MIKE ADE PROPERTY DEVT CO. LTD v. CHIKELU & ORS (2021)

MIKE ADE PROPERTY DEVT CO. LTD v. CHIKELU & ORS

(2021)LCN/14992(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, February 19, 2021

CA/L/1371/2017

RATIO

JURISDICTION: WHETHER ACTIONS AGAINST THE FEDERAL GOVERNMENT IS WITHIN THE JURISDICTION OF THE FEDERAL HIGH COURT

It is now trite law that the fact that an action is against agencies of the Federal Government, does not ipso facto bring the case within the jurisdiction of the Federal High Court. See Ohakim v Angbaso (2010)19 NWLR Part 1226 Page 172 at 236-237 Para G-B per Mohammed JSC (as he then was). PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

JURISDICTION: WHICH COURT HAS JURISDICTION IN CASES FOR DECLARATION OF TITLE TO LAND

It is also settled law, by Section 39(1) of the Land Use Act of 1978, that cases for a declaration of title to land or in respect of land the subject of a statutory right of occupancy are to be adjudicated upon in the State High Court. Also, as variously held in a myriad of cases, matters based on simple contracts are not to be adjudicated upon in the Federal High Court, but in the State High Court. See John Shoy International Ltd v Federal Housing Authority (2016) 14 NWLR Part 1533 Page 437 at 448 Para F-G per Ogunbiyi JSC; Rahman Brothers Limited v Nigerian Ports Authority (2019) 6 NWLR Part 1667 Page 126 at 139 Para E-F per Aka’ahs JSC. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
LOCUS STANDI: THE PRINCIPLE OF LOCUS STANDI

The principle of locus standi or standing to sue, was very amply espoused by the Apex Court in the case of B.B. Apugo & Sons Ltd v. Orthopaedic Hospitals Management Board (2016) 13 NWLR Part 1529 Page 206 at 269 Para D-H per Rhodes-Vivour JSC, as follows:
“A person has locus standi to sue in an action if he is able to show to the satisfaction of the Court that his civil rights and obligations have been or are in danger of being infringed. There are two tests for determining if a person has locus standi.
They are:
1. The action must be justiciable, and
2. There must be a dispute between the parties.
In applying the test a liberal attitude must be adopted. Senator Adesanya v. The President of Nigeria (1981) 5 SC P.112 lays down the rule for locus standi in civil cases, while Fawehinmi v. Akilu1987 12 SC P.99 lays down the far more liberal rule for locus standi in criminal cases…… To have locus standi, the plaintiff’s statement of claim must disclose sufficient legal interest, and show how such interest arose in the subject matter of the action.”
It follows that a plaintiff can only invoke the judicial power entrenched in Section 6(6) (b) of the Constitution if, he has locus standi. He has locus standi if he can show that he has a stake in the subject matter or outcome of the case, and must be able to establish that what he suffers or the injury to his person was the consequence of the defendant’s act or conduct. There must be nexus between the plaintiff’s action and the defendant’s act or conduct.”
See also A/G Federation v A/G Lagos (2017) 8 NWLR Part 1566 Page 20 at 55 Para D per Sanusi JSC; Jitte v. Okpulor (2016) 2 NWLR Part 1497 Page 542 at 563-564 Para H-A; (2016) All FWLR Part 820 Page 1371 at 1386 Para A-B, per Ogunbiyi JSC.

In determining locus standi, the Court, it has been variously held, is confined to the pleadings of the Plaintiff, the 1st Respondent herein. See Okwu v. Umeh (2016) 4 NWLR Part 1501 Page 120 at 144 Para E-F; (2016) All FWLR Part 825 Page 232 at 249-250 Para G-A, per Okoro JSC; Bakare v. Ajose-Adeogun (2014) 6 NWLR Part 1403 Page 320 at 354 Para E-G per Ariwoola JSC. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

EVIDENCE: RELATIONSHIP BETWEEN DOCUMENTARY EVIDENCE AND ORAL EVIDENCE

The law is well settled that documentary evidence is the hanger from which oral evidence can be assessed, since, unlike humans, documents do not lie, which documentary evidence in this case is inadmissible being contrary to Sections 4(1) and 7(c) of the National Library Act and 102(b) of the Evidence Act 2011, citing BFI Group Corp. V. B.P.E (2012) 18 NWLR (PT. 1332) 209 at 236 among a host of others. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

Before Our Lordships:

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

MIKE ADE PROPERTY DEVELOPMENT COMPANY LIMITED APPELANT(S)

And

1. OWELLE GILBERT CHIKELU 2. FEDERAL MINISTRY OF HOUSING AND URBAN DEVELOPMENT 3. THE ATTORNEY GENERAL OF THE FEDERATION 4. CPL INDUSTRIES LIMITED RESPONDENT(S)

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court sitting in Lagos, coram, Hon. Justice C. J. Aneke, hereafter referred to as “the Lower Court/Trial Court” delivered on 26th day of May, 2017 in favour of the 1st Respondent, who was the Plaintiff before that Court. Aggrieved, the Appellant, who was the 4th Defendant at the lower Court, has appealed to this Court by Notice of Appeal dated and filed on the 3rd day of August, 2017, containing 13 grounds of appeal.

In prosecution of the appeal, the Appellant’s Counsel, Chief Wole Olanipekun OFR, SAN, filed an Appellant’s Brief of Arguments, on 30/1/18 but deemed as properly filed on 15/9/18,distilling therein four (4) issues for determination, to wit:
“1. Having regard to the nature of the subject matter, the lack of standing (locus) of the plaintiff to institute the action and the time frame within which the action was instituted, whether the lower Court was vested with jurisdiction to adjudicate on the plaintiff’s claim.
2. Having rightly refused reliefs (a), (g), (h) and (j) of the

plaintiff’s Re-amended Statement of Claim, whether the lower Court did not fall into grave error and act without jurisdiction by still going ahead to grant reliefs (b), (c) (d), and (f) and further making consequential orders in favour of the plaintiff.
3. Juxtaposing the pleadings of the plaintiff, the terse materials and evidence adduced by him on one hand, against the pleadings and evidence of the defendant and the position of the law on the subject matter before the lower Court on the other hand, whether the lower Court did not fall into serious error by giving judgment in favour of the plaintiff, against the appellant.
4. Whether the action before the lower Court was not improperly constituted thus depriving the Court of jurisdiction to adjudicate on it.”

The 1st Respondent’s Counsel, Prof Fidelis Oditah QC, SAN, by leave of this Court granted on 8/12/2020, substituted the 1st Respondent’s Brief of Arguments filed on 24/5/19 with the 1st Respondent’s Amended Brief of Arguments filed on 30/11/2020 and deemed as properly filed on 8/12/20, in which he addressed the same issues for determination formulated by the Appellant.

In response to the 1st Respondent’s Brief of Arguments, the learned Silk for the Appellant filed an Appellant’s Reply Brief of Arguments on 7/12/2020 but deemed as properly filed on 8/12/2020.

Save the 4th Respondent’s Counsel, none of the other Respondents, in spite of service on them of the appeal processes and hearing notices, were present at the hearing of the appeal, neither were any Briefs of Argument filed on their behalf.

The facts giving rise to this appeal are largely undisputed. On 20/6/2005, the Federal Government of Nigeria (FGN), through the 2nd Respondent, acting through the Presidential Implementation Committee (also referred to as “the Committee”), advertised certain FGN landed properties in Lagos for sale by public bidding. The bidding terms were set out in the “Approved Guidelines for the Lease of Federal Government Property in Lagos” (Exhibit P1), hereafter referred to as “the Guidelines”, published in the national newspapers. One of the properties advertised for sale is the property in dispute, at No. 20 Lugard Road, Ikoyi, Lagos (the

“property”). Prior to this, the 1st Respondent, had lived in the house for more than 30 years as a senior civil servant until his retirement from service a few years earlier, in 2001. Also, prior to this bidding process, he had taken part in an earlier exercise when he had purchased the house for the sum of N94 Million, which exercise was however cancelled.

Following the said bidding exercise in 2005, there were only two bids for the property and the 4th Respondent(CPL Industries Ltd.) was the highest bidder, at N275 Million. The 1st Respondent was the 2nd highest bidder at N260 Million. The reserve price for the property was N256 Million. Both parties had, in compliance with the bid guidelines, paid a non-refundable fee of N10,000.00 and 10% of the bid value of the property. Upon the successful bid of the 4th Respondent, the 1st Respondent’s 10% bid value of N26 Million was returned to him. The 4th Respondent however failed to comply with Exhibit P1, the Guidelines, by paying the balance of 75% (N206,250,000) of its bid within the 180 days stipulated.

The 1st Respondent, by letter dated 14th March 2008 (Exhibit P7), requested the

Implementation Committee to be allowed to purchase the property in line with the Guidelines, the 4th Respondent having failed to pay the balance on the property. This was however refused by the Committee by its letter dated 6th May 2008(Exhibit P8), directing him to wait and bid again for this or another property when it was re-advertised. The 4th Respondent completed final payment of the purchase price in 2010 and was issued with a Certificate of Occupancy dated 29/4/2011. On 4/5/2010, the Appellant entered into a contract for sale of the property with the 4th Respondent (CPL), consequent upon which a Notice to Quit(Exhibit D12) was issued to the “Occupant” by the Committee and moves taken to evict the occupants, thus culminating in the suit before the lower Court.

I shall adopt the issues for determination formulated by the Appellant.
1st issue for determination
“1. Having regard to the nature of the subject matter, the lack of standing (locus) of the 1st Respondent to institute the action and the time frame within which the action was instituted, whether the lower Court was vested with jurisdiction to adjudicate on the 1st Respondent’s claim.

SUBMISSIONS OF COUNSEL
APPELLANT
This issue was argued in three parts by the learned Silk; the substantive jurisdiction of the lower Court as set out in the Constitution, the locus standi of the 1st Respondent to institute the action and the applicability of the Statute of Limitations.

Subject matter jurisdiction
Arguing the 1st leg on the jurisdiction of the lower Court, the learned Silk for the Appellant referred to the Re-Amended Statement of Claim, submitting that the aggregate of the same is a claim by the 1st Respondent for a declaration of title to land. The claim at the lower Court is about the sale or transfer of land in respect of which a Certificate of Occupancy has been purportedly granted to the 1st Respondent, and later transferred to the Appellant. By virtue of Section 39 of the Land Use Act, Cap L5, LFN 2004, it is the State High Court that has exclusive jurisdiction on the subject matter and not the lower Court.

