IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT.
BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.
Dated: 24thday of June, 2019 SUIT NO: NICN/PHC/133/2018
Hon. Sampson Amaele---------------------------------CLAIMANT
Etche Local Government Council---------------------------DEFENDANT
G.K. Elikor for the Claimant
T.N. Gboeloh with AnthoniaOnyekere for the Defendant.
This suit was commenced by a general form of complaint filed on the 22nd of November, 2018 along with a statement of fact, list of witnesses, witness statement on oath, list of documents to be relied upon and copies of the documents.
Arising from the complaint and statement of fact, the Claimant is claiming against the Defendant as follows:
The sum of N13, 208,096.96 (Thirteen Million, Two Hundred and Eight Thousand, Ninety Six Naira, Ninety Six Kobo) being the outstanding statutory entitlements owed and due the Claimant under the Rivers State Public and Political Office Holders’ Salaries, Allowances and Fringe Benefits Law, No. 4 of 2002 and under the Rivers State Public and also Political Office Holders’ Salaries, Allowances and Fringe Benefits (Amendment) Law, No. 2 of 2007, which outstanding debt the Defendant acknowledged on 7th of March, 2013 when it paid to the Claimant the sum of N250,000.00 (Two Hundred and Fifty Thousand Naira) out of the aforesaid debt and thereafter interest at the rate of 21% from the date of judgment until the judgment debt is fully liquidated.
On the same date the Complaint was filed, the Claimant also filed a motion on notice brought pursuant to Order 16 Rule 1 of the National Industrial Court Civil Procedure Rules 2017 and the Inherent Jurisdiction of this court. The said Motion on notice is praying the court for:
- An Order of this Honourable Court hearing this suit under the summary judgment procedure and entering judgment accordingly.
- And for such or further Orders as this Honourable Court may deem fit to make in the circumstances.
The Motion was supported by an 18 paragraphed affidavit deposed to by the Claimant, Hon Sampson Amaele and a written address.
Reacting to the Claim, the Defendant filed memorandum of conditional appearance on the 18th of March, 2019 and accompanied same with statement of defence, witness statement of oath, list of documents, list of witnesses and copies of the documents to be relied upon.
The defendant also reacted to the application for summary judgment by filing on the 18th of March, 2019 a counter affidavit of 17 paragraphs deposed to by one Mr. ZoryiiNwiamanie and a written address.
The Defendant also filed on the 18th of March 2019, a notice of preliminary objection brought pursuant to sections 128, 129 (1) and (2) of the Rivers State Local Government Law No.5 of 2018 and the inherent jurisdiction of this Honourable Court. The notice of Preliminary Objection is praying this court for:
An Order striking out this suit against the Defendant/Applicant for having not been commenced in accordance with the mandatory provision of Sections 128 and 129 (1) and (2) of the Rivers State Local Government Law no. 5 of 2018.
And for such order(s) that this Honuorable Court may deem fit to make in the circumstance.
In support of the notice of preliminary objection, the defendant filed an 11 paragraphed affidavit and a written address.
Reacting to the preliminary objection, Claimant on the 29th of March, 2019 filed a 19 paragraphed counter affidavit deposed to by Golden Elikor and a written address in opposition.
In view of the forgoing, I find it apposite to first determine the preliminary objection filed by the Defendant owing to a consideration of the grounds upon which the objection is based and in view of the fact that same touches on the Jurisdiction of this court. It is also important to consider the preliminary objection first in view of the fact that the application made by the Claimant is one seeking for the court to enter summary judgment. There is no gainsaying that any judgment entered by a court that is lacking jurisdiction is a nullity. The court in Otu v. A.C.B (2008) Vol. 3 M.J.S.C 191 at 219 paras. D clearly posited that:
"Any judgment or decision given without jurisdiction is a nullity and ought to be set aside. See Skenconsult Nig. Ltd v. Ukay (1981) NSCC Vol 12.P.1."Per Muhammad JSC.
Having said that, the grounds upon which the preliminary objection is based are thus:
- That Section 128 of the Rivers State Local Government Law no. 5 of 2018 (A State Legislation applicable in all actions against the Defendant/Applicant) makes it mandatory/precondition for any person who intend to bring an action against the Defendant to commence such action within 6 months from the day the cause of such action arising from damage, neglect or cessation of the act complained of or such action shall not lie.
- Section 129 (1) and (2) of the Rivers State Local Government Law no. 5 of 2018 (A state Legislation applicable in all actions against the Defendant/Applicant) makes it mandatory for an intending Claimant to give at least one month pre-action notice to the Defendant/Applicant before such action shall lie.
Arising from the written address in support of the objection, counsel to the Applicant T.N. Gboeloh Esq. formulated two issues for determination to wit:
- Whether the instant suit was initiated through the due process of law having not been brought within 6 (six) months after Claimant/Respondent became aware of Defendant/Applicant’s alleged act of neglect, damage and non-execution or compliance with the provisions of the Rivers State Public and Political Office Holders’ Salaries, Allowances and Fringe Benefits Law No. 4 of 2002 and its 2007 amendment?
