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 15THJULY, 2020 Suit No: NICN/YEN/01/2020
DR. [MRS] FELLINA NWADIKE ……..……… 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 complaint dated and filed on 9th January, 2020. The Claimant seeks against the defendant the following reliefs:
a. The sum of
N6, 256, 250. 00 (Six Million, Two Hundred and Fifty Six Thousand, Two Hundred and Fifty Naira) only being the Claimant’s Earned Income Allowance for Excess Workload for the 2012/2013, 2013/2014, 2014/2015, 2015/2016 and 2016/2017 academic sessions 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.
N5, 000, 000. 00 (Five Million Naira) only being the cost of prosecuting this suit.
The complaint is accompanied with affidavit verifying complaint, Statement of Facts, List of Claimant’s Witness, Statement on Oath of Claimant’s Witness and Documents to be Relied Upon at Trial.
In response, the defendant filed a Statement of Defence dated 20th March, 2020 and filed on 23rd March, 2020. The Statement of Defence is accompanied with Written Statement on Oath of Defendant’s Witness, List of Defendant’s Witness, List of Documents to be Relied Upon at Trial. The defendant also filed a Memorandum of Appearance on 23rd March, 2020.
CLAIMANT’S MOTION ON NOTICE DATED 9TH JANUARY, 2020
The Claimant also filed a Motion on Notice dated and filed on 9th January, 2020 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. The application is praying the court for 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 for the application are as follows:
a. The Claimant is claiming her 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 her but the Defendant has refused and or neglected to pay same.
The application is accompanied with 8 paragraph affidavit sworn by Dr. Fellina Nwadike, Statement of Facts, annexures marked as Exhibit 1 – 5 and a written submission.
Counsel to the Claimant formulated 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 brief of argument. He contended that the Claimant has complied with the provisions of the Rules and once that is done, 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 the Defendant is expected to present 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 in view of the authorities cited and affidavit in support of the application to enter Judgment for the Claimant.
DEFENDANT’S COUNTER AFFIDAVIT DATED 23RD MARCH, 2020
In response, the Defendant filed a 4 paragraph affidavit sworn by Yousou Donald Iruo dated and filed on 23rd March, 2020 with annexures marked as Exhibit A to E and a written argument.
The Defendant’s counsel adopted the lone issue formulated by the Claimant. 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 affidavit and the accompanying documents attached thereto.
Learned counsel submitted 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 argued that it is the duty of the court to consider whether the defence will ultimately succeed. He contended that all that is needed is to determine whether a good defence has been disclosed in the Defendant’s counter affidavit to defend the suit. He referred the court to Solidarity International Venture Ltd vrs Afro Shelters ltd (2010) 1 NWLR (pt. 1175) 209 at 237 paras E, G, H.
Learned counsel further argued 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 cited the case of Adebisi MacGregor Association Ltd vrs Nigeria Merchant Bank Ltd (1996) 2 NWLR (pt. 431). He submitted 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 her official letters declined membership of ASUU. He further argued that the Defendant’s averments in the counter affidavit and the documents attached thereto marked Exhibits A – G are weighty enough to cause this court to inquire through trial the eligibility of the Claimant to be entitled to her claim. He submitted 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. He urged the court to dismiss the motion for judgment.
FURTHER AFFIDAVIT AND REPLY ON POINT OF LAW DATED 19TH JUNE, 2020.
The Claimant filed a 5 paragraph counter affidavit sworn by Adams Ukrajit a Litigation Manager of C.E. Onyebukwa and Co. the Law Firm representing the Claimant dated and filed on 24th June, 2020. Attached to the further affidavit are Annexures marked as Exhibits 6 – 8 and a Reply on Points of Law.
On the Defendant’s argument that the Claimant not being a member of ASUU is not entitle to her claim, the Claimant submitted that the case of Adebisi MacGregor Association Ltd vrs Nigeria Merchant Bank Ltd (Supra) cited by the Defendant does not apply to the facts of this suit. He argued that there is no iota of evidence that the Earned Income Allowance is for ASUU members only. He further contended that Exhibit D of the Defendant show that Division of Agriculture Colleges Zaria which is not a University and whose staff does not belong to ASUU is a beneficiary. He submitted that the Claimant has also shown by paragraph 4 (c) of her Further Affidavit and Exhibit 6 that ASUU is not the only union in Federal Universities and that some of the beneficiaries in Exhibit C do not belong to ASUU.
Learned counsel 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 contended that the computation shows that the Defendant was paid the Earned Income Allowance before 2016 when they joined ASUU. He 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