IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP, HON. JUSTICE R.B. HAASTRUP
DATE: OCTOBER 29, 2019 SUIT NO: NICN/ABJ/63/2017
Dr. Oputa Emmanuel Ifanyichukwu Claimant
1. Hon. Minister Federal Capital Territory Administration
2. Federal Capital Development Authority Defendants
3. Federal Ministry of Health
4. Mohammed Nasir
Chinyere Chigbu for Claimant
A.H. Falaki and C.M. Makoji for 1stand 2nd Defendant
No legal Representation for 3rd Defendant
Muhktar .B. Bunza for 4th Defendant
This suit was transferred to this Court vide Order of transfer of the Federal High Court, dated 10th day of February, 2017. Meanwhile, the claimant originally filed this suit on 25th day of February, 2010. The claimant however regularized his processes filed before this Court to bring same in conformity with the rules of this Court. By an amended complaint dated the 5th day of March, 2018, the claimant is seeking the following reliefs against the defendants in this suit:
a.) A DECLARATION that the Claimant is entitled to the option of first purchasing or option of first refusal of the purchase as against any other person whatsoever, including the 4th Defendant of the premises lying, being, situate and known as House No. 18,372 Road, Masfa Model Four Bedroom Duplex at Gwarinpa Housing Estate, Abuja (presently occupied by the Claimant), having satisfied the minimal requirements, term and conditions for the offer and/or purchase of the said residential accommodation as required in the guidelines, terms and condition for sale of Federal Government of Housing in the Federal Capital Territory as approved by the Federal Executive Council and contained in Federal Government of Nigeria Official Gazette, No: 82, Vol.92 of 15th August,2005.
b) A DECLARATION that the defendants are under statutory obligation to act responsibly and in good faith in the exercise of their offices and as such, bound to convey the relevant offer for the said premises to the claimant, having expressly satisfied the minimal requirements for the purchase of the said premises.
c) A DECLARATION that until and unless the 1st and 2nd Defendants, in writing comply with the tenor of relief No.2 herein, it will be unconstitutional, illegal, irregular, fraudulent, ultra vires, null and void for the 1st and 2ndDefendants to allot, allocate, offer and/or sell the premises which forms the subject matter of this suit to any other person, including the 4th Defendant other than the Claimant.
d) AN ORDER of Court compelling the 1st and 2nd Defendants to forthwith issue the Claimant with a letter of offer in respect of the property, lying, being, situate and known as House No. 18,372 Road, Masfa Mod& Four Bedroom Duplex at Gwarinpa Housing Estate, Abuja (presently occupied by the Claimant), being the only person entitled to be given the option of first refusal pursuant to the Approved Guidelines, terms and conditions for the for the sale of Federal Government of Nigeria Houses in the Federal Capital Territory as approved by the Federal Executive Council and contained in Federal Government of Nigeria Official Gazette, No.82, Vol. 92 of 15th August, 2005.
e) A DECLARATION of Court that any purported sale of the property, lying, being, situate and known as House No. 18, 372, Masfa Model Four Bedroom Duplex at Gwarinpa Housing Estate, Abuja (presently occupied by the Claimant) by the 1st and 2ndDefendants to any other person including 4thDefendant without the express refusal to purchase same is illegal ultra vires, null and void.
f) AN ORDER of Court reversing any purported sale of the property, lying, being, situate and known as House No 18,372 Road, Masfa Model Four Bedroom Duplex at Gwarinpa Housing Estate, Abuja (presently occupied by the Claimant) to the 4th Defendant by the 1st and 2nd Defendants.
g) AN ORDER of perpetual injunction restraining the 1st 2nd and 4thDefendants, whether by themselves, their servants, privies and agents, whomsoever and however described from interfering in anyway whatsoever with Claimant’s possession and quiet enjoyment of the property lying, being, Duplex at Gwarinpa Housing Estate, Abuja.
h) Damages in the sum of N10, 000,000.00 (Ten Million Naira) against 1st and 2nd Defendants.
i) Cost of action in the sum of N10, 000,000.00 (Ten Million Naira).
It is noteworthy that the 4th defendant had filed a preliminary objection challenging the competency and jurisdiction of this Court to hear and determine the claimant’s suit, on the ground that the claimant failed to fulfill certain precedents prior to the filing of this action. Upon determination of the application, the Court in its ruling dated 14th December, 2017 dismissed the application, such that the matter was allowed to proceed to trial. Again, the claimant with the leave of Court was allowed vide his formal application filed before this Court, to have the name of the 1st defendant substituted with the Honourable Minister Federal Capital Territory Administration.
The commencement date of trial was the 12th day of July, 2018, and the claimant testified on his behalf as CW, and tendered documents admitted in evidence as Exhibits CW1 - CW14, and concluded his evidence on 12th day of July, 2018, after being cross examined by 1st, 2nd & 4th defendants’ counsel. Meanwhile, the 3rd defendant had failed to file any processes in defence or even participate in the proceedings of the Court, despite several of Court processes including hearing notice served on 3rd defendant; and was foreclosed accordingly in line with the Rules of this Court.
The defendants on their part opened their case for defence on 28th January, 2019, when one Mohammed Bello, civil servant testified on behalf of the 4th defendant as DW1, and adopted his witness statement on oath dated 14th March, 2018, and the document tendered was admitted in evidence as Exhibit DWMB1. The witness concluded his evidence same day after being cross examined by claimant’s counsel and re-examined by 4th defendant counsel. The 1st & 2nd defendants’ witness as led in evidence on 12th day of March, 2019, and one Kaka Samuel, civil servant with the FCTA Legal Services Secretariat, testified on behalf of the 1st & 2nd defendants, and adopted also his witness statement on oath dated 19th March, 2018. The documents tendered were admitted in evidence as Exhibits DWK1 and DWK2 respectively, and defendants closed their case same day after the conclusion of evidence by the witness, who was cross examined only by claimant’s counsel.
It is the case of the claimant, that he is a 71 year old retired Medical Doctor, and had spent his useful life in active service, and rose through the ranks in the Federal Ministry of Health, before his successful retirement in 2005. He averred that he was while in service allocated the premises known as House No.18, 372 Road, Gwarinpa Abuja, the subject matter of this suit as his official quarters through a letter with Ref. No. PSO/SW/HO21/NO.S.121/T dated the 15th of October, 2000, from the Office of the Head of Civil Service of the Federation, titled “Allocation of Residential Accommodation” and forwarded to him through the Honourable Minister of Health, signed by one Alhassan M. Fawa for the Head of Civil Service of the Federation (CW3). That he established his interest and accepted the offer and acknowledged the form of Declaration of Acceptance of the offer dated 18th October, 2001 (CW3b).That at the completion of the documentation, he moved into the house and began to live in the said property with his family and even after his retirement from service of the Federal Government in 2005. That he had on 8th December, 2004, applied as required in the Approved Guideline for sale of Federal Government Houses and indicated interest to purchase same subject to the approval of the President of the Federal Republic of Nigeria, and on 19th day of May, 2005, he paid the mandatory N10, 000.00 (Ten Thousand Naira only)as expression of interest fee into the Account name of the 2nd Defendant with First Bank of Nigeria PLC Abuja, Garki (Exhibit CW6). He averred that the modes of implementation of the sale of Federal Government’s houses in the FCT regarding Career public servants in occupation of which he falls into this category, are contained in public notice No 1 of the said Approved Guidelines for sale of Federal Government Houses as contained in Federal Government of Nigeria Official Gazette, No. 82 Vol.92 dated 15th August, 2005 (Exhibit CW7).
