IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT YENAGOA
BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI
DATE: WEDNESDAY 15TH JULY, 2020
Suit No: NICN/YEN/54/2019
DR. ETUMUDON NDIDI ASIEN ……..……… CLAIMANT/APPLICANT
FEDERAL UNIVERSITY OTUOKE ….…………. DEFENDANT/RESPONDENT
Mr. A.O. Mark Esq for the Claimant/Applicant.
Mr. A.M. Francis Esq for the Defendant/Respondent.
The Claimant commenced this suit against the Defendant by way of General Form of Complaint dated and filed on 13th November, 2019 and filed on the same date. The Claimant is seeking the following reliefs against the Defendant:
a. The sum of
N3, 662, 119. 00 (Three Million, Six Hundred and Sixty-Two Thousand, One Hundred and Nineteen Naira) only being the Claimant’s Earned Income Allowance for excess workload for the 2013/2014, 2014/2015, 2015/2016 and 2016/2017 academic sessions respectively recently approved and paid by the Federal Government which sum the defendant has refused to pay the Claimant.
N10, 000, 000 (Ten Million Naira) only being general damages for unlawfully withholding the Claimant’s earned allowance.
c. 30% interest per annum on the sum owed from October, 2019 until the debt is liquidated.
The complaint is accompanied with affidavit in verification of complaint, statement of facts, List of Claimant’s Witness, Statement on Oath of Claimant’s Witness, List of documents to be relied upon at trial.
In response, the defendant filed a Memorandum of Appearance dated 2nd December, 2019. The defendant also filed Statement of Defence, Written Statement on Oath of Defendant’s Witness, List of Witness, List of Documents to be Relied Upon at Trial.
CLAIMANT’S MOTION ON NOTICE DATED 4TH NOVEMBER, 2019.
The Claimant also filed a Motion on Notice dated 4th November, 2019 and filed on 13th November, 2019. The application is brought pursuant to Order 16 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 and under the inherent jurisdiction of the court seeking the following reliefs:
1. AN ORDER of this Honourable court entering Summary Judgment in this suit on the ground that the Defendant has no defence to this suit.
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:
a. The Claimant is claiming his earned allowances.
b. Defendant has approved the calculation of the allowances and submitted the Claimant’s claim to the Federal Government who has released the money to the Defendant.
c. The Defendant has paid other Lecturers but has refused to pay the Claimant.
d. That the Defendant does not have any defence to this suit.
e. The Claimant has made several demands on the defendant to pay this money to him including a letter written by his counsel Stanley Damabide and Partners but the Defendant has refused and or neglected to pay same.
The application is accompanied with 8 paragraph affidavit sworn by the claimant, Statement of Facts, annexures marked as Exhibit 1 – 6 and brief of argument.
Counsel to the Claimant formulated one lone issue for determination as follows:
Whether the Claimant is entitled to Summary Judgment in this suit having regards to the facts of this suit.
Learned counsel submitted that Order 16 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 provides for Summary Judgment whenever a Claimant believes that the Defendant has no defence to his suit. He submitted that the said order requires such Claimant to file his suit with General Form of Complaint and then bring an application for Summary Judgment which must be supported by an affidavit stating the grounds for the application, Statement of Facts and a brief of argument. He contended that the claimant has complied with the provisions of the rules. Learned counsel further submitted that once a claimant complies with the rules relating to summary judgment, the onus shifts to the Defendant to show why judgment will not be entered. He relied on the case of URS Reichie vrs Nigerian Bank for Commerce and Industry (2016) 8 NWLR (Pt. 1514) 294 P. 308 – 309.
Learned counsel submitted that in defence a Defendant is expected to present to the suit is a defence on the merit and not a sham or some fanciful defence. He relied on Chidume Okoro & Anor vrs. Ikechi Okoro (2018) 16 NWLR (Pt. 1646) 506 at 516 – 517. He urged the court to resolve the sole issue for determination in favour of the claimant.
DEFENDANT’S COUNTER AFFIDAVIT DATED 13TH JANUARY, 2020
In response, the Defendant filed a 4 paragraph counter affidavit dated 13th January, 2020 sworn by Yousou Donald Iruo, the Registrar of the Defendant. The counter affidavit has attached to it 6 annexures marked as Exhibits A to F and a written brief. Learned counsel for the defendant adopted the lone issue as formulated by the claimant’s counsel. He submitted that the Claimant is not entitled to summary judgment in view of his claim and affidavit in support of the motion vis a vis the Defendant’s defence and counter claim.