Pointing to Section 251 of the Constitution, the learned Silk submitted that no portion thereof vests jurisdiction in the lower Court to adjudicate on the type of claims

presented to it by the 1st Respondent as Plaintiff before the lower Court. Citing the cases of Kasiku Farms v. AG Bendel (1986) 1 NWLR (Pt. 19) 695, Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508, he submitted that the lower Court does not have the power or vires to expand its jurisdiction. The mere fact that some federal agencies were named as Defendants before the lower Court does not automatically confer jurisdiction on it on a subject relating to land, sale, transfer or compensation payable on land in Lagos State. Citing Section 2 (1) (a)and 2(b) of the Land Use Act, the learned Silk submitted that it has been held in a plethora of cases that it is only the State High Court that has jurisdiction. The essential elements to be present before a Court can assume jurisdiction over a case, as stipulated in the case of Madukolu v Nkemdilim (1962) 2 All NLR 581 at 589-590, were set out by him. The issue of jurisdiction, he said, can be raised at any stage of the proceedings by any of the parties, including a plaintiff or by the Court suomotu, citing the case of Ladoja v. INEC (2007) 12 NWLR (Pt.1047) 119 at 181. The absence of jurisdiction thus rendered the proceedings

before the lower Court a nullity as the subject matter falls within the exclusive jurisdiction of the State High Court as stipulated in the Land Use Act.

Locus Standi
On the lack of standing of the 1st Respondent to have instituted the action, the learned Silk submitted that this issue is fundamental and can be raised at any stage, even on appeal. It can also be raised suo motu by the Court, whether at trial or on appeal, citing the case of Adesanya v President of the Federal Republic of Nigeria (1981) 5 SC 59; Thomas v Olufosoye (1986) 1 NWLR (Pt. 18) 669 at 682. Also citing Ajayi v Adebiyi (2012) 11 NWLR (Pt. 1310) 137, he submitted that this can even be raised viva voce if it is apparent. A holistic consideration of the entire claim of the 1st Respondent, the learned Silk argued, discloses no interest or right on him in respect of which the action before the lower Court could be commenced, having failed to show that any right pertaining to him under the bidding process for the property has been infringed, or is in danger of being infringed. He is also not privy to the sale of the property to the 4th Respondent, who thereafter sold to the Appellant.

The action was filed by the 1st Respondent under the impression that he is a reserve bidder of the Ikoyi property pursuant to the Guidelines in Exhibit P1. The 1st Respondent, having acknowledged the receipt of the refund by the 2nd Respondent of his bidding fee of Twenty-Five Million Naira (N25,000,000) in respect of the property, therefore had no locus. It was a somersault for him to turn around to seek to take benefit of the same guidelines which he claims were not followed.

Assuming that the 4th Respondent had any locus standi, the learned Silk argued, it would have been before he was refunded with and accepted the monies paid by him for the bidding process. Having lost his status as a bidder, he had no standing to file an action at the lower Court claiming to be a reserve bidder, more so as the lower Court did not make any order for him to pay the bidding fee and there was no such relief in his Statement of Claim. The grant of the 1st Respondent’s claim by the lower Court allowed the 1st Respondent to take benefit of his own wrong-doing by commencing an action to enforce a Guideline which he himself is not in compliance with, thus infringing the

Latin maxim ex turpi causa non orituractio; meaning that a party should not be allowed to benefit from his own wrong, also offending the principles of natural justice.

The learned Silk further argued that not only was there no privity of contract between the 1st Respondent and the 2nd-4th Respondents, in him seeking to set aside the sale of the property, Exhibit P1 relied on by him is a mere invitation to treat to the whole world, and is not one capable of creating an enforceable right in favour of the 1st Respondent, particularly as he was neither a sitting legal tenant nor the highest bidder and thereby had no rights inuring to him under the said Exhibit P1. Furthermore, the 1st Respondent was not a party to Exhibit P6, which is the offer of the sale of the property to the 4th Respondent, and neither was he privy to the issuance of the Certificate of Occupancy at the instance of the 2nd Respondent to the 4th Respondent. The 1st Respondent also strangely sought for the setting aside of the sale of the property by the 4th Respondent to the Appellant, when he was not also privy to the Sale Agreement in order for him to have any right over the said agreement.

He cited in support of the principles of privity of contract, the cases of Ebhota v. P.I. & P.D. Co. Ltd. (2005) 15 NWLR (Pt. 948) 266 and Ogundare & Anor v Ogunlowo & Ors. (1997) LPELR-2326(SC) 1 at 14 E – F.

Time Frame
With respect to the third sub issue of time frame, the learned Silk contends that it is not in dispute that the 2nd and 3rd Respondents, against whom all the reliefs in the 1st Respondent’s action were sought and targeted, are both public officers. Relief (a) sought was premised on rights of first refusal traceable to the Guideline issued by the Federal Government. Relief (b) granted by the lower Court was targeted against 2nd and 3rd Respondents and the Implementation Committee. Relief (c) flows from reliefs (a) and (b). Relief (d) is also specific to the 2nd and 3rd Respondents as 1st and 2nd Defendants viz-à-viz their alleged non-compliance with Exhibit P1. Reliefs (e) – (j) flow from reliefs (a) – (d) and are also aimed at the 2nd and 3rd Respondents. The 1st Respondent commenced this action against the 2nd Respondent in its capacity as the overall ministry through which the Committee acted in respect of the bidding process.

The lower Court, the learned Silk contended also acknowledged the fact that the Presidential Implementation Committee was a Public Officer in respect of the bidding process when it held:
“Exhibit D1 also specifically mentioned the judicious use of powers by public officers, in this case, the Presidential Implementation Committee.”

Any alleged cause of action aimed against the 2nd and 3rd Respondents in the performance of their public duties, as regulated by Exhibit P1, must thus be commenced within 3 months of the accrual of that cause of action, which action arose in 2008 when the 2nd Respondent wrote him a letter expressly refusing his request for the sale of the property, after same had already been sold to the 4th Respondent. Had the 1st Respondent any cause of action, he should have filed the same within 3 months of the 2nd Respondent’s letter of 5th May, 2008. Citing a number of authorities, Counsel submitted that the 1st Respondent was divested of jurisdiction to institute the action.

1ST RESPONDENT
Subject matter jurisdiction
Professor Fidelis Oditah, for the 1st Respondent, submitted

that in order to make good its contention that the lower Court lacked subject matter jurisdiction, the Appellant’s learned Counsel “mischaracterises” the 1st Respondent’s claim as being a declaration of title to land, yet in order to make good its objection on the Public Officer’s Protection Act, characterises the 1st Respondent’s claim correctly as being a challenge to the administrative acts of R2 and R3 who are public officers. The Appellant, he contended, cannot have it both ways: it is either an action for a declaration of title to land or is a challenge to the administrative acts of R2 and R3.

Disagreeing that the lower Court had no jurisdiction, the learned Silk cited the case of Onuorah v KPRC Ltd (2005) LPELR 2707 at 15, per Tobi JSC where it was held to be elementary law that in the determination of whether a Court has jurisdiction in a matter or not, the Court will examine or consider the claims or reliefs because it is only the claims or reliefs that donate jurisdiction to the Court. An examination of the reliefs sought by the 1st Respondent in the lower Court, he said, shows that there are at least three

separate reasons why the claim falls squarely within the exclusive jurisdiction of the lower Court. The first is that the claim challenges the exercise of public law powers by the FGN and its MDAs within the meaning of Section 251(1)(p) and (r) of the Constitution of Nigeria 1999. He cited in support the cases of Council of Legal Education v Hairat Aderinsola Balogun (2011) LPELR- 4005 (CA) and A G Federation v A G Anambra State 2018) 6 NWLR Part 1615 Page 314. He distinguished the cases cited by the Appellant’s Counsel.

The learned Silk argued further that the 1st Respondent’s claim challenges the exercise of administrative and public law powers of the FGN in the area of public procurement and disposal of public assets. This much is clear from the reliefs sought in paragraph 21 of his Re-Amended Statement of Claim. The lower Court, even without addressing the issue of its jurisdiction directly, as it was not challenged, showed by its reasoning that it appreciated that R1 was challenging the exercise of administrative and public law powers by the FGN and its MDAs.

The second reason, he said, is the additional powers conferred on the lower

Court by the National Assembly pursuant to the Public Procurement Act 2007 in respect of procurement activities of the FGN. The disposal of Federal Government properties is a procurement activity pursuant to Section 55(3) of Public Procurement Act 2007, which provides that “open competitive bidding shall be the primary source of receiving offers for the purchase of any public property offered for sale.”

The third, he said, is that the claim relates to the revenues of the Federation within the meaning of Section 251(1)(a) of the Constitution. The purpose of selling the assets, particularly in Lagos was to raise revenue for the Federation, pursuant to the monetization of assets policy of the FGN of which the court is required to take judicial notice. The monetization policy itself was for revenue and maximisation of public resources.

It was Professor Oditah’s further contention that the Appellant’s reference to jurisdiction being vested in State High Courts pursuant to Section 39 of the Land Use Act is at best misleading because Section 39(1)(a) applies to proceedings in respect of any land, the subject of a statutory right of

occupancy granted by the Governor or deemed to be granted by him under this Act. Rights of Occupancy to Federal lands, he said, are not granted or deemed to be granted by the Governor of any state. Instead, they are granted by the Minister in charge of lands. The disputed property is subject to Section 49 of the Land Use Act which provides that nothing in the Land Use Act (including Section 2 thereof) “shall affect any title to land whether developed or undeveloped held by the Federal Government or any agency of the Federal Government at the commencement of this Act and, accordingly, any such land shall continue to vest in the Federal Government or the agency concerned.”

Locus Standi
On locus standi, Professor Oditah QC, SAN submitted that the 1st Respondent(R1) participated in the bid for the disputed property and was the second highest bidder with his N260 Million bid and was contingently entitled to purchase the property if, as was the case, 4th Respondent (R4) failed to pay his bid price within 180 days. R1’s bid was more than the reserve price of N256 Million set by the FGN and was therefore entitled to enforce the bidding

guidelines especially by Paragraphs 18 to 21, to protect his contingent entitlement to purchase the property. His contingent right to purchase became a vested right when R4 failed to pay within 180 days. Academics rationalise this analysis and conclusion under a variety of legal theories including the private law concepts of collateral contract and estoppel by convention and the public law doctrine of legitimate expectations, which doctrine he explained with the aid of English and Canadian authorities. Explaining the concept of estoppel by conduct, akin, he said, to estoppel by convention, the learned Silk submitted that the adherence to the terms of Exhibit P1/D7 were the convention on the basis of which R2 and R3 conducted the public bid for the disposal of the disputed property, and the basis upon which R1 and R4 participated. That convention included that the highest bidder would pay within 180 days and in default the second highest bidder would be offered the chance to acquire the property. R2, R3 and R4 are estopped from resiling from that convention by giving R4 four years to pay instead of 180 days and by refusing to offer the property to R1 to buy in

accordance with paragraphs 18 to 21 of Exhibit P1/S7.

The fact that R1’s 10% bid deposit (N26 Million) was returned to him, he argued, does not obliterate his participation in the bidding and is entirely irrelevant to his locus standi. In any event, his non-refundable N10,000 bid fee was never refunded. The bid fee was one of the conditions for participating in the bid.