That he had no response from 1st & 2nd defendants on his expression of interest, and on 20th of October, 2005, he wrote letters of reminder to the 1st Defendant (Exhibits CW8a & CW8b), which was ignored by the defendants, and he now instructed his a letter of authority to his Solicitors Hadiza Aliyu Mohammed & Co. vide Exhibit CW8c to collect his letter of offer on his behalf from the Defendants. That it was during the pendency of this suit that he received some letters dated 26th March, 2010 from the office of the Minister Federal Capital Territory Administration titled “Quit Notice” signed by unknown person (Exhibit CW9)and the other dated the 18th April, 2011 with Ref No: FCTA/PS/TT/11/1/ titled Verification Exercise from the Office of the Permanent Secretary of the Federal Capital Territory Administration signed by one Engr. D.J Suleiman as Chairman for Honourable Minister inviting him to attend verification exercise at the office of the 1st Defendant( Exhibit CW 10). That he has lived in the property in issue for over fifteen years, housing his entire family now in Abuja, without any other alternative accommodation to move to. He further averred that he is presently suffering from series of life-threatening medical complications, and the 1st & 2nd defendants have till date refused and/or neglected to issue him offer letter and have equally not given him fair hearing as to the reason for the non issuance of the offer letter.
CASE OF 1ST & 2ND DEFENDANTS
The 1st & 2nd defendants filed their joint statement of defence dated 19th day of March, 2018, denying the claims of the claimant regarding the property in issue. It is the defendants’ case that the sale of Government non essential residential houses was introduced by the Federal Government of Nigeria in 2005, vide the policy on monetization, and houses were sold throughout the Federation including the Federal Capital Territory, Abuja to career Public Servants and Political Office Holders who were in occupation to exercise their right of first refusal or the property be advertised for sale to the general public.
That in implementing the policy , the Federal Executive Council set up a Committee on the sale for the FCT, with the Hon. Minister of the FCT having the responsibility of overseeing the sale exercise, and the sales Guidelines as approved by the Federal Executive Council, is contained in the Gazette dated 15th day of August, 2005. Defendants averred that the claimant was in occupation of the disputed property before his retirement from service with the Federal Ministry of Health, and having failed/neglected to purchase the house in dispute in accordance with stipulated guidelines, the property was sold to the 4th defendant who had since made payment into the coffers of the Federal Government and issued with receipt of his offer letter.
CASE OF 4TH DEFENDANT
The 4th defendant filed statement of defence on 14th day of March, 2018, denying all the claims of claimant against it. It is his case that he is the known and recognized owner of house No. 18, 372 Road, Gwarimpa, Abuja, and only joined the suit upon realizing the purported claim of option of 1st refusal by the claimant. That the form of expression of interest dated 22nd May, 2005 and purportedly verified on the 6th February, 2006 is bereft of the mandatory requirement of the official Gazette and the claimant under supplied necessary information while filing the form to earn or acquire right or option of first refusal to himself wrongly. That the claimant had retired from public service and had no right of first refusal to purchase the property and the 1st defendant was also not under any obligation to make an offer to him, since he did not meet the stipulated requirement. That the claimant was a tenant by virtue of his employment with the 3rd defendant and having retired from service he ought to have returned the property to the 3rd defendant, and his continuous occupation of the property without further payment of rent to the defendants after he had retired, accepted and utilized his retirement benefits is wrongful, illegal and unconscionable.
It is the case of the 4th defendant that the claimant having reached his retirement age had no right of first refusal over the property, and even if he had such right, same was denied due to the non compliance with the approved rules and guidelines for the qualification process regarding career public servants with the first right of refusal on the property. That he then took part in the open auction system by way of competitive bidding in December 2009 under the supervision of the 1st defendant for the purchase of the house in issue, and paid the mandatory N10, 000.00 fee after the completion of the Expression of Interest Form. That he was thereafter given the offer to purchase the property via an offer letter dated 28th January, 2010, issued by the office of the Honourable Minister, Federal Capital Territory, Abuja; and thereafter paid the sum of N9, 000, 000.00 (Nine Million Naira) as reserved price of the property, with a receipt issued in that regard dated 18th March, 2010 as evidence of payment.
It is averment of defendant that the claimant had intercepted the letter addressed to the 4th defendant as the lawful occupant having being duly verified, but the claimant could not honour the directives in the letter as it was not meant for the claimant. That he had already bought and acquired a better title in the property before the claimant filed this suit before this Court, utilizing the pendency of the suit to illegally remain in possession of his property. That the continuous wrongful and illegal occupation of the property by the claimant has subjected him to pain and anguish as he could not occupy the property he legitimately bought. That the property has been legally transferred to him and urging the Court to dismiss the claimant’s suit for lacking in merit.
SUBMISSIONS OF 1ST & 2ND DEFENDANTS
The final written address of the 1st & 2nd defendants is dated 18th day of June, 2019, but filed 20th June, 2019, with the following two (2) issues submitted for determination:
1. Whether or not from the totality of the evidence before the court, the claimant has discharged the onus of prove required by law on preponderance of evidence to entitle him to the disputed property and the judgment of this Honourable Court?
2. Whether or not the conduct of the 1st and 2nd Defendants is justified and/or empowered by law with respect to the sale of the property in dispute to the 4th Defendant?
Issue No.1: Whether or not from the totality of the evidence before the court, the claimant has discharged the onus of prove required by law on preponderance of evidence to entitle him to the disputed property and the judgment of this Honourable Court?
In his argument, the Learned Counsel to the 1st and 2nd Defendants submit that, one of the cardinal principles of judicial process is that the reliefs sought by a claimant is the bedrock of his action and the life wire of the entire process, and where the reliefs sought does not reflect the cause of action on the evidence led, a court of law will be compelled to throw out the action, relying on the cases of UZOUKWU VS. EZEONU (1999) 6 NWLR (PT. 200) 708 and the case of NEKA B.B.B MANUFACTURING CO. LTD. VS. A.C.B. LTD 92004) ALL FWLR (PT. 198) 1175.
It is his further submission that the committee on sale of Federal Government Houses was given a working guideline (Exhibit CW7) that must be complied with and that the Claimant had an opportunity to purchase the property if he had actively pursued same with zeal and truth. More so, time was extended by the 1st & 2nd defendants to allow career public servants who had expresses interest in the sale to complete same. That the 1st & 2nd defendants had maintained that their conduct regarding the property in issue was guided by the FGN Official Gazette of August, 2005, and the claimant was not denied a chance to purchase the house in issue. That the claimant has not challenged defendants’ averments, and there is no need for further proof of such fact required, citing the case of AGHA VS. I.G.P (1999) 10 NWLR (PT. 524) PG 317 (321) PARA 4 – 6. Counsel canvassed that a party to a case gives evidence on a vital issue in the case which evidence is neither challenged nor contradicted by the other party, it is the duty of the trial judge not only to consider such evidence, but also to accept and act on it. It is also trite law that parties are bound by their pleadings and will not be allowed to set up in Court a case which was at variance with their pleadings. See Ehimare vs. Emiohonyon (19850 1 NWLR (Pt.2) 186 C – D.
Learned counsel urged the Court to have a closer look at Exhibit CW7, and it will reveal that the claimant had not met with the terms and conditions as contained therein. Counsel then raised the following posers:
a.) What was the intention of the claimant by deliberately omitting to fil the date of birth column in the expression of interest form?
b.) Could it be rightly observed and said that the claimant met the terms and conditions stipulated in the Gazette wherein he failed to attach proof of six (6) months’ rent deductions, letters of initial employment, and appointment/promotion in public service?
c.) Would it be right and justified to hold that the payment of N10, 000.00(Ten Thousand Naira) only and the uncompleted expression of interest form without more qualifies the claimant a right to the disputed property?
