IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
Before His Lordship-
HON. JUSTICE J. D. PETERS - JUDGE
DATE: 2016-11-16 SUIT NO: NICN/LA/315/2015
Mr. Emmanuel Otubogunwa ANOR .........................................................CLAIMANT
Federal Inland Revenue Service ANOR ………………………………..DEFENDANT
A.A. Yesufa for the Claimant.
Etebong Udoh for the 1st Defendant.
Olanike Idenu Mrs. for the 3rd Defendant.
Grace Adenubi Mrs. Assistant Chief Legal Officer, Legal
Aid Council for the 4th Defendant.
The Applicant in this case approached this Court on 26/6/15 by an Originating Summons and set down the following issues for determination by the Court -
1. Whether, upon the grant of the Letters of Administration, on the 18th day of May, 2015, in respect of the Late Michael Abiodun Otubogunwa (St. Michael Associates), the Death Benefit/Entitlement with the 1st Respondent and the Pension Contribution with the 2nd Respondent, should not be made payable in the name of the Estate of the Late Mr. Abiodun Otubogunwa, and not in any other name. An order of this Honourable Court declaring that the Death Benefit/Entitlement of the Late Mr. Michael Abiodun Otubogunwa with the 1st Respondent, and the Pension Contribution of the Late Mr. Michael Abiodun Otubogunwa with the 2nd Respondent, be made payable to, and in the name of the Estate of the Late Mr. Michael Abiodun Otubogunwa.
2. Whether, the Late Mr. Michael Abiodun Otubogunwa, having worked for and died in the service of the 1st Respondent for about 30 years, the Estate of Mr. Michael Abiodun Otubogunwa is not entitled to be paid his Death Benefit/Entitlement. An order directing the 1st Respondent to calculate and pay to, and in the name of, the Estate of the Late Mr. Michael Abiodun Otubogunwa, the Death Benefit/Entitlement belonging to the said Estate, forthwith.
3. Whether, the Late Mr. Michael Abiodun Otubogunwa having had its Pension Contribution to be paid to the 2nd Respondent in his lifetime and during his employment with the 1st Respondent, and having died in active service, the Estate of Mr. Michael Abiodun Otubogunwa is not entitled to be paid the Pension Contribution. An order directing the 2nd Respondent to calculate and pay to, and in the name of, the Estate of the Late Mr. Michael Abiodun Otubogunwa, the Pension Contribution belonging to the said Estate, forthwith.
4. Whether, upon the grant of the Letters of Administration, on the 18th day of May, 2015, in respect of the real and personal properties of the Estate of the Late Mr. Michael Abiodun Otubogunwa (St. Michael Associates), the 4th Respondent is entitled to have the Death Benefit/Entitlement with the 1st Respondent and the Pension Contribution, due to the Estate of the Late Mr. Michael Abiodun Otubogunwa, paid to her or in her personal name. An order that the 4th Respondent is not entitled to have the Death Benefit/Entitlement with the 1st Respondent of the Late Mr. Michael Abiodun Otubogunwa, paid to her or in her name.
5. Whether the Applicant is entitled to an Order of Injunction to restrain the 1st and 2nd Respondents from paying the Death Benefit/Entitlement or the Pension Contribution, due to the Estate of the Late Mr. Michael Abiodun Otubogunwa. An order of Perpetual Injunction, restraining the 1st and 2nd Respondents, from paying the said Death Benefit/Entitlement or Pension Contribution respectively, to the 4th Respondent.
The Originating Summons was supported by an 18-paragraph affidavit deposed to by the Applicant. Learned Counsel relied on all the averments in the affidavit in support as well as the accompanying exhibits. The brief facts upon which this Originating Summons is founded are as contained in the Affidavit in Support deposed to by the Applicant are that the Applicant is the father of the deceased; that the deceased worked for about 30 years with the 1st Respondent; that the 2nd Respondent is the pension fund administrator of the deceased; that the 3rd Respondent is the Chief Law Officer of the Federation; that the 4th Respondent is the mother of the deceased's 2 young children; that both the Applicant and the 4th Respondent applied for and were granted Letters of Administration for the Estate of the deceased and that the 1st & 2nd Respondents insisted on paying the death benefits/entitlements as well as gratuity of the deceased to the 4th Respondent rather than to the Estate of the deceased except the Court intervenes.
