CHIEF SYLVANUS N. MADUBEZE & 2 ORS VS THE DIRECTOR GENERAL

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

DATE: 4th October 2018

SUIT NO. NICN/EN/90/2015

BETWEEN

CHIEF SYLVANUS N. MADUBEZE
MR. REMIGUS O. MADUBEZE
[Suing as Administrators of the Estate

of late Mrs. Grace N. Madubeze]

CLAIMANT

AND

THE DIRECTOR GENERAL,

BUREAU OF PUBLIC ENTERPRISES

FEDERAL MINISTER OF SOLID

MINERALS DEVELOPMENT

DEFENDANTS

REPRESENTATION:

Anthony Obinna Mogboh Esq. with Chukwuma Edeh Esq., Chidi Emmanuel Ezenwa Esq, Daniel Ishiwu Esq. and Clementina Chinelo Eze [Mrs.] for the Claimants

Dr. Omoniyi Bukola Akinola with Ukamaka Christiana Edeh [Ms.] for the 1st Defendant

Isaiah Irabor Esq. for the 2nd Defendant.

JUDGMENT

The Claimants commenced this suit against the 1st Defendant by writ of summons dated 3rd August 2015. Following the joinder of the 2nd Defendant, the Claimants claimed against the Defendants in their amended statement of facts dated 14th February 2018 as follows:

A declaration that the Claimants being the administrators of the estate of the late Mrs. Grace N. Madubeze are entitled to be offered the property known as House No. 15 Kopex Quarters Iva Valley, Enugu at a discount of 10% of its market value.

A declaration that in the sale of the property known as and called House No. 15 Kopex Quarters Iva Valley, Enugu the Claimants being the administrators of the estate of late Mrs. Grace N. Madubeze are entitled to be handled in like manner and/or treated equally as other retired or disengaged members of staff of Nigerian Mining Corporation to whom houses in their possession and occupation were sold by the 1st Respondent.

A declaration that the 1st Respondent was wrong in partitioning and dividing the property known as and called House No. 15 Kopex Quarters Iva Valley, Enugu when the Claimants have not declined to purchase same at a discount of 10% of its market value.

A declaration that the 1st Respondent’s handling and/or treatment of the Claimants in the sale of the property known as and called House No. 15 Kopex Quarters Iva Valley, Enugu is unfair, unjust, oppressive, discriminatory and unlawful.

An order setting aside the partitioning and division of the property known as and called House No. 15 Kopex Quarters Iva Valley, Enugu when the Claimants being the administrators of the estate of the late Mrs. Grace N. Madubeze have not declined to purchase same at a discount of 10% of its market value.

An order of perpetual injunction restraining the Respondent from selling the property known as and called House No. 15 Kopex Quarters Iva Valley, Enugu to any other person except the Claimants being the administrators of the estate of the late Mrs. Grace N. Madubeze at a discount of 10% of its market value or at such a value as may be determined by an independent valuer as may be appointed by the Honourable Court.

A declaration that the late Mrs. Grace N. Madubeze is entitled to her arrears, gratuities and three months’ salary in lieu of notice of her disengagement from the services of the Nigeria Coal Corporation.

An order directing the 2nd Respondent to pay to the Claimants forthwith the sum of N9, 280,425.96 being the arrears of pension, gratuities and three months’ salary in lieu of notice of disengagement owed the late Mrs. Grace N. Madubeze.

The Claimants filed with the originating processes the statement on oath of the 1st Claimant and Mr. Humphrey Mgbo and copies of documents to be relied on. The 1st Defendant filed his defence processes on 9th November 2016 which was amended on 26th April 2018. The 2nd Defendant entered appearance and filed its statement of defence on 11th May 2018 without a witness deposition. Trial commenced on 21st May 2018 and was concluded on 19th June 2018. The Claimants called two witnesses and tendered 5 exhibits, exhibits A to E. The 1st Defendant called two witnesses and tendered 5 exhibits, exhibits DW1A to DW1E. The 2nd Defendant did not call any witness but relied on the evidence of the 1st Defendant. The case was thereafter adjourned for adoption of final written addresses. On 11th July 2018, learned Counsel for the 1st Defendant, Miss Edeh, adopted the 1st Defendant’s final written address dated 25th June 2018 and urged the Court to dismiss the suit. Learned Counsel for the Claimants, Mr. Edeh, adopted the Claimants’ final written address filed on 4th July 2018 and urged the Court to grant the reliefs of the Claimants. The matter was consequently set down for judgment.

