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National Industrial Court

Victoria Ikechukwu Onwuchekwa & ORS VS Barbedos Ventures Limited

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD

DATE: MARCH 20, 2019                                                        

 SUIT NO. NICN/LA/284/2013

BETWEEN

1.       Victoria Ikechukwu Onwuchekwa

2.       Chinyere Yvonne Onwuchekwa

(suing as Administrators of the Estate of

Young Chukwuma Onwuchekwa)                                                 

Claimants

AND

1.       Barbedos Ventures Limited

2.       Mr Tyson A. Uankhoba

3.       Alhaji Kashim Bukar Shettima

            

Defendants

REPRESENTATION

M. Adeniran and N. E. Oddiri, for the claimants.

J. C. Ugo and N. J. Inyang, for the defendants.

JUDGMENT

1. The claimant had filed this case on 3rd June 2013 against the defendants vide a complaint and the accompanying originating processes. In their statement of facts, the claimants are praying for the following reliefs:

(1)    An interim order of court directing the defendants to pay the sum of N7,095,806.06 (Seven Million, Ninety-Five Thousand, Eight Hundred and Six Naira, Six Kobo) to the lawful Administrators of the Estate of Y. C. Onwuchekwa and/or to the Chief Registrar of the National Industrial Court pending the hearing and determination of the substantive suit.

(2)    A declaration that the full entitlements/dues/benefits of the Late Chief Y. C. Onwuchekwa from the 1st defendant is the sum of N13,348,056.06 (Thirteen Million, Three Hundred and Forty-Eight Thousand, Fifty-Six Naira, Six Kobo).

(3)    An order directing the defendants jointly and severally to pay to the Estate of Chief Y. C. Onwuchekwa a total sum of N13,348,056.06 (Thirteen Million, Three Hundred and Forty-Eight Thousand, Fifty-Six Naira, Six Kobo) being his full entitlements/dues/benefits and interests calculated at the rate of about 21% per annum from July 2004 until payment is made.

(4)    Further and other reliefs.

2. In response to the claimants’ statement of facts dated 30th May 2013, the defendants filed a joint statement of defence dated 1st December 2016. This case is a 2013 case and took a while to get to trial; and this was after several cautions from the Court. The case is also one of the cases pending in this Court for over 5 years and for which the National Judicial Council (NJC) cautioned must be expeditiously disposed of. The Court intimated parties of this caution and so asked all parties to come to Court with all their witnesses so that evidence can be taken and addresses ordered. The claimants heeded this and so came with their sole witness on the date fixed for trial. The 2nd claimant thus testified as CW and tendered six (6) documents i.e. Exhibits C1, C2, C3, C4, C5 and C5(a). She was cross-examined by the defendants’ counsel. At the close of the claimants’ case, the defence was asked to open their defence. The defendants did not given that its witness was absent. An adjournment to 12 noon the following day was granted by the Court given that Order 38 Rule 7(1) of the National Industrial Court (Civil Procedure) Rules 2017 (NICN Rules 2017) enjoins trial from day to day. By 1.07pm the following day, the defence witness was still not in court. The excuse of the defence counsel was that the defence witness was still in Abuja struggling to catch the 1.00pm flight. The Court could no longer wait and so the defendant was foreclosed. The Court ordered the filing of written addresses. The claimants’ final written address was filed on 14th September 2018, while the defendants’ was filed on 30th October 2018. The claimants’ reply on points of law was filed on 5th December 2018.

THE CASE BEFORE THE COURT

3. The claimants are children and lawful administrators of the Estate of their late father, Chief Young Chukwuma Onwuchekwa, who worked in the defunct Volkswagen of Nigeria and in fact rose through the ranks to become its Acting Managing Director by 1st January 1995, and served in that capacity until July 2004 when he died. To the claimants, the 1st defendant became bound to pay the lawful entitlements of workers of the defunct Volkswagen of Nigeria Limited including that of the late Chief Y. C. Onwuchekwa having become seized of the assets and liabilities vide purchase of the said Volkswagen of Nigeria, brokered by the Bureau of Public Enterprises (BPE) sometimes in August 2005 from the Federal Government and other shareholders. That the 2nd and 3rd defendants are officials of the 1st defendant and are in fact sued in this action consequent upon the negative roles they played in the quest of the claimants to collect the lawful entitlements of their father, being the lawful administrators of the Estate. That the defendants requested for Letters of Administration from the claimants’ mother, their Father’s next of kin in the record of the defunct Volkswagen of Nigeria, before the payments of his lawful entitlements can be made when approached; and when same was presented they disputed the rights of the Administrators to the funds and contended that the funds ought to have been paid to the eldest child of the deceased given the native law and custom of the Igbos. The claimants are accordingly praying from this Court an interim order directing the defendants to pay to them the sum of N7,095,806.06 (Seven Million, Ninety-Five Thousand, Eight Hundred and Six Naira, Six Kobo); as well as a declaration/order of this Court for the payment of the full and final entitlements/dues/benefits of the deceased, which is the sum of N13,348,056.06 (Thirteen Million, Three Hundred and Forty Eight Thousand, Fifty Six Naira, Six Kobo).

4. The defendants on their part contend that the Late Chief is not entitled to the sum of N13,348,056.06 (Thirteen Million, Three Hundred and Forty-Eight Thousand, Fifty-Six Naira, Six Kobo) claimed in the action and also that they are no longer in a position to pay the N7,095,086.06 (Seven Million, Ninety-Five Thousand, Eight Hundred and Six Naira, Six Kobo) they calculated and admitted as his real entitlements which the claimants conceded and accepted in the course of the trial for want of evidence to establish the original claims of N13,348,056.06 (Thirteen Million, Three Hundred and Forty-Eight Thousand, Fifty-Six Naira, Six Kobo). The defendants had on 10th November 2014 filed a motion on notice urging this Court to dismiss or strike out the claimants’ suit on the basis that by the time the action was instituted in 2013, the 1st defendant had lost its position, control and management of the Volkswagen of Nigeria Limited. That the 1st defendant had been confined to the position of minority shareholder in the defunct company owing to dilution of its shares by Barbedos Ventures Limited (BVI) of Virgin Islands, which clandestinely coveted 78% equity of the defunct Volkswagen of Nigeria Limited and consequently emerged the majority shareholder of the company. The considered ruling of this Court of 19th May 2016 held thus:

As it is, therefore, the issues raised by the defendants as to the competence of this suit in terms of the liability of the defendants (in terms of being minority shareholders) are issues raised prematurely. They go to the defence of the merit of the case, not as issues of preliminary objection. The same is also true of the claimants’ failure to frontload the letters of Administration showing that the claimants are indeed the lawful Administrators of the Estate of late Chief Y. C. Onwuchekwa. The case shall accordingly proceed to trial with these issues subject to proof by the parties in terms of the merit of the case…

5. Thereafter, the defendants filed a joint statement of defence dated 1st December 2016, wherein they raised the same issues, namely:

(a)     That by dilution of the 1st defendant’s equity shares in Volkswagen of Nigeria Limited, the company is now a minority shareholder.

(b)    That their new position as minority shareholders had removed from them the responsibility of shouldering the payment of entitlements/dues/benefits of workers of the defunct company including the entitlements/dues/benefits of Late Chief Y. C. Onwuchekwa.

(c)     That the responsibility of payment of entitlements/dues/benefits of the former workers of the defunct Volkswagen of Nigeria Ltd including that of Late Y. C. Onwuchekwa rests squarely on the current majority shareholder, which is Barbedos Ventures Ltd (BVI) who had already assumed the responsibility of the management and control of the company, changed its name now to VON Automobile Nigeria Limited and appointed members of the Board of Directors.

Since the defendants were foreclosed, they can only rest their case on that of the claimants.

THE SUBMISSIONS OF THE CLAIMANTS

6. The claimants submitted four issues for determination:

(1)    Whether the proper defendants particularly Barbedos Ventures Limited (BVI) is before this Court.

(2)    Whether a case for the sums claimed is made out against the defendants particularly the 1st defendant.

(3)    Whether the Administrators/children of the Late Chief Y. C. Onwuchekwa are the proper claimants to institute this action.

(4)    Whether failure to declare the sums claimed in this action and or declare the receipt of the entitlements of the Late Chief Y. C. Onwuchekwa in the Letters of Administration affect the Administrators’ capacity to either institute this action or receive the judgment sums on behalf of the Estate.