The Originating Summons was also accompanied by a written address dated 26/6/15. Learned Counsel to the Applicant placed reliance on the said written address. In the said written address, learned Counsel set down the following 2 issues for determination -
1. Whether, construing the Letters of Administration issued to the Applicant and the 4th Respondent, on the 18th day of May, 2015 in respect of the real and personal properties belonging to the Estate of the Late Mr. Micheal Abiodun Otubogunwa, the Death Benefit/Entitlement with the 1st Respondent and the Pensions Contribution with the 2nd Respondent, ought to be payable to the said Estate, in the name of the Estate and not in the name of the 4th Respondent or anyone else.
2. If the answer to issue1 is in the affirmative, whether the Applicant is not entitled to the Reliefs as claimed in claims 2, 3, 4 & 5, after resolving the 5 questions in the positive form.
Arguing these issues, learned Counsel referred to Section 254C(i)(k) of the Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration) Act, 2011 and submitted that this suit is within the jurisdiction of this Court; that by Order 3 Rule 5A (1) of the Rules of this Court, the procedure adopted is both proper and appropriate and while referring to the exhibits attached, learned Counsel urged the Court to answer the first question in the affirmative.
On issue 2, learned Counsel submitted that the law is trite that once the main declaratory relief is proved and granted, the accompanying consequential reliefs are usually granted citing NNPC v. AIC Limited (2003)2 NWLR (Pt. 805) 560 & Nwankwo v. Ononoezu Madu (2005)4 NWLR (Pt. 916) 470. Learned Counsel urged the Court to resolve this issue by an answer that the Applicant is entitled to the all reliefs sought.
In opposition, only the 4th Respondent filled processes. The 4th Respondent filed a 12-paragraph Counter Affidavit deposed to by her in opposition. The main grounds for opposition to this Originating Summons and prayers of the Applicant are as contained essentially in paragraphs 3 to 12 of the said Counter Affidavit. I propose to reproduce these paragraphs in this Ruling. Learned Counsel to the 4th Respondent relied on the averments in this Counter Affidavit and adopted the argument contained in her written address dated 4/11/15 as her submissions in opposition. Counsel to the 4th Respondent set down 2 main issues for determination as follows -
1. Whether or not, upon the grant of the Letters of Administration, on the 18th day of May, 2015, in respect of the real and personal properties of the Estate of Late Michael Abiodun Otubogunwa (St. Micheal Associates), the 4th Respondent, is entitled to have the Death Benefit/Entitlement and the Pension Contribution, with the 1st Respondent and the 2nd Respondent respectively paid to her.
2. Whether or not the Applicant is entitled to the reliefs sought.
Arguing these issues, learned Counsel referred to Chapter 8 of Public Service Rules, 2009, Rule 2(1) which provides that where an officer dies after the completion of the minimum period of qualifying service, there shall be paid to his/her legal representative or any person designated by him or her during his/her life time as his/her next of kin, his entitlements under the life insurance policy under section 9(3) of the Pension Reform Act, 2004. Counsel further referred to Section 8(1) & (2) of the Pension Reform Act, 2014 which states that where an employee dies, his entitlements under the Life Insurance Policy maintained under section 4(5) of the Act shall be paid by an underwriter to the named beneficiary in line with S. 57 of the Insurance Act. Learned Counsel referred to paragraph 1 of the 4th Respondent's Counter Affidavit where she averred that she is an Administrator of the Estate of the deceased and his next of kin as well as her son who is a minor, the mother of the deceased's 2 children as well as being the lawful widow of the deceased. In addition, Counsel submitted, referring to paragraphs 4 (d) & 5 - 8 of the 4th Respondent's Counter Affidavit, that despite the grant of the Letters of Administration, the Applicant alone continues to manage the Estate of the deceased without the concurrence of the 4th Respondent and thereby carrying on as if he is the sole Administrator of the Estate. Counsel referred to Section 4(2), Administration of Estate Law of Lagos State, 2003 & Ejigini v. Ezenwa (2003)16 NWLR (Pt. 846) 420 and that an Administrator has no power to administer property not covered by the grant citing Amobi v. Nzegwu (2014)2 NWLR (Pt. 1392) 510. Learned Counsel finally urged the Court to refuse the prayers sought by the Applicant, hold that the 4th Respondent is entitled to have the death benefit/entitlements and the pension contribution with the 1st and 2nd Respondents and to direct the 1st and 2nd Respondents to pay same over to her.
