Download PDF
JUDGMENT 1. The Claimants/Applicants approached this Court via originating notice of motion dated and filed 21/9/2018. The Originating Notice of Motion was accompanied with a 4 paragraphs affidavit in support of the originating notice of motion, written address and photocopies of documents attached to the affidavit in support as exhibits to be relied on at trial. A further affidavit in support was also fled on 24/9/18. The Claimants/Applicants vide this action are praying for:- 1. A DECLARATION that the defendants employment/service with the Claimants having been effectively brought to an end the various letters of dismissals to them by the Claimants, their dues, salaries and entitlements having been fully paid and received by them have no right however, whatsoever to trespass into, enter or forcefully gain access to the premises or precinct of the Claimants office/ business place at No.205 Abiola Segun Ajayi Street off Muri Okunola Road Victoria Island Lagos and Kwale in Delta State or disturb, interfere in any manner in the work place and working of the Claimants or in any way interfere, restrain or restrict workers of the Claimants whether being Union member or not in any way whatsoever. 2. A DECLARATION that the Defendants having been effectively dismissed vide the said various letters of dismissal herein ceases to be staff of the Claimants by reason of which they have no rights or privileges in the affair, management, working or work place of the Claimant however whatsoever. 3. A DECLARATION that the Defendants having been paid all their dues, salaries, entitlements and having received same have no any right however whatsoever in the affair of the Claimant for which reason they are not expected to be seen, enter or trespass into the work place/ office of the Claimants. 4. AN ORDER OF PERPETUAL INJUNCTION restraining/ prohibiting the Defendants from entry, trespassing into the premises and precinct of the claimant’s office and work place or interfere in any manner howsoever with the working, work place or disturb, interfere, restrain or restrict the worker of the claimant in their lawful duties. 5. And for such order or other orders as this Honourable Court may deem fit to make in the circumstances, as if same has been applied for. 2. The application is premised on the following grounds: a. The Defendants who were former staff of the Claimants embarked on illegal strike without authority or even consent of their parent union i.e PENGASSAN b. That their parent body PENGASSAN even warned them to desist from going on the said illegal strike even against the claimants. c. That in the course of the illegal strike, the Defendants forcefully with aggression obstructed the entrance to the properties, access to heavy machineries, oil well sites and wellheads, drilling equipment, and allied engineering equipment, hijacked workers from working who were in their workplace and created a general mayhem in the work place of the claimants. In the process they apprehends and stopped direction drillers, cementing Engineering and Rig workers of Claimants and brought the operations of the Claimants to an abrupt end wherefore the claimants suffered unquantifiable monetary damages, production drop and equipment safety breach. d. That following due procedure, and to avert any further damage and economical haemorrhage to its production, the Claimants dismisses the Defendants. e. That the Defendants were each duly paid their salaries, dues, entitlement which they duly acknowledge. f. That in spite of the above the Defendants still threatened to unleash further mayhem and destruction on the claimants for which reason the Claimants has approached this court for remedy. That it is in the interest of justice to grant this application. 