IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE
DATE: TUESDAY MAY 02, 2023 SUIT NO: NICN/EN/42/2016
BETWEEN:
1. THE SENIOR STAFF ASSOCIATION OF
UNIVERSITIES, TEACHING HOSPITALS,
RESEARCH INSTITUTES AND
ASSOCIATED INSTITUTIONS, PRODA CLAIMANTS
BRANCH
2. THE ACADEMIC STAFF UNION OF
RESEARCH INSTITUTES, PRODA BRANCH
3. THE NON ACADEMIC STAFF UNION,
PRODA BRANCH
AND
1. PROJECT DEVELOPMENT INSTITUTE
[PRODA]
2. FEDERAL MINISTRY OF SCIENCE
AND TECHNOLOGY
3. PETER ONOH
4. JOSEPH CHUKWUEMEKA ACHEBE
5. ODILINYE ROSE N.
6. ONYEWEIKE FAITH ADA
7. MADUEKWU CHRISTIAN C.
8. MR. CHIJIOKE HYACINTH
9. KANU PATIENCE
10. EDEH GLADYS U.
11. EZE VIRGINA
12. KANU STEPHEN
13. IBEABUCHI FRANCIS
14. MBA EZEKIEL
15. EZEUGWU VERONICA DEFENDANTS
16. NWOKEDI ROBERT
17. ONAH PRICILLIA
18. NWANKWO INNOCENT
19. AGU HELEN
20. GLORIA EZIULOH
21. SYLVESTER ANIAKOR
22. EZEONU JANE
23. CHRISTIAN CHIOKE
24. BERNARD OKUBA
25. EZEKUDE SYLVANUS
26. UCHENNA ONOVO
27. KALU EKEH
28. MARY NKAMA
29. EUCHARIA UDEH
APPEARANCES:
1. J.C. IWEJUO, WITH THE BRIEFF OF G.O. NWOKEIWU – FOR THE CLAIMANTS
2. G.D. JOSHUA, WITH THE BRIEF OF OKOEDION ISI – FOR THE 1ST&2ND DEFENDANTS
3. DR. C. U. AGBO ESQ – FOR THE 3RD–29TH DEFENDANTS
JUDGMENT
INTRODUCTION
COMPLAINT commenced this suit on the 20th October 2016. The Statement of Facts [SF] sets out the following reliefs at paragraph 25:
a. A DECLARATION of this Honourable Court that the 3rd to 29th Defendants are in illegal occupation of the PRODA Staff Quarters at Emene Industrial Layout, Nchatancha Nike, Enugu, Enugu State, the 3rd to 25th Defendants having retired from the service of the 1st Defendant long ago while the 26th to 29th Defendants have no reason whatsoever to remain in the premises after the retirement and subsequent death of the allottees of the premises in which they now unlawfully occupy.
b. A DECLARATION of this Honourable Court that the members of the claimants being the current staff of the 1st Defendant are entitled to the immediate possession of the PRODA Staff Quarters at Emene Industrial Layout, Nchatancha Nike, Enugu, Enugu State.
c. AN ORDER of this Honourable Court directing the 3RD to 29th Defendants to forthwith vacate the PRODA Staff Quarters at Emene Industrial Layout, Nchatancha Nike, Enugu, Enugu State to enable the members of the Claimants to enter into and occupy same.
d. AN ORDER of this Honourable Court directing the 1st and 2nd Defendants to facilitate the immediate vacation of the 3rd to 29th Defendants from the PRODA Staff Quarters at Emene Industrial Layout, Nchatancha Nike, Enugu, Enugu State.
e. An ORDER of this Honourable Court directing the 3rd to 29th Defendants to jointly and Severally pay the Claimants the sum of N20,000,000.00 as aggravated and general damages for their failure to vacate the PRODA Staff Quarters at Emene Industrial Layout, Nchatancha Nike, Enugu, Enugu State immediately after retirement from the service of the 1st Defendant in line with their terms of service.
The 3rd-29th defendants reacted via a Statement of Defence [SD] filed 4th December 2017 while the 1st&2nd defendants filed their joint SD on the 9th May 2018. The claimant in response filed a Reply [RSD] to both SD on 14th May 2018. Issues were thus fully joined. I shall now proceed to the summary of the pleadings.
SUMMARY OF PLEADINGS
A: Statement of Defence
The claimants pleaded that, the unions of the claimants comprised of all members of staff of the 1st defendant that are still in active service. He went ahead to explain the status and role of the 1st&29th defendants. The claimants explained where the PRODA Staff Quarters is situated and went ahead to mention that, the purpose is to ease accommodation and transportation problems for the serving members and monitor the activities of the 1st defendant and its complex.
The claimants also pleaded that, the PRODA Staff Quarters are only meant for the members of staff of the 1st defendant who are in active service and, any staff who is retired or disengaged, is expected to vacate the premises immediately after retirement/disengagement, to enable those in service take possession of same. The claimants further pleaded that; the 3rd-29th defendants were granted the possession of the quarters while in active service and, ought to vacate same immediately they are retired from service. The claimants went ahead to identify the retirement dates of the defendants and stated that, the 3rd-29th defendants have all received their severance packages from the 1st defendant after retirement.
The claimant pleaded that; the 3rd-29th defendants have refused to vacate the PRODA Staff Quarters without any justification, which has subjected their members to severe and untold hardship. The claimants also pleaded that, as a result of the refusal to vacate the quarters, their members have been forced to pay exorbitant amount of money as house rent inclusive of transport fare. The claimants added that, these problems have diminished the work output and distanced them from their workplaces, which was the essence of the Staff Quarters.
The claimants pleaded that, the continued occupation by the 3rd-29th defendants aided by the 1st&2nd defendants are in violation of Chapters 8.1 and 13.3(d) of the Condition of Service of the Research Institutes, Colleges of Agriculture and Allied Institutions of the FRN [Staff Manual], which regulates the conditions of service of all members of staff of the research institutes in Nigeria, inclusive of the 1st defendant. Furthermore, the claimants stated that, they approached the 1st&2nd defendants to help solve the accommodation problem by ordering the 3rd-29th defendants to vacate the staff quarters, but they did not. In addition, the claimants mentioned that, a letter dated 21/12/15 was addressed to the Minister in charge of the 2nd defendant, demanding that the Minister takes a decisive step with regards to the ejection of the 3rd-29th defendants from the staff quarters but he did not respond.
B: 3rd–29th Statement Of Defence
The 3rd-29th defendants, via their SD, counterpleaded in response to paragraph 1 of the SF that, not all members of staff of PRODA belong to the said unions. The defendants admitted paragraph 2 and 3 of the SF. The defendants denied paragraphs 4,5,6,7,8 and 9 of the SF and counterpleaded that, the staff quarters allocated to them, were situated at Emene Industrial Layout Enugu and, not Nchatancha Nike, Enugu. The defendants counterpleaded that; they are the legal sitting tenants of the accommodation and, have been paying the housing units in the quarters. Furthermore, the defendants pleaded that, the Federal Government of Nigeria [FGN], via the Monetization Policy, directed that residential houses owned by the FGN should be sold by public auction and that, occupiers will be given first option and right of refusal to purchase same at the price of the highest bidder. The defendants counterpleaded that, the policy provided for the monetization of residential accommodation and guest houses and, a Presidential Implementation Committee [PIC] was set up for the leasing and disposal of residential properties and, implementation of the monetization policy. In addition, a list of residential quarters of the 1st defendant was submitted to the PIC for monetization and some serving and retired staff of PRODA duly received monetization, except the 3rd-29th defendants and, went ahead to list the staff quarters that were monetized.
The defendants counterpleaded that, it protested via letters, which the PIC responded that, a list of properties at PRODA quarters Nchatancha Nike Enugu should be provided for proper verification and assessment and, the list were duly provided to the PIC. Upon assessment, the PIC decided it was monetizable and, expression of interest forms for the housing units were given the 3rd-29th defendants, who filled the forms and paid the necessary fees, although some of them had not retired as at 9/3/2012 and, even those who retired had not been paid their entitlements in accordance with the conditions of service.
The defendants counterpleaded that, the completed forms were submitted to PRODA, who confirmed the defendants’ eligibility for monetization and promised to prioritize the partial implementation of the monetization of the said quarters and complete same. In response to paragraphs 10 and 11 of the SF, the defendants counterpleaded, by describing the situation of the PRODA staff quarters and office complex. In response to paragraphs 12-20, the defendants counterpleaded that, the monetization policy no longer provides for residential accommodation for serving staff but instead, they are given staff salaries and allowances in lieu of the accommodation. Also, the defendants counterpleaded that, the claimants was to enjoy salaries and allowances. The defendants counterpleaded that; they had not received the settlement of their retirement benefits before 9/03/2012, which was subject of litigation at the Federal High Court [FHC] Enugu and judgment delivered in favour of the defendants on 29/03/2010.
The defendants admitted paragraph 21 of the SF to the extent that, the conditions of service is subject to subsequent monetization policy of the FG and state that, they are not in the position to admit or deny paragraphs 22 and 23 of the SF. In response to paragraphs 24 to 25 of the SF, the defendants counterpleaded that, they are aware of the letter dated 14/7/2014 from the 2nd defendant to the 1st defendant and that, the defendants are not in illegal occupation of the PRODA quarters situate at Nchatancha Nike and not Emene Industrial Layout.
Furthermore, the defendants counterpleaded that, the claimants have no locus standi to institute this action and; that, there is no privity of contract between the 3rd-29th defendants and the claimants. Also, that, the National Industrial Court of Nigeria [NICN] lacks the jurisdiction to entertain matters of landlord and tenant relationship and that, the claimants are not the landlords of the 3rd-29th defendants and as such, are not entitled to either the reliefs or the aggravated damages sought.
C: 1st&2nd Joint Statement Of Defence
The defendants admitted paragraphs 1-15 of the SF and, in response to paragraph 16, it was counterpleaded that, the 1st&2nd defendants are not in support of the 3rd-29th defendants continued occupation of the 1st defendant’s staff quarters but that, they issued quit notices to the 3rd-29th defendants to vacate and give up possession to the 1st defendant for the benefit of its serving members of staff. The defendants admitted paragraphs 17-22 of the SF and, reiterated that, the quit notices were issued to the 3rd-29th defendants upon their retirement and upon the receipt of the notices, the 3rd-29th defendants pleaded passionately with the 1st defendant to be given time to enable them vacate the PRODA staff quarters. In response to paragraph 20, the defendants counterpleaded that, the continued occupation of the staff quarters after retirement violates the conditions of service applicable of the 1st defendant.
