousand, Nine Hundred and Seventy-five United States Dollars) being the current outstanding indebtedness owed by the Defendants/Respondents to the Claimant/Applicant.

 

c)     AN ORDER of this Honourable Court attaching and directing the following named banks where the Defendants/Respondents have funds: Access Bank Plc, First City Monument Bank Limited, First Bank of Nigeria Limited, Guaranty Trust Holding Company Plc (GT Bank), United Bank for Africa Plc, Zenith Bank Plc, Citibank Nigeria Limited, Heritage Bank Plc, Keystone Bank Limited, Polaris Bank Limited, Trust Bank Limited, Unity Bank Plc, Wema Bank Plc, Globus Bank, SunTrust Bank Nigeria Limited, Providus Bank Limited, Jaiz Bank Plc TAJ Bank Limited, Mutual Trust Microfinance Bank, Rephidim Microfinance Bank, Shepherd Trust Microfinance Bank, Empire Trust Microfinance Bank, Finca Microfinance Bank, Fina Trust Microfinance Bank, Accion Microfinance Bank, Peace Microfinance Bank, Infinity Microfinance Bank, Pearl Microfinance Bank Limited, Sparkle Bank, Kuda Bank, Rubies Bank, VFD Microfinance Bank, Mint Finexx Microfinance Bank, Mkobo Microfinance Bank, Cornoation Merchant Bank, FBN Quest Merchant Bank, FSDH Merchant Bank, Rand Merchant Bank  and Nova Merchant Bank to pay to the Claimant/Applicant up to the amount of the judgment sum and/or in satisfaction of the claims of the Claimant/Applicant before this Honourable Court.

 

IN THE ALTERNATIVE:

 

d)    AN ORDER of this Honourable Court entering judgment on admission against the Defendants/Respondent in the sum of $67,975.00 (Sixty-seven Thousand, Nine Hundred and Seventy-five United States Dollars) in favour of the Claimant/Applicant as per the reliefs contained in the Complaint and paragraph 26 in the Statement of Facts filed contemporaneously with this application.

 

5.      The fifth prayer is the omnibus relief, the grounds upon which the application is brought are as contained on the face of the motion paper. The application is supported by a ten (10) paragraph affidavit deposed to by one Taiwo Olabode designated as a Senior paralegal with the Law Firm representing the Claimant/Applicant in this suit, attached thereto are several documents on which the Claimant relies on. In his written address, the Claimant/Applicant formulated two (2) issues for determination, to wit:

 

a)     Whether the Claimant/Applicant is entitled to summary judgment in this suit as per the Claimant/Applicant’s claims as comprised in the Writ of Summons and Statement of Claims.

b)    Whether the Claimant is entitled to judgment on the part of the debt admitted.

 

6.      On issue one, Learned Claimant’s Counsel contends that Order 16 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 allows a party to seek summary judgment where such a party believes that there is no defence or any reasonable defence to its claim – UBA v Jargaba (2007) 11 NWLR (Pt. 1045) 247 at 270, G-H. That the instant suit is an appropriate instance for the Court to enter summary judgment as the documentary evidence show the Defendants have no reasonable defence to the Claimant’s claims. That this application is for a liquidated sum and the summary judgment proceedings is similar to the Undefended list procedure. Counsel urged the Court to resolve issue one in the affirmative.

 

7.      Learned Counsel on issue two submitted that Order 34 Rule 4 of the Rules of this Court empowers the Court to enter judgment on the admission of a party. That in the event the Court is not inclined to grant the relief for summary judgment, the Claimant/Applicant has sought in the alternative an order entering judgment based on the admission made by the Defendants vide the documents marked as exhibits CD7 and CD9 attached to the supporting affidavit. Counsel referred the Court to Sections 19 and 20 of the Evidence Act, Federal Mortgage Finance Ltd v Rivers State Polytechnic, Bori (2005) 9 NWLR (Pt. 930) 257. The admission made by the Defendants in exhibits CD7 and CD9 is enough to earn the Claimant judgment. Counsel urged the Court to grant this application.