SUBMISSION ON BEHALF OF THE 1ST DEFENDANT

The 1st Defendant raised two issues for determination namely:

Whether the Claimants have proved its [sic] case based on the preponderance of evidence?

Whether there was an enforceable contract of sale between the Claimants and the 1st Defendant?

On issue one, learned Counsel for the 1st Defendant argued that for the Claimants to succeed on relief 4 there must be evidence of retirees with similar properties in the area and the price it was offered to them; which evidence was not proffered and as a result the burden did not shift. It was contended that the Valuation Report, exhibit A, was prepared during the pendency of this suit and pursuant to section 83[3] of the Evidence Act 2011 urged the Court to expunge it from the records. Referring to exhibit DW1D, learned Counsel urged the Court to hold that the price arrived at by the 1st Defendant in the verification exercise by the Nigerian Coal Corporation is fair, just and non-discriminatory. It was also submitted that from the evidence of DW1 and exhibit DW1B, pension swap has been abolished and consequently the Claimants have no interest in No. 15 Kopex Quarters Iva Valley, Enugu which now vests in the 1st Defendant by operation of law. On the claim for gratuity and pensions, he submitted that there is no evidence that demand was made and that documentation and offer letters would not be done unless monetary entitlements were verified, compiled and settled and urged the Court to resolve issue one in the Defendants’ favour.

On issue two, learned Counsel submitted that there is no binding contract between the Claimants and the Defendants to sustain the reliefs as contained on the face of the statement of facts. In conclusion, he submitted that the Claimants have not proved their case on the preponderance of evidence and urged the Court to vacate the order of injunction made against the Defendants.

SUBMISSION ON BEHALF OF THE CLAIMANTS

The Claimants formulated two issues for determination to wit:

Whether the Claimants proved that the rate at which the disputed property was offered to them does not reflect a 10% discount of its market value, and that the property was partitioned by the 1st Defendant?

Whether the Claimants proved that the late Mrs. Grace N. Madubeze was owed part of her gratuities, arrears of pensions and three months’ salary in lieu of notice?

Canvassing issue one, learned Counsel for the Claimants explained that the Defendants in their pleadings admitted the case presented by the Claimants but stated that the offer price reflected a discount of 10% of its market value but denied partitioning the property. He submitted that facts admitted require no further proof and relied on UTB [Nig.] Ltd v. Ozoemena [2001] 7 NWLR [pt.713] 718. He argued that the burden is on the Defendants to disprove that the property was offered at 10% discount of the market value which burden they did not discharge and referred to Jack v. Whyte [2001] 6 NWLR [pt.706] at 268. Learned Counsel also argued that the evidence of partitioning of the property was not contradicted and must be held to be established and referred to Bamaiyi & Anor. v. Na-Allah & Ors. [2008] LPELR-8640[CA] at 11.

On issue two, learned Counsel referred to paragraphs 17, 18 and 19 of the 1st Claimant’s statement on oath and argued that this evidence was not challenged. Learned Counsel explained that pension is the accrued right of an employee on retiring from the service of an employer and cannot be unilaterally taken away by the employer and referred to Momodu v. National Union of Local Government Employees [1994] 8 NWLR [pt.362] 336. Learned Counsel also argued that no material evidence was placed before the Court to show that late Mrs. Grace Madubeze was one of the retirees that received settlement cheques. Learned Counsel therefore submitted that where evidence given by a party to any proceeding was not challenged by the opposite party who had the opportunity to do so, it is always open to the Court seised of the proceedings to act on the unchallenged evidence before it and referred to Ogunnyade v. Oshunkeye [2007] 15 NWLR [pt.1057] 218.