The defendants counterpleaded that, the 3rd-29th defendants have retired from the service of the 1st defendant and have received all their entitlements from the 1st defendant but continued to occupy the quarters allocated to them while in service without payment of rent to the 1st defendant. In response to the claim of the claimants, the defendants counterpleaded that, the quarters situate at Nchatancha Nike, Enugu is the lawful property of the 1st defendant and, the claimants are not entitled to the reliefs sought particularly paragraph 25(b) & (C) of the SF and urged the Court to dismiss suit, particularly paragraph 25(b) & (c).
D: Claimant’s Reply To The Statement Of Defence
The claimants denied paragraph 2&3 of the 1st&2nd defendants’ SD and pleaded that, some of the officials of the 1st&2nd defendants have aided the 3rd-29th defendants to remain in illegal occupation of the premises and also that, the 3rd-29th defendants were mere service occupants and, currently in illegal occupation of the subject matter and that, the purported quit notice was a ploy by some officials of the 1st defendant to help the 3rd–29th remain in occupation.
In response to paragraph 5 of the 1st&2nd defendants’ SD, the claimants pleaded that, asides the quit notice, the 1st&2nd defendants have not taken any further step to eject the 3rd-29th defendants from the premises. In response to paragraph 7 & 8 of the 1st&2nd defendants’ SD, the claimants relied that; they are entitled to all the reliefs contained on the face of the complaint and SF.
In reply to paragraph 1 of the 3rd-29th defendants’ SD, the claimants pleaded that, at the time of filing this suit, the chairman of the 1st claimant was Comrade Donald Ambakederemo, who is still in the service of the 1st defendant but not anymore, while the chairman of the 3rd claimant was Comrade Cosmos Agbo and, was in active service of 1st defendant but is now a retired staff of the 1st defendant.
Furthermore, in reply to paragraph 3 (a)–(u) of the 3rd-29th defendants’ SD, the claimant pleaded the following:
a) The subject matter of the suit is situate at Emene Industrial Layout, Nchatancha Nike, Enugu. The 3rd-29th defendants’ employments have long lapsed and, their severance packages duly paid by the 1st defendant hence, they are currently illegal occupants of the premises.
b) That the monetization program has long been concluded and, all properties of the 1st defendants have been monetized. That the FGN and 2nd defendant have made it clear that, the staff quarters has never been part of the monetization programme and also never offered for sale to any of the 3rd-29th defendants and that, the filing of the purported expression of interest form is an orchestrated plan by the 3rd-29th defendants to connive with officials of the 1st defendant, to remain in illegal occupation of the premises and that, the subject matter was never mapped out as being part of the then monetization programme.
The claimants replied paragraph 4(a)-(c) of the 3rd-29th defendants’ SD that, the quarters was acquired by the FGN from the Nchatancha Nike community and that, there is no building or any structure standing between the 1st defendant’s office and the PRODA staff quarters. In reply to paragraph 5(a)-(g), the claimants explained that, it is false that FGN agencies no longer provided residential accommodation for their serving staff that, research institutes i.e. 1st defendant, still occupies some of the apartments of the quarters. The claimant also pleaded that, all the severance/retirement benefits of the 3rd-29th defendants have been paid and, none of them is being owed and that, the said conditions of service have never been subject to the then monetization programme of the FGN.
The claimant in reaction to paragraph 8(a)-(g) and 9 replied that, there was no need for clarification from any appropriate authority as the FGN and the 2nd defendant have made it clear that, PRODA staff quarters is not for sale but for the occupation of serving staff. The claimants further pleaded that, members of the claimants, as the serving staff of the 1st defendant are the persons entitled to the immediate occupation of the PRODA staff quarters and, as serving staff of the 1st defendant, they enjoy existing contractual relationship with the 1st defendant and therefore, have the requisite locus standi to institute and prosecute this matter. That ends summary of the pleadings. I move to summary of the proceedings before the Court.
SUMMARY OF PROCEEDINGS
The case was assigned to Hon. Justice A. Ibrahim but was taken over by His Lordship, Essien I.J. and, came up for the first time on the 2nd November 2017. The claimants’ erudite counsel made an application to withdraw the Notice of Discontinuance dated 28/2/17 and filed on the 1/3/2017, which was granted and accordingly struck out and, the mater adjourned for hearing of the Notice of Preliminary Objection [NPO]. The matter came up on the 7th December 2017 for the NPO dated 16/11/2016 and filed 2/12/2016 but the 3rd-29th defendants first moved their application to regularize their process and, it was duly granted. The claimants’ erudite counsel informed the Court that, a written address in opposition to the NPO was filed. The matter was consequently adjourned to the 5th of March 2018 for Ruling. The Ruling was accordingly delivered on 9th of April 2018.
The matter came up again on the 15th May 2018 and the 1st&2nd defendants’ erudite counsel moved their motion to regularize their processes, which was accordingly granted. The claimants’ counsel also made application to the Court to regularize their RSD and, it was granted unopposed. The case was then opened with Comrade Teddy N. Udeinya, who testified as CW1. CW1 adopted his Written Statement on Oath [WSO] made 20/10/2016, as well as his further WSO made 14/5/2018 and, was surrendered for Cross-Examination [XX].
Under XX by the 1st&2nd defendants’ counsel, the CW1 stated that, he belonged to the union of the 2nd defendant and that, he knew all the defendants. He also said, they belonged to union while in service but were not members of any of the union now because, they had retired. He added that, the PRODA staff quarters belong to the FGN and, not the union. CW1 replied that, the property occupied by the 3rd-29th defendants is not the only property belonging to the 1st defendant before monetization and that, those other properties have been sold to staff that occupied the property but that, they were not within the confines of the office of the 1st defendant. CW1 said the 3rd-29th defendants were no longer in the service of the 1st defendant. That ended the XX of the CW1 by the 1st&2nd defendants’ erudite counsel. There was no re-examination. Thereafter, CW1 was also cross-examined by the 3rd-29th defendant’s erudite counsel.
Under XX by the 3rd-29th defendants’ erudite counsel, CW1 said, he would not know whether Emene and Nchatancha communities are the same but that, the PRODA is in Emene Industrial Layout Nchatancha, while a river crossed the PRODA office at Emene. He later said, he was not aware that Emene and Nchatancha are two separate communities demarcated by a river. He admitted the unions had no written authority from the owners of the properties to file this suit. He said he was aware of the monetisation policy but that, he was not aware that the occupants of the staff quarters had right of first refusal. He said he was employed in January 2002 and that, he was aware of the pendency of another suit by the 3rd-29th defendants involving the 1st&2nd defendants [owners of the property]. He said he was not aware that, the 1st&2nd defendants disagreed with his claims in this case. That ended the XX by the learned counsel to the 3rd-29th defendants. There was no re-examination. The matter was thereafter adjourned and trial could not continue before His Lordship Essien, as His Lordship was transferred and I took over.
Therefore, the matter came up for the first time before me on the 31st of October 2018 and, it was adjourned to 12th December 2018 for hearing. The matter came up next on the 1st of April 2019 but was further adjourned to 25th June 2019 for definite hearing. It came up as adjourned and, the claimants’ counsel applied to adopt their previous proceedings, which was unopposed and therefore, granted. Accordingly, the case proceeded from that point with Comrade Okeke Amos Uchenna, who testified as CW2 and, he adopted his WSO deposed on the 8th June 2018. CW2 tendered 2 documents and, they were marked as Exhibits C1 and C2. CW2 was thereafter submitted for XX.
Under XX by the 1st&2nd defendants erudite counsel, CW2 said he was not aware that, PRODA gave up his right and ownership in the staff quarters to anybody. He said the staff quarters were located at Nchatancha, Emene-Nike on the same parcel of land as the PRODA office complex. CW2 admitted that, he accused the 1st&2nd defendants of aiding the 3rd-29th defendants to illegally occupy the PRODA Staff Quarters and that; the documents in proof were before the Court. He replied that, no concrete steps were taken to evict the illegal occupants, apart from the issuance of quit notices but that, he was not aware that there were a lot of cases after the issuance of the notices. At this point, the XX by the 1st&2nd defendants’ counsel was completed and, the baton went to the erudite counsel to the 3rd-29th defendants.
Under XX by the 3rd-29th defendants’ erudite counsel, CW2 stated that, PRODA quarters and the office complex were located in one large parcel of land in Nchatancha, Emene-Nike Industrial Layout but that, he was not aware that, Emene and Nchatancha were separate communities separated by River Ekulu because, the PRODA quarters and the office were cited in Nchatancha, Emene-Nike in the same large parcel of land. He admitted that, both communities are recognised by law as different. To the question that PRODA office complex is sited at Emene Industrial Layout and, not Nchatancha, CW2 answered yes, that is not true and that, PRODA staff quarters and office complex are both together in one large land in Nchatancha Emene-Nike Industrial Layout. He said he had the vires as chairman of his union to fight for the right of his members, who are the current staff to possess the quarters and that; he had raised this issue in the management meetings. He said he was not aware that Exhibit C1 tendered by him said accommodation was to be provided where available and, initially refused to answer the question that, he lied under oath but later said he was not lying under oath.
CW2 equally replied that, he was not aware that, the Minister said the sale of the quarters should be put on hold till clarification from appropriate authority. He also said, he was not aware that, there was provision in Exhibit C1 that, those who have not been fully paid their terminal entitlements should stay put in the quarters but that, the retirees have all been paid their benefits. He equally said he was not aware of any previous judgment by the FHC. Shortly thereafter, the XX was brought to an end without re-examination. And the claimants’ case was closed, while the case was adjourned for defence.