3. The Defendants failed to enter appearance throughout the subsistence of the suit despite proof of service on all the defendants in the suit. 4. The Claimant originating notice of motion was supported by a 4 paragraphs affidavit deposed to by one Emmanuel Ezeifedikwa of No.7 Kisumu Street, Zone 2, Wuse, Abuja. And a 4 paragraphs further affidavit dated and filed on 24/9/2018 deposed to by the deponent of the affidavit in support. In the affidavits of Emmanuel Ezeifedikwa, the following Exhibits were annexed. They are: EXHIBITS OOC.1, OOC.2,OOC.3, OOC.4, OOC.5, OOC.6, OOC.7, OOC.8, OOC.9, OOC.10, OOC.11, OOC.12, OOC.13, OOC.14, OOC.15, OOC.16, OOC.17, OOC.18, OOC.19, OOC.20, OOC.21- The employment letters of all 21 defendants in the matter, EXHIBIT OOC.22- Collective Bargaining Agreement, OOC. 23- Letter of notification written by the Claimants to PENGASSAN dated 10/9/2018, EXHIBIT OOC.24- PENGASSAN reply to the Claimant dated 10/9/2018, EXHIBIT OOC.25- Claimants letter to PENGASSAN titled RE: INCORPORATION OF NON PENGASSAN MEMBERS INTO PENGASSAN STRIKE, dated 10/9/2018, EEXHIBIT OOC.26- Claimant’s letter addressed to the Directorate of State Security (DSS), Lagos Office dated 11/9/2018, EXHIBIT OOC. 27- Claimant’s letter to PENGASSAN dated 13/9/2018 titled NO WORK NO PAY DURING ILLEGAL INDUSTRIAL ACTION BY PENGASSAN STERLING OIL BRANCH, EXHIBITS OOC.28-, OOC. 29 , OOC.30, OOC.31, OOC.32, OOC.33, OOC.34, OOC.35, OOC.36, OOC.37, OOC.38, OOC.39, OOC.40, OOC.41, OOC.42, OOC.43, OOC.44, OOC.45, OOC.46, OOC.47, OOC.48- The various dismissal letters of all 21 Defendants titled SUMMARY DISMISSAL DUE TO GROSS MISCONDUCT and dated 13/9/2018, EXHIBITS OOC.49, OOC.50,OOC.51, OOC.52, OOC.53, OOC.54, OOC.55, OOC.56, OOC.57, OOC.58, OOC.59, OOC.60 , OOC. 61, OOC.62, OOC. 63, OOC.64, OOC. 65, OOC.66, OOC.67, OOC.68, OOC.69- Receipt of payment of all the 21 Defendants salaries, dues and entitlements. 5. On 21/10/19, when this matter came up for hearing Christopher Oshomegie, Esq; counsel for the Applicants relied on the depositions contained in the affidavit in support and the exhibits attached therein. Counsel also adopted his written address as his oral argument in the matter and in the said written address he raised a sole issue for determination; to wit: ‘’WHETHER THE DEFENDANTS HAVING BEEN DISMISSED AND HAVE ALL THEIR ENTITLEMENT FULLY PAID HAS ANY RIGHT TO INTERFERE, DISTURB, RESTRAIN, RESTRICT WORKERS OR CAUSE LABOUR UNREST AT THE WORK PLACE OF THE CLAIMANTS.’’ 6. Counsel argued began his submission by referring to the affidavit and EXHIBITS OOC.28-, OOC. 29, OOC.30, OOC.31, OOC.32, OOC.33, OOC.34, OOC.35, OOC.36, OOC.37, OOC.38, OOC.39, OOC.40, OOC.41, OOC.42, OOC.43, OOC.44, OOC.45, OOC.46, OOC.47, OOC.48, the various dismissal letters of all 21 Defendants titled SUMMARY DISMISSAL DUE TO GROSS MISCONDUCT and dated 13/9/2018, according to counsel since the Defendants have ceased to be staff of the claimants, they have no right to cause any labour unrest in the Defendants work place. See OYEDEKE V IFE (1990) 6 NWLR (PT 155) 194. 7. Counsel further argued that since the Defendants have ceased to be their staff and have been fully paid their entitlements which they have acknowledged they (Defendants) cannot foist themselves on the claimants, see ONALAJA V AFRICAN PETROLEUM (1999) 7 NWLR (PT206) 691 AND SAVANNA BANK V FAKOKUN (2002) 1 NWLR (PT 749) 544 8. Counsel submitted that since the dismissal of the defendants was lawfully carried out in compliance with the laid down agreement between parties as shown in EXHIBIT OOC.22, OOC.23, OOC.24, OOC.25, OOC.26 and OOC.27, then the claimants are entitled to peaceful running of their affairs, management and work place without the disturbance and interference of the Defendants. See OLANREWAJU V AFRIBANK PLC (2001) FWLR (PT.72) 2008. Counsel urged the Court to grant Claimants reliefs as prayed. a. COURT’S DECISION 9. I have carefully considered the originating motion on notice, the affidavit in support, further affidavit in support and the exhibits attached therein. I have equally examined the written submission of counsel and the oral adumbration. 10. It is my humble view that the issue to be resolved in this suit, is, whether the Claimants have in view of the facts of this case adduced sufficient, cogent and credible evidence in proof of the declaratory reliefs being sought from the Court. 11. It is to be noted at the onset that the defendants have not deemed it fit to enter appearance or file defence to this action despite being served with the originating notice of motion and the hearing notices for the hearing of this suit. However, the absence of defence from the defendants does not translate to automatic judgment for the claimants. The reason being that three out of the four reliefs being sought by the claimants are declaratory reliefs. 