On the issues raised by the 1st Defendant, learned Counsel submitted that exhibit A does not come within the scope of section 83[3] of the Evidence Act 2011 as it is not a statement made by a person interested in the proceedings and referred to H. M. S. Ltd. v. First Bank [1991] NWLR [pt.167] 312-313. It was further argued that assuming without conceding that the Claimants’ valuation report was admitted in contravention of any rules of evidence and expunged from the records, the case of the Claimants cannot be adversely affected in view of the Defendants’ admission and absence of evidence that the property was offered in line with the agreement of the parties. It was also submitted that there is an enforceable contract between the Claimants as administrators of the estate of late Mrs. Grace N. Madubeze and the 1st Defendant in respect of the disputed property. The contract, it was argued, is the agreement that the property at a discount of 10% of the market value and referred to Agrovet Sincho Pham. Ltd. & Anor. v. Estate of Engr. Dahiru & Ors. [2013] LPELR-20364.

COURT’S DECISION

I have considered the processes filed in this suit and the submissions of learned Counsel for the parties. The facts of this case are simple. The Claimants are the Administrators of the estate of late Mrs. Grace N. Madubeze, who was a retiree of Nigerian Coal Corporation, exhibit B. Pursuant to a decision of the National Council on Privatization to offer the residential houses of Nigerian Coal Corporation to ex-staff at a discount of 10% of the market value, the property at No. 15 Kopex Quarters Iva Valley, Enugu was offered to late Mrs. Grace N. Madubeze for the sum of N8, 304, 083 representing, according to the 1st Defendant, the discounted value to N7, 702, 083 and the deceased’s alleged outstanding rent of N602, 000. The Claimants rejected the offer price as, in their opinion, it did not represent the agreed 10% discount of the market value. To substantiate their claim, the Claimants employed Phil Anozia & Company, a firm of Chartered Surveyors and Valuers who prepared a valuation report, exhibit A, and fixed the price for N2, 200,000 only. It is also the Claimants’ case that the late Mrs. Grace N. Madubeze was owed 60 months arrears of pension in the sum of N6, 000,000 by the 2nd Defendant and that she was entitled to 3 months’ salary in lieu of notice of disengagement in the sum of N180, 000 and N3, 100, 145.96 as gratuities. The Defendants denied any indebtedness to late Mrs. Grace N. Madubeze because documentation for offer and allocation of houses were done upon payment of all staff liabilities by the Nigerian Coal Corporation through the 2nd Defendant and put the Claimants to the strictest proof of the averments. The Claimants did not file a reply to the statement of defence or proffer further evidence in proof of this claim.

In view of the prolixity of issues formulated by the parties which are mere repetition of the main issue, I will adopt issue one of the 1st Defendant’s issues for determination as it addresses the main issue arising from the pleadings of the parties. Therefore, the issue for determination in this suit is whether the Claimants have proved their case on a preponderance of evidence to entitle them 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 Claimants who seek declaratory reliefs have the onerous burden of establishing their entitlement to the reliefs. Evidence which must support a legal right or claim must be overwhelming, total, convincing and credible. The Claimants must succeed on the strength of their case and not on the weakness of the defence. See Isiyaku Musa Jikantoro & 6 Ors. v. Alhaji Haliru Dantoro & 6 Ors. [2004] 5 SC [pt.11] 1 at 15, Diamond Bank Plc v. Alhaji Usman Yahaya & Anor. [2011] LPELR-4036[CA] at page 27and Yakubu Wondo & 2 Ors. v. Mal. Ibrahim Bello & 2 Ors. [2016] LPELR-40824[CA] at page 53. It must be noted, however, that the standard of proof remains the same, that is, proof on a balance of probabilities. The Claimants are only required to show that the law and facts of their case support their claims and cannot rely on the mere admission of the Defendants or absence of defence.