Counsel answered all the above questions in the negative, referring the Court to Sections 135(1, 2) & 136 of the Evidence Act, to the effect that the burden of proof in this case lies on the claimant, who has failed to adduce sufficient and credible evidence in proving his case against the defendants as required by law. He further submitted that the antecedents of the Claimant leave more to be desired; that the sale exercise started in 2005 and it took the Claimant five (5) years to send a reminder, referring the court to a letter dated 2/2/2010, 20/10/2005 and 03/02/2010. He further submitted these documents could not be substantiated bearing nothing to show that it was acknowledged on the face of the said letters and no credible evidence to buttress same, urging the Court to discountenance the contents of the documents. Counsel further canvassed that the Claimant has no locus to initiate this action against the 1st and 2nd Defendants, for the following reasons:
(1) The claimant did not meet the terms and conditions outlined by the official gazette of the Federal Government of Nigeria.
(2) Since an advertisement is no more than an invitation to treat, the expression of interest form is merely an offer which may not be accepted by the advertiser more so, such an invitation for offers from interested parties is not itself an offer.
(3) Has the Claimant proved to this Court that his actions against the 1st and 2nd Defendants did not bother on an issue of labour or industrial dispute of any sort?
Answering the above in the negative, counsel referred the Court to the claimant’s reliefs, and submitted that the claimant has not shown by way of documentary or oral evidence that he is deserving of the reliefs from this Court. That the date on the Official Gazette is 1st April, 2005 and operational date being 15th August, 2005, while the claimant indicated interest to purchase property vide letter of 8th December, 2004 and the Expression of interest Form is dated 12th May, 2005. He urged the Court to look critically at these documents, and it would be revealed that the claimant has not met the requirements as stipulated for the issuance of offer letter from the 1st & 2nd defendants regarding the property in issue, urging then Court to so hold.
Issue No.2: Whether or not the conduct of the 1st and 2nd Defendants is justified and/or empowered by law with respect to the sale of the property in dispute to the 4th Defendant?
The Learned counsel argued that the conduct/action of the 1st and 2nd Defendants with regards to the sale exercise was guided by the approved guidelines, and that the power to deal with sale of FGN Houses in the FCT Abuja was vested on the Hon. Minister FCT, the Chairman Ad/hoc Committee, which has not been challenged by the claimant. It is therefore for the claimant to adduce sufficient and credible evidence in proving that the conduct of the 1st and 2nd Defendants was not justified. Counsel submitted that then claimant has failed to establish that he was ab initio entitled to purchase the house in issue as of right and that he actually fulfilled the condition precedent for which he ought to be issued a Letter of Offer by the 1st & 2nd defendants.
Counsel further submitted that the actions/conduct of the 1st & 2nd defendants was justified/empowered by law governing the sale, and the Defendants have consistently maintained without opposition or controversy, that by virtue of the enabling provisions of the official gazette, they are authorized to sell Federal Government non-essential houses in the FCT, Abuja including the property in issue in accordance with the guidelines; and that the sale to the 4th defendant was not wrongful or made in error; urging the Court to so find and hold, and relying on the case of Ogunbiyi vs. Ishola (1996) 6 NWLR (Pt.452) 12.
It is the submission of counsel that the claimant who claimed he had received a letter of verification exercise kept mute and never visited the office of the 1st & 2nd defendants to explain his predicament, knowing that he was ab initio not willing to pay for the house. The Court has a duty to prevent injustice in any given circumstance and avoid rendering a decision which enables a party escape from his own obligation by his own wrongful act, relying on Teriba vs. Adeyemo (2010) 42 Pt. 2 NSCQR @ 1228 ratio 6.
The claimant has failed to prove the affirmative as required by law, and the Court is under a duty to evaluate the claimant’s evidence and be satisfied that same is credible and sufficient to sustain his claim. That the failure of the claimant to produce credible evidence to support his claim is fatal to the case of the claimant, urging the Court to so hold.
Regarding the claim of the claimant on damages, counsel submitted that the claimant is not entitled to same since he has not succeeded in proving his claim before the Court, and there is no justification therefore for the amount claimed; as the equitable maxim states that he who comes to equity must come with clean hands. Counsel further relied on the case of Salako vs. Williams (1998) NWLR (Pt.574), 505 @ 521.
Furthermore, the Court can only grant injunction against defendants for auxiliary relief when the claimant has established his substantial reliefs before the Court, which is not the case her, citing Lawal vs. Adeniyi (1997) 3 NWLR (Pt.494) Page 457 r4. He further submitted that justice is not obtainable based on sentiments or sympathy, and the mere fact that the claimant filled (Uncompleted) form purporting to express interest to purchase the disputed house without diligently pursuing same cannot avail him title to the house in issue without further proof. And it is only when the claimant who alleges produces evidence in proof, that the onus then shifts to the defendant to adduce evidence in rebuttal, relying on Olowu vs. Olowu (1985) 3 NWLR (Pt.13) Page 372 @ 386. Counsel then urged the Court to hold in favour of the 1st & 2nd defendants, and refuse the grant of an order for reversal or any orders of this Court against the 1st & 2nd defendants. He further urged the Court to dismiss the claimant’s case for being speculative and lacking in merit.
SUBMISSIONS OF 4TH DEFENDANT
The 4th defendant’s final written address is dated and filed 3rd day of May, 2019, and counsel argued a sole issue for determination, submitted thus:
“Whether having regards to the Plaintiff’s case vis-à-vis the evidence before this Honourable Court, the Plaintiff has successfully proved his claims against the 4th Defendant to entitle him the relief sought?
The 4th Defendant relied on the case of MBANEFO V. AGBU (2014) ALL FWLR (PT. 724) @ 71 – 72, to the effect that the party who asserts has the burden on him to prove, and in this case it is the claimant who would fail in his claims where there is no evidence to substantiate same. It is trite that the claimant succeeds on the strength of his case and not on the weakness of the defennce, citing Olaloye vs. Attorney General and Commissioner for justice, Osun State (2015) ALL FWLR (Pt.774) @ 68, Paras. C-D.
Counsel submitted that the contention of the claimant is that he is entitled to the option of first purchase or first refusal of the purchase as against any other person whatsoever, including the 4th defendant and regarding the property in issue, but the claimant has not placed sufficient evidence before the Court to substantiate his claims. That the claimant even after filling the interest form, never deem it necessary to comply with the approved guidelines for the purchase of the premises. More so, Exhibit CW4 which is the claimant’s letter signifying interest to purchase the property in issue is dated 8th December, 2004, which predates the privatization exercise of the Federal Government on sale of Houses which became operational in 2005; such that as at the time Exhibit CW4 was made the privatization exercise of the Federal Government Houses was not then in existence to warrant the coming into effect of Exhibit CW4. The conclusion could be drawn that Exhibit CW4 was made in vacuum, and has no place to stand. It is trite law that you cannot put something on nothing and expect it to stand, relying on the case of Hon. Emmanuel Apari vs. Mr. Aden Iji Hose & Ors (1999) LPELR – CCN/1/13/99.
Furthermore, the claimant failed to supply the necessary information as required in Exhibit CW5 (Expression of Interest Form), to enable him claim the right or option of first purchasing or refusal. He failed to fill the column for his date of birth because supplying the information will reveal clearly his ineligibility to partake in the exercise, his current salary grade level was also not filled as shown in paragraph 2 of financial information, he supplied also a false information by filling 1 year as years to retirement when he had less than six months to retire, he indicated 16/10/2001 when the date was 15/10/2001 as shown in Exhibit CW2; all these renders Exhibit CW5 as liable to be rejected and was accordingly rejected, and cannot also accord the claimant any right or option of first refusal, urging the Court to so hold.