Time Frame
Responding to the submissions on time frame, Professor Oditah submitted that the Appellant is precluded from raising this contention by issue estoppel, the lower Court having decided that Section 2(a) of the Public Officers Protection Act (POPA) did not bar the claim. Secondly, the Appellant is not a public officer and cannot take refuge under POPA. Thirdly, the cause of action accrued on or about 25 May, 2010 when R2 and R3 wrongly accepted R4’s payment of the 75% balance of R4’s bid which was required to be paid in 2006, alternatively, when they issued a Certificate of Occupancy to R4 on or about 15 June, 2011. R1 commenced proceedings within 3 months of both events. Furthermore, the exercise of the public procurement power of R2 gave rise to a

contract between the FGN and R1. POPA does not apply to actions for breach of contract.

In the Appellant’s Reply Brief, submissions made in the substantive Brief were reiterated. Learned Silk added that any contentions not projected by the 1st Respondent in the lower Court but introduced on appeal ought to be discountenanced. Counsel reiterated his contention that the subject matter of the suit was land and distinguished the cases cited by the 1st Respondent’s Counsel. He cited in support the case of John Shoy Intl Ltd v FHA (2016) 14 NWLR Part 1533 Page 427 at 456-457 and an unreported decision of the Supreme Court in Crestar Integrated Natural Resources Ltd v Shell Petroleum Development Co of Nigeria Ltd (SC 765/2017). He discountenanced the applicability of the Public Procurement Act enacted on 4th June 2007 to a cause of action which the 1st Respondent’s Counsel alleges was completed by 24th April, 2006, submitting that it is trite law that a statute operates prospectively and not retrospectively, unless it is made so to do by clear and express terms. The public law doctrine of Legitimate Expectation and estoppel by convention were not

pleaded in the Amended Statement of Claim, neither was there any ground of appeal that supports it. The law is trite that parties are bound by their pleadings as well as their grounds of appeal.

RESOLUTION
This issue shall be treated under the sub issues raised by the Appellant.

Jurisdiction
It is now trite law that the fact that an action is against agencies of the Federal Government, does not ipso facto bring the case within the jurisdiction of the Federal High Court. See Ohakim v Angbaso (2010)19 NWLR Part 1226 Page 172 at 236-237 Para G-B per Mohammed JSC (as he then was). It is also settled law, by Section 39(1) of the Land Use Act of 1978, that cases for a declaration of title to land or in respect of land the subject of a statutory right of occupancy are to be adjudicated upon in the State High Court. Also, as variously held in a myriad of cases, matters based on simple contracts are not to be adjudicated upon in the Federal High Court, but in the State High Court. See John Shoy International Ltd v Federal Housing Authority (2016) 14 NWLR Part 1533 Page 437 at 448 Para F-G per Ogunbiyi JSC; Rahman Brothers Limited v Nigerian Ports Authority

(2019) 6 NWLR Part 1667 Page 126 at 139 Para E-F per Aka’ahs JSC.
In the unreported decision of the Supreme Court of Crestar Integrated Natural Resources Ltd v Shell Petroleum Development Co of Nigeria Ltd SC.765/2017 delivered on Friday 5th June, 2020, and cited by the learned Silk for the Appellant, the Respondents, who were the Defendants at the trial Court were alleged to have breached the Joint Operating Agreement (JOA) in relation to Oil Mining Leases.
The Court, per Ejembi Eko JSC, reading the lead judgment, held:
“The issue in this appeal is whether the dispute between the parties herein is contractual and not over the purpose of the contract allegedly breached by the Respondents. The contract and the activity the contractors have in mind for the contract are two distinct and different objects…. The core question, that is the subject matter of the suit, is whether the Respondents were in breach of their contract, the SPA, with the Appellant? The follow-up question is whether a breach of contract, be it simple or complex, is a matter within the scope of the jurisdiction expressly vested in the Federal High

Court by Section 251(1) of the Constitution (in parimateria with Section 7(1) of the Federal High Court Act 2004). There is no aspect of breach of contract, be it simple or complex contract, that the Constitution, in Section 251(1) thereof, confers jurisdiction on the Federal High Court to adjudicate on.”
Resolving this issue against the Appellants, His Lordship, Ejembi-Eko JSC held:
“It is quite evident that the facts relied upon relate strictly to non-fulfilment of the terms of the contract between the parties.”
In his contributory judgment, Kekere-Ekun JSC, concurring, held:
“This Court has firmly settled the matter in Onuorah v Kaduna Refining & Petrochemical Co. Ltd (Supra), where it held that the exclusive jurisdiction conferred on the Federal High Court pursuant to Section 251(1) of the Constitution of the Federal Republic of Nigeria 1999, as amended, does not include cases founded on contract.”

The learned Silk for the 1st Respondent has, however submitted, that the 1st Respondent’s claim before the lower Court challenges the exercise of public law powers by the FGN and its MDAs within

the meaning of Section 251(1)(p) and (r) of the Constitution of the Federal Republic of Nigeria 1999 (Constitution).
The said provisions provide as follow:
Section 251
“(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters –
(p) the administration or the management and control of the Federal Government or any of its agencies;
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.”
As agreed to by both Counsel, in the determination of the subject matter jurisdiction of the lower Court, recourse is had to the reliefs sought, as contained in the Statement of Claim of the Plaintiff, the 1st Respondent in this case. See A/G Federation v A/G Lagos (2017) 8 NWLR Part 1566 Page 20 at 46 Para E-F per Peter-Odili JSC; James v. INEC (2015) 12 NWLR Part

1474 Page 538 at 597 Para G-H per Mahmoud Mohammed CJN.
By the 1st Respondent’s Re-Amended Statement of Claim filed on 15/4/2016, contained at Pages 769-773 of Vol 2 of the Record of Appeal, the reliefs claimed in Paragraph 21 thereof are the following:
“21. Whereof the plaintiff claims jointly and severally against the Defendants as follows:
a. A declaration that the Plaintiff is entitled to the exercise of a right of first refusal to purchase the property at 20 Lugard Avenue, Ikoyi Lagos State.
b. A declaration that the purported sale of the property at 20 Lugard Avenue, Ikoyi State by the first and second Defendants through the Implementation Committee on Federal Government Landed property to the third Defendant is null and void.
c. A declaration that the purported sale of the Property at 20 Lugard Avenue, Ikoyi, Lagos State by the third Defendant to the fourth Defendant is null and void.
d. A declaration that, in accordance with the first and second Defendants’ published bidding guidelines of 20 June, 2005, the Plaintiff was entitled to purchase the property at 20 Lugard Avenue, Ikoyi, Lagos State, and should

have been offered the said property for purchase following the third Defendant’s failure to pay the purchase price of N275 Million within the time of 180 days stated at the bidding guidelines and first Defendants offer to the third Defendant dated 24 October, 2005.
e. An order setting aside the purported sale of the said property and issue of a certificate of occupancy number 002896, purportedly registered as No.169 at page 69 in Volume 141 at the Federal Lands Registry Ikoyi, Lagos, to the third Defendant by the first and second Defendants.
f. As order setting aside the purported sale and assignment of the said property by the third Defendant to the fourth Defendant.
g. An order directing the first and second Defendants to transfer the said property to the plaintiff and issue him with a certificate of occupancy in respect of the same subject to his payment of N260 Million to the Federal Government of Nigeria.
h. An order of perpetual injunction restraining all the Defendant by themselves, privies, agents or otherwise however from interfering with or in any way disturbing the plaintiff’s lawful possession and occupation of

the Property at 20 Lugard Avenue, Ikoyi Lagos State.
i. Further or other relief
j. Costs of this action.”
In the words of His Lordship Ejembi-Eko JSC in the case of Crestar Integrated Natural Resources Ltd v Shell Petroleum Supra, the “core question” sought by the 1st Respondent in the reliefs above, I find, is not for a declaration of title to land simpliciter or a claim that any contract between him and the Appellant or any of the Respondents was breached, but is a challenge to the validity of the executive/administrative acts of the Federal Government in violating its own instruments and stipulated guidelines; and is seeking a reversal and injunctive reliefs against those actions.
This, I agree with the Queens’ Counsel, falls within Section 251 (1) (p) and (r) of the Constitution and within the jurisdiction of the Federal High Court and for which the lower Court rightly exercised its jurisdiction over, I hold.

Locus standi
The principle of locus standi or standing to sue, was very amply espoused by the Apex Court in the case of B.B. Apugo & Sons Ltd v. Orthopaedic Hospitals Management Board (2016) 13

NWLR Part 1529 Page 206 at 269 Para D-H per Rhodes-Vivour JSC, as follows:
“A person has locus standi to sue in an action if he is able to show to the satisfaction of the Court that his civil rights and obligations have been or are in danger of being infringed. There are two tests for determining if a person has locus standi.
They are:
1. The action must be justiciable, and
2. There must be a dispute between the parties.
In applying the test a liberal attitude must be adopted. Senator Adesanya v. The President of Nigeria (1981) 5 SC P.112 lays down the rule for locus standi in civil cases, while Fawehinmi v. Akilu1987 12 SC P.99 lays down the far more liberal rule for locus standi in criminal cases…… To have locus standi, the plaintiff’s statement of claim must disclose sufficient legal interest, and show how such interest arose in the subject matter of the action.”
It follows that a plaintiff can only invoke the judicial power entrenched in Section 6(6) (b) of the Constitution if, he has locus standi. He has locus standi if he can show that he has a stake in the subject matter or outcome of the case, and must be

able to establish that what he suffers or the injury to his person was the consequence of the defendant’s act or conduct. There must be nexus between the plaintiff’s action and the defendant’s act or conduct.”
See also A/G Federation v A/G Lagos (2017) 8 NWLR Part 1566 Page 20 at 55 Para D per Sanusi JSC; Jitte v. Okpulor (2016) 2 NWLR Part 1497 Page 542 at 563-564 Para H-A; (2016) All FWLR Part 820 Page 1371 at 1386 Para A-B, per Ogunbiyi JSC.

In the instant case, the document relied upon by the 1st Respondent both in his pleadings and evidence as giving him standing to sue is Exhibit P1, which was also tendered by the Respondents as Exhibit D7. In view of the importance of this document, the salient parts of it shall be set out hereunder.
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“THE PRESIDENCY
IMPLEMENTATION COMMITTEE OF THE WHITE PAPER ON THE COMMISSION OF INQUIRY INTO THE ALIENATION OF FEDERAL GOVERNMENT LANDED PROPERTY
APPROVED GUIDELINES FOR THE LEASE OF FEDERAL GOVERNMENT PROPERTY IN LAGOS
Preamble:
1. The Federal Executive Council has approved the guidelines for the lease of ALL RESIDENTIAL FACILITIES (houses, flats, etc) built, acquired or otherwise owned by the Federal Government and ALL its ministries, departments and agencies except those listed in paragraph 16 below.
2. Towards this end, Mortgage Financing (at competitive rates and tenors) is being arranged through the Federal Mortgage Bank of Nigeria for the acquisition of all properties to be leased. Political Office Holders and the General Public are advised to contact their Bankers and/or any Private Mortgage Institution for additional information.
3. The guidelines issued hereunder are applicable to the lease of houses to general public and all political office holders appointed or elected-within the express or implied meaning and intention of the Constitution of the Federal Republic of Nigeria, 1999.

