IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
BEFORE HIS LORDSHIP, HON. JUSTICE S.H. DANJIDDA PRESIDING
ON THE 19TH DAY OF JUNE, 2019
SUIT NO: NICN/MKD/54/2018
MR. ZACHEAUS I. AYOUGH CLAIMANT/APPLICANT
1. BENUE STATE GOVERNMENT
2. THE HEAD OF SERVICE BENUE STATE
3. THE ATTORNEY-GENERAL AND
COMMISSIONER FOR JUSTICE BENUE STATE DEFENDANTS/RESPONDENTS
F.T. Kusugh for the Claimant
J.A. Okwe (DDLD) Benue State Ministry of Justice for the Defendants.
This is a ruling in respect of two applications. Firstly, the Claimant/Applicant brought before this Honourable Court an application for Summary Judgment while the Defendants brought a Notice of Preliminary Objection. By the application for summary judgment dated 30/07/2018 but filed on 02/08/2018, the reliefs sought by the applicant are stated thus:
“1. AN ORDER for summary judgment in favour of the Claimant/Applicant against the Defendants.
2. AND FOR SUCH FURTHER ORDER OR ORDERS as the Honorable Court may deem fit to make in the circumstances”.
The grounds for the application are that:
“1. The Claimant has earned his gratuity which gratuity has become due and has remained unpaid for no justifiable reason in spite of demands for same.
2. The Defendants/Respondents have no defence to this action”.
A 13-Paragraph Affidavit was deposed to in support of the application by Claimant/Applicant. In it, the Claimant stated that he was given temporary appointment by the 1st Defendant on 8th July, 1981 while his appointment was confirmed on 13/03/1986. That he served satisfactorily and retired upon attainment of the 35 years in service on the 24th of February, 2016, as Deputy Director of Education (DDE) on GL 15/9. That he is entitled to his gratuity of N6,625,044.00 (Six Million, Six Hundred and Twenty Five Thousand, Forty Four Naira) only, which has not been paid.
The Claimant is also claiming eleven (11) months arrears of pension owed him in the sum of One Million, Six Hundred and Nineteen Thousand, Four Hundred and Fifty-Four Naira, Seventy-Seven Kobo (N1,619,454.77).
The Applicant averred that his demands for payment of his outstanding gratuity and pension have been ignored and/or dishonoured by the Defendants/Respondents. The Applicant has therefore stated that he believes that the Defendants do not have any defence to his claim, hence the instant application. 7 Exhibits were annexed to the affidavit of the Claimant, to wit: EXHIBIT A is a copy of Claimant’s offer of Temporary Appointment; EXHIBIT B is Claimant’s Letter of Offer of Pensionable Appointment; EXHIBIT C is Claimant’s letter of approval of retirement; EXHIBIT D and EXHIBIT E are copies of the Computation for Payment of Claimant’s Retirement Benefits; EXHIBIT F is the letter of Demand upon the Defendants as detailed by the Claimant’s solicitors on 27/06/2018.
Accompanying the application, counsel for the Claimant filed a written address and submitted one issue for determination by this Court, to wit:
"whether from the facts and circumstances of this case, this Honourable Court should exercise its judicial discretion in favour of the Applicant and grant this application?"
Arguing, counsel placed reliance on Order 16, Rule1 of the 2017 Civil Procedure Rules of the Honourable Court along with a number of case-law authorities in urging the court to grant the application for summary judgment in favour of the Claimant/Applicant. Notably, counsel cited the cases of BONA V. TEXTILE LTD V. A.T.M. PLC (2013) 2 NWLR (PT 1368) 377 S.C; AKPAN V. A. I. P. & INV. CO. LTD (2013) 12 NWLR (PT. 1368) 377 S. C; U. B. A. PLC V. JARGABA (2007) 11 NWLR (PT. 1045) 247.
Reacting to the application of the Claimant/Applicant, the Defendants filed an 9 - Paragraph Counter Affidavit to the Motion for Summary Judgment on 27/02/2019. The said Counter Affidavit is deposed to by Mnena Vedegol, an Assistant Registrar in the Department of Litigation, Benue State Ministry of Justice, where She averred that the Claimant/Applicant is a Retiree from Benue State Civil service.
That the 1st Defendant/Respondent did not at any time deny its responsibility to pay the claimant/Applicant his gratuities nor did she take any decision at any time to deny or withhold the claimant’s /Applicant’s gratuities. That in 2016 when the Claimant retired from service, the 1st Defendant caused the gratuities and pensions of the claimant to be computed and a letter of computation was issued to the claimant to that effect. The said letter of computation dated 09/03/2017 was exhibited and marked as Exhibit MOJ2. That the sum of N1,619,454.77 (One Million, Six Hundred and Nineteen Thousand, Four Hundred and Fifty-Four Naira, Seventy- Seven Kobo) and the sum of N6,625,044.00 (Six Million, Six Hundred and Twenty-Five Thousand Forty-Four Naira)only, claimed by the Claimant is not the pensions and gratuities due and payable to the Claimant.