7. On issue (1), the claimants submitted that they sued Barbedos Ventures Limited and identified same in paragraph two of the witness statement of claim of the 2nd claimant/Administrator as the one that became bound to pay the lawful entitlements of workers of the defunct Volkswagen of Nigeria Limited, including that of the Late Chief Y. C. Onwuchekwa, the former Managing Director, having become seized of its assets and liabilities vide the purchase, brokered by the Bureau of Public Enterprises sometime in August 2005. That in all cases, the law allows this Court to suo motu make use of documents in the case file to do justice to the parties before the Court, citing Marine (Nig) Ltd v. Chevron (Nig) Ltd [2000] 12 NWLR (Pt. 681) at 393 and 394 and Fumudoduh v. Aboro [1991] NWLR (Pt. 214) 210. That the defendants did not dispute the claims of the claimants either in any of their frontloaded documents filed before this Court or their statement of defence and witness statement on oath. That their defence from the two documents before this Court in summary is that another company Barbedos Ventures Limited (BVI), a limited liability company owned and incorporated by Mr Sunil Vaswani and his brother in British Virgin Island (BVI) acquired substantial and overwhelming majority shares in Volkswagen of Nigeria Limited from amongst others the initial German investors, who hitherto partnered with the Federal Government of Nigeria, the ownership and management of the company and also by dilution of the 1st defendant’s 35 equity stake in the company by reducing same to a mere 17% a development that resulted in reducing the 1st defendant to an “inconsequential minority shareholder. Barbedos Ventures Limited (BVI) automatically took over the management and control of Volkswagen of Nigeria Limited. In the exercise of its management and control, Barbedos Ventures Limited (BVI), immediately changed the name of the company from Volkswagen of Nigeria Limited, to VON Automobile Limited”, referring to paragraphs 13 of the statement of defence and witness statement on oath. That consequent upon the above, the 1st defendant was no longer in a position to pay the lawful entitlements of Late Chief Y. C. Onwuchekwa, its erstwhile Managing Director.

8. To the claimants, to establish that the 1st defendant become an inconsequential shareholder, the defendant frontloaded the certificate of incorporation of the new buyers whom they identified as Barbedos Ventures Limited (BVI) and from the said certificate, the name of the “New Buyer” is “Barbedos Ventures Limited” without a (BVI), the exact company sued as 1st defendant in this action by the claimants. Also to be noted is that the name of the said Barbedos Ventures Limited was changed as shown in the said certificate of incorporation on 16th February 2005 while paragraph 2 of the 2nd claimant’s witness statement on oath clearly states that the 1st defendant became bound in August of the said 2005, six months after the said change to the purported Barbedos Ventures Limited (BVI), to pay to the Late chief Y. C. Onwuchekwa his entitlements. Significantly too, the defendants affirmed that they became bound to pay the entitlements sometimes in 2006, over a year since the purported change to Barbedos Ventures Limited (BVI), referring to paragraphs 8, 9, 10 and 11 of the statement of defence and paragraphs 7, 8 and 9 of the statement of claim. Thus, that there is no evidence before this Court of the existence or subsequent existence of any company by name Barbedos Ventures Limited (BVI) given that the certificate of incorporation, which is the best evidence to establish the name of a company, shows that Barbedos Ventures Limited is the only company before this Court which existed before the issues giving rise to this action and it is the name of the company sued as 1st defendant in this action and established to exist before this Court.

9. For emphasis, that it is the name on the certificate of incorporation frontloaded by the defendants, “Barbedos Ventures Limited”, that is sued in this action as 1st defendant and the same company the defendants admitted to have acquired majority shares in the defunct Volkswagen of Nigeria Limited and immediately changed the name of the company from Volkswagen of Nigeria to VON Automobiles Limited, referring to paragraphs 11, 12, 13, 14, 15 and 16 of the statement of defence and the 2nd defendant’s witness statement on oath. That it is the company that became bound by virtue of the brokered sale agreement with the Bureau of Public Enterprises, to pay the entitlements of the workers of the defunct Volkswagen of Nigeria, including that of the deceased Chief Y. C. Onwuchekwa. That the fact that it purportedly subsequently lost control of same, does not remove the liability of its exclusive commitment to the BPE over the payments of the entitlements, urging the Court to so hold. That the other defendants are key employees of the defendants who obstructed attempts to receive the said entitlements as shown in the pleadings.

10. For issue (2), the claimants submitted that the defendants did not challenge the claimants’ claim that their father, the deceased Chief Y. C. Onwuchekwa, worked for the defunct Volkswagen of Nigeria and rose to the position of Managing Director, a position he held up and until he died in 2005 and thus became entitled to compensation which the 1st defendant by virtue of the purchase of the assets and liabilities of the defunct Volkswagen of Nigeria, became obligated to pay. That their defence is that the deceased Chief Y. C. Onwuchekwa was only entitled to be paid the sum of N7,095,806.06 (Seven Million, Ninety-Five Thousand, Eight Hundred and Six Naira and Six Kobo) as his full and final entitlements. That this was pleaded and admitted clearly in paragraph 9 of the statement of defence of the defendants (as well as paragraph  9 of the 2nd defendant’s witness statement on oath) thus: “Further to paragraph 8 above, the 1st defendant immediately assumed responsibilities of managing the affairs of Volkswagen of Nigeria Limited and included settling all outstanding salaries and entitlements of staff. It was in accordance with that responsibility that the 1st defendant sometimes in 2006 from the record available to it offered to the family of the Late Chief Y. C. Onwuchekwa the sum of N7,095,806.06 (Seven Million, Ninety-Five Thousand, Eight Hundred and Six Naira and Six Kobo) as his full and final entitlements due from the defunct Volkswagen of Nigeria Limited”.

11. The claimants went on that in the course of the trial, they accepted the admitted sums of the defendants of N7,095,806.06 as against the initial N13,348,056.06 (Thirteen Million, Three Hundred and Forty-Eight Thousand, Fifty-Six Naira and Fifty Kobo) claimed on behalf of the Late Chief Y. C. Onwuchekwa after they could not access records in the defendants custody supporting the over Thirteen Million Naira initially claimed. That the 2nd claimant witness, on oath, tendered Exhibit C2, which is a letter dated 8th September 2009 from the first defendant’s legal adviser, wherein the cheque for the said sums of N7,095,806.06 was attached, which was issued in favor of the said Chief Y. C. Onwuchekwa, admittedly as his full and final entitlements from their own calculations. Clearly, that the parties disagreed as to the actual entitlements of the Late Chief Y. C. Onwuchekwa up to the point of instituting this action, in the course of the proceedings and up until the actual trial when the 2nd clamant conceded during evidence in chief, consequent upon the failure to obtain the work records of the Late Chief Y. C. Onwuchekwa with the defendants to support the over Thirteen Million Naira claimed, and settled for the said sums of N7,095,806.06 (Seven Million and Ninety-Five thousand, Eight Hundred and Six Naira, Six Kobo) admitted by the defendants. That at the conclusion of the trial and from the records of the Court all the parties, particularly by the admission of the defendants, were in agreement that the proven sums due to the Late Chief Y. C. Onwuchekwa is Seven Million and Ninety-Five Thousand, Eight Hundred and Six Naira, Six Kobo only (N7,095,806.06), urging the Court to hold same as established to be the full entitlements of the Late Chief Y. C. Onwuchekwa due at the point of his death in July 2004. To the claimants, considering that the Central Bank existing interest rate per annum for Commercial Banks is 14%, they claim 14% interest on this sum of Seven Million and Ninety-Five Thousand, Eight Hundred and Sis Naira, Six Kobo from July 2004, when the said sums became due till judgment and another 14% per annum on the total judgment sums up and until same is paid by the defendants, urging the Court to so hold.

