FRANCA ONYINYECHI ODU & ORS -VS- NIGERIA COAL CORPORATION &

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

DATE: 21st May 2018 SUIT NO. NICN/EN/67/2015

BETWEEN

FRANCA ONYINYECHI ODU ] … CLAIMANTS
NKECHI ORAKWELU [NEE ODU] ]

[Being Administrators of the Estate of

Jude W. Odu [Deceased]

AND

NIGERIA COAL CORPORATION ]
BUREAU OF PUBLIC ENTERPRISES ]
MR. EVARIST IBE ] … DEFENDANTS
MRS. NDUJI ]
MR. JUDE OZAH ]

REPRESENTATION:

Cosmas Chinwuba Okoro Esq. for the Claimants

Dr. Omoniyi Bukola Akinola with Uzoamaka Christiana Ede Esq. and Rosebury Henrietta Briggs Esq. for the 2nd Defendant

John Darly Chrys Igweze Esq. for the 4th Defendant.

JUDGMENT

The Claimants by a Complaint filed on 28th May 2015 claimed against the Defendants for:

Injunction restraining the Defendants from proceeding any further with the process of sale of No. 4B Asata Mine Quarters, Ogbete, Enugu to the 4th Defendant or any other person save the Claimants.

An order compelling the 1st and 2nd Defendants to cancel the monetization and offer for sale of No. 4B Asata Mine Quarters, Ogbete, Enugu made to the 4th Defendant or any other person and give same to the Claimants who have been in occupation of same from birth till date and are ready to pay for same.

Injunction restraining the 4th Defendant by herself, proxies, agents, assigns or privies from paying for No. 4B Asata Mine Quarters, Ogbete, Enugu presently occupied by the Claimants.

An order compelling the 1st and 3rd Defendants forthwith to pay to the Claimants their late father’s gratuity having obtained Letters of Administration as requested by the 3rd Defendant.
N5 million general damages.

The Claimants filed along with the Complaint a statement of claim, list of witnesses, witness’ deposition of the 1st Claimant, list of documents and copies of the documents. The processes were served on the 1st Defendant on 16th June 2015; on the 3rd, 4th and 5th Defendants on 17th June 2015 and on the 2nd Defendant on 19th June 2015. The 2nd Defendant, through its Counsel, Dr. Omoniyi Bukola Akinola, entered a conditional appearance on 30th October 2015 and filed a notice of preliminary objection. The 4th Defendant, through its Counsel, Chief G. C. Amuzie, entered a conditional appearance on 1st December 2015 and filed her defence processes and a notice of preliminary objection. In a considered ruling delivered on 20th October 2016, this Court, per Honourable Justice Waziri Abali, dismissed the two preliminary objections. The 2nd Defendant thereafter filed its defence processes. By leave of Court granted on 17th October 2017, the 4th Defendant amended her defence processes and the case was adjourned to 28th November 2017 for trial. Trial commenced on 16th January 2018 and was concluded on the same day. The 1st Claimant adopted her statement on oath dated 28th May 2015 as her evidence in proof of the claim and tendered 7 exhibits, exhibits A to G. Exhibit A is letter of retirement of the Claimants’ father, exhibit B is application for retention of official quarters, exhibit C – C1 is rent receipt and voucher, exhibit D is copies of Letters of Administration, exhibit E – E2 is the Claimants’ Solicitors’ letter dated 10/3/15 to the 2nd Defendant; and exhibit G – G2 is offer letter to the 4th Defendant. The 2nd Defendant’s witness, Mr. Umar Tijjani, adopted his statement on oath dated 9th November 2016 as his evidence in defence of the suit and tendered 2 exhibits, exhibits DW1A – DWB. Exhibit DW1A-DW1C is copy of the ejection notice dated 12/8/1996 and the attachment, exhibit DWB1-DWB2 is the 2nd Defendant’s letter dated 17/2/15 and attachment to the 3rd Defendant. The 4th Defendant adopted her statement on oath dated 31st October 2017 as her evidence in defence of the suit and tendered 6 exhibits, exhibits DW2A – DW2F. Exhibit DW2A-DW2A3 is her letter of employment, regularization of appointment, confirmation of appointment and annual increment, exhibit DW2B is letter of allocation of No. 4B Asata Mine Quarters to her dated 1/7/2002; exhibit DW2C1 – DW2C2 is rent receipt and voucher; exhibit DW2D is certified true copy of 1st Defendant’s Personnel Record on retirement benefits; exhibit DW2E is a certified true copy of list of illegal occupants marked for ejection. Exhibit DW2F is certified true copy of ejection notices to the illegal occupants. The 1st, 3rd and 5th Defendants although served with the originating processes and hearing notices did not enter appearance or file their defence processes or participate in the proceedings. The case was thereafter adjourned for adoption of final written addresses. On 11th April 2018, learned Counsel for the 4th Defendant, Mr. Igweze, adopted the 4th Defendant’s final written address dated 22nd February 2018 and urged the Court to dismiss the claim for lacking in merit. The 2nd Defendant’s Counsel, Dr. Akinola, adopted the 2nd Defendant’s final written address filed on 5th March 2018 and urged the Court to resolve the issues in favour of the 2nd Defendant and dismiss the suit in its entirety. Learned Counsel for the Claimants, Mr. Okoro, adopted the Claimants’ final written address filed on 9th April 2018 and urged the Court to grant the claims of the Claimants. The matter was consequently set down for judgment.