That for the past few years, the revenue allocation to the 1st Defendant from the Federal Account has been dwindling and taking a downward trend. That the dwindling revenue of the 1st Defendant from the Federal Account and generally is due to global economic recession and the fall in the price of Nigerian crude oil. That the inability of the 1st Defendant to pay the Claimant and other retirees in the state is due to dwindling revenue/resources of the 1st Defendant. That in December 2018 and January 2019, the 1st Defendant resumed payment of gratuities to retirees across the board.
That the Claimant was included in the said payment within the limit of the funds available to the 1st Defendant at that time, and the sum of N200,000.00 was allocated to the claimant but he refused to collect the money. That due to inability caused by paucity of funds, the 1st Defendant adopted a scheme whereby available fund is rationed and according to a schedule of payment prepared for retirees. That the Defendants/Respondents have a defence to the action in this suit. That on the 22/11/2018, the Defendants/Respondents filed a Notice of preliminary objection to the jurisdiction of this Honourable on grounds that claimant’s action is statute barred.
A written address of counsel was also filed in support of the Counter-Affidavit.
In it, Counsel basically argued that the non-payment of the Claimant’s gratuity was as a result of dwindling allocation to the state government, occasioned by global economic realities, and that besides that, the Claimant’s suit is statute – barred.
Reacting to the Counter Affidavit of the Defendants/Respondents, the Claimant caused a Further and better affidavit and reply on points of law to be filed, along with an application for extension of time to do so on 11/03/2019.
The Claimant’s further and better affidavit is composed of 8 – Paragraphs, wherein he averred, particularly at Paragraphs 3 to 6 as follows:
"That I discovered from my search of the website of National Bureau of Statistics that between January 2017 to December 2017, the following revenue accrued to the 1st Defendant but the 1st Defendant failed and or neglected to settle my gratuities and pensions:
January, 2017 = N4.95bn;
February, 2017 = N5.7bn;
March, 2017 = N5.17bn;
April, 2017 = N5.71bn;
May, 2017 = N5.08bn;
June, 2017 = N5.75bn;
July, 2017 = N8.46bn;
August, 2017 = N5.85bn;
September, 2017 = N8.16bn;
October, 2017 = N7.08bn;
November, 2017 = N6.73bn;
December, 2017 = N7.73bn;
Internally generated revenue January – December, 2017 = 12.40bn.
That I am also aware that the 1st Defendant generated huge revenues between 2015 and 2018 but failed to settle my gratuity and pensions from source as follows:
September, 2015 Bailout Funds from the Federal Government = N28bn;
November, 2016 –Paris Club Refund 1 = N13.7bn
November, 2016 – Paris Cub Refund 2 = N13.7bn
September, 2018 – Paris Club Refund 3 = N11.6bn
That I know that there is no justification for the Defendants’ continued holding onto my gratuity other than valuing other priorities over and above welfare of senior citizens like myself.
That I honestly believe that the Defendants do not have any Defence to my entire claim."
The claimant’s counsel also filed an accompanying written address wherein he formulated and argued the sole issue thus:
"Whether the Defendants have disclosed a defence on the merits to warrant the matter to be transferred to the general cause list and deny the Claimant the benefit of summary judgment."
In all, based on the submissions and authorities relied upon in argument, counsel urged the court to discountenance the Counter affidavit of the Defendants and proceed to enter summary judgment in favour of the Claimant.
Secondly, there is a Notice of Preliminary Objection dated 21/11/2018 and filed by the Defendants on 28/11/2018. The notice of preliminary Objection is praying for the following:
“1. That the action in this suit is statute – barred and is not to be entertained.
2. That this suit is incompetent and that this honourable court lacks jurisdiction to entertain same.
3. An order of this honourable court dismissing the suit for being instituted flagrantly outside the statutory period of limitation and for being incompetent”.
The stated grounds for the application are that:
“a. The claimant’s action is founded upon issues of pensions and gratuities arising out of a contract of employment that existed between the parties.
b. That the action was commenced in flagrant violation of S.2 of the Public Officers Protection law (Cap. 140) Laws of Benue State, 2004”.
The Defendants’ objection was accompanied with a written address of counsel wherein it was argued and submitted that based upon the provisions of Section 2 of the Public Officers Protection Law(Cap. 140) Laws of Benue State 2004, the claimant’s suit is statute-barred and in violation of law.
