REV. BRIGHT ORIE IGWE VS REV. EZE UMAHI & 6 ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABAKALIKI JUDICIAL DIVISION

HOLDEN AT ABAKALIKI

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

Date: 20th July 2018

SUIT NO. NICN/ABK/03/2015

BETWEEN

REV. BRIGHT ORIE IGWE

CLAIMANT

AND

REV. EZE UMAHI
MR. OKE UMAHI
MR. OGBONNAYA NJOKU
COMMODORE AKUMA AJA
CHIJIOKE NWANKWO
DR. OGIENAGBON R. A.
THE PRESBYTERIAN CHURCH OF NIGERIA

DEFENDANTS

REPRESENTATION:

Chinyere Rosemary Okpani Agha [Mrs.] with Violet Iheakaogo Ekumakama [Mrs.] for the Claimant

Brendan Agu Esq. for the Defendants

JUDGMENT

The Claimant by General Form of Complaint filed on 19th November 2015 claimed against the Defendants for:

A declaration that the Defendants’ acts offend sections 37 of the 1999 Constitution of Nigeria as amended and sections 7-10 of the Recovery of Premises Law vol. 5 Laws of Ebonyi State, 2009.

A declaration that it is unlawful for the Defendants to change the keys to the Claimant’s apartment without his knowledge and illegal for the Defendants to lock up the said premises of the Claimant without following the procedure prescribed in the Recovery of Premises Law.

An order directing the Defendants to open the premises of the Claimant and allow the Claimant to continue in occupation of the said premises except in compliance with the provisions of the Recovery of Premises Law, Ebonyi State.

An order restraining the Defendants from harassing and or further trespassing into the said premises of the Claimant save in compliance with the provisions of the law.

An order restraining the Defendants from further interfering with the Claimant’s right to his quiet and peaceful occupation, enjoyment of the said premises save in compliance with the provisions of Recovery of Premises Law of Ebonyi State.

An order directing the 1st , 4th – 7th Defendants to return to the Claimant his official Toyota Hilux vehicle given to the Claimant by the Presbyterian Joint Hospital, Uburu in his official capacity as the Secretary of the Presbyterian Joint Hospital, Uburu.

The sum of N2, 000,000 for trespassing into the Claimant’s apartment or house to interfere with his private life, his peaceful and quiet enjoyment of the said premises without complying with the provisions of the Law.

The sum of N450, 000 as special damage for the cost of the hotel accommodation at KLASSTON SUITES LTD, Abakaliki where the Claimant stayed for 150 days at the cost of N3, 000 each day/night as a result of the unlawful acts of the Defendants.

The sum of N2, 550,000 as general damages.

The Claimant filed with the compliant a statement of facts, list of witness and copies of documents to be relied on at the trial and his statement on oath. After receipt of the processes, the 1st, 3rd – 7th Defendants [“the Defendants”] entered appearance and filed a joint statement of defence, list of witnesses, statement on oath of the witnesses, list of documents and copies of the documents. The Claimant filed his reply to the Defendants’ statement of defence. After some adjournments, the matter was set down for trial. The Claimant testified in proof of his claims and tendered 9 exhibits, exhibits 1 to 9. The Defendants called two witnesses who testified on their behalf as DW1 and DW2 and tendered 10 exhibits, exhibits DW1A to DW1K. The case was thereafter adjourned for adoption of final written addresses. On 5th July 2018, learned Counsel for the Defendants, Mr. Agu, adopted the Defendants’ final written address dated 2nd July 2018 and filed on 3rd July 2018 and urge the Court to dismiss the claim. Learned Counsel for the Claimant, Mrs. Agha, adopted the Claimant’s final written address dated 14th June 2018 as his submission in support of the claim and urge the Court to grant the reliefs of the Claimant as prayed. The case was consequently set down for judgment.

CLAIMANT’S CASE

The Claimant is an employee of the 7th Defendant deployed to the Presbyterian Joint Hospital Uburu, exhibit 3 and served as the Hospital Secretary until 27th October 2014 when he was redeployed to Iba Parish, Lagos State, exhibit 4. It is the Claimant’s case that as an employee and tenant of the 7th Defendant, he is entitled to possession of his official apartment and Toyota Hilux vehicle until repossessed by due process of law. He claims that he was forcibly ejected from his official apartment and his official vehicle repossessed without due process of law hence this suit.