Counsel again submitted that the claimant had failed to produce before the Court the six months rent deductions which he claimed he submitted. It is the law that where a precondition for the doing of an act has not been complied with, no act subsequent thereto can be regarded as valid because the act to which it is subject has not been done, referring to case of Orakul Resources Ltd vs. N.C.C. (2007) ALL FWLR (Pt.390) @ 1511, Paras. A-E.
The claimant in his evidence under cross examination had told the Court he was 71 years old while it is not the case. He had confirmed to court under cross examination that he was born on 1st November, 1945 and retired at the age of 60 years and that by 1st November 20105, he was 60years. He told the Court that he had honestly filed Exhibit CW5, which is not the case, and wrote on the face of Exhibit CW5 that he had one (1) year to retire from service when he had only six months to retirement, i.e. 1st November, 2005; and that at the time he made Exhibit CW8A (Reminder Letter dated 20/10/2005), he had retired from service.
Counsel then submitted that the totality of evidence of claimant is shaky and inconsistent, and by law such evidence is not reliable and cannot be accorded any probative value, relying on Nwabude vs. Ugodu (2011) ALL FWLR (604) @ 26. Counsel further submitted that the claimant has failed to tell this Court how he has complied with the minimal and mandatory requirements as provided in Exhibit CW7(Gazette on guideline for the sale of FG Housing to career civil servant)(to copy requirement on page 893 of process- 3.18 of FWA).
The further evidence of claimant under cross examination is that he had not submitted his letter of offer, since according to him he did not have the letter of offer, which is an important requirement; he did not also attach proof of six months’ rent either to the expression of interest form he purportedly submitted and did not tender same before the Court despite its importance and relevance to his case.
Counsel again submitted that the failure of the claimant to satisfactorily prove that he submitted the six months’ rent deductions is fatal to his case and disentitles him also to relief No.1, being sought. His evidence under cross examination is to the effect that there is nothing in Exhibit CW7(Gazette for sale of the FG House dated 15th August, 2005) which says that the 21st & 2nd defendant mist communicate to him the fact of his disqualification. He implication of this evidence is that the claimant, by his own admission, has has clearly admitted that the defendants are not bound to convey their decision on why he cannot be issued an offer, having failed to satisfy minimal requirements for bidding. This then renders his relief 2 obsolete and not grantable as there is no evidence on record which has shown that the claimant must be informed of his disqualification, where he failed to meet the minimal requirement. Worst still, the claimant has failed to prove by all strength of imagination that he has met the requirement to be issued with an offer as his expression of interest form (Exhibit CW5) remain inchoate till date. It is settled law that facts admitted need no further proof. See NNPC vs. Klifco Nigeria Limited (2011) 10 NWLR (Pt.1255) @ 209. It is trite that pleadings without evidence are deemed abandoned. The claimant has failed woefully to prove his case as required by law and the 4t defendant is not under a duty to proof anything as the burden of proof has not yet shifted on the 4th defendant. See Sokwo vs. Kpongbo (2008) ALL FWLR (410) @ 701, Paras. A-B.
Again, the claimant’s relief No.6 is not grantable as the act sought to be restrained had been completed and the Court cannot restrain an already completed act; the subject matter of the suit has already being sold to the 4th defendant who had complied with the requisite and necessary procedure for the sale, and this has been admitted by the claimant in his evidence. Thus, an interlocutory injunction is not a remedy for restraining an act which has already been concluded, relying on Harry vs. Idoniboye- Obu (2015) ALL FWLR (Pt.808) @ 650, Para. H.
Counsel again submitted that the jurisdiction of this Court is only limited to issues of labour, employment and all other industrial disputes, and the claimant had in his evidence under cross examination told the Court he had retired from service and all his retirement benefits paid; and it is therefore clear that this Court has no jurisdiction to entertain this suit, referring the Court to Section 7 of the National Industrial Court Act, 2006, Section 48 of the Trade Disputes Act and 254c of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010, which all deal with the jurisdiction of this Court.
In all, learned counsel to the 4th Defendant urged the court to hold that the Claimant has not proven his case as required of him by law and by virtue of the facts and circumstances of the Claimant’s suit and that the Honourable Court has no jurisdiction to entertain the suit.
SUBMISSIONS OF CLAIMANT
Claimant Final Written Address was filed on 20th May 2019, with the following two (2) issues submitted for determination:
1. Whether the Claimant was in compliance with the approved guidelines for the sale of Federal Government Houses by completing and submitting an expression of interest form, and therefore entitled to the issuance of “Offer letter”?
2. Whether in purporting to deny the Claimant the exercise of his right of first refusal by non-issuance of offer letter without fair hearing as enshrined in Section 36 of the 1999 Constitution of the federal Republic of Nigeria (as amended) the action of the 1st and 2nd Defendants is not ultra vires, null and void and of no effect?
Learned Counsel to the Claimant submitted in issue No.1 that by section 122 (2) (a) of the Evidence Act 2011 (as amended), the Court is enjoined to take judicial notice of Exhibit CW7 (Approved Guidelines for the Sale of Federal Government Houses, Public Notice No.1, Official Gazette NO: 82, Vol. 92 of 15th August 2005) which provides for the guideline to follow in the sale of Federal Government Houses in the Federal Capital Territory (FCT) to Career Public Servants.
Counsel then reproduced paragraph 6 and 12 of Exhibit CW7 thus:
“The houses will be sold on “as is, where is” basis at the evaluated price with the current occupants having the first right of refusal to purchase within 30 days of offer. The said right to purchase is neither transferable, assignable nor alienable in any way or form?
“All purchasers must complete Application forms with receipt of payment ofN10,000 in favour of the Federal Capital Territory Administration, along with the following:
Letter of initial employment into the Public Service of the Federation
Letter of last appointment promotion in the Public Service of the Federation
Letter of allocation of quarters by an appropriate authority
High resolution colour passport photography
Proof of last six (6) month’s rent deductions
Counsel referred to the evidence of claimant vide paragraphs 4,5,6,7,8,10, 20 of the further written statement on oath dated the 5th of March 2018 and paragraphs 6,8,9, 10 and 20 of the Claimant’s further witness statement on oath to the 1st, 2nd and 4thDefendants statement of Defence dated the 26thApril, 2018, that while in active service, the property known as House No.18,372, Road, Gwarinpa, Abuja was allocated to him (Exhibit CW3)through the office of the Head of Civil Service of the Federation.
That following the approval of the President of the Federal Republic of Nigeria for the sale of Federal Government Houses in the Federal Capital Territory (FCT). He applied in accordance with paragraph 12 of Exhibit CW7on the 12th of May 2005 and that his application (Exhibit CW4) was received with all the relevant documents by the officers of the 1st and 2nd Defendants on the 22nd of May 2005 relying on Exhibits CW4, CW6, CW13, CW14, CW3 and CWI5. The Claimant also upon cross examination maintained that he submitted evidence of 6 months’ rent deduction along with other relevant documents. He contend that the Claimant has proved with credible evidence that he complied with paragraph 12 of Exhibit CW7 in applying to exercise his first right of first refusal and is entitled to the issuance of the OFFER LETTER and we urge my Lord to so hold.