The defence opened on 22nd October 2019 with Gbazueagu Rufus who testified as DW1 for the 1st&2nd defendants. He adopted his WSO made on 9/05/2018 and tendered 2 documents and, they were marked Exhibits DW1 and DW2. He was thereafter turned over for XX and, was first cross-examined by Dr. Agbo, for the 3rd-29th defendants. He answered that, PRODA quarters were situated at Nchatancha-Emene Nike and, not Nchatancha and that, he is not aware Emene is distinct from Nchatancha. DW1 insisted there was no river that separated the staff quarters from the PRODA headquarters. He admitted the Exhibit DW1 [Quit Notice] was issued in 2008 and that, Exhibit DW2 showed those that were asked to leave. He stated that the issue of the quit notice could not be pursued because the case was in court. He said he was not aware of any other court case relating to the eviction of the 3rd-29th defendants other than this. In respect of the question that, the 1st defendant could not evict the 3rd-29th defendants because, it is aware of the monetisation policy, DW1 replied that, the staff quarters in issue were not monetized.
He said he did not know what the guidelines say but that; all he knew was that, the owner of the property said, his property was not for sale. He however admitted that accommodation could only be given if available and that it is on individual basis. He said he was not aware of the judgment of the FHC referred to on the issue of payment of terminal benefits. He maintained that, the 3rd-29th defendant-retirees are not being owed penny in retirement benefits. He responded that, he did not know of any condition of service stipulating when to pay terminal benefits and, the consequence of failing to pay timely and, insisted that, they had been fully paid. He retorted that, nobody was arguing that the 3rd-29th defendants did not have the right of first refusal. To the question that, the PRODA quarters had been certified fit for sale by the PIC, he retorted that, PRODA was not private company and, as such, its management or board had no authority to invite anybody to inspect the property without approval from the Minister. He said he was not aware of the Minister’s letter of 14/07/2014, asking PRODA to stay action for clarification from the appropriate authority.
To the question whether he was aware that the claimants were not entitled to the reliefs claimed, he answered that, they were not entitled because, the owner of the property said they were not available for sale and, they could not force them to sell it. He said he did not know what question that was. Thereafter, the XX was brought to an end without re-examination. And the erudite counsel to the claimants took over the XX of the DW1.
Under XX by the learned counsel to the claimants, DW1 said that, the 3rd-29th defendants ceased to be staff of the 1st defendant more than ten years ago and that, they continued to be in illegal occupation since. He denied that, the 1st&2nd defendants encouraged the 3rd-29th defendants in their illegal occupation after paying their full terminal entitlements. He said the retirees are not paying any rent while they rent out the quarters to tenants and collect rents. He said, the 1st&2nd defendant deferred ejection of the 3rd-29th defendants because of the actions in court. He said monetisation only applied where the owners have agreed to sell the property and not otherwise. The XX came to an end without re-examination and, was adjourned for continuation of defence.
On 12th October 2020 DW2, Chief Joseph Chukwuemeka Achebe, was taken for the 3rd-29th defendants. He adopted his WSO made 4th December 2017 and tendered Exhibit DW2(A) & DW2(C), and, shortly thereafter, the case was adjourned. It came up next the 4th November 2020 and, DW2 continued his testimony and tendered DW2(D). The DW2 continued on 8th December 2020 and tendered DW2(E). Thereafter, he tendered Exhibits DW2(F)-DW2(K). Thereafter, he was submitted for XX by the claimants’ erudite counsel. He replied that, 3rd-29th defendants were beneficiaries of monetisation and were the resident licensees when the monetisation policy took effect and given letters of expression of interest as sitting tenants; and that, his authority was the mandate of the PIC that, legal sitting tenants had first option of refusal. To the question that, the Obasanjo regime, which introduced the monetisation left office in 2003, DW2 replied that, the office mandated to carry out the assignment is still in existence and still working.
DW2 said all his retirement benefits had not been paid. He said he had documents that qualified him for monetisation of his quarter. To the question whether there is any evidence that he was asked to pay the N10,000 for expression of interest and whether, there was a receipt evidencing payment of the N10,000, he said once one complied with the requirements, they would issue letter of expression of interest and that, there was sworn affidavit at the High Court attached and, the money was paid in certified bank draft made payable to the PIC. He said PRODA could not eject them because of series of litigations. He said the PRODA quarters are located in Nchatancaha-Nike, while the office is located in Emene and that, the River Ekulu clearly demarcated Emene-Nike from Nchatancha and that both, are different communities. He said both the PIC and the Ministry of land have written the PRODA that, its quarters are monetizable and are not within the precinct of the PRODA headquarters. He said, there are no buildings owned by third parties standing between PRODA quarters and the headquarters because, a river divides them. He said he was not aware that government had said because of the nature of the functions performed by research institutes, their quarters must not be sold but that, he was aware that, quarters within the precinct of the headquarters are not monetizable.
To the question that the parcel of land that accommodated both the PRODA office and the quarters are owned by the same FGN, he answered that, the FGN owned all the land in Nigeria but agreed that, the 1st&2nd defendants are the agents of the FGN and admitted that, the 1st&2nd defendants could speak for the FGN in respect of the land in issue but that, he was not aware that, the 1st&2nd defendants have said the FGN was not ready to sell the quarters. He admitted that other PRODA quarters in other places were monetized to staff during the monetisation because; they were deemed monetizable because, they were not within the office complex of the PRODA. He said he was not aware that, the 1st defendant, being a research institute, was like a university and that, he would not know that the staff quarters within the FGN owned universities were not monetized. The XX was brought to an end without re-examination while the case was adjourned for continuation. On 24th February 2021, the 1st&2nd defendants were foreclosed from cross-examining the DW2 while the DW3 began his XX.
Hyacinth Ifeanyi Chijioke testified further for the 3rd-29th defendants. He adopted his WSO made 4th December 2017 and tendered Exhibit DW3(A) while the case was adjourned for XX, which came up 26th July 2021. Counsel to the claimants cross-examined him. DW3 said he retired in 2007. He said his entitlement had not been completely paid because; he put in 30 years, while his entitlement was based on 27 years. He said he had a suit in this Court on his unpaid entitlements and that; his case is that, he would not vacate the premises until PRODA sells him his quarter. He also said, the law says they should pay him all his entitlements before he leaves the staff quarter. To the question whether, there is any interposing building owned by a third party between the office complex and the quarters, he said the quarters were owned by PRODA but located in another community named Nchatancha.
DW3 said the PIC gave them forms to fill to confirm the legal sitting tenants and which they submitted to PRODA. To the question whether he had been paying rent since he retired, he said yes and, when asked for evidence, he said that, it was deducted from his salary and, when asked whether he had been receiving salary since retirement, he said, he had been receiving pension. He said PRODA had many residentials [sic] in Enugu in which the staff lived and, the quarters and that, during monetisation, PRODA sold those residences inside town, leaving the quarters. He said the FGN said quarters within premises should not be sold and that, the PRODA quarters were in another community separated by a river from the PRODA headquarters. He said, he took the river as boundary because, that was the only thing that divided PRODA complex from the staff quarters. He said they paid money to the PIC before they submitted the form but that, no circular was giving to him to pay the money but that, he did not know whether any circular directed him to fill expression of interest form but that, all his entitlement had not been paid.
Under re-examination, DW3 said, there was another building between PRODA complex and the quarters. The re-examination was closed and, the 3rd-29th defendants closed their case and, the case adjourned for the 1st&2nd defendants to cross-examine the DW3. It came up 8th December 2021 for XX by the erudite counsel to the 1st&2nd defendants. He said he retired in 2007 while PRODA properties were monetized in 2005. He said he was not aware that, the Bureau of Public Service Reforms wrote to PRODA that, he had been paid his full terminal benefits. He said he had receipt for the payment of the expression of interest form but later admitted; he had no receipt. He said PRODA did not offer him letter of sale but that; it was agreement between PRODA and PIC. He said, while he and the second set of defendants could not force PRODA to sell the quarters but that, the PIC had ordered PRODA to sell the quarters and that, the evidence had been submitted to the Court. At this stage, the XX was closed without re-examination and the 3rd-29th defendants closed their case. The case was thereafter adjourned for adoption of Final Written Addresses [FWAs].
The adoption could not proceed on 16th June 2022, as the Court indicated that, the judgment and others would lapse during vacation and adjourned the adoption to 29th September 2022, a date it could not take place too. The adoption subsequently came up March 21, 2023. On this date G.D. JOSHUA, holding the brief of Okoedion Isi, for the 1st&2nd defendants adopted the 1st&2nd defendants’ FWA. Thereafter, DR. C.U. AGBO, for he 3rd-29th defendants adopted their FWA and thereafter, J.C. IWEJUO, holding the brief of G.O. Nwokeiwu, for the claimants, adopted the claimants’ FWA. Thereafter, the case was adjourned to 25th April 2023 for Judgment. As judgment was not ready by the date, the judgment was adjourned sine die. When judgment became ready, date was communicated to the erudite counsel to the parties. The next thing is summary of the FWAs of the learned counsel to the parties. I shall begin with the FWA of the 3rd-29th defendants counsel, which is the first in time.
SUMMARY OF THE FINAL WRITTEN ADDRESSES
A: 3rd – 29th Defendants’ Final Written Address
Erudite C. U. AGBO ESQ franked the FWA of the 3rd-29th defendants. The learned counsel formulated one issue for determination of the case: Whether the Claimants are entitled to the reliefs sought in this suit? On this issue, the learned counsel argued that, Exhibit C1 tendered by the claimants is not enough for them to assert a non-existent right to possession of the said PRODA staff quarters with no evidence of consent or authority to institute the suit. Also, the learned counsel submitted that, the letters of employment, which CW2 admitted that, did not state any entitlement to automatic accommodation, was not exhibited by the claimants and thus, cited Chapter 8(1) of the Staff Manual, which states that, housing issues are subject to availability and, on individual merit.
Furthermore, the learned counsel argued that, the claimants do not have any enforceable contract with the 3rd-29th defendants nor do they have the competence to sue them. He cited the case of Oduneye v Efunuga (1990) 12 SCNJ1 at P. 8 which states that, a party must show clearly that, he has a right to protect and that, his coming to court is to seek remedy so the right will not be violated. The learned counsel submitted that, the law is that only parties to a contract can sue and a contract cannot be enforced by a person who is not a party to it, even if the contract is made for his benefit and purports to give him the right to sue upon it. See Sagay Nigerian Law of Contract supra, p. 413
The learned counsel stated that, DW1 did not show any evidence of specific exemption of the PRODA staff quarters pursuant to Clause 16 (v) of the PIC Approved Guidelines (Exhibit DW2C). The learned counsel submitted that, it is not true, as DW1 asserted in evidence that, the 1st defendant said that, the PRODA quarters is not for sale and exhibits DW2E, DW2F and DW2H show clearly that, the 1st defendant said the quarters was and should be monetized.