CLAIMANTS’ CASE

The Claimants are Administratrixes of the Estate of Mr. Jude W. Odu [deceased] who was compulsorily retired by the 1st Defendant on 16th August 1984. While in the service of the 1st Defendant he was allocated a 2-bedrooms bungalow known as 4B Asata Mine Quarters, Ogbete, Enugu [in this judgment called “the property”] where he lived with his family. By letter dated 15th July 1993, he applied for retention of the property because of his business interests in Enugu. It is the Claimants’ case that the application was granted and rent for the premises deducted from his monthly pensions and he died in January 2001 before payment of gratuity to retired and disengaged staff of the 1st Defendant. To process his gratuity, the Claimants were advised by the 3rd Defendant to obtain Letters of Administration which they did but were later turned back when they presented it to him. During the monetization exercise, “the monetization paper” for the property was given to the 4th Defendant whereupon the Claimants protested to the 2nd Defendant through their Solicitors. While waiting for the 2nd Defendant’s response, the Claimants discovered that the 1st and 2nd Defendants had commenced distribution of offer letters for the 1st Defendant’s properties excluding them hence this suit.

2ND DEFENDANT’S CASE

The 2nd Defendant’s case is that the ownership of the property is vested in the 1st Defendant and now the 2nd Defendant by operation of law. The 2nd Defendant states that Mr. Jude W. Odu [deceased] was given 42 days to vacate the property after his retirement and his name appeared on the list of illegal occupants who were served with ejection notices on 12th August 1996 by which date he ceased to be in possession of the property. It is the 2nd Defendant’s case that following verification of 1st Defendant’s residential houses in 2014, a list of verified assets was forwarded to C. A. Chizea & Co. and offer letters issued to 694 confirmed ex-staff of the 1st Defendant. The 4th Defendant complied with the requirements of the 1st and 2nd Defendants for sale of the property and as a result was issued the offer letter.

4TH DEFENDANT’S CASE

The 4th Defendant’s case is that she was an ex-staff of the 1st Defendant and the property was allocated to her in July 2002 as her official accommodation; and began to pay rent for the property and was issued receipts. She explained that she informed the Claimants of this fact and demanded possession of the property but they pleaded for time on account of their mother’s ill-health and she obliged. She claimed knowledge of the ejection notice served on the Claimants’ father; and confirmed that before the monetization policy of 2003, the property had been allocated to her and captured as such and the offer letter was duly issued to her.

SUBMISSION ON BEHALF OF THE 4TH DEFENDANT

The 4th Defendant raised three issues for determination namely:

Whether in the circumstances of this case the claim and reliefs of the Claimants succeed to invoke the judgment of this Court in their favour?

Whether the purported letters of administration brandished by the Claimants legalizes their occupation of No. 4B Asata Mine Quarters belonging to the 1st Defendant?

Whether this suit is competent in the first place to attract the jurisdiction of this Court where in the circumstances, there is no employer-employee relationship between the Claimants and the 1st Defendant?

On issue one, learned Counsel for the 4th Defendant argued that from the totality of the evidence the Claimants failed to establish that Jude W. Odu was allocated the property or any agreement between him and the 1st Defendant to allocate the property to him. It was further argued that there is nothing in the evidence of Claimants’ witness to show that Jude W. Odu had not been paid his gratuity and referred to exhibits DW1A –DW1C and DW2D. Contrariwise, he argued that the 4th Defendant was officially allocated the property, verified and confirmed by the 2nd Defendant and referred to exhibits DW2B and DW2C1-DW2C2. He contended that this fact was unchallenged and thus deemed admitted and to be accepted by the Court and relied on UBN Ltd. v. Ogboh [1995] 2NWLR [pt.380] 647 at 654 and 669 and Folorunso & Anor. v. Shaloub [1994] 3 NWLR [pt.333] 413 at 433. He submitted that long possession of a property by a non-owner does not make the possessor owner of the property.