- Whether the instant suit is incompetent and liable to be struck out having not been initiated with due process of the law to wit- issuance of the mandatory pre -action notice pursuant to Section 129 (1) and (2) of the Rivers State Local Government Law no. 5 of 2018?
In arguing issue one, counsel contended that the answer to the question formulated is in the negative and reproduced the provision of section 128 of the Rivers State Local Government Law no. 5 of 2018.
Counsel also provided the meaning of ‘action’ according to Black’s Law Dictionary, Tenth Edition at page 266 and cited the cases of EGBE V. ADEFARASIN (1987) 18 N5CC (PT. 1) 1 and P. N. UDDOH TRADING CO LTD V. ABERE (2001) FWLR (PT.57) 900 @ 916, Paras. G-H on the meaning of cause of action. He then submitted that the Claimants cannot pursue the cause of action in this matter regard been that what led to the complaint was done since 1999 and this suit was instituted in 2013 hence the cause of action is statute barred.
Counsel cited the case of C. B. N. V. HARRIS (2017) 11 NWLR (PT.1575) 54 @ 78, Paras. C-G, referred to paragraph 1,3 and 4 of the Claimant’s statement of facts and contended that t is trite that where a statute prescribes that an action must be filed in court within a specific period, such provisions of the law must be strictly complied with, in order to avoid being caught up by the limitation under the law.
He added that the Claimant/Respondent cannot by filing this action outside the limitation period confer jurisdiction on the Court and cited the case of FRN V. SOLOMON & 20R5 (2017) 12 S.C (PT III) 177 AT 209.
With regards to issue two, counsel submitted that the answer to the formulated question is in the negative and cited section 129 (1) and (2) of the Rivers State Local Government Law no. 5 of 2018. He added that this suit was filed in disobedience of the section as the Claimant failed to comply with section 130 of the same law which provides for the method of the service of the notice.
Counsel contended that it is trite that when there is a statutory provision regulating the commencement of an action, such statute must be obeyed in order to cloth the Courts with the requisite jurisdiction necessary for it to exercise its power. He cited the case of OWNERS MV “ARABELLA” V. N.A.I.C. (2008) 11 NWLR (1097) 182 @ 290, paras. A-G.
Counsel further cited the case of AZUBUIKE V. GOVERNMENT OF ENUGU STATE & ANOR (2014) 5 NWLR (PT. 1400) 364 @399 - 400, PARAS G-B, RATIO 19 and submitted that the compliance with service of the Pre-action Notice is mandatory in view of the use of the word ‘shall’ and urged the court to hold that the Claimant commenced this suit in violation of the extant law and same ousts the jurisdiction of this court.
Counsel concluded by asking the court for cost in the sum of N100,000.00.
Reacting to the arguments of the counsel to the Defendant, Counsel to the Claimant, T.N. GboelohEsq formulated two issues for determination to wit:
- Whether in view of the Court of Appeal decision in SIFAX (NIG) LTD VS. MIGFO LTD  All FWLR PART 803, p. 1857 @ 1869 RATIO 8 (1901) paras. C-D, this suit can be said to be statute barred.
- Whether in view of the Claimants Pre-Action Notice dated 24/05/13 andOne Month Statutory Notice dated 24/06/2013 (EXHIBITS “G(i) & (ii)”), theClaimant can be said to have failed to comply with the provisions of sections129(1) and (2) of the Rivers State Local Government Law No. 5. 2018.
In arguing issue one, counsel posited that S. 128 of the Rivers State Local Government Law provides for a limitation period of Six (6) months and from the writ of summons the suit was first filed on the 23/8/2013 at the High Court when the cause of action arose, after the defendant has on the 7/3/2013 lawfully acknowledged the said debt, when it paid the Claimant and other Councilors Office Holder in the said council the sum N250,000(Two Hundred and Fifty Thousand Naira) each out of the aforesaid debt owed the claimant. Counsel cited S. 28 (5) (a) and S. 2(a) & (b) of the RIVERS STATE LIMITATION LAW, 1999 to posit that the date the cause of action accrued is on the date of acknowledgment of the debt which is 7th March, 2013 and it was within time to have instituted the action on the 23rd of August 2013. Counsel also cited the case of NATIONAL UNIVERSITIES COMMISSION VS. OLUWO (2001) 3 NWLR (Pt. 699) PAGE 90 @ 108 — 109 Paras H — A.
Counsel argued that even though the tenure of the Claimant elapsed on 31/5/2007, the payment of N250,000 to the Claimant on the 7th of March, 2013 amounted to an acknowledgment of debt and thus a revival of the cause of action.
Counsel added that upon the striking out of this suit from the High Court of Rivers State for lack of jurisdiction, it was then filed in this court on the 22/11/2018 and the computation of time during the pendency of the matter at the High Court had frozen. Counsel cited the case of SIFAX (NIG) LTD VS. MIGFO LTD  All FWLR PART 803, p. 1857 @ 1869 RATIO 8 (1901 paras. C-D). Counsel concluded that this suit cannot be said to have been statute barred in view of the foregoing.