The learned counsel further submitted and urged the Court to hold that, the entitlement of the 3rd-29th defendants right of first refusal under the PIC guidelines is enforceable. The learned counsel defined the meaning of a right as seen in Blacks law Dictionary, 8th edition, p. 1347. The learned counsel also stated that, where a document or statute mentions specific things, those not mentioned couldn’t be included to buttress the point that, the PRODA quarters have not been specifically exempted under the PIC Guidelines.
The learned counsel thereafter submitted that, under the law in force in Enugu State, Emene and Nchatancha Nike are different communities and cited the Enugu State Autonomous Communities (Recognition) Law Cap 41, Volume II, Revised Laws of Enugu State 2004, Nos. 60 and 62. The learned counsel then argued that, the case of 3rd-29th defendants, as at the time of the PIC visit to PRODA for the monetization exercise on 29/03/2012, the said defendants had not fully been paid their entitlements and cited exhibit DW2 and DW3 which resulted the institution of Suit No. FHC/EN/CS/3/2009 (Exhibit DW2K) that, was decided in favour of the plaintiff (inclusive of the 3rd–29th defendants).
The learned counsel argued that, the claimants have not discharged the burden of proving their claims and cited Section 131 of the Evidence Act 2011 to the effect that, he who asserts must prove. The learned counsel concluded by urging the Court to dismiss the claimants’ suit for lack of merit with substantial cost. This ends the summary of the 3rd-29th defendants FWA. I proceed to the summary of the claimants FWA in rebuttal.
B: Claimants’ Final Written Address
Erudite G. O. NWOKEIWU franked the claimants’ FWA written. The learned counsel formulated two issues thus:
1. Whether in view of the circumstances of this case, the members of the Claimants who are currently members of the staff of the 1st Defendant are entitled to the occupation of the PRODA staff quarters at Emene Industrial layout, Nchatancha Nike, Enugu, Enugu State, the subject matter of this suit, as against the 3rd to 29th Defendants who are retired/disengaged staff of the 1st Defendant.
2. Whether the Claimants have proved their case to entitle them to the reliefs sought in this suit.
In arguing issue 1, the learned counsel argued that, Chapter 8.1 and 13.3(d) of Exhibit C provides that, the 1st defendant shall provide housing accommodation for staff, where available or pay subsidy in lieu of the housing accommodation and that, no staff of the 1st defendant shall continue to occupy institution quarters beyond 3 months from the date of his resignation/retirement provided his benefits have been paid to him. Furthermore, the learned counsel argued that, the claimants are the unions, which comprise of members of staff of the 1st defendant that are still in active service and, the 3rd-25th defendants are retired/disengaged staff of the 1st defendant, who are currently in illegal occupation of the staff quarters, whilst the 26th-29th defendants are relations of former members of staff of the 1st defendant, who were retired from active service before their respective deaths.
In respect of the assertion by the claimants that, due to the monetization policy, federal agencies no longer provided accommodation for serving staff, the learned counsel argued that, at this stage, the burden has shifted to the 3rd-29th defendants to prove otherwise, which they failed to discharge the onus placed on them. He then cited Section 133 (1) and (2) of the Evidence Act 2011 and Plateau State of Nig. & Anor v A.G. Federation & Anor (2006) 3 NWLR (Pt. 967) 345 @ 417 D-F, which states that, he who asserts must prove, for which the burden is first on the claimants to adduce prima facie evidence to support his case then, the burden will shifts to the defence, to adduce counter evidence to sustain their defence.
The learned counsel argued that, the assertion by the 1st and 2nd defendant was neither challenged nor controverted by the 3rd-29th defendants and therefore, deemed admitted and, cited the case of Rimi v Obasanjo (2003) 17 NWLR (pt. 850) 587 SC. The learned counsel went further to argue that, the 3rd-29th defendants were evasive as to whether, the said severance packages/entitlements were subsequently paid after the said 9/03/2012 or prior to the commencement of this suit.
The learned counsel cited the case of A. B. Manu & CO. (NIG) LTD v. Costain (WA) LTD (1994) LPELR-14550 (CA), which states that, evasive denials are not sufficient to traverse the specific allegations contained in the statement of claim. The learned counsel submitted that, the right of first refusal mentioned by the 3rd-29th defendants, does not vest any interest on them, as to entitle them to remain in occupation of the staff quarters free of charge for many years after their retirement, and cited the case of Ewurum v. Minister of FCT & Anor (2019) LPELR-48365. He also cited the case of Nwana v FCDA & Ors. (2004) LPELR-2102 (SC), which states that, where an agent or servant is allowed to occupy the premises of the principal, he is merely a licensee and, has no right to continue to remain in the premises on the cessation of his employment. The learned counsel submitted in conclusion that, the members of the claimants, who are currently members of staff of the 1st defendant, are the ones entitled to the occupation of the PRODA staff quarters and, the 3rd-29th defendants are in unlawful occupation of the said staff quarters. Learned counsel thereafter moved to issue 2.
In arguing issue 2, the learned counsel submitted that, the claimants have furnished this Court with concrete facts to persuade this Court to grant the reliefs sought and, also that, the 1st&2nd defendants, who are the owners of the said quarters, have admitted that, the members of the claimants are the ones entitled to the occupation of the quarters and, not the 3rd-29th defendants. The learned counsel cited the case of Narindex Trust Ltd & Anor v. Nigerian Inter-Continental Merchant Bank Ltd (2001) FWLR (Pt. 49) 1546 @ 1564, which provides that, facts admitted need no further proof. The learned counsel argued that, there is no record showing that, the 1st&2nd defendants issued any expression of interest form to the 3rd-29th defendants or any acknowledgment receipt of the payment of N10,000 by any government agency. In addition, the learned counsel argued that, even the expression of interest forms and the bank draft of the N10,000 which was pleaded, were not tendered in evidence and cited the case of Buhari v Obasanjo (2005) 13 NWLR (Pt. 941) 1 and Section 167(d) of the Evidence Act, 2011, which state that, evidence which could be produced, but is not produced, is presumed to be against the interest of the party withholding same.
The learned counsel submitted that, the claimants have the right and competence to sue to protect the rights, interests and welfare of their members. The learned counsel also submitted that, the argument about the exact location of the PRODA staff quarters was put to rest by the admission of the 1st&2nd defendants (through DW1), who are in a better position to indicate the location of their own staff quarters. Finally, the learned counsel submitted that, the claimants have adduced sufficient evidence to propel the scale of justice in their favour and urged the Court to resolve in their favour and grant the reliefs sought.
C: 1st and 2nd defendants’ FWA
Erudite OKOEDION ISI franked the 1st&2nd defendants’ FWA. The learned counsel formulated one issue thus: “Whether considering the facts and circumstances of this case, the claimants are entitled to the prayers placed before this Honourable Court?” In arguing this issue, the learned counsel formulated three sub-issues for determination:
a) The Staff Quarters is the property of the 1st and 2nd Defendants.
b) No positive proof that the staff quarters was monetized to the 3rd-29th defendants
c) The 1st and 2nd defendants are entitled to the Staff quarters and reserve the right to administer same to their staff appropriately.
Under sub-issue (a), the learned counsel submitted that, since all the witnesses admitted that the staff quarters belong to either the FGN or the 1st&2nd defendants, this fact admitted needs no further proof and, he then cited the case of Owena Mass Transport Co. Ltd v Okonobo (2018) LPELR-45221 (CA). The learned counsel further submitted that, in an action for declaratory relief, the court is required to draw inspiration from consecrated principles, one of which is that, the party seeking the relief must lead evidence upon which the relief is granted, notwithstanding any admission in the defendant’s pleading. The learned counsel cited the case of Motunwase v Sorungbe (1988) 5 NWLR (Pt. 92) 90 in support of his position. Also, the learned counsel submitted that, since it has been established that the staff quarters do not belong to the claimants, the claimants cannot dictate how the quarters should be used and that, the proper thing will be to revert the staff quarters to the 1st&2nd defendants, who will now appropriately apply and make use of it.
Under sub-issue (b), the learned counsel argued that, there was no proof by the claimants nor the 3rd-29th defendants that, the staff quarters was monetized to the latter, neither did they show evidence of payment of the 10% deposit in respect of the 1st defendants staff quarters. The learned counsel relied on the case of Apena v Alieru (2015) ALL FWLR (Pt. 790) 1274-1275, which states the law that, he who asserts the existence of facts, must prove that they exist. In addition, the learned counsel argued that, Exhibit DW2 (E) tendered by the 3rd-29th defendants shows that, the staff quarters were never considered or listed as those to be sold or monetized. Finally, the learned counsel submitted that, the 3rd-29th defendants have the evidential burden to prove their assertion that, they have any interest in the 1st defendant’s quarters and that same, was monetized to them but have failed in this regard and urged the court to discountenance their assertions.
Under sub-issue (c), the learned counsel submitted that, all the evidence on record points to the fact that, the staff quarters belong to the 1st defendant and, has not been alienated in any way. The learned counsel also submitted that, while the 1st&2nd defendants are entitled to the staff quarters, the claimants are only entitled to prayers 25(a) of the prayers placed before this court. The learned counsel thereafter submitted that, since the 3rd-29th defendants did not establish that, the staff quarters were monetized to them, the 1st&2nd defendants therefore are entitled to the quarters and reserve the right to administer same to their staff appropriately.
D: The Reply On Points Of Law
C. U. AGBO ESQ also franked the 3rd-29th defendants’ Reply o Points of Law [RPL] to the claimants’ and 1st&2nd defendants FWAs. The learned counsel submitted that, with respect to the declaratory reliefs sought by the claimants, the law is that, they must succeed on the strength of their case and, not on the weakness of the defence (if any) for and that, they failed to discharge the burden of proof and cited the case of Uwaifo v Uwaifo (2005) 3 NWLR (Pt. 913) pp. 507-508.