He further submitted that the thrust of the 1st and 2nd Defendants defence is that the Claimant did not attach evidence of six (6) Months’ rent deduction and that the Claimant was already retired from Civil Service before the actual date of sale of Federal Government Houses to Civil Servants. However, they fell short by a mile in providing credible evidence to support their claim. The Supreme Court in PURIFICATION TECHNIQUE NIG. LTD & ORS .V. JUBRIL & ORS (2012) SUIT NO.S.C 159/2004 delivered on the 8th of June, 2012 held that:
“A party who seeks judgment in his favour is required by law to produce adequate and credible evidence in support of his pleading and where there is none, the pleading are deemed abandoned. The same principle of law is for whatever defence a defendant seeks to rely on in the process of demolishing the case brought against him. See also EMEGOKWE .V. OKADIGBO (1973) NWLR AT 129; Hon. Justice S.E ALADETOYINBO in the unreported case of MICHAEL DELEUMORU .V. HON. MINISTYER F.C.T. & 2 ORS, suit no FCTIHCICVI57OI2007, where the Court equally held thus:
“it ¡s common administrative practice that documents required to accompany Exhibit CW4 are supposed to be meticulously scrutinized by the agents of the 1st and 2nd Defendant at the point of receiving same, and ¡f they are not complete same should not have been received by them”
Counsel submitted that the 1st & 2nd defendants were only being mischievous, as the claimant had submitted his six months’ rent deductions which he attached alongside Exhibit acw4, and rent were deducted from his salary at source, with his attached Personal Emolument Form submitted. It is trite law that documentary evidence speaks for itself and oral evidence cannot be given to contradict the contents of a document. See CDC Ltd v. SCOA Nig Ltd (2007) 6 NWLR (Part 1030) Pg. 314. Again, the 1st & 2nd defendants were given notice to produce the originals of Exhinits CW4, CW13, CW14, CW3 and CW15, which they acknowledged receipt from claimant on 22nd May, 2005. That the agents of the 1st and 2nd Defendants by putting their stamp and signature including date received on Exhibit CW4, gives a presumption that Exhibit CW4 was received along with Exhibits CW13, CWI4, CW3 and CWI5, relying on SHITTA-BEY. Vs. A-G FEDERATION (1998) 7 SCNJ 264 Pg 287, (1998) 10 NWLR (PT.570) 392, where the Court held thus:
“Apart from what ¡s called presumption of regularity of official acts, there ¡s the presumption that where there is no evidence to the contrary things are presumed to have been rightly and properly done”
Counsel further relied on section 167 (d) of the Evidence Act 2011 (as amended) and case of ANIKE V. S.P.D.C (NIG) LTD (2011) 7 NWLR(PT 1246) 227 CA, urging the Court not to place value on the contention of the 1stand 2ndDefendants. He further urged the Court to hold that the 1stand 2nddefendants having not produced exhibit CW7 and all the documents attached thereto (including the Claimant’s personal emolument card and exhibit CWI5 showing proof of six months’ rent deduction) even after services of form 35 (Notice to Produce) the Court is left with no option than to hold that the 1stand 2nd defendants have something to hide.
He further submitted that Exhibit CW7 never mentioned any date that should serve as the commencement date of sale but rather it provided for a timeline and a methodical way that the whole transaction would be conducted, to the effect that the current occupant will have the first right of refusal to purchase within 30 days of offer and DW2 admitted upon cross examination that every current occupant who wishes to exercise his right of first refusal was required to fill and submit an expression of interest form in line with paragraph 7 f Exhibit CW7 within 1st of May 2005 to 23rd May, 2005, and DW2 admitted that 30th May was the last date given to civil servants to express their right of 1st refusal to complete and submit the expression of interest form, referring he Court to Exhibit DWK2 and case of Daggash vs. Bulama (2004) 14 NWLR (Pt.892) 144 rato.41.
He posited that by evidence of DW2 in paragraph 9 of witness statement on oath, sitting tenant who were allocated government quarters by virtue of being career civil servants and are eligible, were asked to express interest in purchasing the houses they occupied within the specified period of time. Counsel submitted that the claimant had expressed his interest within time on 22nd May 2005 while he was still a career civil servant and therefore entitled to the issuance of offer letter, urging the Court to so hold. He further urged the Court to discountenance the arguments of the defendants as they have failed in all fronts and rather resolve this issue in favour of the claimants by holding that the claimant fully complied with the provisions of Exhibit CW7 in expressing his interest to purchase the Federal Government House as career civil servant and as a sitting occupant and therefore entitled to the issuance of “offer letter”.
Issue No.2: “Whether In purporting to deny the Claimant the exercise of his right of first refusal by none issuance of offer letter without fair hearing as enshrine in section 36 of the 1999 constitution (as amended) the action of the 1st and 2nd defendants is not ultra vires, null and void and of no effect”.
Counsel here referred the Court to claimant’s evidence, particularly paragraphs 11, 12, 13, 18 and 19 of claimant’s further witness statement on oath dated 5th March 2018 and paragraphs 13, 16 and 19 of claimant’s further witness statement on oath to the 1st, 2nd and 4th defendant’s statement of defence dated 26th April, 2018, to say that Exhibits CW8A and CWBB were correspondences of clamant to the 1st & 2nd defendants when they had failed to respond to claimant’s expression of interest form submitted to them. The claimant had done some follow ups on purchase of property in issue, but was being promised that offer letter would be issue to him, but was never done; and claimant then instructed his Solicitors to intervene. That the claimant was informed by his Solicitor when one of the counsel in the office, went to submit Exhibit CW8B that they were told that the agents of the 1st and 2nd Defendants’ (Adhoc Committee on sale of Federal Government Houses) were waiting for “ORDER FROM ABOVE” to perfect the transfer of the property the undisclosed person.
Furthermore, that the response of DW 2 under cross examination further confirms the fact that 1st & 2nd defendants have not communicated to the Claimant in any way whatsoever, the reason for the non issuance to the claimant the “offer letter”. Counsel here again, relied on the case of MICHAEL DELE UMORU .V. HON. MINISTER F.C.T. A & 2 ORS, suit no FCT/HC/CV/570/2007(Unreported case) delivered on 7th of October 2010, by Hon. Justice S.E Aladetoyinbo, (and this case is on all fours with this suit), where the Court held that:
“the enormous duty delegated to the adhoc committee on the sale of federal government houses in Abuja, to decide whether career public servants are qualified to buy their various houses under the approved guideline for the sale of federal government houses in FCT is quasi-judicial, therefore the adhoc committee on the sales of FGN houses just like an administrative tribunal must accord the plaintiff fair hearing before a decision not to sell to him block 3 flat 12 Rubochi Close Area 7 is made by the body. It is apparent from the evidence before the court that the body did not follow the principle of “AUDI ALTERAM PARTEM and NEMO JUSTEX INCAUSASUA” enshrined in the rule of natural justice”
It is counsel’s further submission that in absence of any shred of evidence before the Court, to the effect that the 1st and 2nd defendants officially or howsoever, communicated to the Claimant that he did not attach evidence of six (6) months’ rent deduction or that he was ineligible for any reason to be issued offer letter for whatsoever reason, then the 1st and 2nd defendants have breached the principle of “audi alteram partem” as enshrined in Section 36 of the 1999 Constitution (as amended) and therefore acted ultra vires, urging the Court to so hold. And assuming without conceding that the claimant was ineligible to be issued offer letter, the procedure purportedly followed by the 1st and 2nd defendants in purporting to sell the property to the 4th defendants is against the standard as set out in paragraph 9 of Exhibit CW7 which provides thus:
“All houses whose rights to purchase are not exercised will be sold in an Open Auction whereby all Nigerian citizens shall be given equal opportunity. A simple Auction system by way of competitive bidding shall be employed.”