First, let me deal with the non-filing of a witness deposition by the 2nd Defendant. The 2nd Defendant filed a statement of defence which merely reproduced the 1st Defendant’s statement of defence. The 2nd Defendant in its list of witnesses stated that it would rely on the evidence of witnesses for the 1st Defendant or subpoena an officer in the employment of either of the Defendants. It is trite law that averments in pleadings are not evidence. Mere averments without evidence in proof of facts pleaded go to no issue and such averments are deemed abandoned and would be struck out by the Court unless it is admitted by the adverse party. See the case of Senator Usman Jibrin Wowo & Anor. v. Senator Adamu Muhammad Sidi-Ali & Ors. [2009] LPELR-5106[CA] at page 63. Accordingly, the 2nd Defendant is deemed to have abandoned its defence, the fact that it said it would rely on the evidence of witnesses for the 1st Defendant notwithstanding. The 2nd Defendant’s statement of defence dated 11th May 2018 having been abandoned is hereby struck out.
Next, is the issue raised by the 1st Defendant whether there is an enforceable contract between him and the Claimants. He went on to list the conditions for a valid enforceable contract, which include offer, acceptance, consideration and it must be legal. Learned Counsel submitted that though there is an offer there is no acceptance. Learned Counsel for the Claimants submitted that there is an enforceable contract between the Claimants as administrators of the estate of late Mrs. Grace N. Madubeze and the 1st Defendant in respect of the disputed property. He submitted that the contract is the agreement that the property shall be sold at a discount of 10% of the market value and that a contract is concluded when parties have reached a consensus on what they have agreed to do and referred to Agrovet Sincho Pham. Ltd. & Anor. v. Estate of Engr. Dahiru & Ors. [2013] LPELR-20364. Whether there is a contract capable of enforcement will depend on the facts of the case. A contract is an agreement which the law will enforce or recognize as affecting the legal rights and duties of the parties. It is settled law that the conditions for a valid and enforceable contract are offer, acceptance, consideration, intention to create legal relation and capacity to contract. These five conditions must be present. In addition, there must be mutuality of purpose and intention, or what is called consensus ad idem. See Mr. Raphael Jegede v. Mayor Engineering Company Limited [2013] LPELR-20284[CA] at pages 22-23. Learned Counsel for the Claimants submitted that the contract is the agreement that the property shall be sold at a discount of 10% of the market value and that a contract is concluded when parties have reached a consensus on what they have agreed to do. With all due respect to learned Counsel, this is preposterous. The National Council on Privatisation decision to sell Nigerian Coal Corporation residential properties to ex-staff at 10% of its market value is not an offer capable of acceptance. It is a declaration of intention or what is properly called a policy decision. An offer was made after due verification and documentation of the ex-staff. Exhibit C is the offer which has not been accepted. However, an ex-staff who received the communication can upon receipt of the offer plead estoppel if the 1st Defendant resiles from that policy. It can certainly not be an enforceable contract. In the absence of proof of acceptance of exhibit C, I find and hold that there is no enforceable contract between the Claimants and the 1st Defendant.

The third point is the issue raised by learned Counsel for the 1st Defendant on exhibit A. He contended that the Valuation Report, exhibit A, was prepared during the pendency of this suit and pursuant to section 83[3] of the Evidence Act 2011 urged the Court to expunge it from the records. In his response, learned Counsel for the Claimants submitted that exhibit A does not come within the scope of section 83[3] of the Evidence Act 2011 as it is not a statement made by a person interested in the proceedingsand referred to H. M. S. Ltd. v. First Bank [1991] NWLR [pt.167] 312-313. Although the report is not dated, page 1 of exhibit A indicates that Phil Anozia & Company inspected the site on 10th February 2016. The Claimants introduced this document in their amended statement of facts filed on 22nd January 2018. Manifestly, it was prepared during the pendency of this suit. Section 83[3] and [4] of the Evidence Act provide thus:

“[3] Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.

“[4] For the purposes of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part of it was written, made or produced by him with his own hand or was signed or initialed by him or otherwise recognized by him in writing as one for the accuracy of which he is responsible.” [underlining mine]

It is clear that for exhibit A to come within the meaning of section 83[3] of the Evidence Act 2011, it must have been produced, signed, initialed or otherwise acknowledged by the Claimants as theirs. It has been held that the phrase “a person interested” is not confined to the matter of the document. It includes any person whatsoever provided he is interested. There must be a real likelihood of bias before a person making a statement can be said to be a person interested.” See Lateef Adegbite & Anor. v. Aminu Amosu [2013] LPELR-21472[CA] at pages 37-38. The question then is, is there a real likelihood that Phil Anozia and Company could be biased in their report? The circumstances surrounding the report and the fact that referenced properties are outside the subject matter of dispute create a real likelihood of bias. Learned Counsel referred to Highgrade Maritime Services Limited v. First Bank of Nigeria Limited [supra]. In that case, Wali, J.S.C., at page 307 of the report held:

“A person is held not to be interested under subsection 3 of section 90 [the current section 83] of the Evidence Act when he has no temptation to depart from the truth on one side or the other, a person not swayed by personal interest, but completely detached, judicial impartial independent.”