 

8.      RESOLUTION

9.      Upon a careful consideration of the facts and circumstances of this suit, the processes filed, the Court distils the issue below for determination, namely:

 

a)     Is there merit in the instant application and would it be just to grant the application.

 

10. As earlier noted, the records of the Court reveals that the Defendants had certain Counsel from the Law Firm of SB Hamid & Co appear before this Court notifying the Court of their intention to resolve issues amicably. For reasons best known and explained by the Defendants, and the said Counsel, they made no further appearances in this suit or provide a reason for their absence, other than a letter for adjournment intimating the Court of the intention of Counsel to embark on pilgrimage. The Defendants are yet to file any process in reaction to the Claimant’s suit and the Court cannot continue to wait endlessly for them to make up their minds on what approach they desire to take in response to the Claimant’s claims. The duty of the Court is simply to afford each party the right and opportunity to present their case while guarantying their right to fair hearing - LGC Ltd v Stanbic IBTC Bank Plc (No. 2) (2022) 14 NWLR (Pt. 1851) 551, Okeke v Uwaechina (2022) 10 NWLR (Pt. 1837) 173. Should the parties decide to maximise this opportunity lies within their purview, the Court’s powers in this regards are limited as it cannot compel a litigant to maximise such opportunity. This is so as equity does not aid the indolent but the vigilant.

 

11. In COP, Anambra State & Anor v A. A. Omokhui International Ltd (2018) LPELR-48693(CA) where it was held inter alia: “It is important for all litigants to know that they cannot ignore Court processes or will them away. Anyone sued to a Court of competent jurisdiction is obliged, nay, constrained to appear to defend the claim or face the peril of being taken to have conceded the said claim to the Claimant. It is also important that all litigants and their Counsel must understand that when a claim is not challenged in time, unpleasant consequences may occur particularly in our adversarial system of jurisprudence where the judge is but an independent referee and is not party unless there has been apparent and previous gross miscarriage of justice." So when a party fails or neglects to utilize the opportunity afforded it by the Court to put up its case, such party cannot later be heard to complain of denial of fair hearing – Ecobank Nig. Plc v Monye (2021) 12 NWLR (Pt. 1989) 1 CA, Bank PHB v CBN (2019) LPELR-47383. It is on this note that the Court would proceed to consider the merit or otherwise of the instant application.

 

12. The instant application bothers largely on summary judgment. Summary judgment procedure is a unique procedure based on claims on liquidated money demands which are specific and ascertainable. It allows the Court to enter summary judgment in favour of the Claimant without going into trial where the Defendant has no defence to the Claimant’s claims for liquidated money demand. As required by the Rules of Court, the Claimant is to file his originating process and other accompanying processes alongside an application seeking the Court to enter summary judgment in favour of the Claimant as per his claims in the endorsement on his Complaint and Statement of Facts. See Order 16 Rules 1 and 5 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017.

 

13. Though an interlocutory application, its distinction lies in the fact that where the Defendant has no defence or a sham defence, the Court may go ahead to enter judgment in favour of the claims for liquidated money demands and such judgment is a final decision. See UBA Plc v Aribisala (2016) LPELR-40343(CA), Thor Ltd v FCMB Ltd (2005) LPELR–3242(SC). It is for this purpose that the Court looks at the claims as endorsed on the General Form of Complaint and Statement of Facts in determining whether or not the claim is one for liquidated money demand or simply recovery of debt. See Uzor v Daewoo Nig. Ltd (2019) 10 NWLR (Pt. 1680) 207. In the instant case, the Claimant is seeking the sum of US$67,975.00 being the balance of the outstanding salaries owed the Claimant by the Defendants.