In response to the 1st and 2nd defendants FWA, the learned counsel submitted that, it is not their case that, the staff quarters was monetized to them, but that, they are the legal sitting tenants of the quarters, which they occupied during the introduction of the monetization scheme for which they have right of first refusal. The learned counsel argued that, it was wrong for the defendants to argue that, there was no proof that, the quarters were monetized to the 3rd-29th defendants when the right of first refusal is enforceable under exhibit DW2C.
In response to the argument by the 1st&2nd defendants that, they are entitled to the staff quarters and, reserve the right to administer same to their staff appropriately, the learned counsel argued that, this is a claim that should have been made in the SD by way of counter-claim and not, in the FWA. The learned counsel cited the case of Akeredolu & Ors v Akinremi & Ors (1989) 3 MWLR (Pt. 108) 164 in support of his contention. The learned counsel further submitted that, a Court will not grant a party what was not claimed or counter-claimed and cited the case of Jeric Nigeria Ltd v Union Bank of Nigeria (2000) 4 NSCQR 254 at 273 (ratio 7) per KALGO JSC.
Finally, the learned counsel submitted in reply to paragraph 3.6 of the 1st&2nd defendants’ FWA that, the monetization scheme of the FGN has not ended and that, the PIC in charge of the implementation is still in existence. The learned counsel cited the case of Apena v Ajieru (2015) ALL FWLR (Pt. 790) 1274-1271 para H-A, which states that, he who asserts must prove and went further to state that, the 1st&2nd defendants did not cite any law or circular which ended or purported to end the monetization as alleged and, urged the Court to so hold.
There ended the RPL. I shall therefore move to give my decision, but before then, I need to state that, I have carefully digested all the pieces of evidence and have fully digested the pleadings and FWAs too. I have equally consulted some of the focal authorities to refresh my memory. I think I am good to give my decision now.
But before then, let me state that, while this suit had been adjourned for and, pending for judgment, the letter at p. 551-556 was received in my chambers and, my Secretary brought it to my attention on 02/05/2023 and, I thereafter directed my clerk, Anthony Ugwu, to kit it up in the case file while my attention is directed to it accordingly. I have carefully examined the body of the letter and found that, it was not addressed to the other side at all and, neither was it filed. The purported writer [Comrade Engr. Udeinya Chukwudum Teddy], claimed to be a claimant in this case. I must state that, this letter addressed to me personally, as the presiding judge, is wrong as, it offends the audi alteram partem, as well as discourteous of the judge and, the counsel handling the case for the claimants, who obviously was not in the know of this letter, as it was personally signed by the purported writer and copied to the Chief Justice of Nigeria, otherwise, the claimants’ lawyer would have told him that, the letter was improper, as well as discourteous.
The law and practice are that, you do not communicate with the judge in a pending matter in which you are a party without the knowledge of the other parties in the suit, especially your opponents, which means, when you write a judge on a pending matter, especially one that had been adjourned for judgment, you must intimate the other parties in the suit. You cannot also write a judge personally. A judge is written though the Registrar of Court. In view of all these infractions, I have not bothered to even read the contents of the letter, as it is not worthy of my attention. The writer is overzealous and rude. The letter is accordingly discountenanced. The writer is hereby warned to desist from such unwholesome conduct, which can put him into serious problem of contempt of court by way of undue interference with the administration of justice that could warrant his imprisonment. I will not tow that line now. Be that as it may, I now go on to give my decision on the substantive case.
COURT’S DECISION AND REASONS FOR THE DECISION
In dealing with this suit, I adopt the second issue formulated by the erudite claimants’ counsel and deduced an additional issue from the 3rd-29th defendants’ arguments on the locus of the claimants, but without actually formulating any issue on it [though pleaded]. The two are considered as sufficient to thrash out the dispute in focus. All other issues are verbose. The issues are:
1. Whether the claimants have locus to bring this action?
2. Whether the claimants have proved their case to entitle them to the reliefs sought in this suit?
It needs be pointed out at the outset that, the claimants’ case and that of the 1st&2nd defendants [First Set of Defendants] are essentially the same. The only areas of discrepancies are: with regard to the reliefs that, the Court orders that, the staff quarters in issue be directly taken over by the claimants and, on the issue that, the 1st&2nd defendants connived with the 3rd-29th defendants. So, the real contest is between the claimants and the 3rd-29th defendants [Second Set of Defendants]. It needs be pointed out too that, the facts of this case are essentially undisputed. Only the laws are disputed. The first argument that is germane to a resolution of this case is, the argument by the erudite counsel to the second set of defendants that, the claimant lacked locus to bring this action, by virtue of lack of privity of contract between them. The claimants’ counsel countered this by taking refuge on the shoulders of unionism. This argument as it is, calls into focus the nature and functions of a trade union:
“A trade union is an organisation made up of members (a membership-based organisation) and its membership must be made up mainly of workers.
One of a trade union’s main aims is to protect and advance the interests of its members in the workplace.”
The functions of trade unions were listed as including:
· “Negotiate agreements with employers on pay and conditions
· Discuss major changes to the workplace such as large scale redundancy
· Discuss members’ concerns with employers
· Accompany members in disciplinary and grievance meetings
· Provide members with legal and financial advice
· Provide education facilities and certain consumer benefits such as discounted insurance”
S. 1(1) of the Trade Unions Act [TUA] defines trade union as, a combination of workers for the purpose of regulating the terms and conditions of employment, while S. 51 of the TUA defines ‘trade dispute’, as any dispute between employers and workers, or between workers and workers connected with the employment or non-employment, or the terms of employment or conditions of work of any person. S. 2(1) of the TUA gives a trade union juristic personality. Now, Chapter 8.1 of the Staff Manual provides that:
“The Institution shall provide housing accommodation for staff where available or pay housing subsidy in lieu of housing accommodation at the approved Government rate. The appropriate housing allowance shall be paid to each staff whether male or female, married or not married. Management should charge appropriate rent on their quarters. All staff should be treated on their individual merit.”
The grouse of the claimants herein is that, the second set of defendants, who were originally staffers of the first set of defendants, had all retired, but held on to the staff quarters originally allotted them as staffers, while even some of these original staffers had died, their families continued to hold on to these staff quarters, thereby depriving the current staffers the use of the quarters and thus, causing them inconvenience and interfering with the effective performance of their duties. They claimed that, the 1st&2nd defendants, who are the owners of these quarters and their employers and, former employers of the retired staffers, have failed to evict these illegal occupants, while the 3rd-29th defendants claimed that, these quarters were affected by the monetisation policy and that, they had a right of ‘first refusal’, on which count, they stayed put, plus the fact that, the 1st defendant had not settled their retirement benefits.
There is no doubt, going by the provisions of Chapter 8.1 of the Staff Manual, as quoted above, that, the current staffers of the 1st defendants have a qualified right to these quarters and as a result, the right to these accommodations became part of the terms and conditions of their members’ service. So, the issue at stake is not that of landlord tenant, pleaded by the second set of defendants, but purely dispute on the terms/conditions of employment [employer v. licensees] over which this Court has exclusive civil jurisdiction – S. 254C-(1)(a) of the Constitution and Nwanna v. FCDA & Ors (2004) LPELR-2102 (SC) 18, D-F and Turkur v. Government of Taraba State (1997) LPELR-3273 (SC) 35, A-B, which are integral part of contacts of employment. Besides, S. 254C-(1)(a)&(k) of the Constitution gives the NIC exclusive civil jurisdiction over issues pertaining to employment benefits, which are the claims herein. So, the issue of lack of jurisdiction is completely knocked out. There is no doubt too that, the 1st&2nd defendants had not successfully eased the 3rd-29th defendants out of these quarters.
There is equally no doubt that, the 3rd-29th defendants are claiming a contrary right antagonistic to the right claimed by the claimants and the 1st&2nd defendants. Arising from the foregoing, there is no doubt that, there is a serious dispute between the claimants on the one side and, the 1st&2nd defendants and the 3rd-29th defendants on the other side. The dispute is connected with the terms and conditions of the service of the current staffers, the exercise of which same right originally gave the 3rd-29th defendants access to these quarters in the first instance, when they were staffers.
Going by the functions of trade unions as listed above, the dispute is therefore a trade dispute with their employers, over which the claimants have unfettered right to protect and fight the 1st&2nd defendants on behalf of their staff-members and, a right to sue the 3rd-29th defendants for interfering with the fulfillment of their contract with the 1st&2nd defendants [their employers]. It is a fight for the interests of the unions’ members. For these reasons, it is not correct to say the claimants have no privity with the two sets of defendants. The claimants and the 3rd-29th defendants are claiming contradictory rights over the same property, from the same 1st&2nd defendants. And being juristic personalities, with right to sue and be sued, by virtue of S. 2(1) of the TUA and, their functions being to fight for the interests of their members, they have undoubted right to sue in the manner they did, for all questions connected with the property in question to be determined once and for all – see S. 14 of the National Industrial Court Act [NICA]. The only thing that could have negatively affected the right of the claimants herein, which incidentally, none of the parties adverted to, is the issue of whether, being in part, a trade dispute between the claimants and the 1st-2nd defendants, the matter could be heard by the NIC, as court of first instance or, the IAP.
But the fact that, the 3rd-29th defendants are involved in the suit and, they are no longer workers, being retired, to bring them within the confines of S. 51 of the TUA and, being sued in their individual capacities and, not as association, they cannot come within the confines of the IAP and thus, the NIC has original jurisdiction over the matter, being in a position to resolve all the issues, once and for all - Turkur v. Government of Taraba State [supra] and S. 254C-(1)(a)&(k) of the Constitution [supra].
While there is no direct privity between the claimants and the 3rd-29th defendants, there is direct privity between the claimants and the 1st&2nd defendants, the 1st&2nd defendants being the employers of the staff-members, whom the three claimant-unions represent in this action. The claimants and the 3rd-29th defendants derived their claims from the same 1st&2nd defendants and, are claiming breach of contract of employment rights to the same property. It is therefore right in law that, the claimants bring the two sets of defendants together so that, the Court can determine who has a valid contract on the property and, whose right to the property was breached by the 1st&2nd defendants or prevented from fruition by the 3rd-29th defendants. The claimants and the 3rd-29th defendants, having derived their asserted contrary rights from the same 1st&2nd defendants, are in the analogous positions of privies of the 1st&2nd defendants, both sides having derived their claims from them – Nwazota v. Nwokeke (2010) LPELR-5101 (CA) 12, A-D.