12. Regarding issue (3) i.e. whether the claimants as the administrators/children of the Late Chief Y. C. Onwuchekwa are the proper parties to bring this action, the claimants submitted that in paragraph 1 of the statement of facts and paragraph 1 of the 2nd claimant’s witness statement on oath they clearly identified themselves as the children and lawful Administrators of the Estate of Late Chief Y. C. Onwuchekwa. However, that the defendants in their statement of defence and witness statement on oath denied that the claimants are the lawful Administrators of the Late Chief Y. C. Onwuchekwa, a fact contradicted and proved by Exhibit C5, a certified true copy of the letters of Administration duly issued by the Probate Division of the Lagos High Court. That the defendants admitted that the claimants are the children of the Late Chief Y. C. Onwuchekwa. This much was stated in paragraph 10 of the statement of defence (as well as paragraph 10 of the 2nd defendant’s witness statement on oath) thus: “However, there were crisis in the Estate of the Late Chief Y. C. Onwuchekwa with two different groups claiming right to the said payment of his entitlements from Volkswagen of Nigeria Ltd. One group was champion by Mr. Uzoma Onwuchekwa the first and the eldest child of the Late Chief Y. C. Onwuchekwa and three of his other siblings. The second group was championed by the claimants herein on behalf of the themselves and other women and children that the Late Chief Y. C. Onwuchekwa had outside wedlock”. That the defendants agree that the claimants herein are children of the Late Chief Y. C. Onwuchekwa but object to their benefiting from the Estate of the Late Chief Y. C. Onwuchekwa because according to them the children were born outside wedlock and none is the eldest child, a fact that they could not establish in the course of the trial or from the frontloaded documents of their statement of defence.

13. The claimants continued that the defendants also alleged that there was crisis in the family of Late Chief Y. C. Onwuchekwa over the receipt of the entitlements but significantly in the over five years that the matter lasted in this Court none of the children of the Onwuchekwas applied to be joined in this action, or challenged the institution of this action by the claimants against the defendants which primarily seeks to determine the actual entitlements and to claim same on behalf of the Estate of Late Chief Y. C. Onwuchekwa. That it is an established principle of law that children can bring an action to claim family property. That the Late Chief Y. C. Onwuchekwa died intestate, and the claimants applied for Letters of Administration for his Estate, which was granted by the Probate Division of the Lagos High Court after advertising to the world for objections if any before they were appointed as Administrators. That none of the siblings or alleged wives of the Late Chief objected to their being appointed as the Administrators of the Estate; and no such challenge is before this Court or during the almost ten years since the said Letters of Administration were lawfully issued to them by the Probate Division of the Lagos High Court and with their appointment, they became enable to institute this action. The claimants also claim the alleged crisis was instigated by the defendants and to hide under same to deprive the late Chief of his entitlements.  Also, that no objection was raised by any member of the Onwuchekwa family or otherwise when notice was given to the public of the issuance of the letters that the late Chief was an Igbo Chief, subject to Igbo customary law and customs to prohibit the issuance of the Letters of Administration and no such action exist or pending before any court that has been drawn to the notice of this Court.

14. To the claimants, though the defendants averred in their statement of defence that the late Chief was an Igbo Chief subject to Igbo customary law and customs, no evidence was frontloaded in their statement of defence to support this assertion, no witness was listed particularly on this claim, save the general traverse in the 2nd defendant’s witness statement on oath, a rehash of the averment in the statement of defence or evidence led to support the claims, citing Monkom v. Odilli [2010] 2 NWLR (Pt. 1179) at 424 and Chime v. Chime [2001] 3 NWLR (Pt. 701) 527, which held that averment in pleadings is not evidence.

15. The claimants proceeded that the Letters of Administration (Exhibit C5) clearly empowers the Administrators to institute all actions relating to the Personal Estate of the late Chief Y. C. Onwuchekwa, citing section 12(1) of the Administration of Estates Laws of Lagos State 2015, which, tagged “Rights of Action By or Against Personal Representative”, states as follows: “Subject to the provisions of this section, on the death of any person after the commencement of this law, all causes of action subsisting against or vested in him will survive against or, as the case may be, for the benefit of the Estate”. That the proviso to the section made exceptions to be actions for defamation, seduction, or for inducing one’s spouse to leave or remain apart from the other or to claims for damages on the ground of adultery, which this action does not fall into. That this action seeking to claim the late chief Y. C. Onwuchekwas’s entitlements is clearly for the benefit of his Estate as anticipated in that section and it is a cause of action vested in the late Chief and has survived for the benefit of the Estate, urging the Court to so hold.

16. Issue (4) is whether failure to declare the sums claimed in this action and or declare the receipt of the entitlements of the Late Chief Y. C. Onwuchekwa in the Letters of Administration affect the Administrators’ capacity to either institute this action or receive the judgment sums on behalf of the Estate. That the letters of Administration (Exhibit C5) empowers the claimant to institute this action and to demand for the now disputed entitlements. That tagged, “Letters of Administration of the Personal Property of the Late Chief Young Onwuchekwa”, it empowers the Administrators to institute actions in respect of all matters relating to the personal Estate of the Late Chief Young Onwuchekwa once a cause of action exists before or after his death. The claimants also referred to section 12(1) of the Administration of Estates Law, already quoted. That the right of the personal representative is broadened to include “all cause of action”, the entitlements inclusive and at the point the 1st defendant became bound to pay his entitlements as already stated and at the point dispute arose as to the actual amount due and whether or not the 1st defendant will pay, cause of action arose as against the defendants and the claimants being the personal representative, instituted this action. Also cited is section 11 of the Administration of Estate law, which allows only personal and real properties belonging to the Estate of the deceased to be made inventory of for purpose of enabling Administration.  To the claimants, the entitlements are disputed and incapable of being declared as the “Real and Personal Estate of the Deceased”, particularly too as the 1st defendant is insisting that it was no longer in a position to pay a single kobo and consequently that the deceased could no longer collect a single Naira from it, having lost ownership of the defunct Volkswagen of Nigeria. That the claimants in this action claimed over N13M from the defendants based on their records, the defendants insisted it was just over N7M from its records and finally the 1st defendant insisted it was no longer in a position to pay any sum at all. However, that being the Administrators and personal representatives, as anticipated by section 12 of the Administration of Estate Law, the right to challenge the claims of the defendants is vested on the claimants in this action, and at the point, after consideration of the issues in this case, this Court finds in their favour, ownership of the judgement sums become vested in the Estate, sufficient to qualify for inventory as anticipated by section 11 of the Act and it is at that stage that it can be declared for Administration, urging the Court to so hold.

17. The claimants went on that only properties that qualify for inventory as defined by section 11 of the Administration of Estate Law can be declared for administration and the section defines those properties of the deceased to be “a true and perfect inventory and account of the real and personal Estate of the deceased”. That the Administration of Estates Law defines Real and Personal Estate to be “every beneficial interest (including rights of entry and reverter) of the intestate in real and personal estate which (otherwise than in right of a power of appointment) he could, if of full age, and capacity, have disposed off by will”. That the entitlements clearly are being disputed in this action and incapable of being disposed of by will as it stands because the defendants known to have contracted to pay the entitlements are urging this Court to hold that they are no longer in a position to pay a single kobo. However, that section 12 allows the Administrators to challenge such claims by the defendants in Court being a cause of action vested on the deceased and if after consideration of the facts the Court finds that the defendants should pay an ascertained sum as the entitlement, that amount will now be declared under section 11 as an “Additional Asset” to enable administration by the claimants/Administrators.

18. To the claimants, the entitlements have no actual or certain value, a key requirement for probate Administration to be granted, citing Order 59 of the Lagos High Court Civil Procedure Rules, which states:

(1) A judge in granting letters of Administration shall ascertain the time and place of the deceased’s death and the VALUE of the property to be recovered by the Administration.

(2) Every Applicant for a grant of letters of Administration shall file in the Court a true declaration of all the personal properties of the deceased and the value thereof.

That the Rules have exceptions but the exceptions are limited to fees payable only:

Provided that for the purpose of the fees payable on letters of Administration, the value of the property in respect of which the grant is made shall be deemed not to include:

Any gratuity payable by the government of the Federation of Nigeria, or of a State to the Estate of any person, formerly employed by either of such Government or by statutory corporation.

By sum of money payable to an Estate from a provident and/or pension fund established under the provisions of applicable law.

Thus, that the entitlements are incapable of being granted probate as it stands, disputed and not having an ascertained value, with even the 1st defendant claiming it is no longer in a position to pay a single kobo.