Valuation and Pricing of the Houses
4. The valuation of the house will be carried out but independent professional valuers to determine both the open market and forced leases values, and the properties shall not be leased below the open market value.
Conditions of Lease
5. Free collection of bidding forms from the following sources:
(i) The Committee’s Office in Lagos.
(ii) The Committee’s Office in Abuja.
(iii) All Banks nationwide
(iv) Downloading from the Committee’s website:
(v) http//www.fgproperty.org.
6. Each bidder must submit completed bidding forms along with the following documents and failure to do so shall result in disqualification:
(i) Bank draft/certified cheque equal to a non-refundable bidding fee of N10, 000.00
(ii) Bank draft/certified cheque equal to 10% of bid value. All bids, which fail to meet this requirement, stand disqualified.
(iii) Copy of tax clearance certificate for past three years (for individuals and corporate bodies).
(iv) Copy of Certificate of Incorporation (for corporate bidders).
7. The properties will be leased on “as is” basis and no consideration will

be given for any repairs or improvements made by anyone.
8. Bids will close after 30 days of advertisement, and at the close of bids the Committee will sort out the bids and publish the full result in the print media.
9. Within two weeks of the opening of bids, the highest bids received will be offered to the legal sitting tenant which he may accept by paying the balance of the 10% bid value. Consequently, the highest bidder will receive a letter informing him that he is the reserve bidder at that point.
10. If the legal sitting tenant fails to accept the offer within 14 days, then the offer will be communicated to the highest bidder now in the capacity of reserve bidder in writing.
11. Strict compliance with the prescribed development control standards must be adhered to by all purchasers and no additional structures or changes can be effected without the approval of the appropriate authorities.
Interest of Public Servants
12. Public Servants who are legal sitting tenants are entitled to right of first refusal but they will be required to express their interests by completing the Application Forms to qualify to be offered this right.

The right of first refusal must be exercised by the legal tenant, and this right is not assignable, negotiable in any form or alienable whatsoever.
14. Each applicant shall be entitled to purchase only one residential unit, and those who purchase any house in Lagos will be excluded from purchasing any other Federal Government property elsewhere in Nigeria.
15. Beside the requirements of paragraph 6, the legal sitting tenant must include the following documents along with his Expression of Interest:
(i) Two photocopies of letter of appointment.
(ii) Two photocopies of letter of last promotion.
(iii) Two photocopies of house allocation letter.
Letters of allocation dated after 1st April, 2004 Are not acceptable.
(iv) Two photocopies of rent deduction for the last 12 months.
(v) A sworn declaration that he/she is entitled to be quartered in Lagos by virtue of the nature of his/her duties and that he/she does not occupy or has been allocated any other official quarters in any part of the Federation. He/she must also state his/her present duty post and employer.
(vi) A certification by his/her

superior officer not less than Head of Department.
(vii) 4 coloured passport photographs on a white background.
16. For special, diplomatic or statutory reasons, the following properties shall be exempted from lease:
(i) State House Dodan Barracks.
(ii) Vice President’s Guest House.
(iii) Houses occupied by Federal Judges that are based in Lagos.
(iv) Properties excluded from lease by Government directives.
(v) Properties approved for redevelopment.
(vi) Properties allocated to the African Union and currently in use.
(vii) Properties allocated to United Nations Agencies and currently in use.
17. Payment of a bank draft equal to 10% of the bid value must be made at the time of submission of bids.
18. In the event that the winner of the bid whether sitting tenant or highest bidder fails to pay within the payment period, his/her 10% deposit will be forfeited to the Federal government and the property will be offered to the reserve bidder.
19. If the reserve bidder also fails to comply with the terms of payment, he shall forfeit his bid bond and the property will be re-advertised.

Winners of bids will be expected to pay at least 25% of purchase price (including 10% non-refundable deposit) plus 5% transaction cost within 90 days.
21. The balance of 78% must be paid by all purchasers within an additional 90 days; thus all purchasers must effect full payment within 180 days of contract.
22. Each purchaser shall be given vacant possession upon the completion of all prescribed payments. A certificate of occupancy shall be issued to each purchaser unless paragraph 23 below applies.
23. Lenders will have immediate custody of the original Certificate of Occupancy with the consent of the Minister of Housing and legal Mortgage executed in their favour.
24. Applicants must provide all information requested for in the Application Form to avoid delays in processing, or rejection of offer to purchase any property.
ABUJA, NIGERIA JUNE 2005.”

From the pleadings and evidence of the 1st Respondent, in compliance with Clause 6 of Exhibit P1, he paid the non-refundable bidding fee required of N10,000. He also paid a bank draft of 10% of the bid value, viz the sum of N26 Million. Upon the successful bid of the

4th Respondent, which sum was higher than his, the sum of N26 Million paid by him was returned. His complaint however is that following the failure of the 4th Respondent to pay the balance of the purchase price within the time stipulated in the Guidelines, he, being the next highest bidder, should have been communicated the offer. Instead of doing this, the Committee, rather than comply with its Guidelines and offer him the property within the time allowed, sold the property to the 4th Respondent four years after the period allowed.

Clause 10 of Exhibit P1 set out above states the rights of the reserve bidder and Clauses 17-21 stipulates the payment terms and conditions, all of which the 1st Respondent alleged had been breached.

These facts, I hold, disclose the locus standi of the 1st Respondent to maintain the action before the lower Court. Delving into arguments as to whether the 1st Respondent was privy to the issue of the Certificate of Occupancy issued by the 2nd Respondent to the 4th Respondent, which Certificate he seeks to set aside, or whether he was refunded the 10% bid fee and other contentions raised by the learned Silk for the

Appellant, are issues that come up in the determination of the appeal and not at this initial stage, I hold.

As advocated by the Supreme Court in the case of B.B. Apugo & Sons Ltd v Orthopaedic Hospitals Management Board Supra, in the determination of this all-important question, a liberal attitude should be adopted by the Courts. The 1st Respondent, having shown that he had a stake in the subject matter and that he suffered an injury by reason of the Respondents’ action by being deprived of ownership, disclosed sufficient interest to institute the suit, I hold. The merits of his claim, I have held, do not call for determination at this stage. I again resolve this question, against the Appellant.

Time Frame
The first issue to address under this submission is whether the Appellant is precluded from raising this issue having not appealed against the same, following the delivery of the Ruling by the lower Court dismissing this objection.

In the Ruling delivered by the lower Court on 16/12/14 and contained at Pages 577-585 of Volume 3 of the Record, the lower Court set out the decision of Ibrahim v JSC (1998) 12 SCNJ 255 where the apex

Court, per Iguh JSC, (Ogundare JSC dissenting), held the Attorney General to be a Public Officer.

The lower Court also cited A/G Rivers v A/G Bayelsa State (2012) 52 NSCQR Part 1 Page 239, referring to the decision of the Court, per Galadima JSC, delivering the lead judgment, where he held as follows:
“I think a point has been made here. That is when the Attorney – General represents his State in a case before this Court in its original jurisdiction, he is not suing or being sued in respect of act done or omitted to be done by him in the execution of any law or of public duty. Rather, he is merely representing his State which is the real party to the case.
The lower Court thence held:
“Therefore, while Ibrahim v JSC Supra states that an Attorney-General is a Public Officer, A/G Rivers v A/G Bayelsa Supra states the principle that when the Attorney General is a nominal party, merely representing his state, he cannot take advantage of Section 2(a) of the Public Officers Protection Act or law.
A.G Rivers v A.G Bayelsa State (Supra) is a 2012 decision as against Ibrahim v. JSC (Supra) which is a 1998 decision.

Again A/G Rivers v A/G Bayelsa (Supra) is a decision of a full Court of (7) Justices of the Supreme Court without any dissenting voice. I therefore hold that Section 2(a) of the Public Officers Protection Act does not apply to the 2nd Defendant (A/G) in the circumstances of this case where he is being sued as a nominal party merely representing the State.”

It thereupon dismissed the preliminary objection of the 3rd Respondent herein.
The learned Silk for the Appellant in the Appellant’s Reply Brief has cited the case of Tukur v Govt of Gongola (1988) 1 NWLR Part 68 Page 39 which advocated the principle of avoiding interlocutory appeals, which only prolong the life of the litigation, instead of taking both appeals at the final appeal.
This principle does not, however, entail the avoidance of appeals against interlocutory decisions of the Court but that these interlocutory appeals be taken together with the substantive appeal on the conclusion of the matter, to avoid unnecessary delays.
Thus, where the Appellant seeks, in a final appeal, to appeal against a Ruling delivered by the Court in the course of proceedings, leave of the Court

must be sought and if out of time, must seek an extension of time to appeal against that ruling, otherwise the Court will refuse to allow the ground of appeal, rendering the same incompetent. See Kakih v. PDP (2014) 15 NWLR Part 1430 Page 374 at 407 Para B-F per Galadima JSC; Owoniboys Technical Services Ltd. v. U.B.N. Ltd. (2003) 15 NWLR Part 844 Page 545 at 592-593 – Abiola v. Olawoye (2006) 13 NWLR Part 996 Page 1 per Galinje JCA (as he then was).
I thus agree with Professor Oditah that a Notice of Appeal should have been filed against this Ruling, which appeal could then have been taken together with the substantive appeal. This has, however, not been done, rendering the ground of appeal and issue based thereon incompetent. Moreover, as rightly submitted by the learned Silk for the 1st Respondent, the Appellant is not a Public Officer and cannot be heard to contest a position on behalf of the 2nd and 3rd Respondents, who themselves have not contested the same.

In consequence of the determination of all the questions raised under this issue as I have done above, the 1st issue for determination is resolved against the Appellant.

The 2nd issue for determination, is:
“Having rightly refused reliefs (a), (g), (h) and (j) of the 1st Respondent’s Re-amended Statement of Claim, whether the lower Court did not fall into grave error and act without jurisdiction by still going ahead to grant reliefs (b), (c) (d), and (f) and further making consequential orders in favour of the 1st Respondent.”

I have set out the claims sought by the 1st Respondent at the lower Court, under my resolution of issue 1 above and do not require repetition.

As aforesaid, the Plaintiff at the lower Court is the 1st Respondent in this appeal, while the 1st, 2nd and 3rd Defendants at the lower Court are the 2nd, 3rd and 4th Respondents in this appeal. The 4th Defendant at the lower Court is the Appellant herein.