Basically, the Defendants’ argument is that the Claimant’s suit is founded upon a contract of employment, and as such the action should have been brought within the 3 months stipulated by law. That the Claimant’s failure to bring the suit within that time rendered it incompetent, robbing the court of jurisdiction to entertain same. Counsel cited the cases of GOODWILL CO. LTD V. CALABAR CEMENT CO. LTD & 5 ORS (2010) ALL FWLR (PT. 544) 34; ALHAJI J. B. HASSAN V. DR. M. B. ALIYU & 2 ORS (2010) ALL FWLR (PT. 539) 1007; ARAKA V. AMBROSE N. EJEAGWU (2001) FWLR (PT. 36) 820; CAPPA PLC V. ABMINE & SONS NIG. LTD (2002) FWLR (PT. 95) 349.
In opposition to the Defendants’ Notice of Preliminary Objection, the Claimant caused an address of counsel to be filed. The Claimant submitted a sole issue for this court to consider, thus:
"Whether the (sic) section 2 of the Public Officers Protection Law Cap. 140 Laws of Benue State, 2004 is applicable to the Claimant’s claims for unpaid and outstanding pension and gratuity."
In arguing the issue, counsel placed reliance on the provision of Section 210 of the 1999 constitution as well as the cases of AJAO V. PERMANENT SECRETARY, MINISTRY OF ECONOMIC PLANNING BUDGET CIVIL SERVICE PENSIONS OFFICE & ANOR (2016) LPELR – 41407 @ P. 15 – 16 PARA. D – E; POOPOLA & ORS V. A.G KWARA STATE & ORS (2011) LPELR – 3608. Counsel submitted that the unpaid pensions and gratuity enjoy constitutional guarantee and are a continuing injury hence, an exception to the application of the Public Officers Protection Law. Counsel urged the court to dismiss the objection raised by the Defendants.
OPINION OF THE COURT
The law requires this court to settle the preliminary objection firstly, particularly, as it seeks to terminate the action in limine on account of lack of jurisdiction. See UMANAH V. NDIC (2016) LPELR-42556(SC).
The rationale for the Defendants’ preliminary objection is to terminate this proceeding on grounds of alleged incompetence of the suit and so, the earlier it is determined, the better.
It is trite law that a statute of limitation removes the right of action, and leaves the claimant with bare and empty cause of action which cannot be enforced, once such action is caught by the statute. Generally speaking, limitation law runs from the time when the cause of action arose. So where nothing has happened to give rise to an action, no period of time can operate to extinguish the cause of action.
The facts of this case are peculiar and illustrate very clearly the legal essentials of a right of action for recovery of a debt or a liquidated money demand.
In order to decide whether or not this action is caught by a Statute of Limitation, I shall consider whether there is a cause of action and when it arose.
Going by the facts of this case and the principles of law, I am of the confirmed view that the Claimant had a cause of action, his cause of action being the claim for unpaid gratuity and arrears of pension from the Defendants. It is worth remarking that the Defendants have not denied the claims made in this suit. Instead, the Defendants have cited difficulty with the State’s expected Federal allocations.
As to when the cause of action arose, the Defendants contended that the contract of employment which existed between the parties came to an end on 24/2/2016 and the act complained of by the Claimant which is the non-payment of gratuities accrued on the said date. Defendants further contended that the filing of the action on the 2/8/2018, a period of 2 years Eight months is obviously outside the 3 months period set out by the Limitation law. I have no doubt that this case arose as an offshoot of a contract of employment. The Claimant's claim herein is a claim bothering on terminal benefits, to wit, gratuity and pension and the Defendants conceded this much.
This being the case, the Supreme Court has recently addressed the issue of statute bar vis-a-vis section 2 of the Public Officers Protection Act and has put the issue to rest. The Act has been held by Hon Justice Ariwoola not to apply to contracts of service. The case is National Revenue Mobilization Allocation and Fiscal Commission & 2 Ors V. Ajibola Johnson & 10 Ors (2019) 2 NWLR (Part. 1656) 247 @ 270-271. Where His Lordship at page 271 said: “I have no slightest difficulty in holding that the appellants are not covered by the provisions of the Public Officers Protection Act as to render the respondents’ action stature barred. In sum I hold that the learned Justices of the court below are right in holding that the appellants do not enjoy the umbrella of Public Officers Protection Law in the contract of service involving the respondents...”
The point is clear that the Claimant’s cause of action is not deterred by the limitation envisaged by Section 2 Public Officers Protection Law (Cap. 140) Laws of Benue State 2004. Moreover, the claimant's claim is for non-payment of pension and gratuity which should ordinarily not be caught up by any limitation law.
It is therefore the opinion of this court that the Defendants’ Notice of Preliminary Objection lacks merit and is accordingly dismissed.
I shall therefore proceed to entertain the Claimant’s Motion for summary Judgment.
