IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HER LADYSHIP HON. JUSTICE O. A. OBASEKI-OSAGHAE

DATE: JULY 8, 2024                                   SUIT NO: NICN/ABJ/156/2023

BETWEEN                                

HUIBERT TIMOTHEUS SPEELMAN                                                          CLAIMANT

AND

AZMAN AIR SERVICES LIMITED                                                             DEFENDANT

REPRESENTATION

Saidu Muhammad Lawal for the Claimant, with Uwais Abdulrahman.

No appearance for the Defendant.

                                                              RULING

Introduction and claims

[1] The Claimant filed this Complaint together with the accompanying processes on 2nd June 2023 seeking the following reliefs:

                  i.        A Declaration by this Honourable Court that the failure/refusal of the Defendant to give a month’s notice of termination of the appointment of the Defendant or pay a month’s salary to the Claimant in the sum of $7,500.00 (Seven Thousand Five Hundred United States Dollars) in lieu of a month’s notice of termination constitutes a breach of the contract between the Claimant and the Defendant as contained in the Letter of Appointment dated 4/5/2021.

               ii.        A Declaration by this Honourable Court that the Claimant is entitled to payment of $7,500.00 (Seven Thousand Five Hundred United States Dollars) from the Defendant, being a month’s salary in lieu of a month’s notice of termination of the employment of the Claimant by the Defendant.

             iii.        A Declaration by this Honourable Court that the Claimant is entitled to general damages in the sum of N5,000,000.00 (Five Million Naira) against the Defendant as a result of the Defendant’s breach of the contract between the Claimant and the Defendant due to the Defendant’s failure/refusal to pay a month’s salary to the Claimant in the sum of $7,500.00 (Seven Thousand Five Hundred Dollars) in lieu of a month’s notice of termination.

             iv.        A Declaration by this Honourable Court that the Claimant is entitled to recover from the Defendant the sum of N2,000,000.00 (Two Million Naira) being the cost of instituting the instant suit against the Defendant.

               v.        An Order of this Honourable Court directing the Defendant to pay to the Claimant $7,500.00 (Seven Thousand Five Hundred United States Dollars), being a month’s salary in lieu of a month’s notice of termination of the employment of the Claimant by the Defendant.

             vi.        An Order of this Honourable Court awarding the sum of N5,000,000.00 (Five Million Naira) as general damages in favour of the Claimant against the Defendant for the Defendant’s breach of the contract between the Claimant and the Defendant due to the Defendant’s failure/refusal to pay a month’s salary to the Claimant in the sum of $7,500.00 (Seven Thousand Five Hundred Dollars) in lieu of a month’s notice of termination.

          vii.        An Order of this Honourable awarding the sum of N2,000,000.00 (Two Million Naira) against the Defendant in favour of the Claimant, being the cost of instituting the instant suit against the Defendant.

        viii.        An Order of this Honourable Court granting the Claimant post-judgment interest against the Defendant at 10% per annum on the judgment sum from the date when Judgement is entered till the date the judgment debt is completely satisfied.

             ix.        Such Further Order(s) as this Honourable Court may deem fit to make in the circumstance.

[2] Accompanying the Complaint is the statement of facts, the Claimant’s statement on oath, copies of documents to be relied on, and a motion for summary judgement brought pursuant to  Order 16 Rule 1 and Order 17 of the Rules of Court 2017. The motion is praying for the following:

1. An Order of this Honourable Court entering summary judgment in favour of the Claimant/Applicant against the Defendant/Respondent in this suit as per the Claimant’s statement of facts, the reliefs claimed therein, and the Claimant’s written statement on oath.

2.  And for such further order(s) as this Honourable Court may deem fit to make in the circumstance.

The grounds upon which the Application is brought are as follows:

3.            On 4/5/2021, the Defendant employed the Claimant as a Pilot (Line Captain) via a Letter of Appointment dated 4/5/2021.

1.          As part of the agreement between the Claimant and the Defendant, as contained             in the Letter of Appointment, the salary of the Claimant was set at $6,500.00       (Six Thousand Five Hundred United States Dollars) per month. Also, part of the agreement is that either of the parties may terminate the contract by giving a            month’s notice or by giving a month’s salary in lieu of a month’s notice.

2.                  On 10/1/2022, the Defendant increased the Claimant’s salary by $1,000.00 (One    Thousand United States Dollars) from $6,500.00 (Six Thousand Five Hundred       United States Dollars) to $7,500.00 (Seven Thousand Five Hundred United    States Dollars). The said increase was confirmed via the Defendant’s Internal        Memo dated 10/1/2023.