DEFENDANTS’ CASE

The Defendants joined issues with the Claimant and agreed that he is a Reverend Minister of the 7th Defendant on routine posting to the Presbyterian Joint Hospital, Uburu as Secretary of the Hospital. To facilitate the performance of his duties at the Hospital, the 7th Defendant gave him an apartment within the Hospital premises rent free. It is the Defendants’ case that the Toyota Hilux vehicle was not assigned to the Claimant but was acquired by the Hospital to ease movement of staff and management for her rural medical outreach program. The Defendants denied forcefully ejecting the Claimant from the premises.

SUBMISSION ON BEHALF OF THE DEFENDANTS

The Defendants formulated six issues for determination to wit:

Whether the Claimant is qualified in this circumstances and by reason of his office to be classified as a tenant?

Whether the Claimant was given enough time to vacate the premises of the PJH and proceed to his new station?

On the Claimant’s position as in Exhibit 1?

Whether the 5th Defendant has the right to post out the Claimant at will without giving reasons for such action?

Whether the Claimant’s right to peaceful possession was breached and his privacy invaded?

Whether due procedure was followed in disciplining the Claimant?

Learned Counsel for the Defendants answered issue one in the negative and contended that the Claimant’s occupation was valid only for the period he was a staff of Presbyterian Joint Hospital Uburu and ceased when he was transferred out of the Hospital.

On issue two, learned Counsel explained that the Claimant had ample time to move out of the premises and had actually moved several things from the premises.

On issue three, learned Counsel explained that the 7th Defendant’s conditions of service did not make provision for refund of expenses incurred by a staff who is on a frolic of his own.

On issue four, learned Counsel argued that the 7th Defendant has the right to post out the Claimant and had done so in the past and the Claimant did not question the rationale for the posting.

On issue five, learned Counsel argued that the Claimant’s right to peaceful possession was not violated; and even though the Claimant refused to move after his posting, the Defendants were patient until five months after his suspension. He explained that the Claimant at some point locked up the offices and apartments of the Hospital and went away thereby grounding the activities of the Hospital.

On issue six, learned Counsel contended that if the Claimant was on secondment to the Hospital, he is bound by the conditions of service of the Hospital and the Court cannot consider exhibits 6 and 7. He argued that the Board of the Hospital suspended the Claimant after hearing him and submitted that suspension is part of the disciplinary procedure and relied on Bernard Longe v. First Bank of Nigeria Plc [2006] 3 NWLR [pt.967] 228 at 267. It was further submitted that the Claimant cannot complain of fair hearing, maltreatment, denial of rights and privileges when all that the employer had done is to suspend him and nothing more. He contended that an employer has power to discipline an erring employee and relied on Imonikhe v. Unity Bank Plc [2011] 46 NSCQR [pt.2] 554 at 582.

SUBMISSION ON BEHALF OF THE CLAIMANT

The Claimant raised one issue for determination namely, whether the Claimant has proved his case on the balance of probability as required by law to be entitled to judgment?

It was submitted on behalf of the Claimant that he is an employee of the 7th Defendant and entered into a contract of using the 7th Defendant’s apartment as tenant for the purpose of effectively discharging his duties. Learned Counsel submitted that the Court cannot question the consideration paid by the Claimant for the apartment. It was argued that “no one is entitled to take possession of premises by a strong hand or with multitude of people and this has been forbidden since the statute of Richard 11 against forcible entry and this applies to everyone. If they are entitled to their possession, they must regain it by due process, they must regain it by due process of the law. They must not take law into their hands and must apply to the Court for possession and act only on the authority of the Court” and referred to Commissioner [1969] WLR 703 at 707 and Governor of Lagos State v. Ojukwu [1986] 2 SC 277 at 281. She submitted that the Recovery of premises Law, CAP 132, Laws of Ebonyi State, 2009, sections 8 to 10, provided for notices for the purpose of determining a tenancy and relied particularly on section 10[1].

