IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

HOLDEN AT MAKURDI

IN THE MAKURDI JUDICIAL DIVISION

BEFORE HIS LORDSHIP, HON. JUSTICE S.H. DANJIDDA

ON THE 13TH DAY OF MAY, 2019 SUIT NO: NICN/MKD/29/2018

BETWEEN:

OKOH ANDREW OGWUCHE …………………………………CLAIMANT

AND

ATTORNEY-GENERAL OF BENUE STATE                                 

BENUE STATE      GOVERNMENT 

BENUE STATE LOCAL GOVERNMENT 

           PENSIONS BOARD 

BUREAU OF LOCAL GOVERNMENT &                     DEFENDANTS

    CHIEFTAINCY AFFAIRS

BENUE STATE UNIVERSAL BASIC 

EDUCATION BOARD

REPRESENTATION:

A.C. Attah for the Claimant.

P.M. Ukande (DDPP) Benue State Ministry of Justice for the Defendants.

                              RULING

By a Motion on Notice dated 23/05/2018, the Claimant/Applicant is praying the Honourabe court for the following orders:

“i. AN ORDER of the Honourable Court entering final judgment in favour of the Claimant as per the General Form of Complaint and Statement of Claim in the sum of N8,440,960.00 (Eight Million, Four Hundred and Forty Thousand, Nine Hundred and Sixty Naira) Only comprising the Claimant’s post-employment benefits (gratuity and pension) and arrears of the Claimant’s monthly pension allowances now owed and withheld by the Defendants since 1st July, 2016.

ii. Damages in the sum of Two Million Naira (N2, 000,000.00) only for the refusal and neglect of the Defendant to pay the Claimant’s post- employment benefits and monthly pension allowances since 1st July, 2016.

iii. Five Hundred Thousand Naira (N500, 000.00) only as cost of this suit.”

The applicant’s stated grounds for the application were thus:

“1. The Claims are for the Claimant’s post-employment benefits (gratuity and pension) and monthly pension allowances that the Defendants refused and neglected to pay to the Claimant since his retirement on the 1st day of July, 2016.

2. That upon the Claimant’s retirement from service the Defendant has no reason to withhold or refuse to pay the Claimant’s lawful benefits.

3. That it is illegal and unconstitutional for the Defendants not to pay the Claimant’s post-employment benefits and monthly pension allowances.

4. That in view of the preceding facts, the Defendants have no defence to the claimant’s claim as they are clearly indebted to the Claimant.”

The application is supported by a 17 – Paragraph Affidavit of Okoh Andrew Ogwuche, the Claimant. Also, a written address of counsel accompanied the application wherein a sole issue for determination was formulated and submitted, to wit:

"Whether this court can enter final judgment in favour of the Claimant as per the general form of complaint and statement of claim."

Arguing the issue, counsel submitted that the Claimants were in full compliance with the provisions and requirements set out under Order 16 Rule 1 and 5 (2) of the 2017 Rules of this Court. Then again, that the Defendants are indebted to the Claimants and there is no defence to the claim. 

Counsel urged the court to enter judgment in favour of the Claimant/Applicant as per the General form of Complaint and the Statement of Claim.

It is important to point out that the Defendants have not filed any defence neither have they filed a Counter Affidavit to the Claimant’s motion for summary judgment.

The Claimant’s substantive Claims as endorsed on the face of the Complaint are these:

“1. A DECLARATION of the Honourable Court that the refusal and neglect of the Defendants to pay the Claimant’s lawful gratuity, pension and monthly pension allowances is illegal and unconstitutional.

2. AN ORDER of the court directing or compelling the Defendants to pay to the Claimant the sum of Six Million, Fourteen Thousand One Hundred and Eighty – Four Naira (N6, 014, 184. 00) only being the Claimant’s gratuity and pension as contained in the re-submission of benefits letters of 27th February, 2017.

3. AN ORDER of the Court directing or compelling the Defendants to pay to the Claimant the sum of Two Million Four Hundred and Twenty- six  Thousand, Seven Hundred and Seventy – Six Naira (2, 426, 776. 00) being the total arrears of the Claimant’s monthly pension allowances from 1st July 2016 to 30th April 2018.

4. AN ORDER of the Court compelling or directing the Defendants to pay to the Claimant the compulsory monthly pension allowance of One Hundred and Five Thousand Five Hundred and Twelve Naira (105,512.00) only from May 2018 till date.

5. General damages in the sum of Two Million Naira (N2,000,000.00) only.

6. Five Hundred Thousand Naira (N500,000.00) as cost of this action.”

Briefly, the gist of the Claimant’s claim as it appears in the statement of claim is that the Claimant was employed as a Class Teacher on the 1st of July 1981 and worked until sometime in March 2016 when he applied to retire voluntarily, ahead of his completing 35 Years in service on the 1st of July of the same year. That by a letter dated 27th September 2016, the 5th Defendant approved his application that the Claimant’s effective date of retirement from service was 1st of July 2016. That upon successful retirement, the Auditor- General for Local Governments computed his post-employment benefits. That the Claimant is entitled to gratuity of Four Million, Seven Hundred and Forty –Eight Thousand Forty Naira (N4,748,040.00)only, and pension of One Million Two Hundred and Sixty- Six Thousand, One Hundred and Forty-Four Naira (N1,266,144.00) only.