Learned counsel argued that it is the law that counter affidavit should not provide a cast-iron or airtight defence or disclose a defence beyond reasonable doubt before the suit could be transferred to the general cause list for hearing. He submitted that it is not the duty of the court to consider whether a good defence has been disclosed in the Defendant’s affidavit in support of his Counter Affidavit to defend the suit. He cited Solidarity International Venture Ltd vrs Afro Shelters Ltd (2010) 1 NWLR (pt. 1175) 209 at 237 paras E, G, H.
Learned counsel further contended that it is a general principle of law that where a Defendant shows that he has a fair case for defence or reasonable grounds for setting up a defence or even a fair probability that he has a bonafide defence, he ought to have a leave to defend. He referred the court to the case of Adebisi MacGregor Association Ltd vrs Nigeria Merchant Bank Ltd (1996) 2 NWLR (Pt. 431). He contended further that the purported excess workload claim form captioned “Federal Government/Academic Staff Union of Universities (ASUU) Implementation Monitoring Committee of Federal Government/ASUU Agreement” has further confirmed Defendant’s contention that the Earned Academic Allowance is only meant for ASUU members and not the Claimant who by his official letters declined membership of ASUU. He submitted that the Defendant’s averments in the counter affidavit and the documents attached thereto marked Exhibits A – G are weighty enough to cause this Honourable court to inquire through trial the eligibility of the Claimant to be entitled to his claim. He argued that the Defendant’s defence has shown that there is an issue or question to be resolved by this court before granting the prayers of the Claimant. He relied on the case of FMG vrs Sani Abacha (1990) 4 NWLR (Pt. 147) 688 at 709.
CLAIMANT’S FURTHER AFFIDAVIT AND REPLY ON POINTS OF LAW DATED 20TH FEBRUARY, 2020.
The Claimant also filed a further affidavit of 13 paragraphs dated 20th February, 2020 sworn by the Claimant. The further affidavit has 5 annexures marked as Exhibits 7 – 10 and a reply on points of law. Learned counsel submitted that the case of Adebisi MacGregor Association Ltd vrs Nigeria Merchant Bank Ltd (Supra) does not apply to the facts of this suit because there is no iota of evidence that the earned income allowance is for ASUU members only.
He further submitted that Exhibit D of the Defendant show that Division of Agriculture Colleges Zaria which does not belong to ASUU is a beneficiary. Learned counsel contended that the Claimant also shown in paragraph 7 of his further affidavit and Exhibit 7 that ASUU is not the only union in Federal Universities and that some of the beneficiaries in Exhibit D do not belong to ASUU. He further submitted that the fact that ban on Unionism in Federal University, Otuoke was only lifted by the Defendant in December, 2016 shows that the Defendant’s staff would not have been entitled to this allowance from its inception in 2011. He submitted that despite the Claimant’s attempt to withdraw from ASUU the defendant has compelled him to belong to ASUU by deducting union dues from his salary and paying same over to ASUU. Finally, he submitted that the defendant has not made out any defence and urged the court to enter judgment for the Claimant.
I have read and understood all the processes filed by both Learned Counsels, I have also perused and analysed the averments contained in both the Supporting and Opposing Affidavits together with the exhibits attached. In other to effectively determine this application I formulated a lone issue for determination that is:
Whether it is proper to enter Summary Judgment in respect of this present suit as constituted.
It is of legal importance to note that a summary judgment is one given in favour of a Claimant without necessitating the full trial of the suit. This is a truncated procedure for hearing and determination of a suit that is utilized in cases where the nature of the claimant’s reliefs and the facts pleaded do not require a proper trial by the court in the light of the absence of a defence. See Order 16 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017. A party who want to obtain judgment under the summary judgment procedure must file an affidavit deposing to the facts which the court can come to the conclusion that the defendant has no defence. It is only when the court comes to that conclusion from the facts placed before it through the affidavit that a party can succeed. See S.B.N Plc vs. Kyentu (1998) 2 NWLR (Pt. 536) 41. And a Defendant who intends to defend an action under this procedure is expected to file an affidavit disclosing a defence on the merit or a triable issue. See Haido vs. Usman (supra). And where there is a conflict in the affidavits of parties under this procedure, evidence is the only way by which the conflict can be resolved and it is mandatory to enter the suit on the general cause list. See Ebong vs Ikpe (2007) 17 NWLR (pt. 797) 504 C.A. And where there is a set off or counter claim, the suit should be placed on the ordinary or general cause list. See Bisong vs. Ekpeyong (2003) 5 NWLR (Pt. 812) 156 C.A.