COURT’S DECISION

I have considered the processes filed in this suit and submissions of learned Counsel for the parties. I will adopt the issue for determination formulated by the Claimant with a slight modification, that is, whether the Claimant has proved his case on a preponderance of evidence to entitle him to the reliefs sought or any of them. The law is now settled that in civil cases the burden of proof is on the person who asserts same. See sections 131[1] and 133[1] of the Evidence Act 2011 and Rev. Ebute John Onogwu & 4Ors. v. Benue State Civil Service Commission & 3Ors. [2012] LPELR-8604 [CA] 1 at 26. It is also the law that the Claimant who seeks declaratory reliefs has the burden of establishing his entitlement to the relief as declaratory reliefs are not granted on the basis of admission by the other party or in default of defence. See Isiyaku Musa Jikantoro & 6 Ors. v. Alhaji Haliru Dantoro & 6 Ors. [2004] 5 SC [pt.11] 1 at 15 Thus, to succeed the Claimant must put forward cogent and credible evidence in support of the reliefs sought.

The facts of this case are simple. The Claimant is a Reverend Minister and an employee of the 7th Defendant deployed as Secretary of the 7th Defendant’s Hospital, the Presbyterian Joint Hospital, Uburu [“the Hospital”] exhibit 3. Parties agree that for the effective performance of his duties at the Presbyterian Joint Hospital, Uburu the Claimant was given an apartment in the Hospital. While the Claimant claims that a Toyota Hilux was attached to him, the Defendants assert that it was not assigned to him but was acquired by the Hospital to ease movement of staff and management for her rural medical outreach program. In my view, whether the Toyota Hilux is attached to the Claimant or not, what is clear from the evidence is that the vehicle is owned by the Presbyterian Joint Hospital, Uburu and was provided to facilitate movement of staff of the Hospital including the Claimant; who as its Secretary has more access to its use. On 27th October 2014, the 7th Defendant redeployed the Claimant to its Iba Parish, Lagos State, with effect from 1st January 2015, exhibit 4. The Claimant resisted the redeployment giving rise to a chain of events culminating in this suit. The Claimant’s contention is that he is a tenant of the 7th Defendant and his tenancy cannot be determined without compliance with the Recovery of Premises Law of Ebonyi State. He also argues that the Toyota Hilux was attached to him as Secretary of the Hospital and the retrieval of the vehicle from him infringed on his rights. It is clear to me that the Claimant is labouring under a serious misapprehension of his rights as Secretary of the Hospital. Let me say here that the relationship between the Claimant and the 7th Defendant is not one of landlord and tenant strictly speaking but one of employer and employee. The ingredients of a valid lease are not evident in this case. For emphasis, the ingredients of a valid lease are the parties concerned, the property involved, the term of years, the rent payable, the commencement date, terms as to covenants and mode of determination. See Alhaji J. A. Odutola & Anor. v. Papersack Nigeria Limited [2006] LPELR-2259 [SC] at page 26. While the condition of parties and property have been fulfilled, the tenure of the lease, the agreed rent and covenants of the lease are not present. I hold the view that the provision of the accommodation by the 7th Defendant is merely an incident of the Claimant’s employment and deployment to the Presbyterian Joint Hospital, Uburu. The Claimant did not acquire an estate in the apartment capable of enforcement in Court. He is, at best, a licensee and his licence to use the apartment extinguishes upon cessation of his employment or transfer, as in this case. See Emeka Nwana v. Federal Capital Development Authority & 5 Ors. [2004] 13 NWLR [pt. 889] 128 at 144-145, where Edozie, J.S.C., held:

“Where an agent or servant is allowed to occupy premises belonging to his principal for the more convenient performance of his duties, he acquires no estate therein. He is merely a licensee and has no right to continue to remain in the property on cessation of his employment. Consequently, he cannot maintain an action in trespass against his employer in the event of his eviction.”

