IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE BENIN JUDICIAL DIVISION
HOLDEN AT BENIN
BEFORE HIS LORDSHIP HON. JUSTICE A.A. ADEWEMIMO
DATED: 16TH JULY, 2020
SUIT N0: NICN/BEN/05/2019
PRINCE EDOBOR IZEBHIGIE ESQ.
IGUEBEN LOCAL GOVERNMENT DEFENDANT/RESPONDENT
Dickson I. Egbewuare for the claimant/applicant
S.I. Aibangbe for the defendant/Respondent.
1. The claimant/applicant commenced this suit on 28th March, 2019, vide a complaint and statement of facts, and by his amended complaint which was deemed properly filed on the 19th February, 2020, he seeks the following reliefs against the defendant:
a) A declaration that the claimant is entitled to the immediate release and payment of the sum of N1,859,168.00 (One million Eight hundred and Fifty-Nine Thousand One hundred and Sixty-Eight Naira) being the balance of the claimant’s full severance gratuity found due to him having been paid N700,000.00 (Seven hundred thousand Naira) only.
b) An order compelling the defendant to release forthwith and pay up in full the balance of N1,859,168.00 (One million Eight hundred and Fifty-Nine Thousand One hundred and Sixty-Eight Naira) being the claimant’s severance monetary benefit in accordance with the binding Edo State Political and Public Officers Emolument Law, 2007.
c) An order of payment of interest on the acknowledged indebtedness of the sum of N1,859,168.00 calculated at the relevant Central Bank of Nigeria applicable interest rate of 14% per annum from 17th of September, 2019 until judgment is delivered and thereafter at the rate of 10% per annum from the date of judgment until the final liquidation of all sums (N1,859,168.00) found due in favor of the claimant.
d) An order of court directing the payment of the sum of N700,000 (Seven hundred thousand Naira) only being the cost of this action and solicitor’s fees.
2. The defendant/respondent in this suit filed its statement of defence and other accompanying processes on 1st July, 2019 and same was deemed properly filed on 19th February, 2020. The defendant/respondent pursuant to the filing of the claimant’s amended originating processes filed an amended statement of defence dated 28th February, 2020 on the 4th of March, 2020, while the claimant filed a reply to the statement of defence on 23rd March, 2020.
3. The claimant in addition filed a motion on notice for summary judgment which is the subject matter of this ruling, and same was dated and filed 10th February, 2020. The motion was brought pursuant to Order 16 Rule 1 of the National Industrial Court (Civil Procedure) Rules, 2017 and under the inherent jurisdiction of this court, praying for the following orders:
i.An order for summary judgment in favor of the claimant/applicant against the defendant/respondent.
ii.Such further order or orders as the honorable court may deem fit to make in this (sic) circumstances.
4. The claimant deposed to a 20 paragraph affidavit in support of the application and attached 4 documents marked Exhibits A-D. Also filed in compliance with the rules of this court is a written address in support of the application.
5. In reaction to the application, the defendant/respondent filed a 24 paragraph counter-affidavit deposed to by Shirley Okonfua, a Higher Executive Officer Administration of the defendant, and a written address dated 18th February, 2020. The claimant thereafter filed a further and better affidavit and reply on points of law on 25th February, 2020.
6. Worthy of note is the fact that the claimant filed a notice of discontinuance dated 3rd July, 2019 on 8th July, 2019, which it later withdrew on 22nd January, 2020, without any objection from the defence, consequent upon which same was struck out.
7. Learned claimant’s counsel moved his application for summary judgment on 9th July, 2020, and relied on the affidavit and further affidavit in support of same. The claimant’s counsel adopted his written address and reply on points of law, while the defence counsel relied on the counter-affidavit and adopted the written address in opposition to the claimant’s application.
8. In the claimant’s written address in support of the application, Dickson I. Egbewuare Esq. submitted one issue for determination, to wit:
Whether the defendant has a defence to the claimant’s unpaid balance of severance gratuity of N1,859,168.00k as contained in the Edo State Political and Public Officers Emolument Law 2007.