On issue two, learned Counsel submitted that where the property listed on the Letters of Administration is owned by another person, the Letters of Administration purportedly obtained becomes null and void and of no effect because you cannot put something on nothing and expect it to stand and urged the Court to discountenance exhibit D.

On issue three, he submitted that the suit is incompetent because there is no employer-employee relationship between the Claimants and the 1st Defendant and the Court lacks jurisdiction to entertain it and the suit is an abuse of Court process. He referred to section 7 of National Industrial Court Act, 2006, section 254C of the Constitution of the Federal Republic of Nigeria 1999 and the cases of Madukolu v. Nkemdilim [1962] 1 All NLR [pt.4] 587 at 594 and Sken Consult Nig. Ltd v. Ukey [1981] 1 SC 6.

SUBMISSION ON BEHALF OF THE 2ND DEFENDANT

The 2nd Defendant also raised three issues for determination namely:

Whether the Claimants retains [sic] any interest whatsoever in the subject matter of this suit?

Whether the Claimants have proved their case on the preponderance of evidence before the Court?

Whether the 4th Defendant is a faceless person and/or entitled to the subject matter of this suit?

On issue one, learned Counsel argued that exhibit A severed whatever possessory right the Claimants had in the property and they ought to have vacated the property at the end of 42 days. Referring to exhibit B he explained that the plea by Mr. Odu to retain the property was in furtherance of his business in Enugu and not otherwise; and that by exhibit C-C1 the last time Mr. Odu paid rent was 5th September 1994 and therefore lost any right he may have had in the property. Learned Counsel contended that there is no agreement to sell the property to the Claimants and sale is not automatic – the Claimants did not fulfill the conditions of sale. Consequently, he submitted that the Claimants cannot profit from their refusal to yield up possession of the property and relied on the ejection notices. He submitted that the letter of Administration does not affect any right in the property because there is no accrual of such right to the estate of Mr. Odu.

On issue two, learned Counsel contended that the Claimants have not proved their case on a preponderance of evidence. It was also argued that assuming the case of the Defendants is weak, yet the Claimants cannot rely on the weakness of the Defendants’ case and that the burden of proof can only shift where the Claimants have proved their case and relied on Iseogbekun v. Adelakun [2013] 51 WRN 1.

On issue three, learned Counsel submitted that the 4th Defendant is not a faceless person but an ex-employee of the 1st Defendant and the allottee of the property having completed her documentation with the 1st to 3rd Defendants and urged the Court to so hold.

SUBMISSION ON BEHALF OF THE CLAIMANTS

The Claimants raised three issues for determination to wit:

Whether judgment can be entered in favour of the Claimants against the 1st and 3rd Defendants who failed to put in their defence in this suit?

Whether the 2nd Defendant was right in offering to sell the property known as No. 4B Asata Mine Quarters, Enugu to the 4th Defendant who has never been in occupation of the premises as against the Claimants who are currently occupying the property being administrators of the estate of Jude W. Odu, an ex-staff of Nigerian Coal Corporation?

Whether the 4th Defendant is the proper person to prove payment of gratuity by the Nigeria Coal Corporation to the Claimants’ father? If the answer is in the affirmative, whether she has proved it satisfactorily?

On issue one, learned Counsel referred to Order 35 rules 1, 3 and 4 of the National Industrial Court [Civil Procedure] Rules 2017 and submitted that the Court is bestowed with powers to enter judgment as it considers appropriate against one or more defendants who default in filing their defence to the suit of the Claimants. Continuing, learned Counsel argued that the Claimants averments in their pleading must be met frontally and categorically, failing which the Defendants are deemed to have admitted it and relied on N.B.C. Plc v. Olarewaju [2007] 5 NWLR [pt. 1027] 255. It was further argued that where issues are not joined on an issue there is no need to prove it and referred to Oyagbola v. Okubule [1986] 2 C. A. [pt.1] 251. He therefore submitted that the 1st and 3rd Defendants failed to join issues with the Claimants on the crucial issue of non-payment of their late father’s gratuity and urged the Court to enter judgment against them on the claim for gratuity.