 

14. Learned Counsel to the Claimant has argued that the Claimant’s claim is for a liquidated sum thus presupposing that it is not one merely for recovery of debt. In his bid to persuade the Court along this line, Counsel in the instant application did not encapsulate the other aspects of the Claimant’s claims, that is, claims for general damages and cost of action. Black’s Law Dictionary, Deluxe ninth edition defines liquidated amount as “a figure readily computed, based on an agreement’s terms.” See page 1015 of the Black’s Law Dictionary, Deluxe ninth edition, see also Coasterners Integrated (Nig) Ltd & Anor v Pillar Micro Finance Bank Ltd (2020) LPELR – 52299 (CA). The documents attached to the supporting affidavit deposed to by Taiwo Olabode, particularly those marked as exhibits CD1 to CD4 respectively indicate that the Claimant was at various times offered employment and had his employment with the Defendants extended. The documents marked as exhibits CD5 and CD6 are evidence of payment of finances into the Claimant’s account by the Defendants.

 

15. Exhibit CD7 is an email addressed to the Claimant on the subject of Proposed payment of outstanding salary dated 02.11.2017 sent by a personnel of the Defendants by name Mohammed Abou Chekeir wherein the Defendants acknowledged owing the Claimant outstanding salaries to the tune of $148,975. Exhibit CD8 evinces different payments made to the Claimant by the Defendants after their proposal to pay him his outstanding salaries. An email in the email trail constituting exhibit CD9 from the executive director of the 1st Defendant sent on 07.11.2018 reads;

 

 “Good day Mr Diagne, Please, I did not intentionally keep completely quiet about your request for your outstanding salary payment. I’ve been waiting for when I can tell you that we are able to transfer some funds to you. Please bear with us. We’re able to pay for one month now and as funds come in, we’ll pay all. Best regards. B. Worgu Mrs.

 

16. By the combined contents of exhibits CD7 and CD9 respectively, the Court is convinced that the sum claimed by the Claimant/Applicant is specific, ascertainable and that the Defendants did admit to their indebtedness to the Claimant with respect to his outstanding salaries which the Defendants promised to offset. In other words, the Defendants do not deny their indebtedness or refute or challenge same when confronted with the Claimant’s demand emails. The Defendants merely sought for an understanding of the financial plight of the company and asked for time to pay up what was due to the Claimant. It is a well settled principle of law that facts admitted need no further proof. See Section 123 of the Evidence Act, 2011, Anyalewechi v Lufthansa German Airlines (2021) LPELR – 55213 (CA) p. 9, paras. A- B. In George Onobruchere & Anor v Ivwromocho Esegine & Anor (1986) 2 SC 385 at 398 – 400, His lordship, Oputa, JSC (of blessed memory) held thus: “If a particular averment of the Plaintiff is admitted, there will no longer be an onus to prove what has been admitted by the opposite party.”

 

17. The Claimant’s reliefs two and three as contained in his General Form of Complaint and Statement of Facts are for general damages to the tune of N25,000,000.00 and cost of this action. This Court has earlier noted that the summary judgment procedure is a unique procedure that expedites hearing and determination of claims on liquidated money demands for which the Claimant believes the Defendant has no defence to or no reasonable defence to. So rather than proceed to full trial, the matter is decided on affidavit and documentary evidence, and the decision of the Court on the summary judgment application, though an interlocutory application, is final. In law general damages flows from the nature of the act complained against, that is, it is usually recoverable from the breach of a duty attributable to the opposing party - UBN Plc v Chimaeze (2014) 9 NWLR (Pt. 1411) 166 at 191-192, H-B. The Claimant has complained of the hardship the Defendants indebtedness to him has caused him, difficulty paying his mortgage, difficulty catering for an ailing spouse amongst other.

 

18. But the sum claimed as general damages is not one that is ascertainable or such that constitutes a liquidated figure. Normally, the award of general damages is at the discretion of the Court upon careful assessment of the facts and evidence before it. Similarly, the Rules of Court gives the Court powers to award cost in certain instances – Order 55 Rule 4 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017. It is the considered view of this Court that its powers to exercise discretion to award general damages and cost is not such that ordinarily extends to the summary judgment procedure.