19. That there is also the Probate Tax Law of Lagos State, which requires that properties presented for the purpose of grant of Administration must have certain value for the purpose of Estate fee charged when the Administrator or executors apply for letters of Administration, with or without a will. That in this case, the entitlements have no certain value for the purpose of evaluation and taxation to enable declaration and Administration. Citing section 12 of the Administration of Estate Law, that what is required is for the claimants, being Administrators, to institute this action to ascertain the actual amount of the entitlements and compel payment to the Estate, being a cause of action vested in the deceased before and after his death and then when the value is ascertained, apply to the probate division for assessment as “additional asset” for the letters of Administration of the deceased personal property already issued, and not to be declared for the purpose of issuance of fresh letters of Administration, consequent upon the final judgment of the Court, urging the Court to so hold. That Exhibit C5 is very explicit on this. That at the second page, what was declared for Administration are personal properties belonging to the deceased Chief Y. C. Onwuchekwa and they all have actual ownership and known value and are taxed as shown there. That properties with doubtful ownership and uncertain value or even existence, like the entitlements in this suit, are legally not eligible to be declared for administration until the actual ownership is known and value ascertained for taxation and enablement of Administration. That from section 11 of the Act, the Estate must assume actual ownership of property, both real and personal, before it can be qualified for inventory and Administration. Again, that Exhibit C5 is explicit that the properties identified for inventory and administration must have ownership vested on the deceased Estate. They must also have certain value and known to actually belong to the deceased Estate. That Order 51(1) of the High Court of Lagos State Civil Procedure Rules has similar provisions as can be gleaned above. Thus, both sections including section 11 of the Act authorize the Court to ascertain the actual entitlements, confer ownership of the entitlements on the Estate of the Late Chief and receipt of same, before they can be qualified for inventory and declared for administration, urging the Court to so hold.

20. In conclusion, the claimants urged the Court to hold that they have established that the entitlements due to the Estate of the Late Chief Y. C. Onwuchekwa is the sum of N7,095,806.06 (Seven Million, Ninety-Five Thousand and Eight Hundred and Six Kobo) as admitted by the defendants and conceded by the claimants and for interests of 14% per annum be paid on the said sum from July 2004, when the said sums became due, till judgment and 14% of the judgement sums be paid from the date of judgement till same is paid to the Estate of the late Chief Y. C. Onwuchekwa by the defendants, the 1st defendant in particular.

THE SUBMISSIONS OF THE DEFENDANTS

21. The defendants submitted two issues for determination:

(a)     Whether from the facts and circumstances of this case, the claimants have a valid cause or right of action to institute this case against the defendants; if not, whether this Court has jurisdiction to entertain this case.

(b)    Whether from the facts and circumstances of this case, the claimants’ pleadings are at variance with their evidence and therefore not entitled to their claims against the defendants.

22. The defendants discussed issue (a) in two segments. The first segment deals with whether or not the claimants have a valid cause or right of action to institute this action while the second segment dwells on whether this Court has jurisdiction to entertain this case. To the defendants, the claimants have no valid cause or right of action to institute this case. After defining a cause of action, the defendants submitted that on 12th January 2007, the claimants obtained letters of administration i.e. Exhibit C5(a) from the High Court of Lagos State in respect of the estate of Late Chief Young Chukwuma Onwuchekwa, their late father. That a close look at Exhibit C5(a) had the following moneys as the deceased personal property:

Assets Declared

Personal property

Money in Bank

U.B.A Plc, Apapa Branch                                                                              N251,781.24

02620000022 as at 5/5/05

U.B.A Plc, Apapa Branch

0261700000018 as at 5/5/05     $1.392.38

Converted                                                                                                          N307,715.98

Gulf Bank of Nig. Plc                                                                                     N8,858,437.02

Trade fair complex branch

Gulf Bank of Nig. Plc                                                                                            N2,215.46

Trade fair complex branch

U.B.A Capital & Trust Ltd                                                                             N3,979,359.12

Idowu Taylor Branch, V/Island

Personal chattels                                                                                                N750,000.00

23. To the defendants, it is without doubt that the sums of money the claimants are claiming from the defendants, which is supposed to form part of the deceased personal property for which the claimants applied and obtained Exhibit C5(a), is nowhere to be found in the letters of administration frontloaded by the claimants in this suit. That a second look at the assets of the deceased declared by the claimants as highlighted above do not contain or indicate either the sum of  N7,095,806.06 (Seven Million, Ninety-Five Thousand, Eight Hundred and Six Naira, Six Kobo) or N13,348,056.06 (Thirteen Million, Three Hundred and Forty-Eight Thousand, Fifty-Six Naira, Six Kobo) for which the claimants have approached this Court urging it to direct the defendants to pay to them. That the pertinent question is: do the claimants in law and in equity have such rights to demand for and administer a deceased personal property which does not exist in their letters of administration? That the answer to this question can readily be found from two sources, namely, the probate rules of the High Court of Lagos State from which the letters of administration was obtained and legal authorities from case laws.

24. The defendants then referred to Order 59 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules 2012, which provides thus: “Every applicant for grant of letters of administration shall file in the court a true declaration of all the personal property of the deceased and the valve thereof”. That on 12th January 2007, the claimants were issued with the letters of administration with reference number PHC/506/2005, which is Exhibit C5(a) in this suit. That the entire content of Exhibit C5(a) is a highlight of the moneys in the bank account of the deceased existing in the various banks in Nigeria. That none of the amount of money the claimants are claiming from the defendants is anywhere to be found in the said Exhibit C5(a), which forms the bedrock of their claims in this suit. That from the actions and inactions of the claimants, it is without doubt that they have instituted this action claiming that the defendants should pay to them what does not exist before the law. The defendants asked whether this can in law and equity be possible; and answered that it is doubtful. And that this Court cannot act in a vacuum or in vain or base its judgment on speculation, citing UTB (Nig) v. Ozoemena [2007] 3 NWLR (Pt. 1022) 448 at 487. The defendants then submitted that if this Court grants the prayers of the claimants it will be tantamount to this Court aiding and allowing them to benefit from their own wrongs, citing Adedeji v. National Bank of Nig. Ltd [1989] 1 NWLR (Pt. 96) 212. The defendants then urged the Court to so hold and dismiss this suit with substantial cost as the claimants have no valid cause of action to institute this case against the defendants.

25. The defendants went on that the next source from where to find answers to the question they posed is legal authorities found in several case laws, citing Amobi v. Nzegwu [2014] 2 NWLR (Pt. 1392) 510 at 541, which stated that where the grant of Letters of Administration is limited to either the real or personal property of the deceased, the administrator has no power to administer the property (real or personal) not covered by the grant. That the claimants, having tied their claims based on their submissions as the Administrators of the Estate of Late Y. C. Onwuchekwa and having deliberately omitted to include in their purported Letters of Administration granted to them by the High Court of Lagos State the sums of money they are claiming, which is the subject matter of this suit, cannot in law and in equity turn around to urge this Court to aid them to procure to their favour that which is not in existence. That as far as the claimants failed, refused and neglected to “file in the court a true declaration of all the personal property of the deceased and the value thereof…” as required by the probate rules of the court which granted Exhibit C5(a) to them, they do not have any valid cause or right of action to institute this action because they inadvertently omitted to include the sums of money they are asking this Court to order the defendants to pay to them. That ranting them the reliefs they are asking for, which are not in existence, is tantamount to putting something on nothing which naturally shall not stand as it will inevitably collapse, referring to Mcfoy v. UAC [1962] AC 152. That applying this legal authority to the instant case, it is certain that the moment the basis of a claim collapses, the claim itself automatically collapses. That the claim for which the claimants have approached this Court collapsed on arrival. Thus, the claimants are standing on a slippery ground and on a quicksand, which irredeemably must fail and is of no moment in law, urging the Court to so hold and dismiss this suit in its entirety.

26. The defendants proceeded that as the claimants do not have a valid cause or right of action this court has no jurisdiction to entertain this suit. That the claimants have come to this Court urging it to do the impossible, which is to direct and/or order the defendants to pay to them sums of money they have no right in law to administer, being the Administrator/Administratrix to the estate of Late Y. C. Onwuchekwa, citing Ohuka v. State [1988] 1 NWLR (Pt. 72) 539 at 551. That the mere fact that the sums of money the claimants are urging this Court to compel the defendants to pay to them do not exist in their Letters of Administration, it behoves this Court to decline granting same to the claimants. This is because it is manifestly clear that it cannot be done; therefore, this Court is excused in law not to venture into doing what is not possible in the eyes of the law. Citing Madukolu v. Nkemdilim [1962] SCNLR 341; [1962] NSCC 374, the defendants submitted that this Court cannot cloak itself with jurisdiction to entertain a subject matter which does not exist ab initio as that is the main feature in the instant case which prevents this Court from exercising it jurisdiction. That as far as it is obvious that the claimants do not have a valid cause or right of action, they have no prima facie case in law, citing Akilu v. Fawehinmi (No. 2) [1989] 2 NWLR (Pt. 101) 123 and urging the Court to so hold and decline jurisdiction in the adjudication of this case.