On issue two, learned Counsel argued that the mandate of the 2nd Defendant was to sell the 1st Defendant’s houses to ex-staff currently in occupation and defined occupation to mean the exercise of physical control or possession of land; having the actual use of land. He agreed that this fact was not pleaded but argued that it could inferred from the preamble of exhibit G and went on to submit that when a document is pleaded the contents become part of the pleading and relied on Brawal Shipping [Nig.] Ltd v. F. I. Onwadike Co. Ltd. [2000] 6 SC [pt.11] 133 at 144 and Boothia Maritime Inc v. Fareast Mercantile Co. Ltd. [2001] 4 SC [pt. 1] 124 at 131. He explained that the 2nd and 4th Defendants admitted that the 4th Defendant is not in currently in occupation of the property and submitted that this is an admission against interest which is admissible in evidence and needs no further proof and relied on Akomalafe v. Guardian Press Ltd [2010] 1SC [pt.1] 58 at 74. Continuing, learned Counsel argued that even though the Claimants are to succeed on the strength of their case and not rely on the weakness of the defence, yet the Claimants are entitled to take advantage of the evidence of the Defendant which supports their case and referred to Egonu v. Egonu [1978] 11-12 SC 111, Orianwo v. Okene [2002] 14 NWLR [pt.786] 156 at 186 and Veritas Ins. Co. Ltd. v. Citi Trust Inv. Ltd [1993] 3 NWLR [pt.281] 349 at 367. On exhibit DW2F learned Counsel contended that there is no evidence of service of the notice on the Claimants’ father and the Court cannot speculate on this and urged the Court to resolve issue two in favour of the Claimants.

On issue three, it was contended that the 4th Defendant asserts the positive and therefore has the burden to prove it which she did not effectively discharge and relied on Vulcan Gases v. Gesellshaft [2001] 4 MJSC 153 at 200. Learned Counsel referred to exhibit A and submitted that the words “will pay” is futuristic and puts a lie to the claim that Mr. Odu was paid his gratuity on 16th August 1984 and urged the Court to resolve this issue in the Claimants’ favour.

On the issue of jurisdiction raised by the 4th Defendant, learned Counsel submitted that the Court is functus officio and cannot revisit the issue having ruled on it on 20th October 2016. Also, on 4th Defendant’s issue two, learned Counsel contended that it is only a Court of law that can nullify the Letters of Administration. On non-filing of reply to statement of defence, he submitted that there is no rule of law that makes it mandatory for the Claimants to file a reply to a statement of defence which does not contain a counterclaim and relied on Akeredolu v. Akinremi [1989] 3 NWLR [108] 164 at 172.

COURT’S DECISION

I have considered all the processes filed in this suit and the submissions of learned Counsel for the parties. Having done this, it is my considered opinion that the issue for determination in this case 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 settled that in civil cases the burden of proof is on the person who asserts same. See sections 131[1] and 132 of the Evidence Act 2011 and the cases of Federal Mortgage Finance Ltd. v. Hope Offiong Ekpo [2003] LPELR-5627 [CA] 1 at 23-24 and Patrick Ziideeh v. Rivers State Civil Service Commission [2007] 1-2 SC 1. Thus, to succeed the Claimants must put forward cogent and credible evidence in support of the reliefs sought.

Before going intothe merit of the case I would like to make a few clarifications. First is the issue of jurisdiction raised by learned Counsel for the 4th Defendant. In the light of case law authorities, I hold the view that since this Court has ruled on the issue on 20th October 2016 and the Defendants have not appealed against the decision that settles the matter. Any other position I take on the issue will not be consistent with settled judicial authorities and will amount to sitting on appeal over a decision of my learned brother. This temptation I must resist. See the case of Al-Bishak v. National Productivity Centre & Anor. [2015] LPELR-24659[CA] at pages 57-58 which is on all fours with this case. In that case Oseji, J.C.A., held thus:

“Curiously enough in the course of a careful perusal of the Record, it was discovered that learned counsel for the 2nd Respondent filed a notice of preliminary objection dated 10-12-2007 and it is at page 346 to 347 of the record. It was moved and argued on 4-3-2008 as shown at pages 350 to 350B of the record. In its ruling as contained in pages 350B and 350C of the Record, the lower Court overruled the preliminary objection on the ground that the National Productivity Centre Act made the Minister to have supervisory role over the Centre and the letter of termination of appointment pointed to that direction in which case there is a cause of action against it. Incidentally there was no appeal against the said Ruling which means that it still subsists despite the fact that the Judge who gave the Ruling is not the same Judge who concluded the hearing and delivered the final judgment. Nonetheless it is still the same court and any such ruling remains binding and subsisting until it is set aside on appeal. A judge of co-ordinate jurisdiction cannot sit on appeal or reverse the decision of another Judge more so that in this case it was in the same Court. When a case is to be tried de novo before another Judge due to the transfer of a former Judge hearing it or due to a reassignment order, every ruling hitherto delivered pursuant to an application filed and argued by the parties does not fizzle out but remains subsisting.”

I therefore abide by the decision of my learned brother and refrain from commenting on 4th Defendant’s issue three.