With regards to issue two, counsel submitted that that the provisions of Sections 128 and 129 (1) and (2) of the Rivers State Local Government Law No.5. 2018 were duly complied with by the Claimant. He referred the court to paragraph 14 — 16 of the Claimant’s Counter affidavit to the Defendant’s Preliminary Objection and placed reliance on EXHIBITS “G(i), (ii), (iii) & (iv)” i.e. the Pre-action Notices attached to the said paragraphs.
Counsel concluded by urging the court to refuse this application with a substantial cost of N100, 000.00 as same is lacking in merit and a way of wasting the time of this Honourable Court.
By way of a reply on point of law filed by the defendant on the 10th of April, 2019, counsel to the Defendant/Applicant argued against the issues formulated by counsel to the Claimant in opposition of the preliminary objection.
He contended that the case of SIFAX (NIG) LTD VS. MIGFO LTD  All FWLR PART 803, p. 1857 @ 1869 RATIO 8 (1901 paras. C-D) does not apply as the facts are distinguishable in view of the fact that the Claimant instituted an action at the High Court 6 years and 6 months after the cause of action arose. He referred the court to paragraph 1,3 and 4 of the statement establishing cause of action.
Counsel contended that the allegation of payment of N250,000 is merely an attempt to breathe a new life into the suit that is stale.
Counsel added that the pre-action notices dated 24/05/2013 and 24/06/2013 were allegedly sent to the Defendant after 6 years, 3 months and 6 years and 4 months respectively after the cause of action and are therefore incurably bad.
In view of the foregoing, I have taken a careful consideration of the grounds of the preliminary objection, the depositions in the affidavit and counter affidavit and also the further affidavit in support and in opposition of the preliminary objection. I have also given adequate consideration to the argument of both counsel based on the issues formulated. Consequently, I find that the issues for the determination of the preliminary objection are to wit:
- Whether in view of the facts and circumstances of this case, this suit is statute barred, thereby robbing this court of jurisdiction.
- Whether or not the Claimant complied with the issuance of pre-action notice, failure of which robs this court of jurisdiction.
In addressing issue one, I must commence by reckoning that the jurisdiction of this court is challenged by the Defendant upon the provision of a limitation law which is founded in the Rivers State Local Government Law No.5 of 2018 which limits suits against the Local Government Council. The said provision is likened to the general provision of the Public Officers Protection Act which has been considered by a plethora of authorities as a statute of limitation. For the sake of clarity, I find it apposite to reproduce the provision of section 128 as cited by the Counsel to the Defendant:
When any suit is commenced against any Local Government Council for an act done in pursuance, or execution or intended execution of any Law, or of any public duty or authority, or in respect of any alleged neglect or in the execution of any Law, duty or authority, the suit shall not lie or be instituted unless it is commenced within 6 months after the act, neglect, damage or injury within 6 months after the cessation of the act.
Having said that the foregoing provision is a statute of limitation, the meaning, purpose and rationale of such statute of limitation have been captured extensively by the Supreme Court in the case of ALHAJI (DR.) ADO IBRAHIM v. ALHAJI MAIGIDA U. LAWAL & ORS(2015) LPELR-24736(SC) when it held that:
“The above provision is quite clear and simple. Its general effect is that where a law provides for the institution of an action in a court of law within a prescribed period in respect of a cause of action accruing to the plaintiff, proceedings shall not be brought after the expiration of the period circumscribed by law. More often than not, the laws of this country and elsewhere prescribe certain periods of limitation for instituting certain actions in court. The statutes that prescribe such periods and regulate the subsistence of causes of action are known as statutes of limitation. It follows that where a statute of limitation prescribes the period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where any action is statute barred, a plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because the period of time laid down by the limitation for instituting such an action has elapsed. See Egbe v. Adefarasin&Anor. (1987) 1 NWLR (Pt. 47) 1 at 21, Oba J. A. Aremo II v. Adekanye& 2 Ors.(2004) 13 NWLR (Pt. 891) 572, Egbaigbe v. NNPC (1994) 5 NWLR (Pt. 347) 649, Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637, Sanda v. Kukawa Local Government (1991) 2 NWLR (Pt. 174) 379. One may wonder why a person's right of access to court should be extinguished by law. The rationale for the existence of statute of limitation is that long dormant claims have more of cruelty than justice in them and that a defendant may have lost the evidence to disprove a stale claim and that a person with a good cause of action should pursue it with reasonable diligence. See John Ekeogu v. Aliri (1990) 1 NWLR (Pt. 126) 345. …Per OKORO, J.S.C.
In order to apply the said statute of limitation, a yardstick have also been set by the court in the case of AJAYI V ADEBIYI (2012) 11 NWLR (Pt.1310) p.146 where the court posited that the yardsticks to apply in determining whether an action is statute barred are:
- The date when the cause of action accrued;
- The date of commencement of the suit as indicated on the writ of summons (in this case the Complaint and statement of fact); and
- The period of time prescribed to bring an action to be ascertained from the statute in question.