The summary judgment procedure is similar to the undefended list procedure, in the sense that it is designed to enable a party 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: see THOR LTD. V. FCMB LTD. (2005) LPELR-3242 (SC).
Cases that can be placed for summary judgment procedure are such cases that involve recovery of debt and or liquidated money as in the instant case. The term liquidated money demand or liquidated sum means a debt or other specific sum of money usually due and payable, which amount must have already been ascertained or capable of being ascertained as a mere matter of arithmetic without any other further investigation. Therefore, whenever the amount being claimed by a plaintiff can be ascertained by calculation or fixed by any scale or charges or other positive data; it is said to be liquidated. See the case of AKPAN V. AKWA IBOM PROPERTY & INVESTMENT COMPANY LTD. (2013) LPELR - 20753 (SC), (2013) 12 NWLR (PT.1368) 377 AT 400,
The question of whether or not a matter qualifies for summary judgment procedure turns upon the court’s exercise of discretion and on assessment of the capability and viability of the intended defence to the action. In essence, this court is required to determine whether or not the defendants have a defence to the applicant’s summary judgment application.
There is however a caveat to the nature of the defence that the court can accept; such that is direct, cogent and on the merit. The caveat to the Summary Judgment procedure is intended to act as a safety net; to afford a defendant the opportunity to adequately put across his case against the Claimant who has brought a summary judgment application.
It was held by the Supreme Court in Obitude V O. C. B. (2014)LPELR-22693(SC) that the principles governing an application for summary Judgment is that a Defendant who has no real defence to a suit should not be allowed to frustrate or cheat the plaintiff out of judgment and what is required of the Defendant is to establish that he has a good defence by showing or disclosing in his statement of defence and counter affidavit such triable issues to entitle him to be granted leave to defend the action. It is not enough for the Defendant to merely deny the claim but he must set out the details and particulars of the defence.
It is not in doubt that the Defendants have a right to be heard, but for the purposes of this procedure, the law requires first, an ascertainment by this Honourable Court as to whether such defence is fit for purpose. It is a condition precedent to the exercise of the power of this Honourable Court to make a determination either way. That said, it will be inexpedient to allow a defendant to defend for mere purpose of doing so where there is seemingly no defense on the merit.
Going by Paragraph 6 of the Defendants’ Counter affidavit to the Claimant’s application for summary judgment, the Defendants averred that their inability to pay the claimant and other retirees in the state was due dwindling revenue of the 1st defendant. That the dwindling revenue from the Federation Account was due to global economic recession and the fall in the price of Naira and crude oil and the sum claimed by the Claimant is not the amount due and payable to him. Defendants contended that they have a defence in the action.
It is manifest from the defendants' counter affidavit that there does not appear to be any defence on the merit to any of the Claims upon which this court will refuse the Claimant’s application for summary Judgment.
Throughout the Defendants' counter affidavit and written address against the claimant's application for summary judgment, no cogent reason was advanced rendering the claimant’s supporting affidavit to the application for summary judgment ineffective.
It was held in UTC Nig. Ltd V Pamotei (1989) NWLR (Pt. 103) SC 244 that a Defendant whose affidavit does not disclose that he has a good defence to the action on the merits or disclose sufficient facts to entitle him to defend the action generally will fail to stop the plaintiff from entering summary judgment.
The Defendant admitted some of the claimant's averments while they made a general denial in the others. For the averments admitted, it is trite that facts admitted need not be proved. For the general denial, it is also the law that general denial amounts to insufficient denial or no denial at all.
Arising from the above, I am satisfied that the Claimant has placed before the court the necessary particulars concerning the liquidated demand and is therefore entitled to final judgment under the summary Judgment procedure which is simply designed to ensure speedier attainment of justice with ease, certainty and dispatch because it is abundantly clear that the Defendants have absolutely no defence to the claimant’s case. See order 16 of the 2017 Rules of this court.
It is in view of the foregoing, and the detailed reasoning enunciated thus far that I come to the conclusion that the Claimant’s Motion for Summary Judgment has merit. Accordingly, the Defendants shall pay to the claimant the sum of N6,625,044.00 (Six Million, Six Hundred and Twenty-Five Thousand Forty-Four Naira) as gratuity and the sum of N1,619,454.77 (One Million, Six Hundred and Nineteen Thousand, Four Hundred and Fifty-Four Naira, Seventy- Seven Kobo) as arrears of pension for 11 months within 30 days from today failing which 10% interest shall accrue and be paid per annum until the judgment sum is fully liquidated.
The Defendants shall pay cost of N50, 000.00 (Fifty Thousand Naira Only) to the Claimant.
Ruling is entered accordingly.
HON. JUSTICE S. H. DANJIDDA