The next is the failure of the Claimants to file a reply to the statements of defence filed by the 2nd and 4th Defendants. I agree with learned Counsel for the Claimants that there is no rule of law that makes it mandatory for the Claimants to file a reply to a statement of defence which does not contain a counterclaim. However, where a statement of defence raises new issues of fact not arising from the statement of fact, the Claimants have a duty to deal with the new issues of fact in their reply otherwise the facts will be deemed admitted by the Claimants. SeeJackie Philips v. Eba Odan Commercial & Industrial Company Limited [2012] LPELR-9718[SC] at page 26 and Nkemdirim Dimgba Kalu v. John J. Iheke Agu & 2 Ors. [2014] LPELR-22849[CA] at pages 50-51. In the latter case, the decision of the Court of Appeal was on the effect of failure by the Appellant to file a Reply to the Statement of Defence in view of the averments in paragraphs 5, 6, 7 and 9 denying any loan transaction with the Appellant’s father. Ige, JCA, held as follows:

“In the absence of any Reply to the Statement of Defence aforesaid the inference is that the Appellant admitted them as true….However, a reply may be filed to plead relevant additional facts which will make any particular defence pleaded in the statement of defence untenable or negate the application of such defence. A reply is the defence of the plaintiff to the counter-claim of the defendant or to new facts raised by the defendant in his defence to the plaintiff’s statement of claim and shall therefore be filed to answer the defendant’s averment in his counter-claim or to such new facts, that have been raised in the statement of defence. I think it may also be said that as a general rule, where because of the defence filed, the plaintiff proposes to lead evidence in rebuttal or to raise issues of fact not arising out of the two previous pleadings, he shall in such circumstances, file a reply as he may not lead evidence of any material facts he had failed to aver in his pleadings.”

In my opinion, the Claimants should have filed a reply to the statement of defence filed by the 2nd and 4th Defendants particularly in view of the averments contained in paragraphs 5, 6 and 22 and 4, 5, 6a, 7, 8 and 9[b] and [c] of the 2nd and 4th Defendants’ statement of defence respectively dealing with notice to the Claimants of 4th Defendant’s right to the property and their plea for time and the ejection notice to Mr. Odu. Those are material averments that ought to have been challenged by the Claimants. In the absence of a reply, the Claimants are deemed to have admitted the correctness of the facts contained in those paragraphs and I so hold. See Jackie Philips v. Eba Odan Commercial & Industrial Company Limited [supra] at page 26 and Nkemdirim Dimgba Kalu v. John J. Iheke Agu & 2 Ors. [supra] at page 50.

The third point is the Letters of Administration issued to the Claimants and on which the property was endorsed as a leasehold property of Jude W. Odu. Learned Counsel for the 4th Defendant argued this issue extensively under issue two, but there was no counterclaim praying the Court to nullify the Letters of Administration. To that extent, I agree with the submission of learned Counsel for the Claimants in paragraph 8.4 page 9 of Claimants’ final address that it is only by a Court order made in an appropriate proceeding that the Letters of Administration can be nullified. Be that as it may, it is the law that Letters of Administration is required before the Claimants can initiate proceedings on behalf of the Estate of Mr. Jude W. Odu [deceased]. SeeKafene Jeddo & Anor. v. Agharimuayire Imiko [1972] LPELR-1599[SC] at page 12. The question, however is, was Mr. Jude W. Odu entitled to the leasehold interest in the property at the time of his death capable of devolving to his successors under the Administration of Estate Law, CAP 5 Revised Laws of Enugu State 2004? I do not think so. See sections 24 and 73[1] of the Administration of Estate Law of Enugu State. By the combined effect of exhibits A, B, C-C1 and DW1A-DW1C, Mr. Jude W. Odu’s leasehold interest terminated upon his death; which informed the re-allocation of the property to the 4th Defendant by letter dated 1st July 2002, exhibit DW2B. Interestingly, the Claimants did not deny paragraphs 2 and 4 of the 4th Defendant’s amended statement of defence and did not cross-examine her on this point or in any way challenge exhibit DW2B. The failure of learned Counsel to cross-examine the 4th Defendant on this material point is fatal to the Claimants’ case. See the case of Alhaji Usman Haruna v. Abuja Investment & Property Development Company & 2 Ors. [2016] LPELR-41160[CA] at pages 10-11.

Lastly, is whether the 4th Defendant is a faceless person? This is the thrust of the 2nd Defendant’s argument on its issue three. From available evidence before this Court, including exhibits DW2A-DW2A3, DW2B and DW2C1-DW2C2, the 4th Defendant is not a faceless person. She is an ex-staff of the 1st Defendant and allottee of the property. Now, I will proceed to consider the merits of this case.