To apply the first yardstick, it is ideal to first consider what the cause of action is in the instant suit, bearing in mind the meaning of cause of action as enunciated in the case of SIFAXNIGERIA LTD & ORS v. MIGFO NIGERIA LTD & ANOR (2015) LPELR-24655(CA) that:
"...cause of action is defined in Black’s Law Dictionary, 9th Edition at Page 57 as: "A group of operative facts giving rise to one or more basis for suing; a factual situation that entitles one person to obtain a remedy in court from another person." Authorities have also defined cause of action as a factual situation which a Plaintiff relies upon to support his claim, recognized by law as giving rise to a substantive right capable of being enforced against a Defendant. See AGBANELO VS UNION BANK OF NIGERIA LTD (2002) 4 SC (PT.7) 243; ADESOKAN Vs ADEGOLORU (1997) 3 NWLR (PT.493) 61; EMIATOR VS NIGERIAN ARMY (1999) 12 NWLR (PT.631) 362; AKANDE vs ADISA (2004) ALL FWLR (PT.236) 413.
In view of the forgoing meaning, there is no gainsaying that the cause of action can only be found in the statement of fact as filed by the Claimant in this suit.
Upon a perusal of the said statement of fact, I must state foremost that I take cognizance of the fact that the claim made by the Claimant is for payment of N13,208,096.96 as statutory entitlement. The statutory entitlement came about when the Claimant was in office as Councilor in the Defendant Local Government between 2004 - 2007. Claimant also alleged that the law regulating the statutory entitlement was amended in February, 2007 and yet he was not paid the various increment arising from the amendment. The breakdown of the said sum was captured in paragraph 6 of the statement of fact to include Annual Basic Salary, broken down to cover accommodation, transport, furniture allowance etc. Claimant averred that the said sum was not paid but by 7th of March, 2013, the Defendant paid the sum of N250,000 by cash and has since failed to pay the outstanding sum.
In view of the foregoing, there is no gainsaying that the cause of action which made the Claimant approach the court for remedy is the alleged failure of the Defendant to pay his entitlement for serving in the office of councilor of the Defendant between 2004 – 2007.
Having found the cause of action, applying the first yardstick becomes effortless as it is clear that the sum due to the Claimant accumulated on 31st May, 2007 when he left office.
The Claimant however, contended that the Defendant paid him the sum of N250,000 on 7th March, 2013 as a means of acknowledging the debt and publicized same in a newspaper.
I reckon that the Counsel to the Defendant in the further affidavit and reply on point of law contended that there was never any money paid to the Claimant but I must state clearly that it is trite that it is the statement of fact (usually statement of claim) that is to be considered when determining cause of action; not the affidavit, counter affidavit, or further affidavit and not even the statement of defence.
The court held in IBRAHIM v. SHERIFF & ORS(2014) LPELR-23472(CA) that:
"It was held in the case of Agi v Eno (2010) 5 NWLR (Pt. 1188) Page 626 at Page 647 Para B-C per Ngwuta JCA (as he then was) that it is the cause of action, as determined from the originating process and statement of claim, that is relevant for the determination of whether a suit is time barred. A court cannot go outside the originating process and determine the accrual of the cause of action. It was similarly held in the case of Egbe v Adefarasin (1987) LPELR 1032, cited by the 3rd Respondent's Counsel, per Oputa JSC at Page 32 Para C that one determines the period of limitation by looking at the Writ of Summons and the Statement of Claim." Per ADEFOPE-OKOJIE,J.C.A. (Pp.26-27,paras.E-A) See also the case of INEC V. OKORONKWO(2009) LPELR-4321(CA).
On the strength of the foregoing, the contentions of counsel to the Defendant in this regard is for the time being discountenanced. That notwithstanding, I reckon that counsel to the Defendant contended that the cause of action accrued in May, 2007 when the tenure of the Claimant as Councilor ended.
That said, I also reckon that the date on the Complaint filed by the Claimant is 22nd of November, 2018 being the date the suit was instituted before this court and rightly over 11 years after the Claimant left office and clearly far outside the 6 months prescribed by section 128 of the Rivers State Local Government Law No.5 of 2018.
Although counsel to the Claimant considered and contended that the acknowledgment of the debt by the Defendant revived the cause of action in February 2013 and also contended by citing the case of SIFAX (NIG) LTD VS. MIGFO LTD  All FWLR PART 803, p. 1857 @ 1869 RATIO 8 (1901 paras. C-D) that the suit initially filed at the High Court of Rivers State froze the computation of time. I have perused the exhibits attached to the Counter affidavit in opposition of the preliminary objection and find rightly so that the suit was filed at the High Court on the 28th of August 2013, less than 6 months after the 7th of March 2013. Where that is the case, the case of Sifax as cited by counsel would ordinarily be apt in conferring jurisdiction on the court as the time spent at the High Court would be excluded in the computation of the 6 months provided by the limitation law in question. In relation to the Sifax case, counsel to the Defendant still contended that same did not apply as the cause of action did not arise on the 7th of March, 2013.