I have read and understood all the processes filed by learned Counsel on either side in this application. I also reviewed and evaluated all the exhibits attached to the processes. In addition, I listened attentively to the oral submissions of both learned Counsel respecting this case. Having done all this, I have come to narrow the sole issue for determination here to be -
Whether the Applicant is entitled to the prayers sought or any of them.
The Applicant herein has approached this Court in this suit via Originating Summons. Originating Summons by its very nature is a procedure meant to make for simple hearing and disposition of matters. It is not a procedure available to all manner of suits. It is only available to a litigant or party laying claim to an interest under a written instrument such as a Will, a Deed or any such instrument whereby he will apply for the determination of any question for the construction of any question arising under the instrument for the declaration of his interest. See Oloyede v. Oloyede (2014) LPELR-24384 (CA). Where an affidavit in support of an Originating Summons is unchallenged, subject to any other valid consideration, the Court will have no choice but to make the declaration sought. In the present suit, the crux of the declaration sought by the Applicant are contained in the 18 paragraph affidavit deposed to by the Applicant on 28/6/15. By the averments in the affidavit in support, the Applicant averred that he is the father of the deceased; that the 4th Respondent was not married to his late son but she is the mother of the 2 young children of the deceased; that he and 4th Respondent applied for and were granted Letters of Administration of the Estate of the deceased; that the 1st & 2nd Respondents declined to make payment of the entitlement of the deceased to the Estate of the deceased except to the 4th Respondent and that it is dangerous ''to permit the payments to be made in the name of the 4th Respondent and directly to her, as this means I am in breach off my duty as an administrator who must see to the proper administration and application of the properties belonging to my son's estate''.
In opposition to these averments, the 4th Respondent filed a 12-paragraph Counter Affidavit. Paragraphs 3 to 10 of the Counter Affidavit are germane to the determination of the issue set down for determination. I reproduce these paragraphs as follows -
''3. That as regards paragraphs 1 and 8, my averment is that Letter of Administration of the Estate of my late husband was granted to me (the lawful Widow and Guardian to our son Emmanuel Otubogunwa) and the Applicant. We refer to the Letter of Administration annexed to the Applicant’s Affidavit.
4. That concerning paragraphs 10 to 16, I state as follows:
a. My family and that of my late husband were in mutual agreement as regards our marriage and there has always been good relationship between the two families till date hence I was shocked when I received the Applicant’s summons.
b. My late husband’s parents and my parents are in leadership positions of a religious organization by name ‘God’s Ministry’ and the Applicant is in fact our Pastor and General Overseer.
c. The Federal Inland Revenue Service (FIRS) took care of the burial expenses of my late husband.
d. Three days after the burial, my mother in law and sisters in law upon the instruction of the Applicant, came to my house and collected my late husband’s properties documents in pretence that they were taking them for safe keep.
e. The Applicant afterwards sold my late husband’s landed property at Adegboyega Street, Ilupeju, Lagos for Ten Million Naira in pretence that there was a dispute on the land and that the proceeds would be paid into a fixed deposit and afterwards used to purchase another land hence I signed as a witness not knowing that I was being deceived.
f. The Applicant equally approached the insurance company behind me and collected the premium for the vehicle that crashed in the course of the accident that led to my late husband’s death.
g. The Applicant also went behind me and started collecting rent from my late husband’s tenants in respect of his properties situate at No. 5 and No. 7 Awolowo Road, Trademore Mega City Estate, Lugbe FCT Abuja respectively.
h. I am being given a monthly stipend of Twenty Thousand Naira by the Applicant for the upkeep of myself and our daughter and son of five and three years old respectively though not as at when due and sometimes the amount is less.
i. In January, 2015, the Applicant also changed our daughter’s school to a lesser paying and a lower quality one and our son, the younger has equally been enrolled in this same school.
j. The Applicant equally moved me and the children from a three bedroom flat at Ilupeju to a room and parlour self contained at Mushin.
k. The Children school bus does not cover the area where am residing presently, hence I take the children to and from the school through busy and turk filled roads.
l. After the grant of the Letter of Administration, and the visit to the FIRS, the Applicant invited me to a meeting which I attended with my sister and said, FIRS wants to pay the money into your account and that he had spent five million naira on me and the children since after the demise of my husband and that when the money is paid, I should give him back the said five million naira and I consented though I knew it is very far from the truth that he spend such money on us.
m. Notwithstanding, I got a court summons shortly after to my chagrin.