27. Issue (b) is whether the claimants’ pleadings are at variance with their evidence and, therefore, not entitled to their claims against the defendants. To the defendants, parties are bound by their pleadings, citing Chief Victor Woluchem & ors v. Chief Gudi & ors [1981] 5 SC 291 at 320 and Nsirim v. Nsirim [2002] 3 NWLR (Pt. 755) 697 at 711. The defendants then submitted that the claimants’ evidence is at variance with their pleadings, referring to paragraph 7 of the claimants’ statement of facts dated 30th May 2013, which provides thus: “When his total emoluments/dues were calculated as at the time of his death in July, 2004, it came to N13,348,056.06 (Thirteen Million, Three Hundred and Forty Eight Thousand, Fifty Six Naira, Six Kobo) which the ISI Defendant acknowledged from its records”. That as against this averment, CW during cross-examination stated thus: “I am not aware of N13.3 Million stated in paragraphs 7 and 10 of my deposition. The only figure I know is N7 Million plus”. That this evidence of CW is at variance with the claimants’ pleadings highlighted above. That the effect is that it goes to no issue as the claimants have thereby jettisoned their main claim, which is the root of their claim in this case. That from this response, it can be deduced that the claimants have made a summersault in respect of their head claim. They thus have abandoned their head relief which is the sum of N13.3 Million for which they approached this Court. That a close look at paragraph 7 of the claimants’ statement of facts dated 30th May 2013 and paragraph 30(i), (ii) and (iii) of the deposition of the claimants’ only witness shows vividly that N13.3 Million has been the head claim.

28. The defendants then asked whether in abandoning the claim for N13.3 Million as per reliefs (2) and (3) this Court or any other Court of competent jurisdiction can grant an interim relief as per relief (1) based on a head relief which has been manifestly abandoned. To the defendant, this is an impossibility, citing Ohuka v. State (supra). Also referred to is Broad Line Ltd v. Monterey Maritime Corp. [1995] 9 NWLR (Pt. 417) 1 at 26, which held that once a head or arm of several causes of action or relief is withdrawn or abandoned, such an abandoned or withdrawn cause of action or relief automatically ceases to exist or to constitute an issue between the parties in the cause but without prejudice to the determination of the remaining life issues in the suit between the parties. The defendants went on to ask whether there is any more life issue left after the claimants jettisoned their head claim; and answered in the negative. That turning round to ask for N7 Million, which has its root on the head relief already abandoned, means that the claimants want to have their cake after they have eaten it. That when a head/main claim is dead, any other claim arising out of the dead head claim is also dead. This is because in law one cannot put something on nothing; it will inevitably collapse, citing Mcfoy v. UAC (supra). That the legal implication is that the claimants have abandoned their head claim which is N13.3 Million in this suit. Their claim consequently is worthless and useless and must be disregarded, citing Broad Line Ltd v. Monterey Maritime Corp. (supra).

29. The defendants summed up on this issue by submitting that the claimants are not entitled to their claims against the defendants for the following reasons: Firstly, notwithstanding that the defendants did not adduce evidence, the claimants are duty bound to lead cogent and credible evidence in proof of their claims in this suit. That the claimants failed to do so. Secondly, that as far as it has been established that the claimants do not have any valid cause or right of action against the defendants, they (claimants) do not have a prima facie claim in law. Furthermore, in law, the claimants’ claims against the defendants, which are based on a non-existent subject matter have become moot, academic and hypothetical; and Courts do not entertain academic, moot or hypothetical issues. They only deal with life issues, citing Union Bank v. Edionsere [1988] 2 NWLR (Pt. 74) 93 at 105 and Dala v. Sikuade [2014] 17 NWLR (Pt. 1435) 72 at 118. Accordingly, that there is no live issue in law between the claimants and the defendants.

30. The defendants proceeded to respond to the issues canvassed by the claimants. As a preliminary issue, the defendants first objected to the claimants’ final written address on the ground that it is incompetent as the counsel to the claimants did not affix his stamp and seal on the final written address contrary to Rule 10(1) of the Rules of Professional Conduct for Legal Practitioners, which enjoins every lawyer acting in his capacity as a legal practitioner to affix on any document signed by him a seal and stamp approved by the Nigerian Bar Association (NBA). Furthermore, that by Rule 10(2) of the Rules of Professional Conduct for Legal Practitioners, legal documents include pleadings, affidavits, depositions, legal opinion or any similar documents. That the claimants’ final written address falls under “any similar documents”. That the effect of the failure to comply with Rule 10(1) of the Rules of Professional Conduct for Legal Practitioners is stated in Rule 10(3), which renders the document so filed or signed as not being properly signed or filed, citing Yaki v. Bagudu [2015] 18 NWLR (Pt. 1491) 288 at 316 and Alhaja Safurat Olufunke v. Yakubu & anor [2018] LPELR-43678(CA). The defendants urged the Court to strike out the claimants’ final written address or discountenance it.

31. On the claimants’ issue (1) i.e. whether the proper defendants, particularly Barbedos Ventures Limited (BVI), is before this Court, the defendants submitted that they are not. That from the claimants’ issue (1), the following posers become manifest:

(a) Whether Barbedos Ventures Limited (BVI) is a proper party in this suit.

(b) If answer to (a) above is in the affirmative, then amongst the parties in this suit whose responsibility is it to join the company i.e. Barbedos Ventures Limited (BVI)?

(c) If the company is not joined as it is now, what is the effect in law of non-joinder of the company?

32. The defendants chose to argue these posers jointly; and to find answers to the 3 posers, the defendants referred to Order 13 Rules 7 and 8 of the National Industrial Court of Nigeria (Civil Procedure Rules) 2017 (NICN Rules 2017), which provides thus:

7. A Claimant may at the claimant’s option join as parties to the same action all or any of the persons severally, or jointly and severally liable on any reliefs in the matter.

8. Where a Claimant is in doubt as to the persons from whom the claimant is entitled to redress, the Claimant may, in such manner as hereinafter mentioned or as may be prescribed by any special order, join two or more Defendants, with the intent that the question as to which, if any, of the Defendants is liable and to what extent, may be determined as between all parties.

That from these provisions, Barbedos Ventures Limited (BVI) is not only a proper party, it is also a desirable and a necessary party in this suit. That the true position as it affects this case is that Barbedos Ventures Limited (BVI) is the current majority shareholder in the defunct Volkswagen of Nigeria Limited, having a firm control and management of same and has gone to the extent of changing its name from Volkswagen of Nigeria Limited to VON Automobiles and appointed Board of Directors who are now directing the affairs of the company. That the synopsis of all these is that Barbedos Ventures Limited is now in firm control of the defunct Volkswagen of Nigeria Limited. It is calling the shots. It is in full control and in a better position to satisfy the claims of the claimants. That the claimants have full knowledge of all these facts which they have reproduced in their final written address. That it is on record that these events took place even before the claimants instituted this case in 2013. That the 2nd claimant who is also the CW lent credence to this fact when she said during her cross-examination “I am not aware that on 3rd June 2013 when I filed this suit the 1st defendant was not the majority shareholder of Volkswagen Of Nigeria Limited”. That earlier CW had told this court that “Yes, I believe that the 1st defendant is the majority shareholder of Volkswagen Of Nigeria and that is why I am suing them” (sic). That to turn around now to claim ignorance of these facts is fatal to their case.

33. Furthermore, that during cross-examination, CW said when asked whether she is aware that Barbedos Ventures Limited (BVI) is the majority shareholder of VON Automobiles answered thus: “I am not aware that Barbedos Ventures Limited (BVI) is the majority shareholder”. To the defendants, one of the maxims of equity is that “equity aids the vigilant, not those who slumber on their right”, citing Igbinokpogie v. Ogedegbe [2001] 18 NWLR (Pt. 745) 412 at 426. That it is obvious that the claimants are not vigilant and diligent in this their case and it is not the duty of the Courts to wake up a slumbering party. That if the claimants had been diligent over this their case, they would have found out the truth before rushing to this Court. They would not have wasted the precious time of this Court all these years. Thus that the claimants have not made up any case against the defendants. Also, that a court cannot make a case for a party where the party has not made any for himself, citing Union Bank of Nigeria Plc v. Emole [2001] 18 NWLR (Pt. 745) 501 at 517-518. That from the foregoing, it is obvious that Barbedos Ventures Limited (BVI) is a proper and a necessary party in this suit. It will not be out of place for the claimants to go back to the drawing board and join the desirable party which is Barbedos Ventures Limited (BVI) in this suit.