Karibi-Whyte, J.S.C. puts it more forcefully at page 313 of the report thus:

“Of course, before there will exist a disqualifying interest, or a person will be regarded as “a person interested” there must exist a real likelihood of bias. Hence where an official is discharging a ministerial duty which does not involve any personal opinion, the question of bias will not be in issue.”

Applying this authority to the facts of this case, it is clear that Phil Anozia and Company are not performing a ministerial duty and their personal opinion is required in this matter. The manner of their appointment without the concurrence of the 1st Defendant and the way they went about their duty and the failure to forward a copy of the report to the 1st Defendant for discussion prior to its presentation in Court as exhibit show that they could not be dispassionate about the report. In the circumstance, I find and hold that Phil Anozia and Company are persons interested and exhibit A offends the provision of section 83[3] of the Evidence Act 2011 and consequently expunged from the records.

Now, let me go to the merits of the case. The first relief is for a declaration that the Claimants being the administrators of the estate of the late Mrs. Grace N. Madubeze are entitled to be offered the property known as House No. 15 Kopex Quarters Iva Valley, Enugu at a discount of 10% of its market value. The evidence in support of this relief is in paragraphs 1, 2, 5, 6, 7 and 8 of the 1st Claimant’s statement on oath and exhibit B. This piece of evidence was not challenged by the 1st Defendant. In paragraph 1 of the amended statement of defence the 1st Defendant admitted that the Claimants are administrators of the estate of late Mrs. Grace N. Madubeze. It is in evidence that the Claimants have indeed been offered No. 15 Kopex Quarters Iva Valley, Enugu, which offer has not been accepted. While the 1st Defendant states that the offer incorporated the 10% discount of the market value of the property, the Claimants argue that it did not; but have not taken any steps to resolve the issue of pricing with the 1st Defendant. Relief one is not disputed. In the circumstance, it succeeds and is hereby granted.

Relief two seeks a declaration that in the sale of the property known as and called House No. 15 Kopex Quarters Iva Valley, Enugu the Claimants being the administrators of the estate of late Mrs. Grace N. Madubeze are entitled to be handled in like manner and/or treated equally as other retired or disengaged members of staff of Nigerian Mining Corporation to whom houses in their possession and occupation were sold by the 1st Respondent. The only evidence in proof of this claim is in paragraph 21 of the 1st Claimant’s statement on oath, which is a reproduction of paragraph 19 of the amended statement of facts. The 1st Defendant in paragraph 6 of his amended statement of defence denied paragraph 19 of the amended statement of facts and put the Claimants to the strictest proof of the averment. The letter of 9th March 2015 was not tendered and there is no other evidence to buttress this claim. There is no evidence of how the ex-staff of Nigerian Mining Corporation were treated and that the 1st Defendant has bound himself to treat all staff of Nigerian Coal Corporation in the same manner. The ipse dixit of the 1st Claimant is not enough to ground this claim. A declaratory relief is one which seeks the pronouncement of the Court as to the status of a named matter, thing or situation. It is thus a discretionary relief and for the discretion of the Court to be exercised judicially and judiciously, it must be backed up by concrete evidence. That is to say, the Claimants must plead and lead evidence to establish that the status exists and that it enures in their favour. There is no proof of the treatment meted to disengaged staff of Nigerian Mining Corporation. There is equally no evidence that it enures in favour of the Claimants. This relief is not one that can be granted just for the asking. See Simon Nwagu v. Elder Rufus Fadipe [2012] LPELR-7966[CA] at pages 16-17. Applying this principle to this case, I find and hold that the Claimants have not established their right to be treated equally with the disengaged staff of Nigerian Mining Corporation. This relief fails and it is dismissed.