9. He argued that there is no dispute about the indebtedness of the defendant to the claimant and submitted that there are cogent facts before this court that warrants entering summary judgment in favour of the claimant and cited SPDC (Nig) Ltd. Alaputa (2005) 9 NWLR (Pt. 931) 475 amongst others.
10. S.I. Aibangbe Esq. of counsel for the Defendant/Respondent submitted one issue for determination, to wit:
Whether this honourable court can exercise its powers to grant the defendant leave to defend this suit taking into consideration the nature of the claimant’s claim and the circumstances of this case.
11. He argued that an application for summary judgment for payment of unliquidated pecuniary damages cannot be granted till the court takes evidence for the assessment of damages and or interest that may be proved, he relied on Abiara v Reg. T.M.C.N (2007) LPELR-8736(CA). Learned Counsel argued further that it is the claimant’s duty to prove how he arrived at the sums he is claiming and this he can only do during trial. He also noted that the receipts attached to the application for summary judgment were issued during the pendency of this suit, this according to counsel, raises an evidential issue that can only be considered and ruled upon in a proper trial. He added that this court must be afforded the opportunity to consider the totality of evidence in this suit and decide same on its merit.
12. The defence argued further that summary judgment procedure is not meant to shut out a defendant from contesting a suit and since the defendant has a valid defence and triable issues, the defendant should be allowed to defend this action. He relied on Nkwo Market Community Bank v Obi (2010) LPELR-2051(CA) and finally urged the court to refuse this application and grant the defendant leave to defend this suit in the interest of justice.
13. In his reply on point of law dated 25th February, 2020, the claimant’s counsel contended that the authorities cited by the defence counsel are distinguishable from this case as the reliefs sought by the claimants in those cases were for damages and injunction. He argued that the claimant’s application has satisfied all the requirements for summary judgment and the defendant has acknowledged its indebtedness. According to counsel, the defendant raised no triable cause or issue in the counter-affidavit, and placed reliance on Nishizawa Ltd. v S.N, Jethwani (1984) 12 S.C at 276-7. He submitted that the defendant is only trying to fraudulently delay and waste the court’s time and urged the court to discountenance the counter-affidavit and enter summary judgment in favour of the claimant.
14. Learned defence counsel relied on his counter affidavit and submitted in his address that this suit has been effectively terminated by the Notice of Discontinuance filed by the claimant on 8th July, 2019, because the notice of discontinuance once filed, effectively terminates an action, he cited Vessel St. Roland v Adefemi Osinloye (1997) LPELR 3234 SC.
15. The defendant/ Respondent added that the application for summary judgment was predicated on a nonexistent suit, and since the issue raised borders on the jurisdiction of this court it must be resolved by the court
16. In response, learned claimant’s counsel submitted that the defence counsel is mistaken in his submission because the Notice of Discontinuance was withdrawn on 20th January, 2020.
17. The objection raised by the defence counsel attacks the competence of this suit and I agree with the defence counsel that the issue of jurisdiction is fundamental and must be resolved first and foremost before considering the merits of the instant application. In that wise, I find that it is trite law that a Notice of Discontinuance ordinarily effectively terminates a suit upon filing of the notice, the system or procedure for withdrawing an action differs and depends on the stage of the proceeding as provided in the Rules of Court. This was put in better perspective by Nimpar JCA, when he held in Imperial Homes Mortgage Bank Ltd V. Mount Gilgal Investments Ltd & Ors (2017) LPELR-CA/L/127/16 that:
“The Rules of Court provides for Notice of discontinuance with a regime of the order to be made depending on the stage of proceedings. Usually before issues are joined, it requires the filing of a Notice of discontinuance but when issues have been joined or the matter has gone into hearing, then it should be by way of Motion on Notice for discontinuance and in such situations, the Court can impose conditionalities for discontinuing the suit. Generally, a Notice of discontinuance once duly and validly filed cannot be recalled, because the moment it is effectively filed, the suit ceases to exist and is legally discontinued..."
