IN THE NATIONAL INDUSTRIAL COURT OF
NIGERIA
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN
BEFORE HIS LORDSHIP HON. JUSTICE HASSAN
MUHAMMED YAKUBU
DATE: 30TH MAY, 2024.
SUIT NO. NICN/IB/59/2022
BETWEEN
PROFESSOR
ANDREW OSHIOTSE ------------------ CLAIMANT
OKWILAGWE
AND
WESTLAND
UNIVERSITY ----------------- DEFENDANT
REPRESENTATION
Adewole
Omoniyi for the Defendant
No
Legal Representation for the Claimant
RULING
INTRODUCTION
1. By a motion on notice dated the 13th
day of December, 2023 and filed on the same date. The motion was brought
pursuant to Order 16 Rule 1 of the Rules of this Honourable Court. The
Claimant/Applicant herein prayed this Honourable Court for the following Order:-
1. AN ORDER OF THIS HONOURABLE COURT
granting a summary Judgment to the Claimant/Applicant against the Defendant/Respondent
in the sum of N11,020,000.00 (Eleven Million, and Twenty Thousand Naira Only)
being the Claimant’s outstanding entitlements by way of salaries and allowances
for the period of 6th November, 2019 to 31st March 2021
in the employ- of the Defendant as its Vice Chancellor.
2. 10% interest on the Judgment sum
from the date of Judgment until same is fully satisfied.
2. In support of the motion on notice
for summary Judgment is an affidavit of 25 paragraphs deposed to by the
Claimant himself. Attached to the supporting affidavit are documents marked as
Exhibit 1 to Exhibit 3 respectively. Equally filled in support is a written
Address dated the 13th day of December, 2022. In the said Written
Address, learned counsel for the Claimant/Applicant formulated one issue for
determination which is whether in view of the probative value of the affidavit
evidence and the nature of the Claimant/Applicant’s claim before this
Honourable Court, the Claimant is not entitled to the summary Judgment sought.
SUMMISSIONS OF CLAIMANT/APPLICANT
3. In arguing the issue, learned
counsel to the Claimant/Applicant stated that a summary judgment is one which
is given in favour of a plaintiff without plenary trial of the action. He
referred to the case of UGOCHUKWU V. OKONKWO (2017) LPELR – 50018 (CA). Moreso,
that the importance of a summary judgment is to enable a party to obtain
Judgment especially in liquidated demand cases without the need for a full
trial where the other party cannot satisfy the Court that it should be allowed
to defend the action. In this respects,
counsel referred the Court to the cases of PAN ATLANTIC SHIPPING AND
TRANSPORT AGENCIES LTD V. RHEIN MASS G.M.B.H (1997) NWLR (pt. 493) 248, LEWIS
V. UBA (2016) LPELR – 40661 (SC).
4. Arguing the issue further, counsel
referred the Court to paragraphs 3 to 21 of the supporting affidavit and stated
that the sum of money due to the Claimant/Applicant by way of salaries and
allowances are ascertainable as claimed, hence a liquidated debt amenable to
this procedure reserved for cases of this kind.
5. In another submission, counsel
stated that it is trite law that parties to a written contracts are bound by
the terms contained in the document(s) which constituted the contract.
Therefore, counsel contended that in the -instant case, by the letter of offer
of appointment dated the 21st October, 2019 the terms of employment
are pretty clear and unambiguous on the face of its, likewise the entitlements
of the Claimant/Applicant. In this respect, counsel cited the cases of DR.
ADEOSUN OLUSEYI OLALEKAN V. MANAGEMENT BOARD UNIVERSITY OF MAIDUGURI TEACHING HOSPITAL
(2012) LPELR – 20099 (CA); BABA V. N.C.A.T.C (1991) 5 NWLR (pt. 192) page 388,
LADIPO V. CHEVRON (NIG) LTD (2005) NWLR (pt. 907) p 277.
6. To this end, counsel submitted that
in view of the probative value of the affidavit evidence and the nature of the Claimant/Applicant’s
claim before this Honourable Court, the Claimant is entitled to the summary
judgment sought as the Defendant/Respondent has no triable defence to this
claim and as such a plenary trial would only amount to a delay of Justice to
the Claimant/Applicant and urged the Court to grant the prayers of the
Claimant/Applicant as sought by this application.
7. In opposing the application, the
Defendant/Respondent filed a counter affidavit of 12 paragraphs deposed to by
one Bashiru Saheed an employee of the Defendant/Respondent in this suit.
Attached to the counter affidavit are documents marked as Exhibits 1 to 4
respectively. Equally filed in support of the counter affidavit is a written
address dated the 12th day of July, 2023. In the said written address, learned
counsel to the Defendant/Respondent formulated a lone issue for determination
which is whether considering the contents of the Defendant/Respondent’s counter
affidavit and the attached Exhibits, this instant application can be said to be
sustainable in law.