While it is in principle that acknowledgment or part-payment is founded on the theory that by so doing the debtor establishes a fresh contractual relationship so that a cause of action then starts to run from the date of the fresh contractual relationshipas held in the case of THADANI & ANOR. v. NATIONAL BANK OF NIGERIA LTD. & ANOR. (1972) 1 S.C and the acknowledgment of the debt would revive a suit and renew the period of limitation, I must point out that both counsel have not been mindful of the nature of debt before the court.
The debt before the court is not in the general class of debt as it is one that accrued from a work done by the Claimant while in office as Councilor. The debt in question as highlighted in the statement of fact is an entitlement incorporating salaries that was allegedly unpaid for a period of work done. I must point out that the position of the law which is settled in this regard has not been appreciated by the parties and it is the only way to justifiably determine whether or not this suit is statute barred.
That said, while the court has generally maintained that limitation law applies to contract of employment as stated by the Supreme court in UNIVERSITY OF JOS v DR. SANI MUHAMMAD ADAM (2015) 5 ACELR 106. Per AlomaMukhtar (CJN as she then was), it must be noted that same is applicable mostly in situations of termination of employment.
The exception to the application of the statute of limitation is rightly in situations when the claim is for payment for labour or work done as same is regarded as a continuance of injury. In the case of Hon. RunyiKanu (JP) &Ors v The Attorney General & Commissioner for Justice, Cross River State &Ors (2013) 32 NLLR (Pt.91) 63 NIC, the court held that:
“In cases of claims for salary and allowances, the decision of this court in John Ovoh v. The Nigerian Westminster Dredging &Marine Company Ltd and Captain Tony Oghide&Ors v Shona Jason Nig. Ltd would appear to be good law if the test on “continuance of damage or injury” laid down in the recent Supreme Court decision in AG, Rivers State v AG, Bayelsa state &Anor (2013) 3 NWLR (Pt.1340) 123 at 144 – 150 is met. In that case, at pages 148 – 149, the Supreme court held that the case for the deprivation of allocation, which the Plaintiff was entitled to every month and same has not ceased, was a situation of continuance of damage or injury which has not ceased’ and so the defence of the Public Officers Protection Act would not avail the 1st Defendant who had raised it”. Per Kanyip. J.
Earlier, the court in Captain Tony Oghide&Ors v Jason Air Ltd (2011) 22 NLLR (Pt.61) at 63 had held that:
“The National Industrial Court has held severally that labour disputes associated with salaries or payments for work done cannot be caught up by the limitation laws”
In addition to the foregoing, the court in ENERGY MARINE AND INDUSTRIAL LIMITED V. MINISTER OF THE FEDERAL CAPITAL TERRITORY & ANOR (2010) LPELR (CA) held that:
“Even though Section 2 (a) of the Public Officers Protection Act stipulates that actions against Public Officers ought to be instituted within 3 months of the act, neglect or default complained of by an aggrieved plaintiff, but there are some exceptions to that general position of law, for example the law is not applicable in cases of recovery of land, breaches of contract, and claims for work and labour done”.
While I reckon that there is a contention as to whether the cause of action arose in 2007 or 2013, there is no conflict as to the fact that the cause of action is for claim of entitlement including salaries for work done by the Claimant while serving in the Defendant as Councilor between 2004 – 2007. The said service and the wages if unpaid, cannot be caught up by any statute of limitation be it state or federal enactment.
Consequent upon the foregoing, the suit of the Claimant being for claim for entitlement is not statute barred and I so hold. The objection of the Defendant is overruled in this regard.
With regards to issue two, the contention of the Defendant is that the Claimant did not serve on the Defendant statutorily required Pre-action Notice as stipulated by section 129 of the Rivers State Local Government Law No.5 of 2018. He added that if there was any such service, same were not validly issued since they were issued after 6 years. In response, counsel to the Claimant contended that the two notices served on the Defendant before the commencement of the suit at the High Court is annexed as exhibits to the Counter affidavit in opposition to the preliminary objection.
In view of the foregoing contention, I find it apposite to consider the essence of Pre-action notice as stated in the case ofEZE V. OKECHUKWU (2002) 12 S.C. (PART II) 103 where the court held that:
"The requirement of pre-action notice where this is prescribed by law is known to have one rationale. It is to apprise the defendant before-hand of the nature of the action contemplated and to give him enough time to consider or reconsider his position in the matter as to whether to comprise or contest it. The giving of pre-action notice has nothing to do with the cause of action. It is not a substantive element but a procedural requirement, albeit statutory, which a defendant is entitled to before he may be expected to defend the action that may follow. "PER UWAIFO J.S.C. (P.13, Paras.B-D)
That said, it is also important to take cognizance of the effect of failure to serve a pre-action notice on a defendant. In this regard, the court in the case of SARKI & ORS v. MINISTRY FOR CHIEFTAINCY AFFAIRS, KADUNA STATE & ORS(2014) LPELR-23604(CA) posited that:
“Where a pre-action notice is required to be served before commencing a suit, the consequence of failure to do so is that the jurisdiction of the Court has not been activated but put in abeyance until the requirement is fulfilled. See NNOYE V. ANYICHIE (2005) 1 SC (Pt. II) 96." Per AKEJU, J.C.A. (P. 18, paras. B-E).