The two sets of defendants are therefore necessary parties to the suit, which involves, in a way, both contract and torts of interference with contract, which the claimants raised against the first set of defendants at one hand and, the second set of defendants at the other hand. The complaints of the claimants against the second set of defendants, in the real sense of it, is that, they interfered with the performance of their contract with the first set of defendants, which disallowed the first set of defendants from honouring a contract duly entered with them – Fidelity Bank Plc v. Trimidan Limited & Anor (2020) LPELR-50146 (CA) 13-23. So, both sets of defendants are necessary parties for effective and complete determination of the suit – National Democratic Party v. INEC (2012) LPELR-19722 (SC) 38-39, E-A. In the end, the claimants have locus to bring this action. The issue of locus is dismissed. I move to the second issue.
Issue 2 deals with: whether the claimants proved their case? What is the claimants’ case? Their case is that, their members are the current staffers of the first set of defendants and that, by virtue of Chapter 8.1 of the Staff Manual; their members are entitled to live in the staff quarters, as part of their terms/conditions of employment, which the second set of defendants refused to vacate after their retirement thus, interfering with the first set of defendants’ performance of the said contract and, thereby impeding their contractual right from fruition. Thus, they are accusing the second set of defendants of torts of interference with their contract with the first set of defendants. This determines what proof is primarily required of them in a declaratory civil action, which this case is and, if they have satisfied this burden. The claimants tendered Exhibit C1 [the Staff Manual] making a case of its Chapter 8.1 and, I have found that, Chapter 8.1 truly gives the staff qualified right to the staff quarters.
No one has disputed the personalities of the claimants as duly registered unions to warrant the tendering of their registration certificates. In any event, I found two of the unions listed [the 1st&3rd claimants], as Nos. 27&17 in Parts B&C of the Third Schedule of the TUA. The listing in the TUA thus, becomes a matter of judicial notice, dispensing with the need for proof. And the depositions in the WSO as regard the status of the 2nd claimant was not disputed. There is no dispute too that, the 3rd-29th defendants are retirees, to whom these quarters were originally allocated as licensees during the currency of their employment and that, they refused to pack out of the staff quarters in issue. So, the claimants have satisfied the initial burden on them.
The burden shifts to the second set of defendants, who are the current occupiers of the staff quarters in issue. They have not disputed their occupation of the staff quarters after retirement. They did not also dispute that, even while some of them, to whom the properties were originally allocated had died, their children had taken over the quarters originally allocated to their dead parents as staffers of the first set of defendants. But they pleaded avoidance in that; they had right of first refusal by virtue of the monetisation policy of 2003, being the sitting licensees of the staff quarters at that point and that, that is why they stayed put, since the defendants refused to sell the staff quarters to them - Anukwu & Anor v. Ofolue (2022) LPELR-58365 (CA) 18, A-D on the nature of confession and avoidance:
“Confession and avoidance is: ‘A plea in which the defendant admits allegations but pleads additional facts that deprive the admitted facts of an adverse legal effect…The defence in a plea of confession and avoidance, must acknowledge or confess the truth of the allegations in the plaintiff’s declaration or averments of facts either directly or by implication and then assert facts which neutralize the legal effect of plaintiff’s declaration.”
Thus, the avoidance the 3rd-29th defendants pleaded is ‘right of first refusal’. It is therefore central to our inquiry here, to know what right of first refusal means and entails. Its meaning and legal incidents determine this case. James Chen says of ‘right of first refusal’ thus:
“Right of first refusal (ROFR), also known as first right of refusal, is a contractual right to enter into a business transaction with a person or company before anyone else can. If the party with this right declines to enter into a transaction, the obligor is free to entertain other offers. This is a popular clause among lessees of real estate because it gives them preference to the properties in which they occupy. However, it may limit what the owner could receive from interested parties competing for the property.”
Collins online says: “If someone has first refusal on something that is being sold or offered, they have the right to decide whether or not to buy it or take it before it is offered to anyone else.” These definitions tally with those of: Rocket Mortgage, Mariam-Webster and, the Black’s Law Dictionary, which the second set of defendants cited. Central to all these definitions is that, the property in issue must be offered by the owner for sale, for the right of first refusal to become mature and, be available for activation. It is the owner’s attempt to sell the property in issue or the offer of it for sale, that breaths life into the ‘right of first refusal’. Where the owner of the property has not put it up for sale, there is no ‘right of first refusal’ to exercise. This so, irrespective of Exhibits DW2E, DW2F and DW2H, which did not prove sale or attempts to sell to third parties. Until the owner of the property actually puts it up for sale or attempts to put it up for sale, the right of first refusal is at best, inchoate and, at worst, no existent. Then, the question is: has the owner put up the staff quarters in issue for sale? The answer is no.
In actual fact, the second set of defendants conceded the fact that, the first set of defendants, who are the owners of the staff quarters, have not offered them for sale and that, their staying-put, is to compel them to put it up for sale by force because of the monetisation policy – see paragraph 3(d)-(g) of the SD of the second set of defendants. Their case is not that, the first set of defendant [owners of the staff quarters] are trying to sell off the quarters in issue to third parties, over and above their right of first refusal but that, they refused to offer them for sale. And for this reason, they were not able to show evidence of payment for expression of interest or of bidding to enable them exercise their right of first refusal to bid for these properties.
Though, I took note of the facts that, they pleaded in paragraph 3(h)-(i) of their SD that, some staff quarters elsewhere, belonging to the 1st defendant, were actually monetized to the sitting-staff licensees, but clearly that, theirs were never put up for sale, the failure to put them up for sale, which they regarded as injustice and, for which reason, they refused to pack out of them. The question is: can they compel the owners to offer the staff quarters in issue for sale? I think, in accordance with the incidences of ‘right of first refusal’, as depicted earlier on, they cannot. And I so hold.
In this respect, I am not unaware of the earlier case of this Court on similar issue cited by the second set of defendants. This is NIC/LA/11/2011 – Nigerian Union of Railway Workers & Anor v. Nigerian Railway Corporation & Ors [Decided 6th January 2016] CTC of which was tendered from the Bar. I have carefully studied the case and, cannot go along with it. I recognise that, this Court is a court of precedent, but there are occasions when it might decide not to be bound by an earlier decision of its own. First, I found that, while the issue of right of first refusal was the fulcrum of that case too, it was not examined at all, in that case. What seemed to have preoccupied the mind of the Court in that case [and rightly] was, the attempt to steal a march on that case, when the exemption was obtained in the course of the trial of the case.
The Court saw this as an affront; and for this reason, did not even look at all, at the nature of and incidences of the right of first refusal. That is not the case here. Again, in that case, the Court did not advert its mind to the fact that, no individual right is above the right of the general public - Badejo v. Federal Ministry of Education & Ors (1996) LPELR-704 (SC) 22, C-D:
“A fundamental right is certainly a right which stands above the ordinary laws of the land, but I venture to say that no fundamental right should stand above the country, state or the people.”
No one has alleged in this particular case that, the quarters in question were proposed for sale to private individuals or third parties. All the 3rd-29th defendants alleged was that, other residential buildings the 1st defendant had elsewhere were sold, while theirs [the staff quarters] were not put up for sale and, the claimants and the first set of defendants had shown that, they were not sold because, they were institutional quarters, needed for the smooth performance of the primary duties for which the 1st defendant was established. That is clearly a public purpose; the 1st defendant being a tertiary research institute meant for the uplifting of productivity through scientific researches for the public benefits. And the 3rd-29th defendants have not alleged or proved bias against the 1st&2nd defendants or that, the managements of the 1st&2nd defendants want to corner the quarters, by selling them to themselves or their cronies. The 1st&2nd defendant simply did not want to sell these quarters they regard as institutional buildings.
Hence, the public interest being protected must, by far, outweigh the individual private interests of the 3rd-29th defendants. And we should not forget that, the 3rd-29th defendants have no prior proprietary right or interests on the quarters. They did not own them and did not build them, to warrant the question that, their properties were being forcibly taken away from them. Rather strangely, the 3rd-29th defendants want to forcibly take the property of their employer-landlord! The employers/owners simply refused to put them on sale and have by that, not infringed any proprietary rights belonging to the 3rd-29th defendants, who are claiming right of first refusal. They therefore have no right to insist that, the quarters be sold by all means: legal or illegal. For these reasons, I decline to be bound by the precedent created in the erstwhile case cited by the counsel to the 3rd-29th defendants. I therefore confirm my earlier holding that, the 3rd-29th defendants failed woefully in the discharge of the burden of proof placed on them. They have no right whatsoever on the staff quarters in question. And I so hold. That ordinarily ends the case.
But let us examine the issue more, for the sake of surplusage. In this, the second set of defendants cannot even begin to lay claim to the monetisation policy because, the Approved Guidelines for the Sale of Federal Government Property… [Exhibit DW2C] itself recognised the fact that, it is not compulsory that all FGN’s property be sold and that, apart from those directly listed for exemptions, the specific directives of the FGN could exempt others – see Clauses 1&16 thereof.
The claimants have pleaded in paragraphs 10-12 of their SF that, the staff quarters in issue are contiguous to the research institute [PRODA] and, are on the same parcel of land and, meant to aid the research activities of PRODA by reason of the proximity. They gave evidence to these effects and, under XX, DW2 actually confirmed this, when he admitted, there were no interpositional buildings belonging to third parties separating the staff quarters from the office complex but only a river – see pp. 101-102 of the Proceedings File. DW3 also confirmed this, when he stated that, PRODA had many residential buildings inside Enugu City, which it had monetized, but left out the quarters and that, the FGN actually said, any property within the office complex must not be sold, but with a rider that, because, the quarters were separated by a river from the office complex and in another community, they were in the PRODA’s office complex and, must therefore, be sold – see p. 122 of the Proceedings File. DW3 further admitted under XX that, he took the river as boundary because, that was the only thing that separated the quarters from the PRODA office complex – see p. 123-124 of the Proceedings File.