12. It is well settled that the Court does not make declaration of right either on admission or default of pleadings. It must be satisfied by evidence led by the party seeking for the declaration. If the party fail to establish their entitlement to the declaration sought by their own evidence, the declaratory relief will not be granted even on admission by the defendants. A declaratory relief will be granted where the party asking for it is entitled to the relief in the fullest meaning of the word. Declaratory reliefs are not granted as a matter of course and on a platter of gold. They are only granted when credible evidence has been led by the claimant or person seeking the declaratory relief. See C.P.C vs. I.N.E.C. & Ors (2011) LPELR-8257 SC 80 81 per Mohammed JSC, Matanmi & Ors vs. Dada & Anor (2013) LPELR-19929 SC per Fabiyi JSC; Chukwumah vs. Shell Petroleum Development Company of Nigeria Limited (1993) LPELR-864 SC per Karibi Whyte JSC; Anyanru vs. Mandilas Ltd (2007) SCNJ 388 and Akinboni & Ors vs. Akintope & Ors (2016) LPELR-40184 CA 25 26, DUMEZ NIGERIA LIMITED V NWAKHOBA 2008 LPELR-965(SC), 13. It is beyond any doubt that a claimant succeeds or falls in respect of declaratory relief on the strength of his own case. By law, a claimant seeking for declaratory reliefs must prove his case on the strength of his evidence, not on the weakness of the defence of the defendant. See OKEREKE V UMAHI & ORS. [2016] LPELR-40035(SC) and NYESOM V PETERSIDE & ORS. [2016] LPELR-40036(SC); and a declaratory relief is never granted on the basis of admission or default of pleading. See BULET INTERNATIONAL NIG. LTD V DR. OMONIKE OLANIYI & ANOR. [2017] Vol 6 - 12 MJSC (Pt. III) 6. The vital question to be answered is has the claimant in this suit been able to by the affidavit averred facts that are cogent and credible in proof of the claims before the court. 14. Having regard to the reliefs being sought before the court i.e declaratory and injunctive reliefs, the claimant has to succeeds or fails on the strength of his case and not on weakness of the defence or admission. 15. The burden of proof of declaratory reliefs on the claimant is a heavy one in the sense that such declaratory relief is not granted even on admission by the defendant, where the claimant fails to establish his entitlement to declaration by his own evidence. This means that the declaration sought by the claimants in this case cannot be granted on admission or in default of defence by the defendants. The court must be satisfied that the claimant is entitled to declaration for it to be granted. BELLO V EWEKA 1981 1 SC 101; MUTUWANSE V SORUNGBE 1988 12 SC PT.1 130, 1988 5 NWLR PT.92 90, CHUKWUMAH V SHELL PETROLEUM DEV. COMPANY OF NIG. LTD 1993 LPELR-864SC, 1993 4 NWLR PT.289 512, KAPO & ANOR V. SAMORE & ORS LPELR-44246(CA). 16. When a declaratory relief is sought it is to declare as established legal and factual state of affairs in respect of the cause of action. Thus, the court will not readily without good and sufficient evidence exercise its discretion to grant a declaratory order. The party seeking for declarations is calling on court to confirm state of affairs or what is agreed or likely to be in connection with the subject matter of the declaration. 17. As pointed out earlier in this judgment can the facts as disclosed by the affidavit evidence sufficient, cogent and credible to prove the relief being sought from the court. The claimants in this case are relying heavily on the exhibits attached to the affidavit in support and the further affidavit. These exhibits are photocopies and not original. The question to ask is can photocopies of documents attached to an affidavit be accorded evidential value in the absence of the originals and explanation from the claimants as to what happened to the originals or why they cannot be brought before the court for inspection. 