Appellant’s Submissions
Chief Wole Olanipekun SAN has submitted that Relief (a), which the lower Court declined to grant, is not just the primary and main relief of the case but is the very substratum and foundation of the action. Other reliefs are ancillary and subsequent to it, and once it fails, the other reliefs would also fall like a pack of cards. Also, Relief

(g), which the lower Court also rightly refused, is again crucial to the claim of the 1st Respondent. After refusing this major relief, which also constitutes a condition-precedent to his entitlement to the property, the Court went ahead to grant him the same property as a bonus. The law, he contended, has long crystallized that a Court of law does not act like a ‘Father Christmas’. Without fulfilling the satisfaction of a condition-precedent, no party can be granted any relief or even access to Court. In the absence of these two reliefs, the lower Court was without any further jurisdiction to consider and grant reliefs (b), (c), (d) and (f),as a principal relief determines the jurisdiction of the Court, citing Unilorin v Oluwadare (2006) 14 NWLR (Pt. 1000) 751 at 770 – 771 and Tukur v Governor of Taraba State (1997) 6 NWLR (Pt. 510) 549 at 575; Awoniyi v Registered Trustees of ARMOC (2000) 10 NWLR (Pt. 676) 522 at 539.

1st Respondent’s Submissions
The learned Silk for the 1st Respondent contended that contrary to the Appellant’s contention, reliefs (g) and (j) are not the crux of R1’s claim. Relief (g) is for an

order directing R2 and R3 to transfer the property to R1 and issue him with a Certificate of Occupancy subject to the payment of N260 Million to the Federal Government of Nigeria, while relief (j) was for costs of these proceedings. The Court granted a modified version of relief (g) as a consequential order and granted relief (j). Instead of directing R2 and R3 to transfer the property to R1 and issue him with a Certificate of Occupancy in return for payment of N260 million pleaded at paragraph 21(g) of his Re-Amended Statement of Claim, the lower Court followed the language of Exhibit P1/D7 by directing R2 to offer the property to R1 as reserve bidder within 4 months of the judgment in accordance with paragraphs 18, 19, 20, 21 and 22 of Exhibit P1 or D7 (the Guidelines). This, he said is hardly a rejection of the relief at paragraph 21(g).

Whilst R1 does not regard relief (g) or (j) as the crux of his prayer for relief, the reality is that both reliefs were granted in substance, the former as a consequential relief, the latter expressly and in terms. Consequently, the premise of the Appellant’s contention, namely, that the major reliefs sought by

R1 were not granted, is simply incorrect, he submitted.

He argued further that contrary to the Appellant’s contention, relief (a), which is a declaration that R1 was a sitting tenant, was not “the very substratum and foundation of the action”. Relief (a) is an alternative to relief (d), which is a declaration that R1was the second highest or reserve/runner up bidder. Both could not have been granted at the same time and either could have sustained the case. R1 wanted the property either as a sitting tenant exercising a right of first refusal, or as a reserve bidder entitled to purchase the property following R4’s failure to pay within 180 days. The Court rejected the declaratory relief sought at paragraph (a) because it found as a fact that R1 was not a sitting tenant but granted the declaration at paragraph (d) of the prayer because it found that R1 was the second highest qualifying bidder who was entitled to buy pursuant to paragraphs 18 to 21 of Exhibit P1/D7.

The consequential order, he submitted, did not outweigh, supersede or overreach either the main reliefs or the entire cause of action before the lower Court, and it

does not hang in the air or remain unenforceable but is in substance a modification of relief (g) and is a logical consequence of the grant of declaratory relief (d). Having declared that R1 should have been offered the property for purchase and that the Appellant knew about the vulnerability of R4’s title when it bought the property from R4, an order directing the FGN to perform its obligation under paragraphs 18 to 21 of Exhibit P1/D7 was inevitable as a consequential order. It cannot thus be said to supersede or outweigh any relief sought by R1 in his prayer for relief at paragraph 21 of his Amended Statement of Claim. The consequential order did not hang in the air but is anchored on relief (d), which the court granted.

If, as became the case, the Court was not comfortable with the relief sought at paragraph (g) directing R2 to issue R1 with a certificate of occupancy in respect of the disputed property, it was well within the Court’s power to modify that relief and grant it in the terms which the evidence adduced at trial justified, which was what the Court did by calling it a consequential order. It could also have been supported by

paragraph 21(i) which asked for “further or other relief”.

It was the Queen’s Counsel’s further submission that even if R1 had not asked for relief (i), the Court will not leave a victim of injustice helpless and without a remedy, under the latin maxim “Ubi jus, ibiremedium”

In his Reply Brief, Chief Olanipekun SAN submitted that the 1st Respondent never sought alternative reliefs at the lower Court but is now raising and arguing the same for the first time in this Court. The reliefs were sought jointly and severally and not in the alternative.

RESOLUTION
The judgment of the lower Court, with respect to the reliefs granted are contained at Pages 1425-1426 of Volume 3 of the Record and is as follows:
“Accordingly, I hereby grant reliefs b, c, d, e and f claimed by the Plaintiff in paragraph 21 of the Plaintiff’s Re-Amended Statement of Claim.
I decline to grant reliefs a, g, h and j.
For avoidance of doubt, I hereby make the following Orders:
b. A Declaration that the purported sale of the property at 20 Lugard Avenue, Ikoyi, Lagos State by the 1st and 2nd Defendants

through the Implementation Committee on Federal Government Landed Property to the 3rd Defendant is null and void.
c. A Declaration that the purported sale of the property at 20 Lugard Avenue, Ikoyi, Lagos State by the 3rd Defendant to the 4th Defendant is null and void.
d. A Declaration that in accordance with the first and second Defendants published guidelines of 20 June 2005, the Plaintiff was entitled to purchase the property at 20 Lugard Avenue, Ikoyi, Lagos State, and should have been offered the sold property for purchase price of N275 Million within the time of 180 days stated in the bidding guidelines and the first Defendant’s offer to the third Defendant dated 24 October, 2005.
e. An Order setting aside the purported sale of the said property and issuance of a Certificate of Occupancy Number 002896, purportedly registered as No. 69 at Page 69 in Volume 141 at the Federal Lands Registry, Ikoyi, Lagos, to the third Defendant by the first and second Defendants.
f. An Order setting aside the purported sale and assignment of the said property by the third Defendant to the fourth Defendant.
I also grant as consequential

reliefs that the 1st Defendant shall offer the said property to the Plaintiff as a reserve bidder within 4 months of the delivering of judgment by this Court in accordance with paragraphs 18, 19, 20, 21 and 22 of the Guideline Exhibit P1 or D7 in this proceedings (sic). That is to say that the Plaintiff will pay the sum of N260 Million within 90 days from the offer of the Presidential Implementation Committee to it as a reserve bidder.
I hereby dismiss the 3rd Defendant’s Counterclaim in its entirety.
N100,000.00 costs is awarded against each of the 2nd, 3rd and 4th Defendants in favour of the Plaintiff.”

I am in agreement with Prof Oditah that relief (a) in the 1st Respondent’s claim was not the “very substratum and foundation” of the 1st Respondent’s claim before the lower Court. Relief (a) for a declaration that R1 is entitled to “the exercise of the right of first refusal”, connotes, I hold that this relief is premised on his entitlement as a “sitting tenant”. The alternative to this prayer is relief (d) for a declaration that he was the second highest or reserve/runner up

bidder. It was this latter prayer that the Court granted.

This is clear from its judgment, when it held at page 1423 of the record as follows:
“ …. I therefore hold that the Plaintiff was not a legal sitting tenant at the time of the bid in 2005.
Paragraph 18 of Exhibits P1 or D7 provides that the winner of the bid (whether legal sitting tenant or highest bidder) fails to pay within time, his bid will be forfeited and the property will be offered to the reserve bidder. Having held that there is no legal sitting tenant in this case, it is not in dispute that 3rd Defendant is the highest bidder and that the Plaintiff is the reserve bidder. I will also rely on Paragraphs 9 and 19 in support of my holding that the Plaintiff is the reserve bidder going by the evidence in this case… There is no dispute by all the parties that the 3rd Defendant did not make full payment within 180 days…”
Underlining mine

As aforesaid, the 3rd Defendant at the lower Court is the 4th Respondent herein.

I thus agree with the Queen’s Counsel that prayers nos. (a) and (d), being alternative prayers could not be granted

at the same time and were rightly not so granted.

The lower Court, in its wisdom, having held that the 1st Respondent was not a sitting tenant as contemplated in Relief (a), and that the 4th Respondent “did not make full payment within 180 days”, was entitled to grant prayer (d) to the 1st Respondent as a reserve bidder.

Prayers (b), (c), (d) (e) and (f) can thus not be termed ancillary reliefs to relief (a), I hold. The principle and the cases cited in support thereof that once a principal relief is granted, the Court cannot grant an incidental order, thus do not apply.

The learned Silk for the Appellant has also contended that the lower Court having refused to grant prayer (g) for the setting aside of the sale and assignment by the 4th Respondent herein to the Appellant went ahead to grant the same as a consequential relief in excess of the main relief which it had refused. I however agree with the learned Silk for the 1st Respondent that the logical consequence of the grant of the declaratory reliefs in (d) and (e) that the property should have been offered to the 1st Respondent as the reserve bidder upon the 4th

Respondent’s default and the setting aside of the sale to the 4th Respondent, is to order the transfer of the property to the 1st Respondent.

I note that this relief granted by the lower Court, is the same prayer as 1st Respondent’s prayer (g); the sole difference being that the Court gave timelines within which the property was to be offered to the 1st Respondent and the date for payment by the 1st Respondent. Thus, whether the order of Court was a variation of relief (g), which it was perfectly entitled to do or whether it was classed as a consequential relief, the result was the same, I hold. There was thus no “grave” error” committed by the lower Court. I again resolve this issue against the Appellant.

The 3rd issue for determination is:
”Juxtaposing the pleadings of the 1st Respondent, the material and evidence adduced by him on one hand, against the pleadings and evidence of the Defendant (sic) and the position of the law on the subject matter before the lower Court on the other hand, whether the lower Court did not fall into error by giving judgment in favour of the 1st Respondent against the Appellant.”

Appellant’s Submission
Stating the proposition of law that he who asserts has the burden of proving, the learned Silk for the Appellant has submitted that while Section 131 of the Evidence Act places the burden of proof on the person who wants to establish any legal right dependent on the existence of facts, Section 132 places the burden of proof on that person who fails if no evidence were given at all. Declaratory reliefs, he said, are not granted as a matter of course, even on admission by the adversary, and a Plaintiff in an action for declaration of title to land must succeed on the strength of his case and not on the weakness of the defence. The evidence of PW1, Counsel alleged, was hearsay evidence. Assuming that the lower Court could resort to documentary evidence in the absence of any admissible oral evidence, only one document, Exhibit P1, was relied on by the lower Court in granting the 1st Respondent’s claims. The said document, like PW1’s testimony, is inadmissible, the Silk contended. The law is well settled that documentary evidence is the hanger from which oral evidence can be assessed, since, unlike

humans, documents do not lie, which documentary evidence in this case is inadmissible being contrary to Sections 4(1) and 7(c) of the National Library Act and 102(b) of the Evidence Act 2011, citing BFI Group Corp. V. B.P.E (2012) 18 NWLR (PT. 1332) 209 at 236 among a host of others.