The first relief is an injunction restraining the Defendants from proceeding any further with the process of sale of the property to the 4th Defendant or any other person save the Claimants. In proof of this claim the Claimants’ witness testified in paragraphs 6 to 10, 15-18 of her written deposition that the 4th Defendant is a faceless person being used by the 5th Defendant to dispossess them of their father’s quarters. She stated that after their father’s retirement he applied to retain his official quarters which request was granted and rent deducted regularly from his monthly pensions. Interestingly, the only exhibits tendered and admitted in proof of this are exhibits A, B, C-C1. It is obvious from exhibits C-C1 that rent was up to 31st July 1994. There was no other evidence of payment of rent from August 1994 to date. This piece of evidence juxtaposed with the evidence of the 2nd and 4th Defendants in paragraphs 2 – 7 and 1 – 7 of their written depositions respectively and exhibits DWB1-DWB2, DW2A-DW2A3, DW2B, DW2C1-DW2C2, DW2E and DW2F will show that the balance of convenience weighs in favour of the 2nd and 4th Defendants. These exhibits show convincingly that the relationship between Mr. Jude W. Odu [deceased] and the 1st Defendant ceased prior to the monetization programme and the leasehold interest in the property was vested in the 4th Defendant. The evidence of the 4th Defendant on this material fact was not controverted by the Claimants and I accept it as true. SeeInspector James Abah & 5Ors. v. Jabusco [Nigeria] Ltd. [2007] LPELR-4325[CA] 43-44. This relief is in the nature of perpetual injunction and it is trite 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] 60 and Prince 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. 4B Asata Mine Quarters, Ogbete, 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. There is unchallenged evidence that the 4th Defendant notified the Claimants of allocation of the property to her and demanded vacant possession. They pleaded for time on account of their mother’s ill-health but subsequently reneged on this promise. A party with such tainted hands cannot win the sympathy of a Court of equity. I therefore find and hold that the Claimants have not made out a case for the grant of an injunction restraining the Defendants from proceeding any further with the process of sale of No. 4B Asata Mine Quarters, Ogbete, Enugu to the 4th Defendant or any other person save the Claimants. Relief one fails and is hereby dismissed.

Relief two seeks an order compelling the 1st and 2nd Defendants to cancel the monetization and offer for sale of the property made to the 4th Defendant or any other person and give same to the Claimants who have been in occupation of same from birth till date and are ready to pay for same. The evidence in support of this claim can be found in paragraphs 14 to 20 of the Claimants’ witness statement on oath. There was no documentary evidence tendered in support of this Claim. Learned Counsel for the Claimants relied on the preamble to exhibit G-G2 and argued that the Claimants are entitled to the offer for sale of the property being the administrators of the ex-staff currently in occupation of the property. Learned Counsel agreed that this fact was not pleaded and no evidence was lead in proof. However, he contended that when a document is pleaded and tendered the contents become part of the pleading and referred toBrawal Shipping [Nig.] Ltd v. F. I. Onwadike Co. Ltd. [supra] and Boothia Maritime Inc v. Fareast Mercantile Co. Ltd. [supra]. With due respect to learned Counsel he misapplied the decision in these cases. In Brawal Shipping [Nig.] Ltd v. F. I. Onwadike Co. Ltd. [2000] LPELR-802 [SC] at page 20, Uwaifo, J.S.C., held:

“I do not have any doubt that when a document is pleaded, it forms part of the pleading. Certainly a document is pleaded in order that it may be used to support facts relied on by the pleader. The existence of such document is thereby pleaded as a fact. The contents thereof are facts and are pleaded as such. The document will then at the appropriate time in the proceedings be tendered as the evidence in proof of those facts.” [Underlining mine]

In Boothia Maritime Inc v. Fareast Mercantile Co. Ltd. [supra] at 131, Achike, J.S.C., citing the English case of Day v. William Hill [Park Lane] Ltd. had this to say:

“If documents were referred to in a pleading, they became part of the pleading, and it was open to the court to look at them without the necessity for any affidavit exhibiting them.”

Indisputably, the two cases are not authority for learned Counsel’s proposition. Looking at the Claimants pleading and witness’ deposition it is clear that what was pleaded in paragraphs 13 and 14 of the statement of claim is:

“13. The 1st and 2nd Defendants later commenced the process of sale of staff quarters of the 1st Defendant to their retired or disengaged workers or members of their family who are still in occupation of same. Notice of monetization of the quarters were [sic] issued to the various occupants of the staff quarters. The Claimants shall rely on copies of documents given to other occupants of the staff quarters.” [Underlining mine]

“14. The staff quarters were monetized to the occupants including those whose retired or disengaged parents or spouse had died. A typical example is one Mrs. Ezeani to whom her late husband’s staff quarters [sic] was monetized. She occupies No. 18A Asata Mine Quarters, Ogbete, Enugu. There are many others like that.”