The Claimant is also claiming monthly pension allowance of One Hundred and Five Thousand, Five Hundred and Twelve Naira only (N105, 512.00) only, which the Defendants have refused and/or neglected to pay to him since he retired from service in July 2016. In the same vein, it is the Claimant’s case that since his retirement from service in July 2016, the Defendants have refused and/or neglected to pay him the gratuity and pension as computed and due to him.

It is the Claimant’s averred statement that the monthly pension allowance of One Hundred and Five Thousand, Five Hundred and Twelve Naira (N105, 512.00) only, is now in arrears from July 2016 to 30th April 2018, amounting to a cumulated owed monthly pension allowance of Two Million, Four Hundred and Twenty-Six Thousand, Seven Hundred and Seventy – Six Naira (N2, 426,776.00) only. The Claimant has stated that he has endured dire economic conditions and substantial damages, as well as psychological and physical trauma as a result of the Defendant’s neglect and/or refusal to pay his lawful benefits.

Claimant has relied and presented to the court the following documents:-

His appointment letter (Exhibit A)

Confirmation of appointment letter (Exhibit B)

Promotion letter (Exhibit C)

His application for voluntary retirement (Exhibit D)

Approval for statutory retirement (Exhibit E)

Re-submission of Retirement Benefit letter (Exhibit F)

and his life pension Certificate(Exhibit G)

The Claimant’s application for summary judgment is of the kind that the court should have no difficulty in determining. The Defendants have not entered any defence to the Claim neither has there been any reaction to the claimant’s motion for summary judgment from the Defendants. Rather, it is observed that, Counsel for the Defendants while appearing at the penultimate Court sittings of 26/03/2019 reported that the 3rd Defendant had informed counsel and given to him a document confirming the claimant’s relief. Counsel further stated in court that he was informed by the 3rd Defendant that the Claimant had over stayed in office and so (1) month salary in the sum of N131, 890.00 would be deducted from his gratuity.

Onu, J.S.C. in the case of PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LTD. V. RHEIN MASS UND SEE SCHIF FARTS KONTOR GMBH (1997) LPELR-2899(SC) (P. 18, Paragraphs. F-G) has said of summary judgment procedure that it “means a judgment that is given without taking the defence of the defendant.”

Similarly, his Lordship Justice Ariwoola, J.S.C relying on the cases of: 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), described Summary Judgment in the case of AKPAN v. AKWA IBOM PROPERTY & INVESTMENT COMPANY LTD.(2013) LPELR-20753(SC) as 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. 

This description by his lordship is most fitting under the circumstances in coming to a determination on whether the motion for summary judgment should succeed or not.

Just as in this case, the summary judgment procedure is aimed for disposing of cases with dispatch where there has been virtually no contest. If a claimant is entitled to judgment and where allowing a defendant feign to defend would apparently occasion undue delay; it would prove most expedient.

The law does however require the Honourable Court to be satisfied that there is no genuine issue of material fact upon which the applicant is entitled to prevail as a matter of law.

Order 16 Rule 4 of the 2017 Civil Procedure Rules of this Honourable Court requires that if the Defendant intends to defend the action he should not later than the time prescribed for the filing of 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.

The record before me shows that the Defendants in this case have not explored any of the given steps; neither have they taken any significant and consequential step.

Clearly the Claimant made a prima facie case and the onus of proof having shifted to the defendants for rebuttal; it would appear that Defendants have not bothered at all to prove the contrary.

Order 16 Rules 5 (2) of the 2017 Civil Procedure Rules of this Honourable Court states clearly that:

“5-(2). Where it appears to the court that a party does not have a good defence the Court may thereupon enter judgment for the Claimant.”

Going by the Provisions of Order 16 Rule 5 (2) above, I hold the humble view that there is no Defence disclosed that will thwart the Claimant’s application for summary judgment. The Claimant’s motion for summary judgment accordingly succeeds and it is hereby ordered as follows:-

That the Defendants shall pay to the claimant the sum of N8,440,960.00(Eight Million, Four Hundred and Forty Thousand, Nine Hundred and Sixty Naira)only, being the claimants gratuity and arrears of pension, less the sum of N131,890,00(One Hundred and Thirty One Thousand, Eight Hundred and Ninety Thousand Naira)only, for over staying in office for one month as indicated in Exhibit ‘F’ attached to the claimant`s application

That the said sum shall be paid within 30 days from the date of this judgment 

N50,000 cost is awarded against the Defendant in favour of the claimant.

___________________________________

HON. JUSTICE S. H. DANJIDDA

(Presiding Judge)