I have in view of the foregoing taken a look at the provision of section 129 (1) and (2) of the Rivers State Local Government Law No.5 of 2018 and find it apposite to reproduce same thus:
129 (1) No person shall commence a suit against a Local Government Council unless he has given at least one month notice in writing to the Council of intention to commence such an action.
(2) The notice shall state the cause of action, name and place of abode of the intending plaintiff and the relief which he claims.
Consequent upon the foregoing provision, I have taken a look at exhibit G(i) and G(ii) attached to the counter affidavit in opposition of the preliminary objection and I find that Exhibit G(i) is dated the 24th of May, 2013 and addressed to the Secretary of the Defendant while exhibit G(ii) is dated 24th of June, 2013 and similarly addressed. Both documents are Headed as “ PRE-ACTION NOTICE FOR DEBT OWED HONOURABLE SAMPSON AMAELE”. However, while Exhibit G(i) issued a 7 days’ notice contrary to the provision of section 129 of the Law in question, Exhibit G(ii) issued the requisite one month notice. The service of both documents on the Secretary of the Defendant is evidenced by Exhibit G(iii) and G(iv).
In view of the findings, it is convincing that the Defendant had been notified by the Claimant of his intention to commence an action against the Defendant in compliance with the provision of section 129 of the Rivers State Local Government Law No.5 of 2018.
Consequently, the objection of the Defendant in this regard lacks merit and same is accordingly overruled.
In the final analysis of the preliminary objection, the two issues are resolved against the Defendant and in favour of the Claimant. In other words, this suit is not statute barred and the Defendant have been properly served with a pre-action notice. Consequently, this court possesses the requisite jurisdiction to entertain this matter and the preliminary objection of the Defendant is accordingly dismissed.
Each party is to bear their respective cost.
I then turn to the motion on notice for summary judgment. Arising from the written address in support of the application urging this court to enter summary judgment, Counsel to the Claimant formulated a lone issue to wit:
Whether the Applicant is entitled to the reliefs sought.
In arguing the lone issue, counsel referred the court to Order 16 Rule 1 of NICN Rules, 2017 and submitted that this Honorable Court has the power to grant the Claimant/Applicant’s prayer seeking the leave of this Honourable Court entering this suit for hearing under the summary judgment procedure and to mark the complaint accordingly.
Counsel further cited the Black’s Law Dictionary (9th Edition) which defines summary judgment as a judgment granted on a claim or defence about which there is no genuine issue of material fact and upon which the applicant is entitled to prevail as a matter of law.
Counsel also cited the cases of SODIPO V. LEMMINKAINEN OY & ANOR. (1956) 1 NWLR (pt. 15) 220 at 230; U.B.A. PLC V JARAGARBA (2007) 11 NWLR (Pt. 1045) 247 and THOR LTD. V. FCMB LTD.  14 NWLR (PT.946) 696 to support the position that summary judgment can be entered to dispatch cases that are uncontested and to prevent delay.
Counsel concluded by referring the court to the originating processes and the affidavit in support of the application and the exhibits attached to posit that the Claimant/Applicant on the basis of the cited cases is entitled to the discretion of this Honourable Court in the grant of this application and urged the Court to grant the prayers sought.
Reacting thereto, counsel to the Defendant through the written address in opposition of the application formulated a lone issue to wit:
Whether from the totality of facts deposed to by Defendant/Respondent in her affidavit, a good and formidable defence that will enable this Honourable Court grant leave to the Defendant/Respondent to defend this suit have been disclosed?
In arguing the lone issue, counsel contended that the answer to the formulated question is in the positive and further posited that the material facts deposed to by the Defendant/Respondent in her Counter Affidavit, and the issues joined on each and every averment of facts in her Statement of Defence is sufficient in law to show that the Defendant/Respondent has a robust and formidable defence to this action.
Counsel cited the case of MICMERAH INT’L AGENCY LTD V. A-Z PET. PRODUCT LTD (2012) 2 NWLR (1285) 564 on the meaning of liquidated money demand and the case of ODUME V. NNACHI (1964) 1 ALL NLR 329 on the factors to be considered in determining a liquidated sum
Counsel thereon submitted that that the Defendant/Respondent had copiously deposed to facts in paragraphs 9, 10 and 11 of her Counter Affidavit and paragraph 12 of her statement of defence that she is not indebted to the Claimant/Applicant.
Counsel added that it is not enough for Claimant/Applicant to brandish figures at the Honourable Court but the onus of proof is on the Claimant/Applicant to satisfy the conditions enumerated in the case of ODUME V. NNACHI (supra) and thus, should be made to proof his assertions with credible facts which can only be achieved by dismissing Claimant/Applicant’s application for summary judgment and direct the Claimant/Applicant to proof his case with credible evidence. Counsel cited the case of ONYEMELUKWE V. WEST AFRICAN CHEMICLA COMPANY LTD. (1995) 4 NWLR (PT. 387) 44.