Taking umbrage at the decision of the lower Court that the Appellant and the 4th Respondent were not bona fide purchasers for value without notice, the learned Silk contended that the 1st Respondent must have established that he has prior interest over the property before sale of same to the Appellant and 4th Respondent, and that they were aware of his prior interest before proceeding to buy the property. Neither Exhibit P1 nor Exhibit D7 on which the lower Court premised its decision, made any proximate or remote reference to the 1st Respondent as the purchaser or the person having the right to purchase the property. More so, as Exhibit P1 was published as an invitation to treat to the whole world, without reference to any particular person. Contending that the 1st Respondent is not entitled to any “provable” reliefs, the 1st Respondent, he said, was not a

reserved bidder and the lower Court was wrong to have imposed a definition not prescribed in the guidelines. Counsel faulted the decision of the Court in holding that the Committee could not waive payment of purchase price by the 4th Respondent as purchaser, submitting that the contrary was the situation.

1st Respondent’s Submission
The learned Silk for the 1st Respondent denied that PW1 dumped her witness statement on the Court, contending that she was sworn, examined in chief and cross examined, as is the usual practice with the trial of a civil cause of action. It was at this time that the admissibility of her deposition or any paragraph thereof should have been challenged. If the Appellant was concerned about the admissibility of any paragraphs of PW1’s witness statement, it had ample opportunity, he said, to cross examine her on the source of her knowledge. It is for the Appellant to point to pieces of evidence which it claims were allowed and should have been disallowed as hearsay, which affected the findings made by the Court, which it did not do.

In any event, there is no dispute, he submitted, about the central facts in

this case, namely, the bid by R1 and R4, the non-payment by R4 of his bid within the 180 days stipulated in the guidelines, the payment of the 75% balance of the purchase price in May 2010 – more than 4 years after it should have been paid, issuance of a Certificate of Occupancy to R4 by R2 on 15 June, 2011 and the assignment of the Certificate of Occupancy by R4 to the Appellant in May 2010. None of these facts depended upon the evidence of PW1. They were based upon the evidence of DW1 (Suzan Ahubi Ochida) and on the oral evidence of DW2 and DW3 (for R4) and DW4 – Duni Odeyinka (for the Appellant) as well as the documentary evidence. Expunging the oral evidence of PW1 would make absolutely no difference, he said, as there was ample admissible and undisputed evidence which could and did sustain the findings of the lower Court. In any event, the wrongful admission of inadmissible evidence does not ipso facto lead to the reversal of any decision. It is for the Appellant to show to this court that the decision of the trial Court would have been different if the allegedly inadmissible evidence was not admitted, which it had wholly failed to do.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Secondly, Exhibit P1 was properly admitted and duly certified by the National Library of Nigeria (at Pages 1279 and 1282) of the Record. In addition, this same document was tendered by R3 as Exhibit D7, which was duly certified by the custodian of the document, the Implementation Committee.

Denying the contention of the Appellant that the1st Respondent was not a reserved bidder, the Queen’s Counsel submitted that ExhibitP1/D7 did not define the expression “reserved bidder”. As used in Exhibit P1/D7, the expression is a description of the second qualifying bidder – the runner up bidder. Where there is a sitting tenant entitled to exercise a right of pre-emption, the highest bidder is the reserve bidder because he is the runner up to the sitting tenant. Where there is no sitting tenant (as the lower Court found was the case in relation to the property), the second highest bidder whose bid is above the reserve price is the reserve or runner up bidder, by paragraph 18 of Exhibit P1/D7, he submitted.

The learned Silk submitted further that the three parties that participated in the bid for the property – R1, R2 and R4

recognised that R1 was the reserve bidder. The lower Court was thus right to find that “it is not in dispute that 3rd Defendant is the highest bidder and that the Plaintiff is the reserve bidder”. It is common ground, he argued, that Exhibit P1/D7 contains no express power to extend the time for payment beyond the 180 days stipulated. There is also no implied power to do so. Contrary to the Appellant’s submissions, there is nothing in Exhibit P1 which gave the Implementation Committee the discretion to depart from Exhibit P1, in particular, as regards payment timelines. If the Federal Executive Council had intended to give R2 a discretion to waive compliance with Exhibit P1, it would have done so expressly.

R1’s status as reserve bidder, he further argued, is dependent upon his bid of N260 Million and not upon his recognition as reserve bidder by R2 or R4 or confirmation in writing by R2 or the Implementation Committee. To leave R2 or the Implementation Committee with the absolute discretion to determine whether or not there is reserve bidder, or whether or not R1 was the reserve bidder for the disputed property is to substitute

opaque and unrestrained discretion for the clear and transparent provision of paragraph 18 of Exhibit P1/D7. He cited the case of Society of Lloyd’s v Robinson (1999) 1 WLR 756 at 7630, per Lord Steyn. The refund of R1’s bid deposit could not possibly prevent him from being entitled to complain about the breach of paragraph 18 of Exhibit P1/D7 by R2, pointing out that R1’s N10,000 (ten thousand naira) non-refundable bid fee was not refunded, only his 10% bid deposit of N26 Million was refunded. R4’s failure to pay within 180 days in breach of paragraph 21 of Exhibit P1 crystallised R1’s right to purchase the property, which was previously contingent and inchoate, as the second, runner up or reserve bidder. The right to purchase the property upon failure of R4 to pay within 180 days belonged to R1, not to R2. Accordingly, R2 could not validly waive it on R1’s behalf without R1’s knowledge or consent. For this reason, the cases cited on waiver by the Appellant are inapplicable. He cited the case of Ogunniyi v Hon. Minister of FCT (2014) LPELT-23154 (CA) on the guidelines for disposal of property.

The learned Silk for the Appellant, in his Reply Brief restated his arguments on the interpretation of reserve bidder.

RESOLUTION
This issue, like the former ones, was divided by the Appellant’s Counsel into a number of sub issues, requiring a determination of these issues before the main issue.

The 1st sub issue is the admissibility of the evidence of PW1 and whether the same should be disregarded, being hearsay, and whether Exhibit P1 tendered by her be discountenanced.

The Deposition on Oath of this witness is contained at Page 9 of Volume 1 of the Record, where the witness deposed as follows:
“I, Mrs. Chinwe Chikelu-Iguh, Female Christian, Nigerian Citizen of 20 Lugard Avenue, Ikoyi, Lagos State do hereby make oath and state as follows:
1. I am a business executive and one of the children of the Plaintiff herein.
2. I depose to the Witness Statement from facts directly within my personal knowledge and also from information given to me by the Plaintiff which information I verily believe to be true and correct.”
Underlining mine

Thereafter were deposed a number of facts with respect to the service of the 1st Respondent in

the Government, his occupation of the property in dispute and actions taken in respect of the bid to purchase the property. Also, events leading to the action before the lower Court.

The Appellant’s learned Counsel wants the Court to deduce from the underlined portions above, that the evidence of the witness is hearsay and therefore inadmissible.
I do not agree that this statement, without more, and without taking into cognizance the prior words “from facts directly within my personal knowledge”, have rendered the entire deposition hearsay and inadmissible. Without an ascertainment of which facts are within her personal knowledge and which facts were from information received, it is impossible to discountenance the entire deposition as hearsay evidence.
This, I believe, as submitted by the 1st Respondent’s Counsel, are matters which should have been elicited under cross-examination, the purpose of cross examination being to challenge the credibility of the witness and to disparage his/her knowledge of the facts. This not having been done, it is not for the Court to sift through the evidence of the witness to decipher

which is from her personal knowledge and which is derived from information given to her and thus hearsay. This sub issue is thus resolved against the Appellant.

Compliance with Section 4(1),7(c) of National Library Act and Section 102(b) of the Evidence Act 2011

The learned Silk for the Appellant has again contended that the lower Court was in error to rely on Exhibit P1, as it was not in compliance with Section 4(1),7(c) of National Library Act and Section 102(b) of the Evidence Act 2011 being a newspaper published in Nigeria and thus a public document.
In the case cited by the Appellant of Kubor v Dickson (2013) 4 NWLR Part 1345 Page 534 at 576 and 579, the Supreme Court, per Onnoghen JSC (as he then was), on the question of certification of a newspaper held:
“On his part, learned senior counsel for the 1st Respondent stated that Exhibit “D” is an internet print out of the Punch Newspaper which makes it a secondary evidence of the original newspaper having regards to the provisions of Sections 85 and 87(a) of the Evidence Act, 2011; that by virtue of the provisions of Sections 90(1)(c) and 102(b) of the Evidence Act, 2011 only a

certified true copy of the document is admissible; that by the provisions of Section 4(1) and 7(c) of the National Library Act, CAPN 56 Laws of the Federation 2004, copies of every newspaper published in Nigeria has (sic) to be deposited with the National Library by the publisher, which makes such copies public documents by virtue of Section 102(b) of the Evidence Act, 2011; that Exhibit “D” requires certification to make it admissible in evidence.”
Upholding the submission of 1st Respondent therein, he held:
“ ….. looking closely at Exhibits “D” and “L”, they are clearly public documents and it is settled law that the only admissible secondary evidence of public documents is a certified true copy of same. Exhibits “D” and “L” not being certified true copies of the Punch Newspaper and the list of candidates which 3rd respondent is mandated to keep in the course of the performance of its official duties, are clearly inadmissible in evidence and the lower Courts are right in so holding.”
It is thus clear that a published newspaper in Nigeria, or an extract therefrom, being a public document and requiring to be deposited

with the National Library, must be certified in accordance with Section 102(b) of the Evidence Act, 2011.
In the instant case, Exhibit P1 is a publication of “This Day Newspaper” of Monday June 20th, 2005. This document bears the certification of the National Library of Nigeria Public Services Department, signed by the “Director CEO”, and on it was endorsed the following words:- “deposited in the National Library of Nigeria under the Legal Deposit Laws as entrenched in Decree No. 29 of 1970.”
This document, having been duly certified as required by law, was rightfully received by the lower Court, I hold.

In any event, and as pointed out by the 1st Respondent’s Counsel, a copy of this same document also certified was tendered by the 3rd Respondent’s witness, as Exhibit D7. The objection to this document by the learned Silk for the Appellant cannot thus be sustained, I hold.

1st Respondent was not a “reserve bidder”
The 3rd contention is that the 1st Respondent was not a reserve bidder, to warrant the grant of reliefs in his favour, going by the express wordings of Exhibit P1.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The Appellant’s Counsel has argued that the 1st Respondent was not a “reserve bidder”, to which the 1st Respondent’s Counsel, conceding that this expression was not defined in Exhibit P1/D7, submitted that the interpretation of this document connotes the fact that the 1st Respondent is the second qualifying bidder – the runner up bidder.