He further submitted that the evidence of DW1 under cross examination is that the process the 4th defendant purportedly followed in acquiring the property is as contained in paragraphs 16 & 17 of his witness statement on oath, and his further evidence is that 4th defendant never acquired the property under open auction and that 4th defendant was also a student and not a career public servant. It is therefore clear from the totality of evidence adduced by DW1 and DW2 that the procedure 1st & 2nd defendants purportedly followed in selling the property to the 4th defendants is not a procedure in line with paragraphs 6, 12, 13, 14 and 15 of Exhibit CW7 or was it also in line with paragraph 9 of the same Exhibit.
It is the contention of counsel that that the 4th defendant is deemed to have constructive notice that the Claimant’s right of first refusal and purchase of the property was not a lottery but was rather still subsisting by virtue of Exhibit CW7 as a simple inquiry would have convinced the 4th defendant that the property was occupied by the Claimant since 2001. That DW1 equally admitted under cross examination that the 4th Defendant has never occupied the property. In aid of his argument n the issue he relied on the case of ANIMASHAUN .V. OLOJO (1990) 6 NWLR PT 154 PG 114, and the Court held thus:
“Constructive notice of fact is the notice of a fact which a party will be deemed to have upon the making of usual diligent, proper and full inquiries”.
Counsel then urged the court to hold that, at the material time the 1st and 2nd defendants purportedly sold the property to the 4th defendant, there was nothing to sell because the right of the Claimant was still live and subsisting on the property and subsequently has not become extinguished, further urging the Court to discountenance the arguments of the 4th defendant in paragraphs 3.7 to 3.24 of his final address as he was not privy to the transaction between the 1st, 2nd defendants and the Claimant and therefore cannot make a forensic point on Exhibit CW7. Furthermore, all the evidence given by DW1 (as admitted by him during cross examination) with regards to the transaction between the Claimant and the 1st and 2nd defendants were all hearsay evidence as he disclosed that the 4th defendant got to know about the existence of the Claimant only when he went to the office of the 2nd defendant sometimes in 2010, relying on the case of UBA PLC. V BTL LTD at (P, 233, paras. B-F), where the Court held thus:
”A contract affects the parties to it and cannot be enforced by or against a person who is not a party even if the contract is made for his benefit and purports to give him the right to sue or to make him liable upon it. The fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration does not entitle him to sue upon the contract”
He submitted that there is no valid sale of the property to the 4th defendant pursuant to Exhibit DWMB1 since the offer letter was executed on 11th March 2010 by 4th defendant, and the offer had elapsed since the 4th defendant was required to accept the offer on or before 11th February, 2010, but rather accepted offer on 11th March 2010 when the offer had clearly elapsed, urging the Court to so hold.
Regarding the issue of jurisdiction contended by defendant counsel, it is submission of claimant’s counsel that upon evaluation of evidence before the Court both oral and documentary, the Court would be able to draw a conclusion that the essential issues before it are employment related and/or matters arising from workplace and entitlement of the claimant as an employee of the Federal Ministry of Health under the sale of Federal Government Houses Policy. It is therefore an attempt by the 4th defendant to mislead this Honourable Court into sitting on appeal on this same issue when your learned brother Hon. Justice Dimbga Igwe of the Federal High Court, had sometime in October 2016, delivered ruling on this issue and consequently transferred this suit to this Court; and the said ruling delivered forms part of the record of this Honourable Court, and the 4th defendant neither opposed nor appealed the decision. Counsel on this point, urged the Court to hold that it is fully seized of the jurisdiction to entertain this suit, in relation to the welfare of the Claimant which he became entitled to exercise by virtue of being a career Civil Servant with the Federal Ministry of Health and also being in current occupation when Exhibit CW7 became operational.
Counsel further urged the Court to hold that the Claimant has proved his case on the balance of probability legally, evidentially, technically, factually, and actually to entitle him to the judgment of this Honourable Court. He further urged the Court to discountenance the defence and arguments of the 4th defendant with substantial cost for being frivolous and without content, and with substantial cost also.
REPLY ON POINT OF LAW BY CLAIMANT
The claimant filed a reply address on point of law on 24th day of June, in reply to the 1st & 2nd defendants’ final written address dated the 18th day of June, 2019 and filed 20th day of June, 2019. In his reply, counsel to the claimant submitted that the 1st & 2nd defendants have not adduced any material and credible evidence in support of their defence, and their final address cannot replace evidence. More so, paragraph 6 of the statutory provisions of Exhibit CW7 confers on the claimant (as current occupant) to exercise “the first right of refusal” to purchase. That the claimant cannot be denied of his right to fair hearing in line with Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (As amended); since the intendment of the provision of paragraph 6 of Exhibit CW7 are very clear and unambiguous, as the drafters of the law intended to confer a “right” as opposed to an “option” to career Civil Servant who are current occupants, relying on case of A.C.N VS. INEC (2013) 13 NWLR (PT. 1370) 161 SC.
Counsel again submitted that the allegation of defendants to the effect that the claimant had failed to meet the terms and conditions as prescribed in Exhibit CW7, to entitle the claimant to the issuance of offer letter, without any evidence presented by the defendants in that regard, leaves the Court to speculation in determining what terms and conditions the claimant failed to meet. More so, the 1st & 2nd defendants have failed to plead the issues argued in that regard, relying on the case of F.M.F LTD VS. EKPO (2004)2 NWLR (PT. 892) 92 CA; AWARA VS ALALIBO (2002) 18 NWLR (PT.M 799) 484 SC. Counsel continued that the 1st & 2nd defendants are under public duty to comply with provisions in Exhibit CW7, citing Cookey vs. Fombo (2005) 15 NWLR (Pt.947) 182.
It is the further submission of counsel that by Exhibit DWK1 the claimant is entitled to the property in issue, and he submissions of defendants’ counsel in final written address cannot take the place of evidence, as documents speak for itself, relying on Omoniyi vs. Alabi (2004) 6 NWLR (Pt. 870) 551. Counsel then urged the Court to resolve all the issues in favour of the 1st & 2nd defendants.
I need to mention here again that the 3rd defendant filed no processes in defence of this suit, despite every opportunity given to 3rd defendant. I have however, read the processes filed by parties and considered the evidence adduced in support of their respective cases. I have looked at the issues formulated by parties and arrived at this sole issue, which in my thinking is suitable to adopt in resolving the issue in dispute in this suit. The said sole issue is reproduced thus:
“Whether or not the claimant herein has established his case as required by law against the defendants from the entirety of the evidence before the court, to entitle him to the disputed property and the judgment of this Court?
It is trite law that where a defendant fails to file a defence as in this case, the ready inference is that the defendant is deemed to have admitted the case of the claimant as presented before this Court, as there is no contrary position on which to urge the Court. The law is trite that failure to defend a suit is an implied admission of the case presented by the adverse party. See Efet vs. INEC (2011) All FWLR (pt. 565) 203; Adeboye & Ors vs. Saheeto International Ltd & Ors (2019) LPELR – 46752 (CA).
Even then in the absence of defence by the 3rd defendant, it is not automatic judgment for the claimant; because a plaintiff (claimant) in the instant case, has the duty to prove his claims on the strength of his own case, and the Court is enjoined to review and evaluate the evidence presented by a claimant, even if not challenged, to establish whether the same has proved the claim, as required by law. See Elias vs. Omo - Bare (1982) LPELR - SC 41/1981; (1982) ALL NLR 75. It is a general and well settled principle with regards to determination of civil matters that the burden of proof lies on the party who would fail if no evidence is adduced on both sides. This person is usually the claimant and he either succeeds or fails based on the strength of his own case and not the failure of the defendant. This means that generally, regardless of whether or not a Defendant appears in court or fails to file any process, a Court is required to carefully examine the case of a claimant and only grant the claims prayed for, if they are meritorious and backed by evidence. See Majekodunmi & Ors v. Ogunseye (2017) LPELR-42547(CA).