Relief three is for a declaration that the 1st Respondent was wrong in partitioning and dividing the property known as and called House No. 15 Kopex Quarters Iva Valley, Enugu when the Claimants have not declined to purchase same at a discount of 10% of its market value. Evidence of partitioning is in paragraphs 33 and 34 of the 1st Claimant’s statement on oath. Paragraph 34 is intriguing and it is set out here.

“34. That the 1st respondent does not have the right to partition and divide the subject property of this suit, and cannot offer any part thereof to buyers other than the Claimants who are the administrators of the estate of the late Mrs. Grace N. Madubeze, and who have not declined to buy same at a discount of 10% of its market value as earlier agreed to by the 1st respondent.”

While parties are to maintain the status quo pending the determination of the case, the property in question belongs to the 1st Defendant by operation of law and the Claimants have not denied this fact. That is why an offer for sale is being made to them. It is trite that ownership connotes a complete and total right over a property. The owner of a property is not subject to the right of another person, as long as he has full and final right to put the property or make use of it anyway, including planning of the land, if the need arises. The owner of a property can use it for any purpose; and in so far as the property inheres in him nobody can say anything. The property begins with him and ends with him. See Hyacinth Nzenwata & 3Ors. v. Rev. Dr. Mike Nzenwata [2016] LPELR-41089[CA] at page 37-38. I observe that the offer made to the Claimants is time-bound. Paragraph 2 of exhibit C under terms of payment stipulates that:

“You are now expected to make payments on the following terms and conditions within sixty [60] working days as follows:”

There is no evidence that the Claimants accepted this offer and made payments as required. It is also clear that the time allowed for acceptance of the offer has lapsed. It is my considered opinion and I hold that an unwilling buyer cannot tie the hands of a willing vendor. In the circumstance, I hold that the justification for this declaration has not been made out. This relief fails and it is hereby dismissed.

Relief four seeks a declaration that the 1st Respondent’s handling and/or treatment of the Claimants in the sale of the property known as and called House No. 15 Kopex Quarters Iva Valley, Enugu is unfair, unjust, oppressive, discriminatory and unlawful. The evidence in proof of this claim is in paragraphs 35 to 38 of the 1st Claimant’s statement on oath. Again, the onus of showing that the 1st Defendant’s treatment of the Claimants in the sale of No. 15 Kopex Quarters Iva Valley, Enugu is unfair, unjust, oppressive, discriminatory and unlawful is on the Claimants and this can be discharge by production of evidence of the 1st Defendant’s dealings with occupiers of adjoining properties in Iva Valley, Enugu which will assist the Court in determining whether there is an unfairness in his treatment of the Claimants or not. Apart from the 1st Claimant’s viva voce, there is no documentary or other corroborating evidence. In effect, there is no evidence for the 1st Defendant to rebut. Nevertheless, the 1st Defendant in paragraph 38 of his amended statement of defence averred thus:

“38. The 1st Defendant avers that the value of No. 15 Kopex Quarters was arrived at using the Depreciated Replacement Cost and cross checked with comparable properties in the area was discounted accordingly, bringing the discounted value to N7, 702, 083.00 (seven million, seven hundred and two thousand and eighty-three naira] only.”

This averment was reproduced in paragraph 3 of DW2’s written statement on oath. This piece of evidence was not challenged by the Claimants and offer letters of similar properties in Kopex Quarters, Iva Valley were not tendered to buttress the claim of unfairness. It should be noted that in a claim for declaratory relief, as in the instant case, the Claimant must prove his case. See section 133[1] of the Evidence Act 2011. It is not for the 1st Defendant to disprove the Claimant’s case where the Claimant has failed to prove his case. Where the Claimants fail to prove their case by their evidence, the claim becomes liable to be dismissed and the Court needs not consider the 1st Defendant’s case. See Chief Court Nabira Awanen v. Belmene Ntaoh [2011] LPELR-3928[CA] at page 32. This claim fails also and it is dismissed.