18. The above decision is in consonance with the provision of Order 61 Rules 1-7, particularly Rule 1(3) of the National Industrial Court (Civil Procedure Rules) 2017. In summary, it is stated that once a defence has been entered and issues have been joined in a suit, the claimant who intends to withdraw or discontinue his suit must apply by motion on notice supported by an affidavit, disclosing facts to the satisfaction of the court why the matter should be discontinued. It is also apparent from the records of this court that the defendant filed its defence on 1st July, 2019 while the notice of discontinuance was filed on 8th July, 2019. Therefore issues have been joined by both parties at that stage and the claimant ought to have applied by motion on notice supported by affidavit disclosing facts to the satisfaction of this court, before this suit can be validly withdrawn. It is trite that Rules of court are meant to be obeyed as they are not just for cosmetic effect, the notice of discontinuance filed by the claimant on 8th July, 2019 and later withdrawn, runs contrary to the procedure outlined above and the provisions of the Rules of this court. It is therefore an incompetent process which cannot ordinarily terminate the claimant’s suit, moreso, same was withdrawn by the claimant’s counsel in this suit. It is in view of the above that the Defendant/Respondent’s objection is overruled in this regard, I so hold.
19. On the application for summary judgment, I must say that I have thoroughly read the application, all processes filed thereto and submissions of counsel on both sides and I have distilled one issue for determination, to wit:
Whether summary judgment should be entered in favour of the claimant in this suit.
20. Summary judgment procedure has been explained to be a procedure to allow quick dispensation of justice in favour of a party where the other party has been unable to demonstrate to the court that it should be allowed to defend an action. See Thor Ltd. v FCMB Ltd. (2005) 14 NWLR (Pt. 946) 696.
21. In New Nigerian Newspaper Ltd. v Olayinka Agbomabini (2013) LPELR-20741(CA), Abiru JCA held in respect of summary judgment that:
“The term summary judgment denotes a judgment usually granted by court on a claim about which there is no genuine issue of material fact, and upon which the claimant is entitled to prevail as a matter of law. Primarily, the Court takes into consideration the pleadings, the motions, and where necessary, additional evidence adduced by the parties to determine whether or not there is a genuine issue of material fact, rather than one of law…”
22. I have taken a well-considered look at the extant processes of parties in this suit, especially the defendant’s extant statement of defence and found that the defendant pleaded in paragraph 2 thereof that:
“The defendant in response to paragraphs 9 and 10 states that the claimant is not entitled to N2,559,168.00. The claimant shall be put to the strictest proof of how he arrived at the said sum.”
23. While this does not amount to a valid and genuine denial of the entitlement of the claimant, other issues worthy of proper consideration were raised when the defendant pleaded in paragraph 9(b) of its statement of defence that:
“The claimant and other past political office holders were invited to a meeting and an agreement was reached as to the arrangement for payment by installment...”
24. The defendant also contended in the written address in opposition to this application that the receipts attached to the claimant’s application were issued during the pendency of this suit and are therefore inadmissible in evidence. The above cited paragraphs in the defendant’s pleadings indicates triable issues which require a proper trial to enable the court reach a well-considered decision which is only possible after a full trial. Ogunbiyi JCA held in Beloxxi Industries Ltd. Anor v Hwa Tai Industries Berhard Ltd. (2011) LPELR-3867(CA) that:
“Under the summary judgment procedure, leave to defend will be given, if the defendant shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiffs claim.”
25. In addition, the defendant in this suit raised and pleaded the issue of estoppel in its defence which amounts to a germane issue and if established, is pivotal to the claim in this suit. Moreover, it is the law that it is immaterial at this stage for the defence to establish the defence of estoppel. See Maduike v Tetelis Nig. Ltd. (2015) LPELR-24288(CA)
26. It is in light of this and consideration of the fact that the defendant has filed all necessary processes, i.e. pleadings having been exchanged in this suit, that I am satisfied that the defendant has disclosed a triable issue to warrant a proper trial in this suit.
Consequently, the claimant’s application for summary judgment is hereby refused and the defendant is granted leave to defend this suit in the interest of justice.
I make no order as to costs.
Ruling is accordingly entered.
Hon. Justice A.A. Adewemimo