3.                On 20/5/2022 the Claimant’s appointment with the Defendant was unilaterally terminated by the Defendant via a letter dated 20/5/2022 citing “consistent increase in the cost of Jet A1, high rate of foreign currency exchange and shrinking passenger load” as the reasons for the termination of the appointment.

4.                Neither a month’s notice of the termination of the appointment of the Claimant nor a month’s salary in lieu was given to the Claimant before the Defendant proceeded to unilaterally terminate the Claimant’s appointment.

5.                However, despite numerous demands by the Claimant, the Defendant has refused to pay the Claimant the one-month salary of $7,500.00 (Seven Thousand Five Hundred United States Dollars) in lieu of the one-month notice.

6.                The Claimant/Applicant believes that the Defendant/Respondent has no defence to the Claim.

[3] The motion is supported by an affidavit sworn to on 2nd June 2023 by the Claimant to which is annexed  “Exhibits Speelman 1 to Speelman 6 and a written address dated 2nd June 2023 and filed  the same day. The Defendant was served with the originating processes, the motion on notice and the hearing notice; and failed to enter appearance or file any processes in defence of this action.

Submissions of the Claimant

[4] The Claimant submitted one issue for determination:

Whether or not the Claimant/Applicant is entitled to summary judgment as per the Claimant’s statement of facts, the reliefs claimed therein, and the claimant’s written statement on oath.

[5] Learned Counsel submitted that the summary judgment procedure prescribed under Order 16 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 is an exception to the usual trial procedure and that the purport of the provision is to save the time of the Court and to shield the Court and an aggrieved Claimant from undergoing an unnecessary ordeal of a Defendant’s frivolous defence when it is apparent from the facts of the case that the Defendant has no defence to the claim, and he cited U.B.A. Plc. v. Jargaba [2007] 11 NWLR (Pt.1045) 247 at 270 Paras F-H; University of Benin v. Kraus Thompson Organisation Ltd & Anor [2007] 14 NWLR (Pt. 1055) 441 at 476 paras E-F.  He submitted that from the affidavit and exhibits, it is beyond any doubt that the defendant neglected to perform its obligation under the employment contract Exhibit  Speelman 1. He submitted that the Defendant has no defence to the claim and urged the Court to enter judgment in favour of the Claimant. 

Decision

[6] I have carefully considered all the processes filed by the Claimant. Order 16 Rule 4 and Rule 5 (1) of the Rules of Court provide as follows:

4.           Where a party served with the processes and documents referred to in rule 1 of this Order intends to defend the action such a party shall, not later than the time prescribed for defence, file:

         (a)  a statement of defence;

         (b) documents to be used in defence;

(c) a counter affidavit and a written brief in reply to the application for summary   judgment; and

(d) written statement on oath of all witnesses listed to be called by the defendant   other than witnesses to be subpoenaed.

5. (1) 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.

(2) Where it appears to the Court that a party does not have a good defence the Court    may thereupon enter judgment for the Claimant.

[7] The Defendant has not complied with Order 16 Rule 4 despite being served with all the  processes. This is indicative of the fact that the Defendant does not intend to defend this action because it has no defence to the action. In the absence of any defence, it is taken that the Defendant has admitted all the facts contained in the pleadings, the Claimants deposition on oath, and the supporting affidavit to this motion for summary Judgement. See Egbarin v Aghoghovbia [2003] 16 NWLR (Pt 846) 380, Tahir v Udeagbala Holdings [2004] 2 NWLR (Pt 857) 451.

[8] I am satisfied that on the affidavit evidence particularly Exhibit Speelman 1, 3, 4, 5 and 6 that the Claimant has established his claims against the Defendant who has failed to enter appearance and to file a defence despite being aware of the pendency of this suit.

[9] Consequently, an Order entering summary judgement against the Defendant is hereby granted.

[10] The Defendant is Ordered to pay the following sums to the Claimant:

1. The sum of $7,500.00 (Seven Thousand Five Hundred United States Dollars), being one month’s salary in lieu of notice of termination.

2. Costs in the sum of N2,000,000.00 (Two Million Naira) in favour of the Claimant.

3. The sums are to be paid within 30 days. Thereafter, interest at the rate of 10% per annum will be paid on any sum outstanding till the judgment debt is liquidated.

Judgement is entered accordingly.

_____________________________

Hon. Justice O.A. Obaseki-Osaghae