The only reference to exhibit G-G2 is in paragraph 19 of the statement of claim, thus:

“19. The Claimants strongly believe that the Offer Letter in respect of No. 4B Asata Mine Quarters, Ogbete, Enugu which they occupy has been given to the 4th Defendant. The Defendants are hereby given notice to produce the Offer Letter in respect of No. 4B Asata Mine Quarters, Ogbete, Enugu to enable the Court ascertain whom it was offered to.”[Underlining mine]

The fact alluded to by learned Counsel in paragraphs 6.2 to 6.8 of Claimants’ final address was not pleaded and no evidence was adduced in proof of it. The Claimants’ pleading and evidence are inconsistent with the argument of learned Counsel. The submission of learned Counsel, though brilliant and persuasive, cannot take the place of pleading and evidence. See First Bank of Nigeria Plc v. Akparabong Community Bank Ltd. & Anor [2005] LPELR-7496[CA] at pages 52-53 and Saidu Suleman Takuma & Anor. v. Mahmud Danladi Liman & Ors. [2009]LPELR-5000[CA] at pages 29-30. The authorities cited are of little assistance to the Claimants. I therefore discountenance learned Counsel’s submission on this point. Contrariwise, the 2nd and 4th Defendants showed convincingly that the 4th Defendant is the ex-staff entitled to monetization of the property. There is evidence that the property was allocated to the 4th Defendant in July 2002 and she requested for vacant possession but the Claimants pleaded for time to vacate but subsequently reneged on the promise. A party cannot be allowed to benefit from her wrong or default. See the case of Oceanic Bank International Plc v. Broken Agro Allied Industries Limited [2008] LPELR-4671[CA] at page 36. There is also evidence that the Claimants’ father was branded “illegal occupant” in 1996 and ejection notice issue against him. The totality of the evidence adduced by the parties invariably weighs against the Claimants and show that the Claimants are not the persons entitled to the monetization of No. 4B Asata Mine Quarters, Ogbete, Enugu. Accordingly, I find and hold that relief two has not been proved and it is accordingly dismissed.

Relief three is for an injunction restraining the 4th Defendant by herself, proxies, agents, assigns or privies from paying for the property presently occupied by the Claimants. Injunction is an equitable remedy and equity follows the law. Injunction is usually granted to protect an established right. As observed above, the Claimants have not established any legal right to the property. On the other hand, the 4th Defendant in paragraph 10 of her amended statement of defence averred that:

“10. The 4th Defendant denies paragraphs 13 to 16 of the statement of claim and states that before the monetization policy of 2003, the premises had already been allocated to her and was so captured. All other documents issued in respect thereof were genuinely issued to the 4th Defendant. The 4th Defendant further add that she properly applied for and was issued with offer letter for house No. 4B Asata Mine Quarters, Ogbete, Enugu by the 1st and 2nd Defendants dated 20th May 2015. The said document will be founded upon in course of trial as pleaded.”

This averment was captured in paragraph 10 of the 4th Defendant’s statement on oath. Under cross-examination, she said “I paid the purchase price, N618, 583.50 to BPE and previously paid N24, 000 to NCC.” The 2nd Defendant’s witness testified in paragraphs 6 and 24 of his statement on oath that the 2nd Defendant has transferred ownership of the property to the 4th Defendant. These facts were not controverted in any way. It is settled law that an injunction cannot be granted to restrain a completed act, unless it can be shown that the party sought to be restrained deliberately proceeded with the action after becoming aware of the pendency the action or application for his restraint. See Alhaji Alhassan Shuaibu v. Muhammed Babangida Muazu & Ors. [2006] LPELR-5274[CA] at page 38. There is nothing before this Court to show that the 4th Defendant proceeded with the transaction after becoming aware of this suit. In the circumstance, an order of injunction will not lie against the 4th Defendant and I so hold. Relief three fails and it is consequently dismissed.