Counsel further cited UNIBEN V. K.T ORGANISATION LTD (2007) 14 NWLR (PT. 1055) 441 AT 462 PARA C to contend that what the trial court look for when determining whether or not to grant leave to defend a suit are facts which will raise a triable issue, and not proof of those facts.
Counsel concluded by urging the court to refuse the Claimant/Applicant’s application and grant the Defendant/Respondent leave to defend this suit on the ground that from the totality of facts deposed to by Defendant/Respondent in her affidavit, the Defendant has a good and formidable defence.
Upon the foregoing, I have paid a careful attention to the application for entering summary judgment brought by the Claimant pursuant to the rules of this court. I have also considered the affidavit in support and counter affidavit in opposition together with the accompanying annexures. The arguments of counsel to both parties have also been taken into account as I find that the sole issue for the determination of this application is to wit:
Whether or not the Defendant has a good defence to prevent the court from entering summary judgment.
In resolving the sole issue, I must start by stating that theRules of this Court which allows the Claimant to apply for summary judgment also gives the Defendant the opportunity to state whether he has a defence or not and also gives this court the discretion to determine same. While the application of the Claimant is pursuant to Order 16 Rule 1, the opportunity for the Defendant to indicate intention to defend and the duty of the court to determine the application is captured in Order 16 Rule 4 and 5 respectively. For the sake of clarity, Order 16 Rule 4 and 5 provides thus:
- 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.
In compliance with Rule 4, I find that the Defendant filed the prescribed document and in the affidavit in opposition of the application, contended that the defendant has a formidable defence in reaction to the belief of the Claimant that the Defendant has no defence. The conflict of belief is what triggers the duty of the court to determine whether or not the Defendant has a good defence.
The exercise of the duty of determining whether there is a good defence starts with reckoning what summary judgment itself entails. This was clearly captured by the court in the case of KEHINDE v. OKPARAONU (2013) LPELR-21926(CA) where the court held that:
"A summary Judgment is a procedure for disposing with dispatch, cases which are virtually uncontested. It also applied to cases where there can be no reasonable doubt that a Plaintiff is entitled to Judgment and where it is inexpedient to allow a defendant to defend for mere purpose of delay. It is plain and straight forward, not for the devious and crafty. See SODIPO V. LENIKAINEN (1986) 1 NWLR (pt 15) 229...." Per IGE, J.C.A. (P. 20, paras. C-E).
In addition to the foregoing, the court in AKPAN v. AKWA IBOM PROPERTY & INVESTMENT COMPANY LTD(2013) LPELR-20753(SC)held that:
"Summary Judgment therefore is a judgment granted on a claim or defence about which there is no genuine issue of material fact and upon which the movant is entitled to prevail as a matter of law. For this type of judgment, the court will only consider the contents of the pleadings, the motions and additional evidence adduced, such as documents produced as Exhibits, by the parties rather than one of law. This procedural device allows speedy disposition of a controversy without the need for trial. See; Bona V. v. Textile Ltd. &Anor.v. Asaba Textile Mill Plc (2012) 12 SCNJ 28, (2012) 12 SC (pt.1) 25. (2012) 213 LRCN 63; (2013) 2 NWLR (pt.1338) 357; Nkwo Market Community Bank (Nig) Ltd (NMCB) v. Obi (2010) 14 NWLR (Pt.1213) 169 SC; (2010) LPELR 2051(SC)." Per ARIWOOLA, J.S.C
Arising from the foregoing authorities, the question that necessarily follows is whether based on the pleadings before this court and the motion and accompanying exhibits, it is inexpedient to allow the defendant to defend this suit and whether there is no doubt that the Claimant is entitled to judgment?
There is no gainsaying that to answer the foregoing, question, a perusal of the pleadings before this court must be carried out to find the claims made by the Claimant against which he nurtures the belief that the Defendant has no defence and to also find what the Defendant has put forward as good defence to support his intention to defend the suit.
Before carrying out the findings, it is imperative to also state from the onset that the ‘defence’ to be disclosed from the pleadings of the Defendant is reckoned by the Rules of this court to be a ‘good defence’ and not some frivolous statement in defence. It is in this light that it is imperative to identify what a good defence is. In this regard, the court in the case of Sanusi Bros. (Nig,.)Ltd. v. Cotia C. E. I. S. A. (2000) 11 NWLR (Pt.679)566 held that:
"To show that he has a good defence to the claim on the merits, the defendant must disclose facts to satisfy the court, usually by affidavit. To achieve this, he is required to condescend upon particulars and the defence must not be seen as "frivolous and practically moonshine" to use the expression of Lord Lindley in Codd v. Delap (1905) 92 L.T. 810, to "condescend upon particulars" implies a true and real disclosure of facts from which the court can readily discern a good defence."Per WALI, J.S.C. (P. 25, Paras. B-E).