SUBMISSIONS OF DEFENDANT/RESPONDENT
8. In arguing the issue, learned counsel
referred the Court to the depositions in the counter affidavit and stated that
the Defendant has a good defence to this suit. Reliance was placed on the case
of U.N.N V. ORAZULIKE TRADING COY (1989) 5 NWLR (pt. 119) p19. And Order
16 Rule 5 (1) of the Rules of this Honourable Court.
9. In another submission, counsel
stated that where their exist a conflict in any affidavit evidence by parties
before the Court, the only way by which such conflict may be resolved is to
mandatorily enter the suit into the general cause list and allow the case to be
heard on it merit. In this respect counsel cited the cases of JIPREZE V.
OKONKWO (1987)3 NWLR (pt 62) 737, MESSRS JAMMAL ENGINEERING CO. LTD V. MISR
NIGERIA LTD (1972) 1 ALL N.L.R (pt. 11) P. 322; BANK OF THE NORTH LTD V. INTRA
BANK J.A (1969) ALL N.L.R P. 91
10. The learned counsel further
submitted that the counter affidavit evidence before this Honourable Court has
shown beyond doubt that there are live issues which requires this suit to be
heard on its merits in the sense that the Claimant/Applicant did not render any
service whatsoever to the Defendant/Respondent during the time covered by the
period he is claiming salary entitlement. That the Defendant/ Respondent have
joined issue with the Claimant/Applicant on his claims before this Honourable
Court and as such have the right to be heard on the merit. Counsel cited in
support the case of OLUBUSOLA V. STANDARD BANK OF NIG, LTD (1973) 4 S.C at
51 and Section 36(1) of the 1999 constitution of the Federal Republic of
Nigeria (As amended).
11. To this end, counsel urged the
Court to consider the processes already filed by the Defendant/Respondent and
hold that the Defendant/Respondent has a good defence to this suit and dismiss
this instant application in the interest of justice and fairness and allow this
case to be heard on its merit.
12. On the other hand, the
Claimant/Applicant filed a further affidavit of 13 paragraph deposed to by the
Claimant himself. Filed alongside the further affidavit is a written reply on
point of law dated the 25 October, 2023.
13. In the said reply on point of law,
learned counsel submitted that a calm perusal of the defence presented so far
show that the Defendant has not presented any real defence to the Claimant’s
claim. That the claim of the Claimant which is well set out has not been
controverted materially by the Defendant as required by law, other than the
general denial set up by the Defendant. He referred the court to the cases of N.M.C.B
(NIG) LTD. V. OBI (2010) LPELR-2051 (SC), EMES P.O.J. CONTINENTAL LTD &ANOR
V. AUTOMOTOR FRANCE S.A (2016) LPELR-42232 (CA); YONGOSI V. ADENIYI (2018)
LPELR-49125 (CA).
14. Consequently, counsel urged the
Court to enter summary judgment in favour of the Claimant against the
Defendant.
COURT DECISION
15. I have carefully perused the motion
for summary judgment, the reliefs sought, the supporting affidavit, the Exhibits
attached therewith and the written address in support. I have also gone through
the counter affidavit in opposition, the exhibits attached therewith and the
written address filed alongside the counter affidavit. I equally studied the
further affidavit together with the reply on points of law. Having done all
these, it is therefore my humble view that the issue for determination is
whether the Claimant/Applicant herein has made out a case for the grant of this
application.
16. It is germane to say at the
beginning that this application has brought to the fore the essence of an undefended
list procedure which is aimed at securing quick justice to the Claimant. This
position was reinstate in the case of U.B.A PLC & ANOR V. JARGABA (2007)
LPELR – 3399 where the Supreme Court per IBRAHIM TANKO MUHAMMED, JSC at
page 28, paragraphs F – B held thus:-
“ The undefended list procedure is
designed to secure quick justice and avoid the injustice likely to occur when
there is no genuine defence on the merits to the plaintiff’s case…”
Similarly, it was held in case of NKWO
MARKET COMMUNITY BANK (NIG) LTD. V. OBI (2010) LPELR – 2051 where supreme Court
again per IKECHI FRANCIS OGBUAGA J.S.C at pages 29 – 30, paragraphs G -B
thus:-
“..this is also settle that the purpose
of the procedure under the undefended list, is to enable the plaintiff obtain
summary judgment without trial, where his case is patently clear and unassailable…”
17. In the instant case, from the
depositions in the supporting affidavit, it is the believe of the Applicant
that the Defendant has no triable defence to his claim of N11,020,000.00 being
the outstanding entitlements by way of salaries and allowances for the period
of 6th November, 2019 to 31st March 2021 in the employment
of the Defendant as its Vice Chancellor and 10% interest on the Judgment sum
from the date of Judgment until same is fully liquidated.
18. The Claimant/Applicant had deposed
in his supporting affidavit particularly at paragraph 12 which for ease of
reference, I shall reproduce same hereunder. It reads thus:-
“That I worked for sixteen months for
the Defendant without payment of salaries and allowances due to me under my
appointment letter before I resigned my appointment with the Defendant.”