I found too that, the second set of defendants did not effectively deflect these averments in paragraph 4 of their SD, as they only said, a river divided the quarters and the PRODA headquarters and, at the same time, said some other buildings or businesses interposed the two entities. A serious contradiction is inherent in the counterpleading that, a river divides the two and, at the same time, saying, other buildings divided the two. Are these other buildings inside the river, on the river or, what! Those are the puzzles that naturally stare at any rational person. It is either a river separates them or, there are some interpositional buildings that separate them, and which buildings cannot be on the river. It cannot be both. In fact, the evidence of DW2 that, only a river separates the two totally knocks out the bottom of the contrary pleadings as a tissue of lies. But that is not even significant. What is significant is that, an important admission is made by the second set of defendants, albeit unwittingly.
If a mere river separates the PRODA and its staff quarters in issue, as they pleaded, it means, both are actually in close proximity and on contiguous lands, notwithstanding that, they are on separate communities, which are obviously contiguous. For, a river is part of landform and, the fact that two separate communities are on the two sides of the river does not make the land non-contiguous. A mere bridge could connect them. And if the few buildings stated are truly the interpositional buildings between the PRODA and its staff quarters, the admission is apparent that, the staff quarters are indeed very close to the PRODA headquarters. DW2, under XX, actually said, there were no interpositional buildings, but only a river. The important admission is that, the 3rd-29th defendants admitted, by inference that, the quarters in question and the PRODA are close to each other. And if this is so, the implication is that, these quarters are clearly institutional buildings and ought not to be sold. This, the DW3 confirmed when he said under XX that:
“When the FGN gave [sic] to sell out their properties, they said that anyone within the office premises should not be sold. This [sic] PRODA quarters as I already said is within another community and not within PRODA premises, and it has a natural boundary by a river called Ekulu River.” – [P. 123 of the Proceedings File]
That a river separates the PRODA headquarters from the staff quarters and that, the two are sited on two separate communities, even if it is true, does not detract from their contiguousness, when the same FGN owned the two properties and, the lands on which they are sited. It is the nearness to each other that determines contiguousness and, the evidence of DW2 & DW3 under XX, as cited earlier on, has confirmed that the two buildings are near each other. I take judicial notice that; residential quarters are normally a bit separated from office/classroom complexes in the institutions of higher leanings and, even secondary schools all over the country. It is commonsensical. This is to allow a bit of privacy in the residential quarters from the public glare of the office/school classroom structures. The 3rd-29th defendants are struggling without success, to create the impression that; the staff quarters in issue and the PRODA office complex, are not in close proximity simply because, a mere river separates them and, they are in different communities.
The fact of common ownership of both by the 1st defendant removes the toga of different communities. Both are in the single community or premises of PRODA. It is clear that, those residences that were sold, as depicted in paragraph 3(i) of the 3rd-29th defendants’ SD and, as confirmed under XX by DW2 [see p. 102 supra] when he said, quarters within the precincts of the headquarters may not be sold and, DW3 [p. 122 supra] when he said, PRODA only sold the residences inside town and, left the staff quarters, were obviously not in close proximity of the PRODA like the ones in question, but in other streets or parts of Enugu City, far away from the PRODA. Having found that, the staff quarters in issue are in close proximity to the PRODA, it follows that; the 3rd-29th defendants lost the contest that, the staff quarters were not needed in aid of the work of PRODA. What is admitted needs no further proof – Ndukwe v. LPDC & Ors (2007) LPELR-1978 (SC) 64, C-D.
In furtherance of the foregoing, it needs be pointed out that, the first set of defendants is part and parcel of the FGN. While the 1st defendant is a statutory agency of the FGN and the statutory owner of the staff quarters in issue, the 2nd defendant is the federal ministry that supervises the 1st defendant. If both 1st&2nd defendants have refused to put the property in question to sale, it is not in the right of the second set of defendants, to compel them to so do. And no injustice is involved in treating the staff quarters as institutional buildings required for the better performance of the functions of the PRODA. The behaviour of the 3rd-29th defendants herein, is symptomatic of the unrivaled brigandage that has come to characterize life in Nigeria. I accept the explanation of the 1st&2nd defendants that, the different suits on the issue prevented them from evicting the 3rd-29th defendants out of respect for the courts. That is how it should be in any civilized society because, that is the only way for sustainability of human civilisation. Take the rule of law away, the society becomes worse than that of the animals in the wild and, life becomes brutish and short – Garba v. FCSC & Anor (1988) LPELR-1304 (SC) 50-51, G-C.
The only thing the 3rd-29th defendants have unalloyed right to compel the first set of defendants to do, is to respect their right of first refusal, if they actually wanted to put the quarters in issue on sale, which is not the case. It should not be forgotten that, the 1st defendant is a tertiary research institution, with juristic personality, with right to sue and be sued and, created by statute, which gives it some level of autonomy to act in its statutory interest – see S. 1(b), 3 & 8(b) of Decree No. 5 of 1977 [supra]. This should be borne in mind. It is therefore right, to determine that the nature of tertiary educational institutions demand that, they retain their hostels and staff quarters because of the peculiar needs and centrality of these buildings to the effective performance of their statutory functions.
This is exactly what the claimants pleaded in paragraphs 10-12 of their SF and, have established at trial. And the 1st&2nd defendants are the sole determinants of that, only subject to the overriding directives of the President. The 3rd-29th defendants have no vires to complain against the 1st&2nd defendants’ decision, but may petition the President, if they are displeased and, until the President lawfully reverses 1st&2nd defendants’ decision not to sell their staff quarters, the 1st&2nd defendants’ decision stands as that of the President or Federal Executive Council, being high-level agents of the President and the FGN, plus the fact that the 1st defendant is a statutory institution with right to sue and be sued, which gives it some level of statutory autonomy to determine its own specialist affairs.
Let me hazard, the 1st defendant, because of its statutory autonomy, can even take the FGN to court on the issue of monetisation to explain to the court and the general public that, it negatively affects the purpose for which the public, via the legislature, created it, as a specialist institution, with autonomy to enable the Court determine the question in the interest of the public – S. 318(1) of the Constitution, where a distinction was made between the civil service and the public service of the federation and, Egigie v. Edo State JSC (2017) LPELR42022 (CA) 30-33, D-B and, AG Lagos State v. AGF & Ors (2003) LPELR-620 (SC) 84-86, F-B, which shows that, statutory corporations, have specific mandates to protect, as enshrined in the enabling statutes, which cannot be toyed with, with reckless abandon. If the 1st defendant is not subject to the whims and caprices of the President, it is easy to see that, the 3rd-29th defendants are not in a position to compel her to sell off her landed properties, at all.
The second set of defendants cannot therefore begin to query the first set of defendants, who are part and parcel of the FGN, on why they would not put the property to sale or force them to put it to sale. Their personal rights, if there is any, in this regard, are not above the public rights, which decision of the 1st&2nd defendants, not to sell the staff quarters in issue, represents in the instant scenario - Badejo v. Federal Ministry of Education & Ors [supra]. The right being claimed by the second set of defendants, is not even fundamental right, but mere employment rights that are not fundamental employment rights too. It is only higher hierarchy in the FGN that is higher than the supervising ministry that could override the 1st and 2nd defendants decision in not offering the staff quarters in issue for sale. With the current scenario in this suit, the 1st&2nd defendants are the FGN, whom the defendants agree, via Exhibit DW2C, has the right to exempt any FGN property from sale.
Once the 1st defendant [PRODA itself] and the 2nd defendant [the Federal Ministry of Science and Technology], the supervisory ministry, declined to sell, that is the mind and directive of the FGN on the property. The FGN, being an artificial being, must act through its statutory agents, who are the 1st&2nd defendants in this instance. And even if the 1st defendant disobeys the FGN, as the 3rd-29th defendants erroneously claimed in this suit, they are not in a position to take up the fight, but must revert to the said higher authority allegedly disobeyed, to browbeat the 1st&2nd defendants back to line, and where that could not be achieved, they must vacate the quarters.
I must say in this respect that, the reflections under XX of CW2 at pp. 44-45 of the Proceedings File on the issue of non-payment of terminal benefits, apart from the fact that, the CW2 deflected this by saying, all the retirees’ terminal benefits had been fully paid, is actually not feasible under the present scenario. It amounts to blowing hot and cold and, making an inconsistent and mutually exclusive defence, which the law frowns at – French & Ors v. Omonode & Ors (2021) LPELR-56061 (CA) 33-34, E-F and Eyodoh v. Mujaddadi & Ors (2021) LPELR-57110 (SC) 58, B-C. By the mutual inconsistency of the defence, none could stand. You cannot claim that, you have a right of first refusal and that, that was why you stayed put in another person’s property and, at the same time, claim that, you stayed put because, your terminal benefits had not been paid. Once the Court finds that, you have no right of first refusal, the other defence cannot avail you, even if proved.
You cannot drag title or right of ownership with the owner of a property, your employer, to whom you are a licensee, and come back to rely on mere conditions of service, which aimed at cushioning the effects of non-timely payment of terminal benefits, to stay put in the same property. If the Court unwittingly accedes to this, after finding that, the 3rd-29th defendants had no right of first refusal, it would amount to granting by another means, what it had refused earlier on. Since 2007, which the DW1-DW3 accepted as their date of retirement till date [16 years ago], the 3rd-29th defendants had stayed put in the public property of the 1st defendant without paying rents and, even transmitting the right to their children after death, meaning that, they have converted the staff quarters to their property.
This cannot be – Erebor & Anor v. Erameh & Anor (2020) LPELR-49671 (CA) 42-43, E-B. Once their indirect claim to title in the right of first refusal is found untenable, they must be ordered out and, if they have any outstanding terminal benefits claim against the 1st defendant, they must turn to the courts to claim the unpaid terminal benefits. Good enough, Exhibit DW2K, referred to by the 3rd-29th defendants under XX on 22nd October 2019 showed that, a suit was filed with regard to the non-payment of the correct terminal benefits and, judgment delivered in the suit. I have examined the twelve-page judgment and found that, it was decided in favour of the 182 retirees of the 1st defendant – Suit No. FHC/EN/CS/3/2009 – Emma Chkwu & Ors v. Project Developmnet Institute (PRODA) & Ors [Delivered 29/03/2010].
If there is any issue yet unsettled with regard to the judgment, the solution is not to stay put in the 1st defendants’ staff quarters, but to apply for enforcement of the said judgment, by all lawful means, including taking out a writ of contempt against any person that has prevented the fruition of the judgment. There could not be a judgment on an issue and, yet, the beneficiaries of the judgment would leave it unenforced and, take the law into their hands or, use it as a shield against their illegal action of staying put in public property without paying rents and, asserting right of title to the public property against the public authority owner of the property, when the FHC’s judgment did not decide anything of sort.