18. All the exhibits tendered in this suit by the Applicants are photocopies. The originals have not been produced for the inspection of the Court as required by sections 86 and 89 of the Evidence Act 2011. It is pertinent to note the Applicants have not given any explanation as why the original exhibits were not brought before Court as required by law. 19. It is to be remembered that this suit was commenced vide originating notice of motion which does not allow for oral testimony except where there is need to resolve conflict in the affidavit evidence being relied upon by the parties in proof of their respective position before the court. And in the case at hand there is no such conflict as the defendants have failed to defend the case. 20. It is settled law that exhibits attached to affidavit in an originating process to be use in evidence in an action before a court of law must comply with the requirement of evidence Act on admissibility otherwise such exhibits have no value in the eyes of the law. In the case of THE KANO STATE HOUSE OF ASSEMBLY & ORS. V ALHAJI MUHAMMADU FALALU UMAR (2014) LPLER-24008 (CA), where the Court has this to say on issue of exhibits attached to affidavit in proof of substantive matter. ‘‘The law is that documents attached to affidavits and especially to originating summons where no oral evidence is taken must fully comply with the requirement of the Evidence law to be acted upon by the court. It makes no difference that same are only attached to the motion or the originating summons, in so far as they are intended to be acted upon by the court to determine any matter, they must meet the requirement of admissibility. Where such documents, as in the instant case, are by their nature public documents, they must be certified to be admissible in evidence and or be relied upon’’. 21. I must quickly add here that the issue of admissibility would have been different if the objection is at preliminary stage where an interlocutory application is being considered by the Court. See NWOSU V IMO STATE ENVIRONMENTAL PROTECTION AGENCY (1990) 4 SCNJ 94, ADEJUMO GOVERNOR OF LAGOS STATE (1970) ALL NLR 183. 22. All exhibits being relied upon by the Counsel for the Applicants as the basis of proof of employment, termination or payment of terminal benefits which in turn will entitled the claimants to the declarations being sought are in law not admissible. The documents are photocopies and no explanation has been given as to why the original were not produced. See sections 85, 86 and 89 of the Evidence Act, having not done so the Claimants cannot rely on photocopies to prove their claim to entitled them to declarations being sought. 23. It must be remembered that no declaratory relief can be granted on mere assertions in affidavit without concrete and credible documentary evidence adduced to back up or establish the assertion. The Applicants have a duty to adduce credible evidence before the Court to entitle them to the declaratory reliefs sought. This they did not do. Therefore, they are not entitled to the declarations being sought. And same are hereby refused. 24. On the fourth relief perpetual injunction; is a relief that is only grantable after trial, when the applicant has duly established his right. See GBO FISHING V COKER (1990) 7 NWLR (PT.162) 265. This means that perpetual injunction is based on final determination of the right of parties, and it is intended to prevent permanent infringement of those rights and obviate the necessity of bringing action after action in respect of every such infringement. Abiyo v Aku (1996) 1 NWLR (PT.422) 1, RECTOR KWARA POLYTECHINIC V ADEFILA (2007) 15 NWLR (PT.1056) 42. The relief of perpetual injunction can be granted even where it was not asked for as a consequential order to protect the ascertained rights and prevent infringement of same. See BRIGGS V THE CHIEF LAND OFFICER OF RIVERS STATE OF NIG. (2005) 12 NWLR (PT.938) 59, ENUGU STATE CIVIL SERVICE COMMISSIO V GEORFREY (2006) 18 NWLR (PT.1011) 293, AMORI V IYANDA (2008) 3 NWLR (PT.1074) 250. 25. In the case at hand the Applicants having failed to prove their entitlement to declarations by cogent and credible evidence cannot be granted perpetual injunction since the relief is dependent on the success of the declaratory reliefs. 26. On the whole the Applicants have woefully failed to prove their entitlements to the reliefs being sought, due to reliance on inadmissible evidence. Therefore the suit lacks merit and is accordingly dismissed. 27. Judgment entered accordingly. Sanusi Kado, Judge. REPRESENTATION: