I recently stumbled on a story in one of the national dailies. It was captioned “Journalist wins contract breach case against INEC”. The story reads: “For breaching the payment of N7.5 million to Godson & Godman Ventures Limited, a Federal Capital Territory (FCT) High Court sitting in Apo has ordered the Independent National Electoral Commission (INEC) to pay the firm the sum and a 10 per cent interest, running from the day of the judgment until the debt is liquidated. Justice U.P. Kekemeke gave the order in the case brought against INEC by Ken Ugbechie, a former editor of Daily Times, for the media consultancy and publishing firm. INEC was not represented in court.
“Ugbechie had dragged INEC before an Abuja High Court over the agency’s alleged refusal to pay him for contract executed… In his statement of claim, Ugbechie said his company was, on January 19, 2010, awarded contract to inspire and generate expository articles, commentaries, news analysis, editorial and comments, among others, to sufficiently enlighten the electorate on all that the commission was doing to ensure a hitch-free 2011 general elections. He averred in an affidavit in support of the suit that the said contract was thoroughly verified by INEC officers after completion. According to him, despite repeated demands, the defendant has refused to pay the said N7.5 million due his company since the execution of the contract.
“He added that after the receipt of the plaintiff’s solicitors’ demand letter, the defendant referred the matter to its Alternative Dispute Resolution, ADR, Department, adding that his lawyer also had a meeting with the director of ADR, wherein it was decided that the matter be referred to the Public Affairs Department for confirmation. According to him, the department had since confirmed that the contract was creditably executed by the plaintiff, but despite this, the defendant would not pay the said contract sum”.
This is a landmark judgement delivered against a recalcitrant federal agency, which had elected to trample on the rights of an individual who had no other option than to approach the court for protection. Many Journalists have, in the past, fallen victims to this type of crooked treatment in the hands of highly placed individuals and government officials who take delight in “using and dumping” these professionals at their whims and caprices.
Now, let us analyse this judgement. The “undefended list procedure” is a procedure within the Abuja legal jurisdiction and contained in the Abuja High Court (Civil Procedure) Rules. It is similar to the summary judgment procedure in the rules of the Lagos High court. The procedure is adopted in both jurisdictions to provide an easier and faster avenue to determine cases which are straightforward and not likely to go to trial as the defendant, in most cases, is expected to admit the claims brought against him.
Basically, the plaintiff, that is, the party instituting the suit, believes that the defendant has no defence – hence the resort to this timesaving procedure. The plaintiff will state this in his affidavit in support and attach all relevant documents, which must naturally point unmistakably to the defendant’s liability for the claims against him. The matter should be so straightforward that an independent observer examining the documents can reach the conclusion that there is an obligation left to be performed by the defendant.
The procedure is usually employed for cases of debt arising from simple contracts and monetary claims generally. However, the monetary claim must be liquidated or ascertainable by simple means, but in practice, plaintiffs will include the total figure for which they claim so as to save the court from making any arduous calculations. The snag here is that the suit cannot be initiated until the judge has read through the processes and is satisfied that it merits inclusion in the “undefended list”. Otherwise, it is sent to the general cause list, which is naturally for contentious matters where issues will be joined. In this case, Ogbechie must have had all his documents intact, which on the surface shows that there is some money to be paid and the judge must have been satisfied that it is a straight-forward debt recovery case and that the documents were sufficient to support his claim.
According to the story, INEC did not make any appearance at the suit, even after it was served with notice of the suit. This is not unusual in this kind of cases. Ordinarily, the plaintiff must serve the defendant with the processes after the judge must have given leave to include it in the undefended list. The defendant in turn is expected to file his notice of intention to defend, together with an affidavit disclosing a defence within five days to the date on which the case is set for hearing. The judge will consider the affidavit and if it discloses a valid defence, the defendant will be granted leave to defend the suit and the case will be transferred to the general cause list.
If the judge cannot find a valid defence in the filed affidavit, or the defendant fails to file anything before the date for hearing, the judge’s only duty is to grant judgment against the defendant on the said date, without more. That is the situation in this case as INEC did not make any appearance at all; talk less of filing an affidavit disclosing a defence. The law is clear on this point. The judgment given will be valid and can be enforced just as any other judgment.
It is not uncommon for the court to make an order for post-judgment interest when it gives a monetary judgment. This is done to dissuade judgment debtors from sitting pretty and dragging their feet over payment of a sum granted against them. However, for the order to be made, the plaintiff or judgment creditor must have included it in its reliefs. The court does not award benefits that are not sought. It was a good thing that the lawyers to Ogbechie included this in their reliefs and the interest continues to read for as long as INEC refuses or fails to pay the sum.
ADR is a substitute to litigation which should be explored by disputing parties more regularly. It will help to clear the courts of many cases, especially frivolous suits that only require patience and understanding between the parties to resolve. People include this clause in their agreements but still run to the law courts at the first sign of trouble. Others do not honour the clause, or if other forms of ADR are adopted, they do not abide by the resolutions or decisions reached, leading them, eventually, to litigation.
The case here is a classic example of a government agency which, according to the story, even has a dedicated ADR Department. Unfortunately, the department has little effect on the operations or the enforceability of any resolutions reached. The courts still had to be visited in this straight-forward matter of “A” provides certain services at agreed rate that “B” refuses to pay. Where government agencies rubbish the ADR process, how will private individuals be encouraged to adopt it? The ADR that is systematically being introduced by the courts themselves has not been received as well as expected by the same populace that decries the snail’s pace of justice.
Government agencies should be at the forefront of the efforts to increase the acceptability of ADR procedures by their responsible adoption of it. As INEC has shown, that is not the case. One need not go into the list of cases against government agencies in courts. It will not be surprising if it is found that such cases constitute 30 percent of the case load in most jurisdictions. Individual citizens can be unruly and uncivil, but governments in Nigeria and their agencies, including the federal government, are at the forefront of uncivilised practices that include reckless disregard of the law and its machinery through incessant breach of contracts and trampling on the rights of private citizens. Certainly, there are lessons to be learnt from this judgement!