For the sake of clarity let me quickly distinguish between summary judgment procedure and undefended list procedure based on the submissions made by the Learned Counsel in mixing the two. Summary judgment procedure is applicable to all claims where the Claimant/Plaintiff believes that there is no defence against the action, while the undefended list procedure is strictly limited to claims for liquidated monetary claims or demands when the plaintiff believes there is no defence against the claim. See the National Industrial Court of Nigeria Law, Practice and Procedure by Offornze D. Amucheazi and Paul U. Abba page 168.
Note that summary Judgment procedure under Order 16 of the NICN Rules 2017 envisages a proper hearing of the application for summary Judgment on the claimant’s application or to permit the defendant to defend the suit on its merit. And the court in reaching its decision will look at the applicant’s written brief and the affidavit in support, And also the reply to the application by the defendant together with the affidavit in opposition and other processes filed by both parties. The spotlight is essentially focused on the defendant’s statement of defence to discover if any reasonable defence has been disclosed sufficient enough to require proceeding to trial. Thus, the burden of proof in a summary judgment procedure is not upturned on the defendant, but still rests on the claimant; the defendant only has an obligation to disclose a prima facie defence worthy of a trial.
In Federal Military Govt. vs. Sanni (1990) 7 SCNJ 159 the court held that, in determining whether a defendant has a good defence, it is not necessary at that stage for a judge to consider whether the defence has been established, because what is required is simply a look at the facts deposed to in the counter affidavit to determine whether they can afford the defendant a prima facie defence if believed or proved. In essence the defendant is not under any obligation to show a complete defence at this stage but is merely obliged to disclose triable issues or questions or other reasons necessitating a trial on the merits. See Okambah Ltd vs Sule (1990) 11 SCNJ pg 1.
And where it appears to the court that the defendant has a good, triable or prima facie defence and ought to be permitted to defend the claims, the court shall grant the defendant leave to defend the action. See Order 16 Rule 5 (i) of the NICN Rules 2017. Where leave to defend the action is granted, the matter will proceed to trial as the court may direct. See Macaulay Vs. N.A.L Merchant Bank (1990) 4 NWLR (pt. 144) pg 283.Where it appears to the court that the defendant has no good defence to the claim, the court may there upon enter judgment for the claimant as per his/her reliefs in the application. See NBN Ltd vs. Savol West Africa Ltd. (1994) 3 NWLR (pt. 333) pg 435.
Having said all these, I have carefully analysed the averments contained in both the supporting and opposing affidavits together with the Statement of Defence and one can see that there are triable issues. The whole gamut of this case arose as a result of the act of the agreement entered between the University Lecturers and the Federal Government for the payment of certain allowances including Excess Workload Allowance in 2009. The Claimant avers that he has worked and earned the said Excess Workload Allowances. And that sometimes in 2017 the Federal Government agreed to pay the backlog of the Excess Workload Allowance to the University Lecturers and was computed and submitted which was paid in 2019 but the Defendant refused to pay same to the Claimant.
In their defence, the Defendant averred that the said Excess Workload Allowance which was paid is only meant for Lecturers who are members of ASUU of which the Claimant is not one of them, hence the Claimant is not entitled to same.
Therefore, its my ardent belief that the averments contained in the Counter Affidavit filed by the Defendant together with Exhibits A – G are weighty enough to cause this court to inquire through trial the eligibility of the Claimant to be entitled to the claim. The Defendant’s defence has really shown that there is an issue or question to be resolved by this Honourable court before granting the prayers of the Claimant.
In view of all reasons I canvassed ab-initio I felt that the Defendant was able to establish a prima facie defence which made this court to feel that there are triable issues. The application for Summary Judgment is hereby refused. Leave is hereby granted to the Defendant to defend this action. I ordered that this matter be placed on the general cause list, and parties shall file and exchange pleadings.
Ruling is hereby entered accordingly.
HON. JUSTICE BASHAR A. ALKALI
NATIONAL INDUSTRIAL COURT OF NIGERIA