Even though Exhibit P1/D7 has been set out above, under issue 1, Clauses 6-10, relevant to this issue will again be set out in order to properly situate the submissions of Counsel:
6. Each bidder must submit completed bidding forms along with the following documents and failure to do so shall result in disqualification:
(i) Bank draft/certified cheque equal to a non-refundable bidding fee of N10, 000.00
(ii) Bank draft/certified cheque equal to 10% of bid value. All bids, which fail to meet this requirement, stand disqualified.
(iii) Copy of tax clearance certificate for past three years (for individuals and corporate bodies).
(iv) Copy of Certificate of Incorporation (for corporate bidders).
7. The properties will be leased on “as is” basis and

no consideration will be given for any repairs or improvements made by anyone.
8. Bids will close after 30 days of advertisement, and at the close of bids, the Committee will sort out the bids and publish the full result in the print media.
9. Within two weeks of the opening of bids, the highest bids received will be offered to the legal sitting tenant which he may accept by paying the balance of the 10% bid value. Consequently, the highest bidder will receive a letter informing him that he is the reserve bidder at that point.
10. If the legal sitting tenant fails to accept the offer within 14 days, then the offer will be communicated to the highest bidder now in the capacity of reserve bidder in writing.
Underlining Mine

Interpreting these clauses and applying them to the facts of the case, the lower Court observed:
“..in this case, there is no dispute by all the parties that the 3rd Defendant did not make full payment within the 180 days stipulated.”
It thence posed the question at Page 1423 of the Record:
“Having explored the Presidential Implementation Committee Guidelines (Exhibit P1 or Exhibit D7),

I must now answer the all important question whether the Committee can on their own and without approval of the Federal Executive Council and without amending the Guidelines depart or waive the provision of the Guidelines?”
Responding, at Page 1424, it held as follows:
“There is no doubt that the said Presidential Implementation Committee is not the owner of these properties and therefore cannot do as they wish. Even the Federal Executive Council is not the owner. These properties belong to Nigerians and the Federal Government only holds them in trust for Nigerians. I draw support from Exhibits D1 which set up the Implementation Committee for the sole purpose of ensuring that the approved recommendations (Guidelines in Exhibit P1 or D7) are faithfully implemented so that the nation can derive full benefits from the exercise.
Exhibit D1 also specifically mentioned the judicious use of powers by public officers, in this case the Presidential Implementation Committee.
I therefore hold that even though Exhibit P1 or D7 is not strictly speaking a legislation, it is in the nature of a legislation and must be strictly adhered to.

I draw further support from paragraph 11 of Exhibit P1 or D7, and the case of OGUNNIYI v. HON. MINISTER OF FCT & ANOR (2014) LPELR 23164 (C.A.) cited by the Plaintiff.”

I must agree with the reasoning of the lower Court. It is clear from Clauses 9 and 10 above that the sitting tenant will be given the option of purchase and that if he fails to pay the balance of 10% bid value, the highest bidder will be notified that he is the reserve bidder. In the circumstance of this case, there being no legal sitting tenant, as the 1st Respondent had left service since 2001, about four years before the bidding exercise, the highest bidder, being the 4th Respondent, became what is referred to in those clauses as “the reserve bidder”.
Clauses 17-21 give the Payment Terms and Conditions as follows:
17. Payment of a bank draft equal to 10% of the bid value must be made at the time of submission of bids.
18. In the event that the winner of the bid whether sitting tenant or highest bidder fails to pay within the payment period, his/her 10% deposit will be forfeited to the Federal government and the property will be offered to the reserve bidder.

If the reserve bidder also fails to comply with the terms of payment, he shall forfeit his bid bond and the property will be re-advertised.
20. Winners of bids will be expected to pay at least 25% of purchase price (including 10% non-refundable deposit) plus 5% transaction cost within 90 days.
21. The balance of 78% must be paid by all purchasers within an additional 90 days; thus all purchasers must effect full payment within 180 days of contract.
Underlining Mine

In interpreting these clauses, the general rule on the interpretation of statutes, contracts and documents shall be applied, which is to give them their ordinary, literal meaning, without any importation of extrinsic evidence.

From Clause 18 of Exhibit P1 Supra, it is clear that if the reserve bidder, the 4th Respondent herein, fails to comply with the terms of payment, he will forfeit his 10% deposit and the property will be offered to the “reserve bidder”.

This “reserve bidder” referred to in Clause 18 to whom the property will be offered, after the default of the “highest bidder” (4th Respondent), it is clear, is the 1st Respondent.

The expression of the words “reserved bidder”, as used in Exhibit P1/D7, is synonymous, I hold, with the second qualifying bidder, that is the runner up bidder.

Indeed the 2nd Respondent recognised the 1st Respondent as the “reserved bidder”, in Exhibit P8, its letter written by the said Committee to the 1st Respondent dated 6/5/2008, where it stated:
“I am directed to refer to your letter of 14th March, 2008 on the above-mentioned subject and to inform you that the Committee is unable to grant your request to lease the property under reference as the reserve bidder….” albeit notifying him that all transactions between him and the Committee “as regards, the property have been fully concluded with the return of your 10% bid deposit” and advising him “to bid for the property or another one of your choice when the advertisement for Ikoyi properties is published by the Committee in due course”.

It is not in doubt in this case that the 4th Respondent did not pay the bid within the period of 180 days as stipulated in Clause 21. This much was admitted, under cross

examination, by DW1, Ahubi Susan Ochida, the Deputy Director (Admin) with the “Presidential Committee on the Alienation of Federal Government Landed Properties”. It was similarly so admitted by DW2, DW3 and DW4, the witnesses of the 4th Respondent.
The Lower Court, in reliance on these admissions held, as aforesaid, that:
“….there is no dispute by all the parties that the 3rd Defendant (4th Respondent herein) did not make full payment within 180 days.”

As stated above, the final payment on the property, from the admission of the defence witnesses was not made until May 2010.

It has not been contended by any of the parties that the property was re-advertised following the failure of the 4th to pay within time. The property, it is clear, was also not offered to the 1st Respondent upon the failure of the 4th Respondent to fulfil the terms of the bid. This is clear from Exhibit P7 written to the Committee by the 1st Respondent complaining that, following the failure of the highest bidder (4th Respondent) to pay, the property was not offered to him in compliance with the guidelines.

Without compliance with the

conditions stipulated by it in Exhibit P8, the Committee, I hold, could not validly sell the property to the 4th Respondent, as also rightfully held by the lower Court.

No other interpretation can be given to these words, I hold. The cardinal rule on interpretation of statutes or instruments, should also apply to this document, an identical one as this, being held in the case of Ogunniyi v Hon. Minister of FCT (2014) LPELR-23164 (CA), per Akomolafe-Wilson JCA to be “an instrument of law” which is to be complied with.

The learned Silk for the Appellant has however contended that the return to and acceptance by the 1st Respondent of his bid deposit of N26 Million prevented him from complaining about any breach of Paragraph 18 of the Agreement in failing to offer him the purchase of the property. As however contended by the QC, the non-refundable sum of N10,000 was not returned.

This fact notwithstanding, the complaint of the 1st Respondent was that following the failure of the 3rd Respondent to make payment, as stipulated in Exhibit P1, the property should have been offered to him as the reserved bidder, or at the worst, the

re-advertisement of the property, which was never done. Thus, whether he accepted the return of his bid deposit or not, the sequence, by Exhibit P1, was for him to be given the option to purchase the property.

The Appellant’s Counsel has again contended that the lower Court was wrong to have held that strict compliance with Exhibit P1 is mandatory and cannot be waived. The learned Silk referred to Paragraph 22 of Exhibit P1 as waiving payment of the purchase price within the stipulated timeline.
Paragraph 22 is set out hereunder:
“Each purchaser shall be given vacant possession upon the completion of all prescribed payments. A Certificate of Occupancy shall be issued to each purchaser unless paragraph 23 applies.
Paragraph 23 provides:
“Lenders will have immediate custody of the original Certificate of Occupancy with the consent of the Minister of Housing and Legal Mortgage executed in their favour.”

None of these paragraphs above give the committee the liberty to waive the payment guidelines, I hold.

Bona fide purchaser without notice
It is another contention of the Appellant that the lower

Court was in error to have held that the 4th Respondent and the Appellant were not bona fide purchasers for value without notice, as the 1st Respondent did not establish that he had prior interest in the property, neither were they aware of his prior right or title in the property.

However, the issue before the lower Court in both the 1st Respondent’s Statement of Claim and the 4th Respondent’s Statement of Defence and Counterclaim, was not whether the Appellant or the 4th Respondent had notice of the interest of the 1st Respondent over the property but whether the sale by the 2nd and 3rd Respondents to the 4th Respondent was void for their failure to give the 1st Respondent the option to exercise the right of 1st refusal to purchase the property. In addition, as contended in the 4th Respondent’s Amended Statement of Defence and Counter Claim, the 1st Respondent was not privy to the transaction between the 4th Respondent and the Presidency with regard to the purchase of the property, and that following its purchase of the property, the 1st Respondent had become a trespasser liable to pay to it damages of N36, 874, 999.00 (Thirty- Six

Million, Eight Hundred and Seventy Four Thousand, Nine Hundred and Ninety Nine Naira for illegal use and occupation.

The statement by the lower Court was thus irrelevant to the determination of the claim of the 1st Respondent and the Counter Claim of the 4th Respondent placed before it. The lower Court thus did not fall into error by giving judgment in favour of the 1st Respondent, I hold.

I again resolve the 3rd issue for determination against the Appellant.

The 4th issue for determination is:
“Whether the action before the lower Court was not improperly constituted thus depriving the Court of jurisdiction to adjudicate on it.”

Appellant’s Submissions
The learned Silk for the Appellant has submitted that the Sale Agreement, Exhibit D18, culminating in the assignment of the property by the 4th Respondent to the Appellant, was executed between the 4th Respondent, Prince Albert Awofisayo and the Appellant, under which Agreement, Prince Awofisayo severally indemnified the Appellant. As a result, Prince Awofisayo is a necessary party to an action which seeks the setting aside of an Agreement executed by him under which

he also has liabilities, including payment of the purchase price in the event of a successful challenge to title of the property. The implication of this, Counsel said, is that the said Prince Awofisayo is liable to the Appellant upon the grant of the Respondent’s relief by the lower Court, yet, the Respondent did not deem it fit to join Prince Awofisayo as a party to the action. The apparent implication of this non-joinder exposes the null nature of the judgment of the lower Court, which he submitted is liable to be set aside, citing the cases of Green v Green (1987) 3 NWLR (Pt. 61) 80, Awoniyi V. Registered Trustees of AMORC (2000) 10 NWLR (PT. 676) 522 at 533.

It was further argued by the learned Silk that although the 2nd Respondent was joined as a party to the action, ex facie, processes of Court were not served on it. Service of Court processes is not only vital and fundamental, it makes the purported joinder a non-joinder, as service of process on a party joined in an action makes the joinder “meaningful”. He cited the cases of Harry v. Menakaya (2017) LPELR – 42363(SC) 1 at 19 – 25, Apeh v. P.D.P. (2016) 7 NWLR (Pt.1510) 153 at 178.