It is observed that parties have relied heavily on Exhibit CW7 (Approved Guidelines for the sale of Federal Government Houses in the FCT to career Public Servants) as contained in the Federal Republic of Nigeria Official Gazette, Vol. 92, N. 82, page 462 – 464, of 15th August, 2005, which I also find as quite fundamental in resolving the dispute. At the risk of repetition, paragraph 6 of the aforementioned document states thus:
“The houses will be sold on “as is,” basis at the evaluated price with the current occupants having the first right of refusal to purchase within thirty days of offer. The said right to purchase is neither transferable, assignable nor alienable in any way or form.”
It is the contention of counsel to the claimant that it is the claimant who has the first right of refusal of purchase and more so, as a career civil servant in current occupation of the property in dispute. That he has fulfilled the requirements as contained in Exhibit CW7 and the 1st & 2nd defendants cannot deny him his right of fair hearing, as he is entitled to be issued with letter of offer of purchase of the property in dispute. His argument is that the defendants have not presented any evidence to the effect that the claimant has failed to meet the terms and conditions to be entitled to an offer letter.
It is not in dispute that the claimant was allocated the said property, known as House No. 18,372 Road, Masfa Model Four Bedroom Duplex at Gwarinpa Housing Estate, Abuja, by virtue of his office and as a career civil servant with the Federal Ministry of Health (Exhibit CW3). Exhibit CW4 is the Expression of Interest Form for the purchase of Federal Government Housing Unit in Abuja, FCT for Career Public Servants only; which in my humble indicates an opportunity given to the claimant as a current occupant to exercise “the first right of refusal” to purchase the said property. The claimant filled the form and paid the initial deposit of N10, 000.00 (Ten Thousand Naira), vide Exhibit CW6, as provided in paragraph 12 of Exhibit CW7 (Official Gazette), and it states thus:
“All purchasers must complete Application Forms with receipt of payment of N10, 000.00 in favour of the Federal Capital Territory Administration along with the following:(Documents already listed in paragraph 12 of Exhibit CW7) already reproduced earlier on in this judgment.
Again, paragraphs 19, 20 and 23 of Exhibit CW7 states thus:
Paragraphs 19: “In the event that a purchaser fails to comply with the payment terms, part of the initial deposit (being 10 percent of the purchase price) will be forfeited to the Federal Government, the contract of sale shall be rendered null and void, and the house declared unsold. Paragraph 9 of the guidelines will thereafter apply.”
20: “In the case of houses offered to public servants in occupation, failure to accept offer and/or comply with the payment terms will lead to immediate eviction and the forfeiture of deposit (if applicable), and the application of paragraph 9 above”.
23: “Applicants must provide all information requested for in the Application Form to avoid delays in processing, or rejection of offer to purchase the residential facilities they occupy.”
Exhibit CW4 is the Expression of interest to purchase Federal Government Housing Unit in Abuja, for career public servants as the claimant herein. It is observed from this document that the claimant did not completely fill the form as required; for example the information regarding his date of birth and Current Salary Grade Level were not shown on the form. In his evidence under cross examination by 4th defendant counsel, CW admitted that he did not state his date of birth on the form. He admitted also that there was a mistake or typographical error regarding his evidence in paragraph 3 of his witness statement on oath, dated 5th day of March 2018, where he stated that he was then 71 years old, and that he was actually 72 years old then.
Again, there are inconsistencies in the evidence of CW regarding his actual retirement date from public service, which I think is very fundamental to be eligible for the purchase of the property in issue; to ascertain if the occupant at the time was still in service or not. In his evidence under cross examination by 4th defendant counsel, CW claimed he retired after attaining the mandatory age of 60 years by 01/11/2005; meanwhile, Exhibit CW1 dated 30th November, 2006 states effective retirement date as 1/11/2005, and Exhibit CW2 dated 31st July, 2006, conveyed effective retirement date of claimant as 31st July, 2006. Again his evidence in his written statement on oath dated 5/03/2018 is to the effect that he retired in 2005. The defendants’ counsel had objected to the admissibility in evidence of CW2 to the effect that it was no where pleaded by the claimant, but then Court in its wisdom allowed Exhibit CW2 to be admitted in evidence in order to unravel the truth regarding the actual retirement date of claimant from service. I have perused the evidence adduced by the claimant in his written statements on oath including his reply to 1st, 2nd & 3rd defendants’ statement of defence, respectively dated 26/4/2016 and 5/3/2016, and find that the document tendered (CW3) has no bearing whatsoever with the claimant’s pleadings, as such defendants were taken by surprise. It is trite law that documents relating to unpleaded facts cannot be used. In other words, evidence in support of facts not pleaded goes to no issue and ought to be discountenanced See Okonji vs. Njokanma (1999) SCNJ 295;Okoko vs. Dakolo (2006) 14 NWLR (Pt. 1000) Page 401 @ 422, Para A. On this score, Exhibit CW3 cannot be used by the Court in determination of the issue before me, and the document is hereby discountenanced and expunged from the Court’s record also.
It is the contention of claimant that the 3rd Defendant continued to deduct rent with respect to the said property from his salaries as a career public servant. He however, admitted in his evidence under cross examination that the information supplied in Exhibit CW4 on current rent deductions of N16, 494.03, is not what is reflected in Exhibit CW14, which he claimed he had annexed to his form (Exhibit CW4). There is no credible evidence to support his assertion regarding the rent deductions being made from his salaries and the sums actually deducted by the 3rd defendant. . Exhibit CW14 is inconsistent with information provided in Exhibit CW4 regarding rent deductions. The implication here is that Exhibit CW14 cannot be said to be a true reflection of what the claimant had claimed represents six months’ rent deductions, as there are notable internal conflicts in the evidence of the claimant presented before the Court; and the Court cannot in the circumstance ascribe any value to Exhibit CW14 in this case, and I so hold.
Furthermore, the claimant has remained inconsistent equally regarding his date of birth and retirement. The contradictory evidence by claimant are on material facts, and a derision of other evidence presented by him, making it unsafe for this Court to rely on either; and it will be justifiable for the Court to also reject the said evidence. The case of Makinde vs. Akinwale (2000) 2 NWLR (Pt.645) Page 435 @ 450, Para E, is apt and applicable in the instant case.
I have also painstakingly read Exhibit DWK2 (Record of Appeal) which the claimant has relied heavily on, to the effect that it is applicable also to his case; and I totally disagree with the submission of learned counsel to the claimant in this regard. Exhibit DWK1 is between one Mrs. Margaret Ebute vs. Hon. Minister, F.C.T.A & Ors, which I find not to be totally on all fours with the instant case. My observation in Exhibit DWK2 is that the Expression of interest Form in that case was properly filled with all vital information provided, with 10% also of the purchase price was made regarding the property in issue in that case. The issue in that case was regarding what the date of submission was, upon filling the Expression of Interest Form. But in the instant case, the claimant even ab initio, had failed to fill the mandatory information as required in line with the guideline (Exhibit CW7).