Moreover, the Claimant was given adequate notice of his transfer to Iba Parish. The letter of transfer is dated 27th October 2014 and the Claimant was to resume on 1st January 2015, which was enough time for him to vacate his official apartment for his successor but he chose to disobey the lawful orders of his employers. It is trite law that wilful disobedience of lawful and reasonable orders of the employer amounts to a repudiation of the employee’s contract of service. See Nigerian Employment and Labour Relations Law and Practice by Chioma Kanu Agomo at page 119. It has been held that where an employee’s contract requires him to work anywhere in the country and he refuses a transfer, the employer is entitled to dismiss him. See Compendium of Employment and Labour Law in Nigeria, 2nd Edition, page 42. In these circumstances, therefore, the Recovery of Premises Law of Ebonyi State does not apply and a case of invasion of his home or privacy has not been made out pursuant to section 37 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. It must be added that the exercise by a citizen of his rights must not prejudicially affect the exercise by another citizen of his right. Put differently, the exercise of a citizen’s right ends where the right of the other begins. See The Registered Trustees of Association of Tippers and Quarry Owners of Nigeria v. Chief Ramoni Yusuf & 3Ors. [2011] LPELR-5024 at pages 42-43.

In my respectful view, this is a clear case of insubordination and the Court cannot lend its powers to such undeserving suppliant. Accordingly, I find no merit in this action and it is hereby dismissed. For the avoidance of doubt, I find and hold as follows:

The Defendants’ acts of recovering possession of the Claimant’s apartment in the Presbyterian Joint Hospital, Uburu does not offend section 37 of the 1999 Constitution of Nigeria as amended and sections 7 to 10 of the Recovery of Premises Law vol. 5 laws of Ebonyi State, 2009.

Flowing from the above, it is not unlawful for the Defendants to change the keys to the Claimant’s apartment at the Presbyterian Joint Hospital Uburu and lock it up especially in view of the Claimant’s refusal to abide by the resolution of the Board of Governors of the Presbyterian Joint Hospital, Uburu on 5th November 2014, exhibit DW1G, directing him to vacate the apartment and hand over the Hospital property to the Chairman Board of Governors.

Reliefs c, d and e fail and are hereby dismissed. This Court cannot make a mandatory order in these circumstances where the Claimant has not established a legal right. In addition, the Court cannot restrain a completed act. An application for injunction is an application for an equitable relief and equity does not act in vain. The law is trite that a Court of law cannot restrained an action that took place in the past. See the case of NBM Bank Limited v. Oasis Group Limited [2004] LPELR-5938 [CA] at 11. In Etubom Ekpo Okon Abasi Otu & Another v. Etubom [Dr.] Anthony Asuquo Ani & 5 Ors. [2013] LPELR-21405 [CA] at 81, Garba, J.C.A., put it succinctly thus:

“The law is now firmly established that the courts do not make or grant injunctive or restraining orders in respect of acts or events which have already been done, completed or have happened or taken place before the court was approached for such reliefs. An order of injunction is usually and properly made or issued to prevent or stop an act or event from either being started, done or continued and to restrain it from happening at all. It is directed at future events or acts. Where such an event or act had already happened, been done or completed, an order of injunction or restraint to prevent it from happening would be belated and in vain. The courts are known not to make a practice of making orders in vain, which injunction in respect of completed acts or event is.”

Moreover, the Claimant does not have an estate in the apartment that can be protected by an order of injunction. Injunctions are granted to protect an established right. No such right inheres in the Claimant.

Relief f also fails and is hereby dismissed. The Toyota Hilux vehicle is the property of the Presbyterian Joint Hospital, Uburu and provided by the Hospital Management to facilitate movement of staff and management for its rural medical outreach program. It is not a status car and has not been allocated to the Claimant and this Court cannot give him what he does not own. Equity follows the law.

Having held that an employer is not liable in trespass to his employee in the event of his eviction, the claims for N2, 000,000 damages for trespass and N2, 550,000 general damages must fail and they are hereby dismissed.

While production of receipt is sufficient proof of special damages, the claim for refund of the sum of N450, 000 being cost of the hotel accommodation at KLASSTON SUITES LTD, Abakaliki must fail. The Claimant has not shown that the amount was spent in the course of performance of his duty to the 7th Defendant. It is in evidence that at the time in question he had been transferred to Iba Parish, Lagos State and subsequently suspended. It was his decision to lodge in the hotel and he must bear the cost of doing so.