34. The defendants went on that from the facts before this Court, vis-a-vis Order 13 Rules 7 and 8, the claimants are in a better position in this case to join Barbedos Ventures Limited (BVI). That this is so because of the following reasons:

First, the purpose of this case is liable to be defeated if Barbedos Ventures Limited (BVI) is excluded in this matter. Being the majority shareholders of the company, it is now in a better position to shoulder the responsibilities of the company including the settlement of entitlements of the workers of the defunct Volkswagen of Nigeria Limited. If Barbedos Ventures Limited (BVI) is not joined in this suit and if the judgment in this matter goes in favour of the claimants, the defendants, as it is, are not in a position to pay the judgment sum; and Courts cannot act in vain.

Secondly, Barbedos Ventures Limited (BVI) is a party that ought to be joined ab initio because its non-joinder may not enable this Court to effectively and completely adjudicate on and settle all the questions involved in this case once and for all. This is because the interest of justice in this matter will only be achieved if Barbedos Ventures Limited (BVI) is joined as a party otherwise an uncontrollable spate of litigations may crop up resulting in a failure of justice, citing Ogolo v. Fubara [1994] NWLR (Pt. 321) 404 at 429.

That from the foregoing arguments, it is without doubt that the proper defendants particularly Barbedos Ventures Limited (BVI), are not before this Court and this is fatal to the case of the claimants, urging the Court to so hold and dismiss this suit with substantial costs.

35. For the claimants’ issue (2) i.e. whether a case for the sums claimed is made out against the defendants, particularly the 1st defendant, the defendants answered in the negative given that the claimants did not adduce cogent and credible evidence in that regard. The defendants proceeded to repeat the arguments they made in terms of their issue (b). It is needless repeating all of this again here beyond reiterating that to the defendants, given paragraph 7 of the statement of facts, the claimants’ claim for N13,300,000.00 is speculative (UTB (Nig) v. Ozoemena [2007] 3 NWLR (Pt. 1022) 448 at 487) and the claimants failed to show how they came by the quantum of the said sum, a sum CW denied being aware of and the claimants later jettisoned. The defendants then urged the Court to dismiss this case because the claimants have failed to prove their claims against the defendants particularly the 1st defendant.

36. Regarding the claimants’ issue (3) i.e. whether the administrators/children of the Late Chief Y. C. Onwuchekwa are the proper parties to bring this action, the defendants submitted that the Black’s Law Dictionary 7th Edition defines a proper party as a party who may be joined in a case for reasons of judicial economy but whose presence is not essential to the proceedings. That a proper party as construed by the claimants connotes a desirable, indispensable and a necessary party. That if that is what the claimants have in mind, then they are not the proper parties to institute this action. That any member of the Onwuchekwa’s family with legal capacity can sue to protect their family’s property including entitlements of their late father, which is the subject matter of this case but the snag here lies in the fact that when such a person has no valid cause of action, he lacks the locus standi to bring such an action; that is what has happened in this case. That the present action as constituted by the claimants discloses no valid cause of action, citing Nosiru Bello & ors v. AG, Oyo State [1986] 5 NWLR (Pt. 45) 828 as to the meaning of cause of action. That even though the claimants pleaded the letters of administration with reference number PHC/506/2005 dated 12th January 2007, they failed, refused and neglected to include the said entitlements of their late father in their purported letters of administration. That the claimants acting as the administrators of the estate of the deceased cannot succeed in their claim, a subject matter that does not exist even in the eyes of the law and so the Court is obligated to strike out this suit, citing Plateau State v. AG, Federation [2006] 3 NWLR (Pt. 967) 346 at 419.

37. That having this background in mind, it is a misnomer to define the claimants as proper parties to this case. That despite the fact that claimants’ capacity as administrators hitherto have not been challenged by other members of the Onwuchekwa family, particularly the children of Mrs Christline Onwuchekwa, the lawful wife, does not translate that their (claimants’) action is valid in law. Furthermore, that a letter dated 22nd July 2009, frontloaded by the claimants, speaks for itself. That the failure of the claimants to respond to that letter is evidence that they admitted its contents hook, line and sinker. That the letter, though a petition to EFCC against its meddlesomeness in the estate of late Chief Y. C. Onwuchekwa, it is also a proof of the structure of the family of the deceased into two groups: one group emerging from Mrs Christline Onwuchekwa, the lawful wife of the deceased, while the next group is through one Mrs Petrolina Onwuchekwa, who was married out of wedlock. That the claimants belong to this later group. That by that grouping, therefore, it becomes certain in law that Uzoma Onwuchekwa, being the first born male child of the deceased and being the head of Onwuchekwa family, is a necessary and a desirable party to this suit and whose presence is necessary for the effective, proper and final determination of this suit. In the absence of Uzoma Onwuchekwa, this suit is not properly constituted. That from the foregoing, therefore, the purported administrators in this suit cannot in law be the necessary, desirable and proper parties to bring this action, urging the Court to so hold and dismiss this suit in its entirety.

38. Relating to the claimants’ issue (4) i.e. whether failure to declare the sums claimed in this action and or declare the entitlements of the late Chief Y. C. Onwuchekwa in the letters of administration affect the administrators’ capacity to either institute this action or receive the judgment sums on behalf of the estate, the defendants submitted that failure to comply with a condition precedent in any matter renders that matter null and void and of no effect in law, citing  Atolagbe v. Awuni [1997] 9 NWLR (Pt. 522) 536 at 562. To the defendants, this case has been instituted prematurely. That the claimants themselves agree that “the entitlements are disputed and incapable of being declared as the real and personal estate of the deceased”. In other words, that a condition precedent exists in this matter which has not taken place before the claimants approached this court claiming reliefs (2) and (3).

39. The defendants went on that the claimants are blowing hot and cold at the same time, wanting to approbate and reprobate at the same time, which is not allowed in law, citing Osuji v. Ekeocha [2009] 16 NWLR (Pt. 1116) 81. That having declared in their pleadings with words of finality that N13,348,056.06 is the entitlements of the defendants, the claimants cannot turn around to urge the Court to ascertain the actual entitlements, confer ownership of the entitlements on the estate of the Late Chief and receipt of same before they can be qualified for inventory and declared for administration. That this is an indication that there is no valid cause of action. That as far as the claimants had not ascertained the actual amount of money making up the entitlements of the deceased, the subject matter of this suit before rushing to this Court, the law does not vest in them the right to institute this action. That the claimants are now urging this Court to help them ascertain the actual amount of monies admitting that this case is premature. That as far as this case is premature, the claimants by this action are putting the cart before the horse, the legal effect of which is that the claimants do not have the locus standi to institute this case in the first instance, citing Adesanya v. The President of the Federal Republic of Nigeria [1981] 12 NSCC 146. That the legal effect where a claimant institutes an action in court without locus standi is total dismissal of the suit, urging the Court to so do.

40. The defendants continued that the claimants consistently referred this Court to Exhibit C5 as representing their purported letters of Administration. That from the records, Exhibit C5 is a covering letter to the purported Letters of Administration, Exhibit C5(a). That if the claimants’ arguments in respect of issue (4) are based on Exhibit C5, which is a covering letter, then it goes to show how clumsy and inelegant their arguments have been presented, and this Court cannot help them repair their case or make a case for them, which they have not made for themselves, citing Union Bank (Nig) Plc v. Emole [2001] 18 NWLR (Pt. 745) 501 at 517-518. Accordingly, that the claimants lack the capacity to institute this premature action and also lack the power in law to receive whatever sums of money they are claiming here on behalf of the estate of the deceased. That the merit of this case is dismissal, citing Adetono & anor v. Zenith International Bank Plc [2011] 18 NWLR (Pt. 1279) 627 at 643 and Eke v. Military Admin, Imo State [2007] All FWLR (Pt. 381) 1720 at 1738. In conclusion, the defendants urged the Court to dismiss this case with substantial costs.

THE CLAIMANTS’ REPLY ON POINTS OF LAW

41. To the claimants, the issues of law raised in the defendants’ final written address can be summarized under the following headings:

(a)     Whether the claimants have locus standi to institute this action.

(b)    Whether the 2nd claimant’s purported abandonment of the over N13.3 Million claim during cross-examination for the over N7 Million admitted by the defendants constitutes an abandonment of the head claim or constitutes evidence on facts not pleaded in the writ of summons and statement of facts.