Relief five is for an order setting aside the partitioning and division of the property known as and called House No. 15 Kopex Quarters Iva Valley, Enugu when the Claimants being the administrators of the estate of the late Mrs. Grace N. Madubeze have not declined to purchase same at a discount of 10% of its market value. This claim is dependent on the success of relief three above. There must be a declaration of right in favour of the Claimants before an order can be made setting aside the partition and division of land. Once the principal order sought is refused, no order incidental to the principal order can be granted. See Benjamin Ukelere v. First Bank of Nig. Plc [2011] LPELR-3869[CA] at page 29. No such declaration was made in favour of the Claimants. In addition, the offer made to the Claimants has lapsed and so the question of the Claimants declining to purchase does not arise any more. This relief fails and it is dismissed.

Relief six is for an order of perpetual injunction restraining the Respondent from selling the property known as and called House No. 15 Kopex Quarters Iva Valley, Enugu to any other person except the Claimants being the administrators of the estate of the late Mrs. Grace N. Madubeze at a discount of 10% of its market value or at such a value as may be determined by an independent valuer as may be appointed by the Honourable Court. It is trite law that a perpetual injunction will only be granted in favour of the Claimants if they have satisfied the Court that they have a legal right to be protected by the Court. See Pa Tayo Ojo v. Chief Jerome Akinsanoye [2014] LPELR-22736[CA] at page 60 andPrince Rasak Yesufu Ogiefo v. HRH Jafaru Isesele 1 & Ors. [2014] LPELR-22333[CA] 59. In the latter case, Saulawa, J.C.A., held:

“A Court of law cannot grant a perpetual injunction on a mere prima facie case. Perpetual injunction cannot be granted on speculation or conjecture on the part of the trial judge that the plaintiff seems to have proved his case. Perpetual injunction, because of its very nature of finality can only be granted if the plaintiff has successfully proved his case on the balance of probability or the preponderance of evidence.”

From the totality of the evidence before me, I am of the firm view that the Claimants have not proved that they have a legal right in No. 15 Kopex Quarters Iva Valley, Enugu to be protected by this Court. Injunction is an equitable remedy and he that comes to equity must come with clean hands and do equity. See Daniel Okunola Alalade v. National Bank of Nigeria Limited [No.2] [1997] LPELR-5540[CA] at pages 10-11. The Claimants received exhibit C dated 22nd May 2015 and instead of negotiating with the 1st Defendant and coming to a compromise embarked on acts that appear to be a challenge of the 1st Defendant’s ownership rights. They did not accept the offer and there is no evidence that they made a counter offer to keep the negotiations alive. They locked in the 1st Defendant in Court and took no steps to negotiate during the pendency of this suit. A party who has not done equity cannot enjoy the sympathy of a Court of equity. Equity follows the law. An owner of property has an indefeasible right to dispose of his property as he considers fit. This right cannot be taken away from the 1st Defendant under any guise. I therefore find and hold that the Claimants have not made out a case for the grant of a perpetual injunction restraining the Respondent from selling the property known as and called House No. 15 Kopex Quarters Iva Valley, Enugu to any other person except the Claimants being the administrators of the estate of the late Mrs. Grace N. Madubeze at a discount of 10% of its market value or at such a value as may be determined by an independent valuer as may be appointed by the Honourable Court. Relief six fails and is hereby dismissed.

Relief seven seeks a declaration that the late Mrs. Grace N. Madubeze is entitled to her arrears, gratuities and three months’ salary in lieu of notice of her disengagement from the services of the Nigerian Coal Corporation. As I held earlier, the Claimants in a claim for a declaration of right must prove their entitlement to that relief. It is settled law that he who asserts must prove. See section 136[1] of the Evidence Act, 2011. The Claimants assert that late Mrs. Grace N. Madubeze is owed the sum of N9, 280,425.96. The burden of proof is on them and the viva voce of the 1st Claimant in his statement on oath, in my considered opinion, is not enough for me to make the declaration sought. In Dr. N. E. Okoye & Another v. Centre Point Merchant Bank Ltd. [2008] 7-12 SC 1 at 28,Niki Tobi, J.S.C. [of blessed memory] had this to say:

“I should also say that affidavit evidence is not sacrosanct. It is not above the evaluation of the courts. Like oral evidence, a court of law is entitled to evaluate affidavit evidence in order to ensure its veracity and or authenticity. While uncontradicted affidavit evidence should be used by the court, there are instances when such affidavit evidence clearly tell a lie and the courts cannot be blind to such a lie.” See also Senator Effiong Bob v. Chief Imeh Albert Akpan & 4Ors. [2009] LPELR-8519[CA] 86-87.