 

19. I hold this view as the law is that where a party seeks damages as part of its claims under a liquidated money demand, such claim should be anchored an agreement where the sum is ascertainable. That is, where the parties to a contract as part of the terms of their agreement fix the amount payable on the default of one of them or in the event of breach by way of damages such sum of money is classified as liquidated damages. See Akpan v A.I.P. Inv Co. Ltd (2013) 12 NWLR (Pt. 1368) 377. Should the Claimant be bent on proceeding with such reliefs, the Court can comfortably accommodate them under its general cause list, where the Claimant would be required to testify and adduce credible and satisfactory evidence in proof of his claims. I so find and I so hold.

 

20. In the light of the foregoing, the Court finds merits in the Claimant/Applicant prayer two (2), same accordingly succeeds in this manner summary judgment against the Defendants/Respondents in favour of the Claimant/Applicant as per his relief one contained in the Complaint and Statement of Facts filed contemporaneously with this application in the total sum of $67,975.00 (Sixty-seven Thousand, Nine Hundred and Seventy-five United States Dollars) being the current outstanding indebtedness owed by the Defendants/Respondents to the Claimant/Applicant. I so find and I so hold.

 

21. With respect to the Claimant/Applicant’s prayers one and three to the instant application, the Court finds the Claimant/Applicant’s prayer one unnecessary in the light of the clear provision of Order 16 Rule 1 of the Rules of this Court, same is accordingly discountenanced. The Claimant’s prayer three is not only pre-emptive of the decision of the Court but a calculated attempt by Counsel to the Claimant to kill two birds with a stone. Summary judgment procedure is clearly distinguishable from garnishee proceedings or enforcement of judgment proceedings. It would be reckless to grant an order synonymous with a garnishee order in a summary judgment procedure. Besides, the Applicant in his supporting affidavit clearly did not make any depositions to support the grant or otherwise of his prayer three, same accordingly fails and is struck out. I so find and I so hold.

 

22. The Claimant’s prayer four (4) is sought in the alternative supposedly to prayer two (2) as may be deciphered from Counsel’s submission in his written address. In law, a Claimant can plead the reliefs he seek separately or in the alternative. A Claimant who seeks and pleads his reliefs in alternative is in effect asking the Court to grant or award any of the reliefs he proves -  N.A.O.C. (Nig) Ltd v Ebila (2016) 3 NWLR (Pt. 1498) 120. Our case laws are replete with authorities that emphasis that reliefs sought in the alternative should not be granted cumulatively, that is, when the Court grants the main reliefs claimed, it should not consider the alternative relief claimed in the suit – Oforishe v N.G.C. Ltd (2018) 2 NWLR (Pt. 1602) 35. This Court having considered the Claimant’s prayer two and granted same in part would not consider the alternative prayer four, as it cannot be granted cumulatively with prayer two, prayer four is accordingly discountenanced and struck out. I so find and so hold.

 

23. On the whole, the Court finds merits in part with the instant application, same accordingly succeeds in part. For purpose of reiteration, the Claimant/Applicant’s prayers one, three and four are discountenanced and struck out, prayer two succeeds and it is hereby ordered as follows:

 

24. Summary judgment against the Defendants/Respondents in favour of the Claimant/Applicant as per his relief one contained in the Complaint and Statement of Facts filed contemporaneously with this application in the total sum of $67,975.00 (Sixty-seven Thousand, Nine Hundred and Seventy-five United States Dollars) being the current outstanding indebtedness owed by the Defendants/Respondents to the Claimant/Applicant.

 

25. Thus, the Claimant’s relief one as contained on his Complaint and Statement of Facts succeeds and is hereby granted. Therefore, the Court hereby directs, mandates, or compel the Defendants to pay the Claimant the sum of $67,975.00 (Sixty-seven Thousand, Nine Hundred and Seventy-five United States Dollars) being outstanding salaries due from the Defendants and payable to the Claimant. I so hold.

 

26. Ruling/judgment is according entered.

 

 

Hon. Justice M. N. Esowe, FCIArb

Presiding Judge