(c)     Whether the purported subsequent dilution of the majority shares by the non-existing Barbedos Ventures Limited (BVI) removed liability from the 1st defendant who contracted with the Bureau of Public Enterprises to pay the entitlements of workers of the defunct Volkswagen of Nigeria.

42. On whether the claimants have locus standi to institute this action, the claimants submitted that in addressing this issue, the defendants ignored or neglected to address the claimants’ submission in respect of section 12(1) of the Administration of Estates Law 2015. The discussion that followed by the claimants was an attempt at re-arguing their case on the issue. All that needs to be stated here is that the claimants urged the Court to accordingly hold that under section 12 of the Administration of Estate Law, the disputed entitlements constitutes cause of action vested in the deceased Chief Y. C. Onwuchekwa before his death and his Personal Representatives, the claimants in this case, have locus standi to institute this action and, therefore, the Court has jurisdiction to entertain this claim. In any event, that the claimants are also children of the late Chief Y. C. Onwuchekwa, which the defendants admitted in their pleadings; and it is a settled principle of law that children can sue for family property, a point also admitted by the defendants in their written address.

43. On whether the 2nd claimant’s purported abandonment of the over N13.3 Million claim during cross-examination for the over N7 Million admitted by the defendants constitutes an abandonment of the head claim or constitutes evidence on facts not pleaded in the writ of summons and statement of fact, the claimants submitted that CW did not specifically say “I am not aware of N13.3 Million stated in paragraphs 7 and 10 of my deposition. The only figure I know is N7 Million plus” during cross-examination; and even if she did, the legal implication from the facts is not an abandonment of a head claim, but giving evidence on a fact not pleaded. That at no stage was it stated in the statement of facts and or CW’s witness statement on oath that CW was not aware of N13.3 Million. That it is at best in law giving evidence on a fact not pleaded, which goes to no issue, citing Adeleke v. Adesina [2010] 18 NWLR (Pt. 1225) at 498, Kotun v. Olesere [2010] 1 NWLR (Pt. 1175) at 415 and Oladipo v. Moba LGA [2010] 5 NWLR (Pt. 1186) at 131. That from these authorities, the purported evidence from CW during cross-examination abandoning the over N13.3 Million for the admitted over N7 Million by the defendants amounts to giving evidence of facts not pleaded, urging the Court to so hold.

44. The claimants went on that even if on the other hand it raises issues as to the abandonment of the head claim as canvassed by the defendants, the facts belie such contention. That the relevant claim is at paragraph 30 of the statement of facts, wherein the claimants stated thus: “An interim order of Court directing the Defendants to pay the sum of N7,095,806.06 (Seven Million, Ninety Five Thousand, Eight Hundred and Six Naira, Six Kobo) to the lawful Administrators of the Estate of Y. C. Onwuchekwa and/or to the Chief Registrar of the National Industrial Court pending the hearing and determination of this substantive suit”. That the claim having been admitted by the defendants was the first claim made since it requires no further evidence in law to establish same and the excess that makes up the N13.3 Million having been withdrawn ceases to exist and not the over N7 Million not abandoned. That the claimant also requested that same be paid to the Estate of the late Chief Y. C. Onwuchekwa, that is, the over N7 Million not abandoned, which becomes the life issue between the parties. Significantly, that the claim constitutes part of the over N13 Million claimed and was not independent of the total over N13 Million sought from the Court. That the over N13.3 Million sought was to increase the total entitlements from over N7 Million to over N13 Million and this was clear from the very wording of the claim: “A declaration that the FULL entitlements/dues/benefits of our late father from the 1st Defendant is the sum of N13,348,056.06 (Thirteen Million, Three Hundred and Forty Eight Thousand, Fifty Six Naira, Six Kobo)”. That clearly, there was only one claim before the Court, one cause of action, the entitlements of the late Chief Y. C, Onwuchekwa, part of which was admitted and which the law required no further evidence and which was the first claim of the claimants in their claim before the Court. That the other claim to raise same from over N7 Million to over N13.3 Million was disputed, which the claimants could not prove by evidence and consequently abandoned the excess.

45. That in the circumstances, the authorities cited by the defendants on head and other claims have no relevance here; they are for cases with several causes of action or reliefs. That there is only one cause of action here, the entitlements of the late Chief Y. C. Onwuchekwa and one relief, the payment of same. That this point was made clear in the case cited by the defendants, Broadtine Ent Ltd v. Monterey Maritime Corp [1995] 9 NWLR (Pt. 417) 1. That there are no several causes of action in this suit. The only cause of action is the payment of the entitlements. The first claim is the admitted entitlement of over N7 Million, which requires no further legal proof and which the claimants wanted an interim order for same to be paid to it or to Court before hearing on the difference to make a total of over N13.3 Million claimed with interest. That when evidence could not be produced to increase the entitlements sought from over N7Million to over N13Million, the claimants settled for the admitted over N7 Million claimed, urging the Court to so hold. That the excess claim to make it a total of over N13.3Million was abandoned and the admitted claim of over N7 Million becomes the life issue between the parties to be determined by the Court in accordance with Broadline Ent Limited, cited by the defendants, urging the Court to so hold.

46. On whether the subsequent dilution of the majority shares by the non-existing Barbedos Ventures Limited (BVI) removed liability from the 1st defendant who contracted with the Bureau of Public Enterprises to pay the entitlements of workers of the defunct Volkswagen of Nigeria, the claimants submitted that the defendants presented no evidence before the Court of the existence of Barbedos Ventures Limited (BVI), whom they claimed clandestinely appropriated the majority shares of Volkswagen Automobile Limited. That no evidence was presented of how this was clandestinely and inappropriately done aside the oral claims of the defendants and not even the certified true copy of any Court proceedings where the clandestine appropriation is being challenged or in the frontloaded documents of the defendants even after same was pleaded.

More importantly, that the 1st defendant is bound by the agreement it entered with the Federal Government to pay workers of the defunct Volkswagen of   Nigeria. The said Barbedos Ventures Limited (BVI), not shown to exist before this Court or different from the 1st defendant, was from their pleadings not a party to the Agreement and cannot be bound by its contents, citing AG, Federation v. AIC Ltd [2000] 10 NWLR (Pt. 675) at 297. Clearly, that the 1st defendant is bound by the agreement it entered into with the Bureau of Public Enterprises on behalf of the Federal Government to pay the entitlements of workers of the defunct Volkswagen of Nigeria. That the subsequent alleged clandestine appropriation of its majority control by a non-existing Barbedox Ventures Limited (BVI) does not remove its liability to the workers if true and being strangers to that agreement, no action can lie against the said (BVI), urging the Court to so hold.

COURT’S DECISION

47. I have carefully considered the processes filed and the submissions of the parties. I start of with the fact that the claimants in their written address abandoned reliefs (2) and (3). Under cross-examination, CW testified thus: “I am not aware of N13.3million stated in para 7 and 10 of my deposition. The only figure I know is N7 million plus”. In fact, the claimants’ argument is that relief (1), being the first claim, is their main claim. In thus abandoning reliefs (2) and (3), the said reliefs are no longer before the Court and so are hereby dismissed. This leaves out reliefs (1) and (4). Relief (4) simply states: “Further and other reliefs”. This makes no sense at all, and so is equally dismissed. We are thus left with only relief (1). The claimants themselves cited Broadtine Ent Ltd v. Monterey Maritime Corp [1995] 9 NWLR (Pt. 417) 1 as saying that:

Once a head or arm of SEVERAL CAUSES of action or relief is withdrawn or abandoned, such an abandoned or withdrawn cause of action or relief automatically ceases to exist or to constitute an issue between the parties in the cause but without prejudice to the determination of the remaining life issues in the suit between the parties.

So like I indicated, we are left with only relief (1). The claimants themselves said this much in their reply on points of law. See paragraph 3(xii) of the reply on points of law. Relief (1) incidentally prays for “an interim order…pending the hearing and determination of the substantive suit”. How competent is this relief in a hearing of the substantive suit on merit? I shall return to this shortly.

48. The defendants had argued that if this Court grants the prayers of the claimants it will be tantamount to the Court aiding and allowing them to benefit from their own wrongs. What are the wrongs of the claimants? The defendants did not disclose to the Court. This thing about counsel making sweeping statements in the name of submissions is bad practice/advocacy and must be frowned on.

49. The defendants objected to the claimants’ final written address on the ground that it is incompetent as the counsel to the claimants did not affix his stamp and seal on the final written address; urging the Court to strike it out or discountenance it. I looked through the claimants’ final written address and the reply on points of law. Both were signed by Maxwell Adediran Esq of Oddiri & Co. Although both had no practicing seal affixed, they had the receipt of payment for the NBA stamp and seal fees. This is sufficient to answer the defendants’ objection. I so hold.