19. However, the Defendant/Respondent
in its counter affidavit deposed therein particularly at paragraph 6, 7 (iii)
& (iv) 8 and 9 which for ease of reference, I shall reproduce them
hereunder.
Paragraphs 6 reads thus:-
“That contrary to paragraph 10 of the Claimant’s
Statement of Fact, the Claimant only worked with the Defendant for 4 (Four)
months, specifically between 6th November, 2019 and 21st
February, 2020”
Paragraph 7 (iii) read thus:-
“Three month after the commencement of
operations by the Defendant COVID 19 pandemic ravaged the entire world”
Paragraph 7 (iv) read thus:-
“With COVID 19 pandemic, the Nigeria
University Commission (NUC) and the Federal Government of Nigeria issued
directive for the closure of all schools and ordered ‘sit – at – home’ for all
citizens”
Paragraph 8 read thus:-
“That contrary to paragraphs 17, 18 and
19 of the Claimant Statement of Fact, the Defendant avers that the pandemic
forced the institution to shut down and that the Claimant did not render any
service for the Defendant within the acclaimed period March 2020 to March 2021,
but acknowledge that the Claimant worked for the Defendant between November
2019 and March, 2020”
Paragraph 9 read thus:-
“That the Defendant has good defence to
the claims of the Claimant”
20. At this juncture, it must be
remembered that the undefended list procedure is not designed to short out the
defendant who has a defence to the suit simply because the Claimant filed an
application for summary judgment. In this respect, I refer to the case of ABIA
STATE GOVT. V. ACHORU ASSOCIATE (2023) 5 NWLR (pt. 1878) 557 at 585, paragraph
D – F where court of Appeal per IGE, J.C.A held thus:-
“…It is at the discretion of the trial
Court and the discretion must be exercised judiciously and judicially so that a
Defendant who has a reasonable and impeccable defence to the action on the
merit is not driven away from the citadel of justice by being condemned
into paying a debt that is unjust or not
due to the Claimant…”
21. It should be noted that although
the Claimant/Applicant filed a further affidavit but the law is that the Court
is only to consider the affidavit filed by the Defendant in support of the notice
of intention to defend to see whether there exist any defence or dispute
between the parties. In this regard, I refer to the case of NIGERIA PORTS
AUTHORITY V. AMINU IBRAHIM AND COMPANY (2018)12 NWLR (pt. 1632) 62 at 84
paragraph C – D where supreme court per SANUSI, JSC held thus:-
“It needs to be emphasized here that in
an action brought under the undefended list, as in this instant case, the Court
is required to consider only the evidence contained in the affidavit filed by
the Defendant in support of his notice of intention to defend the suit. Once
the Court comes to the inevitable conclusion that the affidavit does not
disclose a defence on the merit or a triable issue, then the Court is to
proceed with the hearing of the suit as an undefended suit and enter judgment
accordingly without calling the Defendant, even if present in Court to answer
or be heard…”
22. Consequently, I have studied the
depositions in the counter affidavit and the exhibits attached therewith
particularly the paragraphs of the counter affidavit reproduced above, I am of
the considered opinion that the Defendant/Respondent in the instant case has to
my satisfaction, raised a good defence or triable issues as contemplated by
laws. To this end, I refer again to the case of NKWO MARKET COMMUNITY BANK
(NIG) LTD. V. OBI (SUPRA) AT page 25-26, paragraphs F-A where the Supreme Court
per MAHMUD MOHAMMED, JSC held thus:-
“The law is in fact well settled that
once a Defendant by his affidavit in support of his notice of intention to
defend has shown clearly that he has issues arguable and triable therein, it is
on the side of justice to let in the Defendant to defend the action by
transferring such matter to the general cause list of the Court for hearing on
pleadings as was done by the Court of Appeal in the present case…”
See also the case of ACB LTD.V. GWAGWADA
(1994) LPELR-204(SC).
23. In the light of the foregoing, I refer
to Order 16 Rules 5 (1) of the Rules of this Court which provide thus:-
“Where it appears to the Court that a
party has a defence and ought to be permitted to defend the claim such party
maybe granted leave to defend.”
In the circumstances therefore, I
resolved the issue for determination against the Claimant/Applicant in favour
of the Defendant/Respondent and hold very strongly that the Claimant/Applicant
as failed to make out a case for the grant of this Application for summary Judgment
as the affidavit evidence of the Defendant/ Respondent before the Court has disclosed
good defence. On that note, the Application for summary Judgment is hereby
dismissed in its entirety for lacking in merit.
24. Finally, leave is hereby granted to
the Defendant/Respondent to defend this suit. The parties having already filed their
pleadings, this suit is to be heard and determined on its merit.
25. No Order as to cost.
26. Ruling is entered accordingly.
---------------------------------------------------
Hon. Justice Hassan Muhammed Yakubu
Presiding Judge