Consequent upon the foregoing, I find that the Claimant is claiming for the sum of N13, 208,096.96 being sum due and unpaid to him while in office as Councilor in the Defendant Local Government. He posited that he was not paid for 34 months. He put the breakdown of the said sum to be as captured in the Rivers State Public and Political Office Holders’ Salaries, Allowances and Fringe Benefits Law No.4 of 2002 and the breakdown of sum owed for April 2004 to January, 2007 was computed thus:
Annual Basic Salary = N380, 038.00
- Accommodation: 100% of basic salary i.e. N31, 669.83 x 34 months = N1,076,774.22
- Transport: 350% of basic salary i.e. Ni 10,844.41 x 34 months = N3,768,709.94
- Furniture Allowance = N1,140,114.00
- Five (5) months unpaid salary (Nov 2005 March 2006) 631,814.85
TOTAL = N6, 617,413.01
While that which is allegedly owed between February,2007 to May, 2007 upon the amendment of the Rivers State Public and Political Office Holders’ Salaries, Allowances and Fringe Benefits Law No.4 of 2002 in the year 2007 was computed thus:
- New Basic Salary: N760,076.00 (Less N380,038.00) x 4 months = N1,520,152.00
- Accommodation:100% of new basic salary i.e. N63, 339.66 x 4 months = N253,358.66
- Transport: 350% of new basic salary i.e. N221 ,688.83 x 4 months = N886,755.33
- Utility: N228,022.80/ 12 = N19,00i.90x4 months = N76,007.60
- MN Maintenance/Fuel: N570,057.00 / 12 = N47,504.75 x 4 months= N190,019.00
- Personal Assistant: N 190,019.00 / 12 = N15,834.91 x 4 months = N63,339.66
- Ward Robe Allowance: N190,019.00 / 12 = N15,834.91 x 4 months = N63,339.66
- Newspaper Allowance: Ni 14,011.40 / 12 = N9,500.99 x 4 months = N38,003.80
- Domestic Staff Allowance: N47,504.75 x 4 months = N190,019.00
- Entertainment Allowance: N19,001 .90 x 4 months = N76,007.60
- Recess Allowance: N6,333.96 x 4 months = N25,335.84
- Constituency Allowance: N9,500.95 x 4 months = N38,003.80
- Furniture Allowance: N19,001.90 x 4 months = N1,140,114.00
- Severance/Gratuity: 300% of new basic salary i.e.N2,280,228.00 x 1 = N2,280,228.00
TOTAL = N6, 840,683.95
Both figures amounting to a total of N13,208,096.96 which is his claim before the court
The Defendant through paragraph 11 of the affidavit in opposition to the application and paragraph 5 of the statement of defence in reaction to the Claims of the Claimant, posited that the sum of N126, 362.97 (One Hundred and Twenty Six Thousand, Three Hundred and Sixty Two Naira, Ninety Seven Kobo) only was regularly paid into Claimant’s account at United Bank for Africa Plc., Rumuokoro Branch, Port Harcourt throughout the duration of Claimant’s tenor as Councilor after Claimant must have signed Salary Schedule for Political Office Holders. The defendant pleaded copies of Etche Local Government Sub-receipts vouchers for the months of June 2006, May 2006, August 2004, February 2007, sub treasury receipt dated 24/12/2014, 18/04/2008 and September 2005 and intends to rely on them during trial. The Defendant also puts Claimant on notice to produce his UBA Bank statement of account from 28/04/2004 to 29/05/2007.
Furthermore, I find that the Defendant through paragraph 10 of the counter affidavit and paragraph 4 of the statement of defence puts up a computation of the Claimant’s salaries which is different in particulars but under the same Rivers State Public and Political Office Holders’ Salaries, Allowances and Fringe Benefits Law No.4 of 2002. The salary computation put up by the defendant reads thus:
- I) Utility/entertainment N9,501.00
- m) Transport/motor vehicle maintenance N41, 170.00
- n) Domestic allowances N25, 335. 87
- o) Recess - N19,001.92
Total - N95, 009. 62
- p) Basic salary N31, 650.00
Subtotal N126, 679.62
- q) Less PAYE N000, 316.70
Grand total of Monthly Salary N126, 362.97
In view of the foregoing findings from the statement of defence and counter affidavit in opposition, particularly in view of the discrepancies in figures presented as the entitlements of the Claimant under the same law represented by both parties and in view of the fact that the Defendant alleged having paid the Claimant his entitlements, it is more than certain that reasonable doubts has been casted on the claims of the Claimant by the defence put in by the Defendant. For emphasis, the defence put up by the Defendant is a good defence as the Defendant has condescended on particulars and stated facts that will prevent the court from entering judgment without full trial.
In the final analysis and in line with the provision of Order 16 Rule 5, this court finds that the Defendant has a good defence and ought to be permitted to defend the Claim. Consequently, the lone issue is determined in favour of the Defendant and against the Claimant.
The application of the Claimant to enter summary judgment is considered lacking in merit and accordingly dismissed.
Ruling is accordingly entered for the preliminary objection and the application for summary judgment.
I make no order as to cost.
HON. JUSTICE Z. M. BASHIR