5. That since the death of my late husband, the Applicant has been carrying on as the sole administrator of his estate.
6. That there is no estate account to my knowledge.
7. That though I am an administrator, I do not know how or have a say as to how my late husband’s estate is being administered.
8. That I am being marginalized in the administration of my late husband’s property and I and the children do not have anything to our names from the estate.
9. That I can’t even afford the services of a private Legal Practitioner to represent me in this suit hence I applied to the Legal Aid Council for their legal assistance.
10. That if the Applicant’s prayer is granted by the Court, he will convert the proceeds of my late husband’s entitlements and pension and I and the children will suffer''.
These are strong averments which the Court must not overlook or brush aside with waive of hand if this Court is to be seen to justice in this case. I note that the Applicant did not in any way or manner controvert any of the averments made by the 4th Respondent. Applicant had the opportunity and right to file a further and better affidavit to counter the very strong and extremely damaging averments in the Counter Affidavit of the 4th Respondent but the Applicant failed and or neglected to do so. The law is clear and relatively settled that unchallenged evidence is deemed accepted by the party whose duty is to controvert same and the Court is obliged to rely on it in reaching its decision. The Law Reports are replete with authorities on the position that it is now elementary. See Ajomale v. Yaduat (No.2) (1991) 5 SCNJ 172 at 178; (1991) 5 NWLR (Pt.191) 266 and U.B.N. v. Odusote (1994) 3 SCNJ 1; (1994) 3 NWLR (Pt.331) 129. In the case of Olori Motors v. U.B.N. (1998) 6 NWLR (Pt.554) 493 the Court, at page 506-7, held the view that the Court must accept unchallenged averments of an affidavit without hesitation. See also Taedua & Ors. v. Yandoma & Ors. (2014) LPELR-24217 (SC). Therefore on the available judicial authorities, the Applicant not having challenged any of the averments in the Counter Affidavit I find and hold that they are deemed admitted by the Applicant whose duty it is to challenge same.
Now, that being the case, can this Court or any other Court for that matter make the declaration sought by the Applicant on the basis of the available facts which are not challenged? For instance, is it true, as stated in the Counter Affidavit, which remains admitted in the absence of any challenge that the Applicant sold the landed property of the deceased and did not account for the proceeds; that the Applicant approached the insurance company without the knowledge of the 4th Respondent to collect the premium for the accident vehicle; and that the Applicant collected rent from the tenants of the 4th Respondent's late husband? It is true that the Applicant gives a paltry =N=20, 000.00 to 4th Respondent and her 2 young children, irregularly as at when due, for monthly upkeep and that he changed the school of the deceased's children to a lesser paying and lower quality one. It is also true from the unchallenged affidavit evidence that the Applicant moved the 4th Respondent and her 2 young children from a 3 bedroom flat at Ilupeju, Lagos to a one room self contained apartment in Mushin. It is also true that there is no Bank account for the Estate of the deceased and that the Applicant has been carrying on as if he is the sole Administrator. This Court, the National Industrial Court of Nigeria, is both a Court of Law and of Equity, see Section 13, National Industrial Court Act, 2006; and Jurisprudence and legal theory revealed that the harshness and rigidity of the Law led to the evolution of the rules of Equity. Where therefore there is a conflict between the rules of law and of equity, the latter will prevail over the former. See also Section 15, National Industrial Court Act, 2006. What is more is that the 1st Defendant/Respondent in this case on 31/10/16 filed a counter affidavit, a written address. By Exh. FIRS A & FIRS B, in his life time, the deceased had indicated the 4th Respondent and his son Mr. Michael E. Otubogunwa Jnr. being his wife and son respectively as his Next of Kins who should ordinarily be entitled to any benefits accruing to him at death.