Relief four seeks an order compelling the 1st and 3rd Defendants forthwith to pay to the Claimants their late father’s gratuity having obtained Letters of Administration as requested by the 3rd Defendant. The evidence in proof of this claim is contained in paragraphs 11, 12, 13, 21 and 22 of the 1st Claimant’s statement on oath. Under cross-examination by the 4th Defendant’s Solicitor, the 1st Claimant said “I don’t know if my father wrote any letter to the 1st Defendant [NCC] demanding payment of his gratuity whether before or after exhibit B. It is not true that my father has been paid his gratuity. It will not surprise me to know that my father has been paid his gratuity.” Referring to Order 35 Rules 1, 3 and 4 National Industrial Court of Nigeria [Civil Procedure] Rules 2017 learned Counsel for the Claimants urged the Court to enter judgment against the 1st and 3rd Defendants for failure to file a defence. I have looked at Order 35 of the Rules of this Court and the claim by the Claimants and did not see anything entitling me to enter judgment against the 1st and 3rd Defendants. First, the 1st Defendant is under liquidation and the 3rd Defendant is an agent of the 1st Defendant. Secondly, Order 35 Rule 3 National Industrial Court of Nigeria [Civil Procedure] Rules 2017 provides:

“3. [1] If the Claimant’s claim be for pecuniary damages, and the Defendant or all the Defendants, if more than one, make default as mentioned in Rule 1 of this Order, the Claimant may apply to the Court for judgment against the Defendant or Defendants and the amount of the pecuniary damages, or the damages only as the case may be, shall be ascertained in any way the Court may order.

“[2] Where damages are to be ascertained and in all cases where declaratory reliefs are sought, the Court shall set down the matter for trial.”

Implicit in sub-rule 2 is the necessity for proof. Trial pre-supposes proof. The Claimants are required to prove that Mr. Jude W. Odu’s gratuity is owed and unpaid. This becomes imperative because on the 1st Claimant’s admission, in paragraph 10 of her statement on oath, “rent for the premises was regularly deducted from his monthly pensions.” It is mind-boggling that the 1st Defendant would regularly pay Mr. Jude W. Odu’s monthly pensions but refuse or fail to pay his gratuity. This doubt is reinforced by exhibit DW2D. Learned Counsel for the Claimants in paragraph 7.10 page 9 of Claimants’ final address posited that exhibit DW2D though useful did not prove that the Claimants’ father was paid his gratuity. Continuing, learned Counsel argued that the front page of exhibit DW2D bears 16th August 1984 when Mr. Jude W. Odu was retired but the letter of retirement was delivered on 23rd August 1984 and wondered if the gratuity was paid before communication of his retirement.

With all due respect, learned Counsel missed the point. The date on the front cover of exhibit DW2D marks the effective date of retirement of officers whose names are contained therein. The record is obviously in volumes as evident from the cover page, which is marked “Vol. 1”. While I agree that exhibit DW2D is not evidence of payment of Jude W. Odu’s gratuity, exhibit DW2D shows that the gratuity had been computed. It is noteworthy that Mr. Jude W. Odu in his lifetime did not demand for payment of his gratuity. The Claimants also did not demand for payment of Jude W. Odu’s gratuity. Exhibit E-E2 which is a letter written by the Claimants’ Solicitors to the 2nd Defendant did not claim for Mr. Jude W. Odu’s gratuity. The issue of unpaid gratuity was raised for the first time in the Claimants’ pleading. In my opinion, the claim for gratuity is an afterthought perhaps brought up to justify their claim to right of purchase of No. 4B Asata Mine Quarters, Ogbete, Enugu. In any case, the burden of proof rests on the Claimants which must be discharged by cogent and compelling evidence. See section 133[1] of the Evidence Act, 2011. The viva voce of the 1st Claimant in her witness deposition, in my considered opinion, is not enough for me to enter judgment against the 1st and 3rd Defendants. InDr. 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.

This becomes necessary when, under cross-examination, the 1st Claimant could not confirm if her father made any demand for payment of his gratuity. Also, the claim is wide and lacking in specifics and it is trite that where a party’s claim is wide and unmanageable the Court will refuse to grant it. See Charles Eigbe v. Ajoke Elizabeth Eigbe [2012] LPELR-19690[CA] at page 14. In the circumstance, I am not satisfied that I should enter judgment against the 1st and 3rd Defendants pursuant to Order 35 Rule 3 National Industrial Court of Nigeria [Civil Procedure] Rules 2017 in default of defence. Relief four is accordingly dismissed.

Relief five seeksN5 million general damages. There is no evidence of damage suffered by the Claimants. In law general damages is presumed to have accrued from the wrong complained of. By implication it flows from the immediate, direct and proximate result complained of. See Texaco Nig. Plc & Anor v. Reuben Iloka [2011] LPELR-5008[CA] 33-34. The Claimants have not proved their claim of right of purchase of No. 4B Asata Mine Quarters, Ogbete, Enugu and the damage suffered by reason of the offer of sale to the 4th Defendant. This Court is not a Father Christmas that dishes out gifts to every suppliant. This relief fails also and it is hereby dismissed.