50. After indicating in their reply on points of law that the defendants ignored or neglected to address the claimants’ submission in respect of section 12(1) of the Administration of Estates Law 2015, the claimants proceeded to improve on their arguments in that regard. Now, a reply on points of law is meant to be just what it is, a reply on points of law. It should be limited to answering only new points arising from the opposing brief. Since the defendants in the instant case were silent on section 12(1) of the Administration of Estates Law 2015, it is sufficient for the claimants to draw the Court’s attention to that fact and not re-argue their case and bring in new points as they did. A reply on points of law is not meant for the party replying on points of law to reargue its case or bring in points it forgot to advance when it filed its final written address. It is not a form to engage in arguments at large. Alternatively put, a reply on points of law is not meant to improve on the quality of a written address; a reply brief is not a repair kit to correct or put right an error or lacuna in the initial brief of argument. See Dr Augustine N. Mozie & ors v. Chike Mbamalu [2006] 12 SCM (Pt. I) 306; [2006] 27 NSCQR 425, Basinco Motors Limited v. Woermann Line & anor [2009] 13 NWLR (Pt. 1157) 149; [2009] 8 SCM 103, Ecobank (Nig) Ltd v. Anchorage Leisures Ltd & ors [2016] LPELR-40220(CA), UBA Plc v. Ubokolo [2009] LPELR-8923(CA), Musaconi Ltd v. Aspinall [2013] LPELR-20745(SC), Ojo v. Okitipupa Oil Palm Plc [2001] 9 NWLR (Pt. 719) 679 at 693, Ogboru v. Ibori [2005] 13 NWLR (Pt. 942) 319 and Cameroon Airlines v. Mike Otutuizu [2005] 9 NWLR (Pt. 929) 202. The effect of non-compliance is that the Court will discountenance such a reply brief. See Onuaguluchi v. Ndu [2000] 11 NWLR (Pt. 590) 204, ACB Ltd v. Apugo [1995] 6 NWLR (Pt. 399) 65 and Arulogun & ors v. Aboloyinjo & anor [2018] LPELR-44076(CA). I shall accordingly discountenance the arguments of the claimants on that issue as per their reply on points of law.

51. All this said, I return to the issue raised earlier i.e. how competent is relief (1)? The defendants had asked whether there is any more life issue left after the claimants jettisoned their head claim given that in abandoning the claim for N13.3 Million as per reliefs (2) and (3) this Court or any other Court of competent jurisdiction cannot grant an interim relief as per relief (1) based on a head relief which has been manifestly abandoned. The claimants’ answer was that relief (1) remains their main relief and so the fact that they abandoned reliefs (2) and (3) does not in anyway take away relief (1).

52. Relief (1) seeks for an interim order, The word “interim” by the New Oxford American Dictionary means “in or for the intervening period; provisional or temporary: an interim arrangement”. By Alhassan v. FRN [2016] LPELR-40787(CA):

An order is interim when it is temporary or provisional. It is not absolute yet or final. It is merely a transistory order and can only become absolute or final upon the happening of the event as stated before…

Nwaigwe & anor v. Amaechi & ors [2017] LPELR-43080(CA) on its part held that: “The rule is, however, trite that interim order should not last, indefinitely”. How then can a provisional or temporary order be the main relief? The claimants argued that relief (1) is part of reliefs (2) and (3) in that the N7,095,806.06 of relief (1) is part and parcel of the N13,348,056.06 of reliefs (2) and (3); and so since they could not prove the excess of the N7,095,806.06 to make up N13,348,056.06, they can still claim the N7,095,806.06 they claim per relief (1), which sum the defendants admitted. Is this the sense in which the claimants used the word “interim” in relief (1)? It may be if the concluding words in relief (1) i.e. “pending the hearing and determination of the substantive suit” are anything to go by. But can an interim relief of this sort be asked for, not in an interlocutory motion, but in the substantive suit? I know of no such possibility and the claimants did not disclose to the Court which law or rule permits such. The very fact that N7,095,806.06 prayed for in relief (1) is to be paid “pending the hearing and determination of the substantive suit” means that it ought to have been considered before now. In other words, since the substantive suit has heard and is now being determined, relief (1) itself as claimed can no longer be considered and granted. The argument of the claimants that they have only one cause of action, the entitlements of the late Chief Y. C. Onwuchekwa, and one relief, the payment of same, becomes valid and tenable only in terms of reliefs (2) and (3) which they themselves have abandoned. Logically, there is no relief (1) to grant “pending the hearing and determination of the substantive suit”. So we are left with only reliefs (2) and (3), which the claimants abandoned. Logically then, there is no case before the Court. QED, quod erat demonstrandum!

53. This aside, the claimants argue that the defendants admitted the sum of N7,095,806.06. Exhibit C2, a letter from the defendant to the claimants’ lawyer is dated 8th September 2009. At the second page, it talks of a “Cheque No. 10000222” meant to be released to the claimants, which cheque was attached to Exhibit C2 itself when it was written to the claimants’ lawyer. A copy of the cheque is actually attached to Exhibit C2. It is dated 13th July 2009 and drawn in favour of Eze Y. C. Onwuchekwa. In Exhibit C2, the defendant explained that while they were in EFCC, the problem of who to receive the payment featured prominently as the defendant requested for a letter of indemnity from EFCC in order to release the cheque. Also that there was a petition by the second wife of the late Chief wherein they opposed the release of the cheque to the claimants. It is in this scenario that the claimants submit that the defendants admitted the sum of N7,095,806.06, which sum they now claim as per relief (1).

54. In Exhibit C4 dated 10th November 2009, the claimants wrote to the defendant directing the defendants to divide into eleven equal proportions the entitlements due to their late father “to be shared among the children and former wife and present widow of the late Chief”. The claimants, however, listed 10 names as the beneficiaries of the arrangement. The claimants went on to request that the total sums to be paid be made payable in the name of two persons: Uzoma Onwuchekwa and “Estate of Y. C. Onwuchekwa”. The claimants then listed the names of those who would benefit from each of these two persons. The thing to note is that the 2nd claimant (Chinyere Onwuchekwa) appears in both groups as beneficiary. The reason for this dual benefit is not disclosed. Secondly, in all of Exhibit C4, no figure was indicated as representing the entitlements of the late Chief.

55. When the claimants filed this suit, they did not frontload the letters of administration alongside the Exhibits C1 to C4 that they frontloaded. It was much later that they brought in Exhibits C5 and C5(a). Exhibit C5 dated 18th May 2009 is a letter form the claimants’ lawyer to the Probate Registrar of the Lagos High Court, Ikeja requesting for the CTC of the letters of administration for Y. C. Onwuchekwa. Exhibit C5(a) is the letters of administration dated 12th January 2007. Exhibit C5(a) lists the assets it relates to. The entitlements of Chief Y. C. Onwuchekwa are not reflected therein. The answer by the claimant is that these entitlements, because their quantum was unknown, they could not have been reflected in the letters of administration as only properties that qualify for inventory as defined by section 11 of the Administration of Estate Law are to be captured. In answer, the defendants relied on Amobi v. Nzegwu [2014] 2 NWLR (Pt. 1392) 510 at 541, which stated that where the grant of Letters of Administration is limited to either the real or personal property of the deceased, the administrator has no power to administer the property (real or personal) not covered by the grant. In Madam Chistiana Ugu v, Andrew Ebinni Tabi [1997] LPELR-3324(SC), the Supreme Curt held that an application for a grant of Letters of Administration may be made either for a limited grant or a full grant and the limited grant may be in respect only of the real estate or of the personal estate of the deceased person; as such, it is unlawful where the grant made is limited to personal estate for the administrator. The Supreme Court went on to hold that a grant of letters of administration in respect of personal estate does not cover the administration of the real property of the intestate. What I gather from these authorities is that letters of administration must keep within its remit; anything outside of it is not legal. I agree with the defendants, therefore, that Exhibit C5(a) in not covering the entitlements of the late Chief, the claimants cannot use it as the basis for the present claim of N7,095,806.06 in terms of relief (1). I so find and hold. This being the case, the claimants have not successfully proved their case. It fails and so is hereby dismissed.

56. Judgment is entered accordingly. I make no order as to cost.

……………………………………

Hon. Justice B. B. Kanyip, PhD

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