The facts and the surrounding circumstances of this case are such that this Court cannot and will not grant the prayers sought by the Applicant this is notwithstanding the Letters of Administration. For, to do so will not be equitable. I so find and so hold. Therefore, I answer the first issue set down for determination in the negative. I refuse the order sought respecting issue 1. I answer the second question for determination in the negative and also refuse the order of Court sought respecting same. I answer the 3rd question in negative and refuse the order of Court sought respecting same. I answer the 4th question in affirmative. I order that the 4th Respondent is entitled to have the Death Benefit/Entitlement with the 1st Respondent and pension contribution of the Late Mr. Michael Abiodun Otubogunwa, paid to her and in her name and I so direct the 1st & 2nd Respondents to do. I answer question 5 in the negative and refuse the order of Perpetual Injunction sought restraining the 1st and 2nd Respondents from paying the Death Benefit/Entitlement or Pension Contribution due to the deceased respectively to the 4th Respondent. I here issue an Order of Perpetual Injunction restraining the Applicant, his agents, family members or any other persons from harassing the 4th Respondent and her children or interfering with the 4th Respondent and her children from collecting the death benefit/entitlement of the deceased from 1st and 2nd Respondents and peaceful enjoyment of same.
Before I draw curtain on this judgment, I am constrained to make one or two comments in the passing. By the averments of the Applicant, he is the father of the deceased, a Pastor and indeed a General Overseer of a Christian congregation. Even without the deceased leaving anything behind, it ought ordinarily to be his duty to take care of the 4th Respondent if for nothing else but for being the wife of his late son and the mother of his two young grand children. Rather than doing that, the Applicant opted to harass and deny a widow, the fatherless and orphans what ordinarily belong to them. I recall that the Holy Scriptures state in Exodus 22 : 22-24-
''You shall not afflict any widow or fatherless child. If you afflict them in any way, and they cry at all to Me, I will surely hear their cry; and My wrath will become hot, and I will kill you with the sword; your wives shall be widows, and your children fatherless''.
In any event, again as the Holy Bible says, there is no pure and undefiled religion before God the Father than to care for orphans and widows in their misfortune and to keep oneself unstained by the world. See James 1: 27. See also Deuteronomy 27: 19. I dare say that other major religions have similar injunctions and directions to their followers. See for instance al-Quran 4 verse 2; 2 verse 221. That the 4th Respondent was dragged to this Court by the Applicant leaves a sour taste in the mouth. Would the late Mr. Michael Abiodun Otubogunwa, the late son of the Applicant, the late husband of the 4th Respondent and father of her 2 young children be happy knowing the travails of the 4th Respondent in the hands of his father? I say no more. This case, no doubt supports the wisdom behind the establishment and continued existence and work of the Legal Aid Council. For, but for the intervention of the Legal Aid Council and the efforts of Mrs. Grace Adenubi its Assistant Chief Legal Officer, the 4th Respondent and her 2 young children would have continued to suffer in the hands of their father-in-law and grandfather respectively.
Finally, for the avoidance of doubt and for all the reasons as stated in this Ruling,
1. I answer the first issue set down for determination in the negative. I also refuse the order sought respecting issue 1.
2. I answer the second question for determination in the negative and also refuse the order of Court sought respecting same.
3. I answer the 3rd question in negative and refuse the order of Court sought respecting same.
4. I answer the 4th question in affirmative. I hold and order that the 4th Respondent is entitled to have the Death Benefit/Entitlement with the 1st Respondent of the Late Mr. Michael Abiodun Otubogunwa, paid to her and in her name.
6. I answer question 5 in the negative and refuse the order of perpetual injunction sought restraining the 1st and 2nd Respondents from paying the Death Benefit/Entitlement or Pension Contribution due to the deceased respectively to the 4th Respondent.
7. I order and direct the 1st and 2nd Defendants/Respondents to pay to the 4th Respondent all benefits that may be due to the deceased and which benefits are in their custody forthwith and without let or hindrance.
8 I here issue an Order of Perpetual Injunction restraining the Applicant, his agents, family members or any other persons under his authority or direction from harassing the 4th Respondent and her children or interfering with the 4th Respondent and her children from collecting the death benefit/entitlement of the deceased and peaceful enjoyment of same.
I make no order as to cost. Ruling is entered accordingly.
Hon. Justice J. D. Peters