When cross examined by 4th defendant counsel, claimant admitted that he had no offer letter and receipts. Meanwhile from the evidence of DW1 under cross examination by claimant’s counsel, the property in issue was properly sold by public auction to 4th defendant, and that every sitting occupant is expected to submit form between 01/05/2005 and 23/05/2005, and pay N10, 000.00 processing fee after fulfilling all requirements; that the 1st & 2nd defendants did not communicate to the claimant the reason why he was not given the offer letter, as the guideline never permits the 1st & 2nd defendants to write claimant.
The claimant herein had relied on paragraph 6 of Exhibit CW7 which states thus:
“The houses will be sold on “as is, where is” basis at the evaluated price with the current occupants having the first right of refusal to purchase within thirty days of offer. The said right to purchase is neither transferable, assignable nor alienable in any way or form.”
I think the above paragraph could only avail the claimant where he has provided all the information as required in Exhibit CW4, and in line with Exhibit CW7(Approved Guidelines for Purchase of Houses). More so, paragraph 6 above can only be applicable in the existence of an offer letter which is not applicable in this case. The claimant has not presented any offer letter before the Court to entitle him to the purchase of the property in issue.
It is not in dispute that the claimant was a career civil servant in occupation at the time of allocation of property in issue to him, which was the reason why he was given the “the first right of refusal” to purchase the said property, and to fill the expression of interest form, with the payment made of initial deposit of N10, 000.00 (Ten Thousand Naira), vide Exhibit CW6. Again, paragraphs 12 and 23 of Exhibit CW7 (Approved Guidelines for sale), demands that all purchasers as claimant herein must complete Application Forms to avoid delays in processing, or rejection of offer to purchase the residential facilities they occupy. (Underlining Mine)
It is clear from above, that the 1st & 2nd defendants had the discretion to reject offer to purchase the property in issue where the applicant as claimant herein failed to properly fill the information as required in the Application Form(Exhibit CW4). This was exactly what has happened in this case; the claimant was not given the offer letter for his failure to provide all the information mandatorily required in Exhibit CW4, and the 1st & 2nd defendants would therefore be justified in the circumstance to have invoked paragraph 9 of Exhibit CW7, to sell the property in an open Auction. Paragraph 9 of Exhibit CW7 is reproduced thus:
“All houses whose rights to purchase are not exercised will be sold in an open Auction whereby all Nigerian Citizens shall be given equal opportunity. A simple Auction System by way of competitive bidding shall be employed. All bids must be submitted with a bid bond by way of bank draft from a first class bank equal to ten percent of bid value. All bids without a bid Bond stand disqualified. The highest bidder shall be automatically declared winner, along with the second highest bidder as the reserve bidder; with the bid bond being retained and treated as non-refundable 10 percent deposit. All other bid bonds shall be returned to unsuccessful bidder(s).”
In my thinking, the 1st & 2nd defendants were right to have followed the above procedures as provided in Exhibit CW7, in the sale of the property to the 4th defendant having satisfied all the requirements to the issuance of offer letter for the purchase of the said property; hence Exhibit DWMB1 (Payment receipt) in the sum of N9, 000, 000.00 (Nine Million Naira) and offer letter dated 28th January, 2010 issued to that effect. The argument of claimant’s counsel to the effect that the 4th defendant was not a career civil servant is in my humble view immaterial, as the claimant has already waived “the first right of refusal” to purchase the said property, and the 4th defendant by paragraph 9 of Exhibit CW7 need not be a career civil servant or even in occupation of the property to have purchased the property by open Auction, and I so hold.
Furthermore, Exhibit CW9 dated 26th March, 2010, was served on the occupant (claimant herein) of House No. 18, 372 Road, Gwarimpa, Abuja (property in issue), which is a quit notice, and paragraphs 1 & 2 states as follows:
Paragraph 1 “Further to the process of the sale of non-essential Federal Government Houses in the Federal Capital Territory as approved by the Federal Executive Council (FEC). I wish to inform you that the property situate at House 18 372 Road, Gwarimpa, Abuja which you currently occupy has been sold through a process of the pubic and the buyer has since made payments due on the property.
Consequently, you are kindly requested to vacate the premises within Seven(7) days of the date you received this letter.”
Paragraph 2: “We are aware that you may have expressed interest to purchase same property but due to non compliance with the approved rules and guidelines that were put in place by the FEC to govern the qualification process (for those to be treated as Career Public Servants with first right of refusal on the property in which they reside), your application may have been denied. (Underlining Mine)
The aforementioned paragrapghs stated the reason for non issuance of offer letter to the claimant, and the claimant is not ignorant of Exhibit CW7 and the contents therein, and his failure to comply with rules and regulations as provided for in Exhibit CW7, has disqualified the claimant from the entire exercise towards the purchase of the property in issue, and the 1st & 2nd defendants had the discretion in the circumstance and in line with Exhibit CW7 to sell the property to 4th defendant by public Auction. The wordings in Exhibit CW7 particularly paragraph 23 are clear and unambiguous, and by the rules or canon of interpretation of statues, Courts are enjoined to give effect to those words, without resorting to any intrinsic or external aid. See Okotie-Eboh vs. Manager (2004) 18 NWLR (Pt.905) Pages 242 @ 186 – 187 Para H-B.
In light of the foregoing, it is clear that the reason for the non issuance of offer letter to the claimant, was because he had failed to comply with the 1st & 2nd defendants’ rues and regulation as contained in Exhibit CW7 regarding the purchase of the property in issue. In other words, he was disqualified from the exercise and lost “the first right of refusal” to purchase the said property, as a career civil servant in occupation, and I so hold. Consequently, the 4th defendant who was successful in the Walk-in-Bid to purchase the property situate at House 18 372 Road, Gwarimpa, Abuja FCT, in line with the published Approved Guidelines in Exhibit CW7, and having also paid the purchase price of the property as per the reserve price of N9, 000, 000.00 (Nine Million Naira), vide Exhibit DWMB1, is in my humble view entitled to the ownership of the said property and as the rightful owner also, and I so hold.
The claimant failed to do the needful and cannot claim that he was denied his right to fair hearing. The law is that a party should not be allowed to benefit from his own wrong under the Latin Maxim “nullus commodium potest de injuria sua proria” – “no one can gain advantage by his own wrong”. See case of Enekwe vs. IMB (Nig) Ltd (2006) 19 NWLR (Pt.1013) Page 146.
In view of the above, all arguments of claimant’s counsel to the effect that the 4th defendant was a student and not entitled to purchase of property, and that the claimant was also denied his right to fair hearing regarding the said property are not sustainable, and are hereby rejected.
It is trite law that he who asserts must prove, and the burden of proof in the instant case rests on the claimant and not the defendants who denies. I is the claimant who desires judgment in his favour that must establish his case on preponderance of evidence, and must also lead credible and legally admissible evidence in order to succeed. See Sections 131 – 133 Evidence Act, 2011 and case of Onovo vs. Mba (2014) 14 NWLR (Pt.1427) Page 391 @ 414 Para A-B. The claimant has failed to prove his case against the defendants in this suit, to entitle him to the ownership of the property in issue and even the reliefs sought thereof. It is obvious from the totality of evidence presented by the parties before his Court, that the evidence is much heavier on the side of the 1st & 2nd defendants, and for this reason, they are entitled to judgment in this case, and I so hold. See Onowhosa vs. Odiuzou (1999) 1 NWLR (Pt.586) Page 173 @ 183 Para A-B.
Consequently, I find no merit in the case of the claimant, and his reliefs in this suit are not also grantable. The reliefs, i.e. (a – f) as contained in his amended statement of facts are all hereby dismissed. No cost awarded in this suit.
Judgment is hereby entered.
Hon. Justice R.B.Haastrup