They must show how the late Mrs. Grace N. Madubeze became entitled to this sum. The best evidence is her letter of appointment and conditions of service or letter from Nigerian Coal Corporation or Ministry of Solid Minerals Development advising late Mrs. Grace N. Madubeze of the computation of her gratuity and other benefits or bank statement showing previous payments, the amount paid and when payment was stopped. There is no evidence of late Mrs. Grace N. Madubeze’s conditions of service. The basis of computation of the sum of N9, 280,425.96 was equally not produced. This claim is in the nature of special damages which must be specifically pleaded and strictly proved. The fact that the second Defendant did not offer any evidence does not in any way help the Claimants’ case. There is nothing before me to show that a demand for payment of late Mrs. Grace N. Madubeze’s arrears of pensions, gratuity and salary in lieu of notice was made on Nigerian Coal Corporation or the 2nd Defendant. The 1st Claimant’s evidence in proof of this claim is in paragraphs 17 to 19 of his statement on oath. For emphasis, it is reproduced here:

“17. That the Federal Ministry of Solid Minerals Development was responsible for payment of the salary, gratuity and pension of the late Mrs. Grace N. Madubeze.

“18. That the late Mrs. Grace N. Madubeze was owed 60 months in arrears of pension in the sum of N6, 000,000.00 by the Federal Ministry of Solid Minerals Development, having been disengaged from the services of Nigeria Coal Corporation; and the said arrears of pension till date have not been paid despite several representations.

“19. That the late Mrs. Grace N. Madubeze was entitled to three months’ salary in lieu of notice of disengagement, having been disengaged without any such notice. This is in addition to her gratuities which till date have not been entirely paid. The balance of gratuity owed the late Mrs. Grace N. Madubeze is N3, 100,145.96, while the unpaid salary in lieu of notice is N180, 000.00.”

The questions begging for answer are: how much was late Mrs. Grace N. Madubeze paid as gratuity that left the balance of N3, 100,145.96. How much was her monthly salary? Is the sum of N180, 000 her three months’ basic salary? What is the template used in arriving at the sum of N6, 000,000? Her pay slips and statements of account were not produced. Her employment and disengagement letters and conditions of service were not produced. Correspondence with the Ministry of Solid Minerals Development were not tendered, or how were the representations were made? The non-production of evidence by the 2nd Defendant, in my view, does not help the Claimants’ case. The second Defendant in paragraph 5 put the Claimants to the strictest proof of the averments. The first Defendant in paragraph 21 of his amended statement of defence put the Claimants to the strictest proof of the averments. The issue of unpaid gratuity was raised for the first time in the Claimants’ pleading. It is my considered opinion and I so hold that the claim for arrears of pension, gratuity and salary in lieu of notice is an afterthought perhaps brought up to justify their claim to right of purchase of No. 15 Kopex Quarters Iva Valley, Enugu. The Court cannot speculate on how the Claimants arrived at these figures. This claim fails and it is dismissed.

Relief eight is for an order directing the 2nd Respondent to pay to the Claimants forthwith the sum of N9, 280,425.96 being the arrears of pension, gratuities and three months’ salary in lieu of notice of disengagement owed the late Mrs. Grace N. Madubeze. This claim is incidental to relief seven above. The relief having failed, there is no basis for the grant of this claim. See Benjamin Ukelere v. First Bank of Nig. Plc [supra] at page 29.This claim therefore fails and it is dismissed.

For the avoidance of doubt, the Claimants’ case succeeds in part. Reliefs 2, 3, 4, 5, 6, 7 and 8 fail and are hereby dismissed. Relief 1 is granted. It is hereby declared that the Claimants being the administrators of the estate of the late Mrs. Grace N. Madubeze are entitled to be offered the property known as House No. 15 Kopex Quarters Iva Valley, Enugu at a discount of 10% of its market value. I must quickly add that the offer has already been made to the Claimants and has lapsed. However, the 1st Defendant may consider an extension of time for them to close the transaction.