Respondent’s Submissions
Responding, the learned Silk for the 1st Respondent contended that Prince Awofisayo was not a proper party to the proceedings issued by R1 as plaintiff in the lower Court. R1 has no cause of action against him and sought no relief against him. He had no interest in the property. The proceedings concerned the question whether the FGN followed its own guidelines (Exhibit P1/D7) in purporting to sell the disputed property to R4 in May 2010, 4 years after R4 forfeited its deposit pursuant to the guidelines and R1 became entitled to be offered the property for purchase. The lower Court set aside the Certificate of Occupancy issued by the FGN to R4 and set aside the purported assignment of the property and Certificate of Occupancy by R4 to the Appellant. None of these matters concern Prince Awofisayo, he submitted, referring to him as a stranger to the transactions, as he did not bid for the disputed property. He is thus neither a necessary nor a desirable party to join. The fact that Prince Awofisayo gave indemnities to the Appellant is irrelevant to the 1st Respondent’s claim before the lower Court and did not

make him a party to the Certificate of Occupancy or assignment, which are the relevant transactions and the only matters of concern to R1. The instant proceedings, he said, are not concerned with the indemnity given by Prince Awofisayo to the Appellant as this is a matter between Prince Awofisayo and the Appellant and does not make him a necessary party to these proceedings. No relief is sought in relation to the indemnity. Given that the lower court set aside the Certificate of Occupancy and assignment to the Appellant, the Appellant is perfectly free to enforce Prince Awofisayo’s indemnity should it so desire.

In addition, although contained in the same document as the sale contract between R4 and the Appellant, the indemnity is an autonomous and independent transaction. Furthermore, Prince Awofisayo is the alter ago and Chairman of R4, and was fully aware of these proceedings and could have joined if he wished to be a party. Similarly, if the Appellant felt strongly about the absence of Prince Albert Awofisayo in the proceedings, it should have applied to join him as a third party, counterclaimed against him or sued him separately.

With regard to service on R2, Counsel contended that R3 was sued solely in his capacity as the Chief Law Officer of the Federation for the acts of R2, which is the relevant ministry. R3 is therefore a nominal party representing the FGN and R2. Service of processes on R3 and his participation in the proceedings in the lower Court was service on and participation by R2 in the proceedings. With the participation of R3 in these proceedings, there was no need for R2 to continue to represent itself or participate independently.

Also referring to the Record, he pointed to evidence of service of these proceedings on R2. Citing the case of NACB Ltd v Ozoemelam (2016) 8 NWLR Part 1517 Page 376, he submitted that once a Court is satisfied that a litigant is aware of the proceedings against him, the Court has no obligation to pursue the litigant in order to hear him. On the contrary, it is the duty of litigants to check the registry from time to time to know the fate of cases in which they are parties. In any event, Prince Awofisayo is not complaining about his non-joinder. Just as with the POPA (sic) objection, it is the Appellant – a busybody – that is again

crying more than the bereaved.

In the Appellant’s Reply Brief, the submissions on the indispensability of the joinder of Prince Awofisayo were reiterated.

RESOLUTION
It is indeed true, as submitted by the Appellant’s learned Counsel that parties against whom complaints are made in an action must be made parties to an action and that no Court has jurisdiction to make an order which affects the interest of a person who has not been joined as a party. See G & T. Invest. Ltd. v. Witt & Bush Ltd. (2011) 8 NWLR (Pt. 1250) 500 at 531 – 532 H-B, per Mukhtar, JSC (as he then was), Faleke v INEC (2016) 18 NWLR (Pt. 1543) 61 at 135 Para D-E per Kekere-Ekun JSC.

Chief Awofisayo, who it is alleged should have been joined as a party, it is agreed, is the alter ego of the 4th Respondent, which 4th Respondent was the party against whom the 1st Respondent had a cause of action and sought a relief against. I agree with the learned Silk for the 1st Respondent that it was for Prince Awofisayo or the 5th Respondent, who felt its interest would be affected without the joinder to have sought the joinder. This was however not sought to be

done throughout the trial at the lower Court. Any indemnities given by Prince Adefisayo to the Appellant, consequent upon a sale agreement between the 4th Respondent and the Appellant, are matters between them and have no bearing, I hold, on the question of the alleged wrongful issue of the Certificate of Occupancy to the 4th Respondent or the Assignment to the 5th Respondent, which are the transactions on record as relevant to the 1st Respondent’s claim. In addition, no relief was sought by the 1st Respondent against him.

With regard to the allegation of failure to effect service on the 2nd Respondent, the 1st Respondent’s Counsel, debunking these allegations, has pointed to pages in the Records of the lower Court in proof of service of the various processes on the 2nd Respondent. It is the correct position of the law, as submitted by the 1st Respondent’s Counsel, that a litigant who is aware of service of Court processes and chooses to absent himself from Court, has nobody but himself to blame. See Military Governor Lagos State v. Adeyiga (2012) 5 NWLR Part 1293 Page 291 at 320 Para B-C per Adekeye JSC.
More importantly, this is a

contention that should be made by the affected party itself, which has however not been done; certainly not by the Appellant. This issue, I hold, does not avail the Appellant and is also resolved against it.

Having resolved all issues against the Appellant, this appeal fails and is accordingly dismissed. The judgment of C.J. Aneke J., of the Federal High Court, delivered on 26th May, 2017 is accordingly affirmed. The Appellant shall pay costs of N200,000.00 to the 1st Respondent.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just read by my learned brother, Adefope-Okojie,JCA. He has painstakingly dealt with all the issues donated by the parties for resolution.

I agree with the reasoning and final conclusions reached in the lead judgment. I have nothing useful to add.

This Appeal is without merit. It is dismissed. I abide by all the consequential orders contained in the lead judgment including that as to Costs.

ABUBAKAR MAHMUD TALBA, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother OLUDOTUN ADEBOLA ADEFOPE-OKOJIE JCA. My lord had

meticulously dealt with all the issues arising for the determination of this appeal. A summary of it all is thus;
Issue one was argued and resolved in three parts. Jurisdiction, locus standi and time frame. On subject matter jurisdiction having examined the 1st Respondent’s re-amended statement of claim filed on 15/4/2016 contained at pages 769 – 773 of Volume 2 of the record of appeal, the reliefs claimed in paragraph 21 thereof falls within Section 251(p) and (r) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). And therefore within the jurisdiction of the Federal High Court.

On locus standi pursuant to clause 6, 10 and 17 – 21 of Exhibit P1/D7. And having regard to the fact that the 4th Respondent had failed to pay the balance of the purchase price within the time stipulated in the guidelines. The Committee ought to have communicated the offer to the 1st Respondent who was the next highest bidder in accordance with the guidelines. Rather the Committee allowed the 4th Respondent to pay for the property four (4) years after the period allowed in clear breach of the guidelines. These facts had disclosed the locus

standi of the 1st Respondent.

And on time frame, there was no notice of appeal filed against the ruling of the lower Court which could have allowed this Court to take the interlocutory appeal together with the substantive appeal, after obtaining leave for extension of time to appeal against the interlocutory decision. In consequence thereof, the ground of appeal and the issues based thereon are rendered incompetent.

All the three sub issues are resolved against the Appellant and accordingly issue one is resolved against the Appellant.

On issue two, I am in agreement with my learned brother that the lower Court was right when it held that the 1st Respondent was not a sitting tenant as contemplated in relief (a), and that the 4th Respondent did not make full payment within the 180 days, was entitled to grant prayers (d) to the 1st Respondent as a reserve bidder. Consequently prayers (b), (c), (d), (e) and (f) cannot be termed ancillary relief to relief (a).

In consequence of the grant of the declaratory reliefs in (d) and (e) that the property should have been offered to the 1st Respondent as the reserve bidder upon the 4th Respondent default and the

setting aside of the sale to the 4th Respondent, is to order the transfer of the property to the 1st Respondent. In addition to the reliefs granted by the lower Court which is the same prayer as 1st Respondent prayer (g), the lower Court gave timelines within which the property was to be offered to the 1st Respondent and the date for payment by the 1st Respondent. Issue two is resolved against the Appellant.

Issue three is on the admissibility of the evidence of PW1 as to whether it should be disregarded being hearsay. It is settled law that where a witness gives account of information of what he or she hears directly from another person, the information cannot be termed as hearsay. See ABOKOKUYANRO V. STATE (2012) 2 NWLR (Pt. 1285) P. 531 (CA). Thus I agree with my learned brother that it is not for the Court to sift through the evidence of the witness to decipher which is from her personal knowledge and which is derived from information given to her and thus hearsay.

And on Exhibit P1 which is a publication of “This Day Newspaper” of Monday June 20th, 2005, it clearly bears the certification of the National Library of Nigeria Public Services

Department. It has been signed by the Director/CEO with the following endorsement “deposited in the National Library of Nigeria under the Legal Deposit Laws as entrenched in Decree No. 29 of 1970”. The document has complied with Section 4(1) & 7(c) of the National Library Act and Section 102(b) of the Evidence Act 2011. Therefore, the document was rightfully received by the lower Court. It is also the same as Exhibit D7 duly certified and tendered in evidence by the 3rd Respondent’s witness.

On the issue that the 1st Respondent was not a reserve bidder, the lower Court was right when it held that Exhibits P1/D7 is not strictly speaking a legislation, it is in the nature of a legislation and must be strictly adhered to. And pursuant to clause 9 and 10 of Exhibit P1 or D7 there being no legal sitting tenant as the 1st Respondent had left service since 2001 about four (4) years before the bidding exercise, the highest bidder being the 4th Respondent became what is referred to in those clauses as “the reserve bidder”. And pursuant to clause 18 the 1st Respondent became the reserve bidder after the default of the highest bidder i.e

the 4th Respondent. The 1st Respondent being the second qualifying bidder/runner up bidder became the reserve bidder. The committee had no power or discretion to waive the payment guidelines for the 4th Respondent.

On the issue of Bona Fide Purchaser without notice, I am in agreement with my learned brother that the issue before the lower Court in both the 1st Respondent statement of claim and the 4thRespondents statement of defence and counter claim was not whether the Appellant or the 4th Respondent had notice of the interest of the 1stRespondentover the property but whether the sale by the 2nd and 3rd Respondent to the 4th Respondent was void for their failure to give the 1st Respondent the option of right of first refusal to purchase the property. Therefore the lower Court did not fall into error by giving judgment in favour of the 1st Respondent. The 3rd issue is resolved against the Appellant.

On the 4th issue, it is without any doubt that it was for Prince Awofisayo or the 5th Respondent who felt its interest would be affected without the joinder to have sought joinder. And that was not done at the trial Court. The Appellant should not cry louder than

the bereaved. I agree with my learned brother that this issue does not avail the Appellant. Issue four is also resolved against the Appellant.

Having resolved all the issues against the Appellant, the appeal is lacking in merit and it fails. I also dismiss the appeal and I abide by the Consequential Orders in the lead judgment.

Appearances:

Chief Wole Olanipekun OFR, SAN with him, Bode Olanipekun SAN, Solomon Afahokor Esq., Akintola Makinde Esq. and Olajide Salami Esq. For Appellant(s)

Professor Fidelis Odita QC, SAN with him, Johnson Agwu, Esq.- for 1st Respondent.
No appearance for 2nd Respondent.
No appearance for 3rd Respondent.
Foluso Agbebi, Esq. -for 4th Respondent. For Respondent(s)

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