The existence of this judgment showed that, the 3rd-29th defendants know that, they are not supposed to stay put in the staff quarters. Besides, no conditions of service may override the statute that gives title on the property of the PRODA quarters to the 1st defendant – African Resources and Mines Ltd v. SS Minerals Resources Ltd (2021) LPELR-55151 (CA) 10-11, E-A. This is more particularly so, when the management of the PRODA has been accused frontally of conniving with the 3rd-29th defendants. Public interest in accountability and probity must be protected.
Let me also say the rule in Chapter 8.1 of the Staff Manual relied on by the 3rd-29th defendants cannot avail them at all in the circumstances of this case, for two reasons. First, the issue of non-payment of retirement benefits raised is not the one envisaged in the rule. The non-payment of retirement benefits envisaged in the rule is delay in the payment of agreed retirements benefits due to the usual administrative redtape. It does not cover a situation whereby the 1st defendant had paid what it felt in its own judgment to be the full and correct terminal benefits of the 3rd-29th defendants but the 3rd-29th defendants are contesting it that, it is not the correct one. In the eye of the Chapter 8.1 of the Staff Manual, once the 1st defendant had paid the full terminal benefits of the staff, they must vacate the staff quarters to enable the other staff to occupy them, even if they belief the correct and full retirement benefits had not been paid. Otherwise, mischievous staffers would always leverage the provision to stay put, even when the correct terminal benefits had been paid.
From the FHC’s judgment, it is clear that, the fight is not that the 1st defendant had not paid what it believes to be the full and correct terminal benefits but that, the retires objected that, the 1st defendant had not used the correct law to calculate the benefits, thereby shortchanging them. To allow the 3rd-29th defendants to use the instrumentality of the condition of service made by the magnanimity of the 1st defendant for the convenience of the lucky staff, who had the luck of official quarters, as a means of asserting title to the property, is to allow the said condition of service to be used as an instrument of fraud against its altruistic intendment – Young Shall Grow Motors Ltd v. Onalada & Ors (2020) LPELR-51706 (SC) 10, E-F.
This is more particularly glaring, when it is realised that, the staff quarters were not automatic and that, there were other staffers at the same time, who did not have staff quarters, and who retired at the same time with the 3rd-29th defendants, and who, were equally affected by the terminal benefit shortfalls in issue [the FHC’s judgment had 182 names against the 29 names in this suit]. Chapter 8.1 indicated clearly that, the quarters were not sufficient to cover all; otherwise, allocations would have been automatic. Those other staffers were not able to stay put in any of the 1st defendants’ staff quarters. This shows the incongruity of the 3rd-29th defendants arguments and that, they abused the privilege they had. They had gone to the FHC Court and, it had decided in their favour on the issue of the correct terminal benefits. They should go and enforce their judgments and pack out of the staff quarters. To leave them to continue to stay there will amount to monumental injustice to the public, the 1st defendant and the claimants in this case.
It is greed on the part of the 1st defendant that is at the root of this case. The 3rd-29th defendants have served and were lucky to enjoy staff quarters inside the school premises, while others were living far away from the PRODA premises and yet, they intend to deprive the current staff of this benefit and, to also deprive the 1st defendant of the institutional benefits of the contiguousness of the staff quarters to the PRODA, as a research institute. The 3rd-29th defendants cannot begin to compare themselves with those that lived outside the PRODA premises, whose official residences were monetized to them because, those outside residences had no institutional utilities and, those staffers were as a staff living in any privately rented apartment, who could not come from these far distances to monitor experiments and other research undertakings in the laboratories in the school’s premises and other such incidental close monitoring. The 3rd-29th defendants behaved unwittingly like the savages, who, after crossing the bridge to take benefits from the oracle, cut it off against others, without recourse to the fact that, their long-term survival lies in having continual access to the oracle, their benefactor, whom they had abandoned in their shortsightedness.
The PRODA is the oracle. It is meant to carry out researches to aid the nation in product designs and manufacture. If it cannot perform its functions effectively by means of the inability to attend to research undertakings that need 24 hours or close monitoring and other incidentals that, demand human constant attention: the whole nation, including the 3rd-29th defendants and generations unborn, suffer the negative consequences. I know this does not bother the second set of defendants. As far as they are concerned, the PRODA and the nation can go to blazes; so far they have their inordinate way! This Court, being a labour and economic court, looks at the wider implications of a decision, beyond the narrow selfish interests of the contesting litigants and, takes the decision that is more beneficial to the larger society. That is its mandate as a labour Court and, that is what S. 254C-(1)(f) of the Constitution entails.
In view of all the foregoing, I hold that, while the claimants effectively discharged the burden of proof placed on them, the second set of defendants failed totally to discharge the burden placed on them. In that wise, the claimants succeed in the first part of issue 2, which is whether the claimant proved their case. I hold that, the claimants effectively proved their case. It is now left to examine the reliefs to which they are entitled, which is the second part of issue 2. I am of the considered view that, the claimants are entitled in full to relief (a). I therefore grant relief (a) in full.
I grant relief (b) subject to the conditions imposed in Chapter 8.1 of the Staff Manual, which showed that, the claimants only have a qualified right to the staff quarters. I grant relief (c) to the extent that, the 3rd-29th defendants are hereby ordered to pack out of the premises in issue within 90 [ninety] days from the date of this judgment, to enable the quarters to be allocated to qualified staffers in accordance with Chapter 8.1 and any other relevant conditions in the Staff Manual. I grant relief (d) by ordering the 1st and 2nd defendants, either jointly or severally, to use all lawful measures, like the police force or any other lawful security agency, to evict the 3rd-29th defendants after the expiration of the 90 [ninety] days from this judgment, if they still refused to pack out of the said staff quarters.
I am aware by the authorities of Nwanna v. FCDA & Ors [supra] and Chukwumah v. Shell Petroleum (NIg) Ltd (1993) LPELR-864 (SC) 92, G that, the 1st-29th defendants, being mere licensees, are not entitled to any grace period to pack out, but in tandem with the modern day labour jurisprudence, as enshrined by S. 254C-(1)(f) of the Constitution, the international best practices all over the world, is to mitigate the negative impacts of any decision on employees, which I believe, extents to ex-employees. That is why I granted the 90 [ninety] days ultimatum to the 3rd-29th defendants, to enable them arrange alternative accommodations for themselves, even though, their intransigence had been reprehensible.
I am of the view that, the claimants are not entitled to relief (e). Why? Chapter 8.1 of the Staff Manual earlier quoted in full, gave them qualified right to the quarters and, not absolute and automatic right. Where they could not secure the quarters, it gave them right to accommodation allowances. They have not pleaded that; they were not paid these allowances in the interim.
It is rather the first set of defendants that ought to pray for damages and not the claimants in this instance. But they did not and, I will not grant it, for the reasons I explained earlier on. And in any case, the claimants utilized union dues to fight this cause against those who were formerly members of the same unions, and who must have contributed in no small measures, in their active service days, to the coffers of these unions that are fighting them now: though, a justified fight. The claimant-unions ought not, in equity, to be granted damages against their former members and, for the past camaraderie. I therefore refuse to grant damages to the claimants. Relief (e) is therefore refused in its entirety. For the same reasons as given above, I will also refuse to grant the claimants and the first set of defendants, damages and costs. Everyone should bear his or her costs.
However, in virtue of the powers invested in the NIC as a court of equity to grant any relief to which any of the parties might be entitled to, by virtue of the facts of the case – see SS. 13-19 of the NICA and, S. 254C-(1)(f) of the Constitution, which forbids unfair labour practices, I hereby forbid the staff quarters, forming the subject matter of this suit, from being put on sale to all the current staffers of the 1st and 2nd defendants as at the date of this judgment, if for any reason, the 1st&2nd defendants or, the FGN decides to sell them. This would take care of the unfairness that would be involved in the current ex-staffer-occupiers, being pushed out and, the first set of defendants or the FGN suddenly waking up, to put them on sale to the current staffers, especially the unionists and the managements of the 1st&2nd defendants.
The vires of the NIC to give any order or grant any relief, even if not claimed, once borne out of the facts of the case and, once the purpose is to eschew unfair labour practices and, in their stead, enthrone international best practices and equity, are not peculiar to the NIC alone, but to all labour courts around the world and, have been affirmed in some notable decisions of this Court and, those of labour courts of other nations – see Elizabeth v. Alex Ekwueme Federal University & Ors and Ogbaka v. OHHA Microfinance Bank Ltd, where the rationale for these powers is explained. Having resolved all issues, the case must therefore come to an end.
CONCLUSION
In concluding this case, I reiterate the reliefs granted once more, to obviate any doubt or confusion. They are as follows:
a. A declaration of this Honourable Court that, the 3rd-29th defendants are in illegal occupation of the PRODA Staff Quarters at Emene Industrial Layout, Nchatancha Nike, Enugu, Enugu State, the 3rd-25th defendants, having retired from the service of the 1st defendant long ago, while the 26th-29th defendants have no reason whatsoever to remain in the premises after the retirement and subsequent death of the allottees of the premises in which they now unlawfully occupy.
b. I grant relief (b), subject to the conditions imposed in Chapter 8.1 of the Staff Manual, which shows that, the claimants only have a qualified right to the staff quarters in issue.
c. I grant relief (c) to the extent that, the 3rd-29th defendants are hereby ordered to pack out of the premises in issue within 90 [ninety] days from the date of this judgment, to enable the 1st defendant to allocate the quarters to qualified staffers in accordance with Chapter 8.1 and any other relevant conditions in the Staff Manual.
d. I grant relief (d) by ordering the 1st&2nd defendants, either jointly or severally, to use all lawful measures, like police force or any other lawful security agency, to evict the 3rd-29th defendants after the expiration of 90 [ninety] days from this judgment, if they still refused to pack out.
The decision of the Court is hereby entered under my hand today, Friday the 2nd day of May 2023.
……………………………
HON. JUSTICE Oluwakayode Ojo AROWOSEGBE
Presiding JUDGE
ENUGU DIVISION
NATIONAL INDUSTRIAL COURT OF NIGERIA
BACK