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National Industrial Court

DEACON OKECHUKWU JOB UWAELELAM & 3 ORS VS C. A. CHIZEA & ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

 

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

 

DATE: 4th October 2018

                                                

SUIT NO. NICN/EN/89/2015

 

BETWEEN

 

  1. DEACON OKECHUKWU JOB UWAELELAM                               
  2. UGOCHUKWU G. IKPA                            
  3. HYACINTH OHAGWU                              
  4. OCHOKWU KENECHUKWU NWABUFO    

[for themselves and on behalf of Disengaged/

Pensioners who were public servants of

the Federal Republic of Nigeria]

 

CLAIMANTS

 

AND

 

  1. C. A. CHIZEA                                    
  2. C. A. CHIZEA & CO.                                                                
  3. BUREAU OF PUBLIC ENTERPRISES

      

DEFENDANTS

                   

REPRESENTATION:

 

Enechi Onyia, SAN with Ifeanyi Chukwuma Enechi Onyia Esq., Adolphus Chukwuemeka Alomode Esq., Ijeoma Francesca Ezeudu Esq., Ngozi Eze Esq. and Nnaemeka Okwor Esq. for the Claimants

Eze Victor Chukwuebuka Esq. with Ogechi Chibuzor Ogbuka Esq. and Pascalin Mary Chimaeze Esq. holding brief for Jide Agbaje Esq. for the 1st and 2nd Defendants

Dr. Omoniyi Bukola Akinola with Ukamaka Christiana Edeh [Ms.] for the 3rd Defendant

JUDGMENT

 

  1. The Claimants commenced this suit against the 1st and 2nd Defendants by complaint dated 30th July 2015. Following the joinder of the 3rd Defendant, the Claimants claimed against the Defendants as follows:

  1. A declaration that the Claimants are only entitled to pay to the respondents the value of the properties as at the time of offer.

  1. An order that the respondents accepted the value of the properties at the time of offer by the Claimants to purchase the properties.

  1. An order of the Honourable Court restraining the respondents by itself, principal, agents or privies from alienating the rights and interests of the Claimants in their respective properties, contrary to the provisions of the approved guidelines for the sale of Federal Government or its agency’s houses.

  1. The cost of this action.
  2. Any further order or consequential orders as the Honourable Court may deem just.

  1. The Claim was accompanied with a statement of facts, affidavit verifying endorsement of complaint, list of witnesses, list of documents, statement on oath of witnesses and copies of documents to be relied on at the trial. The Defendants filed their defence processes on 26th October 2017. Upon receipt of the defence processes, the Claimants filed a reply to the statement of defence, statement on oath of witnesses and additional documents. Pursuant to the order of Court made on 5th February 2018, the Claimants filed an amended reply on 7th February 2018 and a further statement on oath of the 1st Claimant. Trial commenced on 23rd February 2018 and was concluded on 19th April 2018. The Claimants called four witnesses and tendered 17 exhibits, exhibits 1 to 17. The Defendants called one witness. The case was thereafter adjourned for adoption of final written addresses. On 7th June 2018, the 3rd Defendant changed its Counsel to Dr. Omoniyi Bukola Akinola and filed a separate written address. On 11th July 2018, learned Counsel for the 3rd Defendant, Miss Edeh, adopted the 3rd Defendant’s final written address filed on 19th June 2018 and urged the Court to dismiss the suit. Learned Counsel for the 1st and 2nd Defendants, Mr. Chimaeze, adopted the 1st and 2nd Defendant’s final written address filed on 26th June 2018 and urged the Court to dismiss the suit. Learned Senior Counsel for the Claimants, Chief Enechi Onyia, SAN, adopted the Claimants’ final written address filed on 5th July 2018 and urged the Court to grant the reliefs of the Claimants. The matter was consequently set down for judgment.

SUBMISSION ON BEHALF OF THE 3RD DEFENDANT

  1. The 3rd Defendant raised three issues for determination namely:

  1. Whether there is injustice on the part of the Defendants by offering their respective properties to them by way of right of first refusal on approved guidelines?

  1. Whether the Claimants have proved this instant case based on the preponderance of evidence?

  1. Whether the non-issuance and non-service of pre-action notice to the 3rd Defendant does not rob the Honourable Court of jurisdiction in the circumstance?

On issue one, learned Counsel argued that the Claimants were offered their respective properties and granted right of first refusal; and failure to meet the conditions of the offer terminates the right to acquire the subject properties and urged the Court to so hold.

On issue two, learned Counsel explained that exhibit 1, the valuation report relates to the property of one Mrs. Igbodiegwu and that report cannot be the basis for valuing other properties. He argued that there is nothing in exhibit 1 which shows that Phil Anozia & Co. was engaged to prepare a valuation report for all the properties the Claimants seek the order of the Court for. It was also argued that the burden of proof of the time of the offer and the value of each property is on the Claimants. Learned Counsel also contended that there is no evidence of an agreement between the parties that payment of rent will be in satisfaction or reduction of the purchase price and submitted that the onus of proof of the rent conversion agreement is on the Claimants and referred to section 131 of the Evidence Act 2011.  Learned Counsel contended that CW2 is not the maker of exhibit 1 and no foundation was laid for the non-availability of P. C. Anozia and urged the Court to expunge it and relied on section 83 of the Evidence Act 2011.

Canvassing issue three learned Counsel referred to section 23[1], [2] & [4] of the Public Enterprises [Privatisation and Commercialisation] Act and argued that there must be prior complaint to the 3rd Defendant three months before the action was filed. Relying on Nigercare Development Co. Ltd v. Adamawa State Water Board & Ors. [2008] 9 NWLR [pt.1093] 498, he submitted that it is an issue of statute which robs the Court of jurisdiction until the condition precedent has been complied with. He therefore urged the Court to dismiss the suit for lack of jurisdiction.

SUBMISSION ON BEHALF OF THE 1ST AND 2ND DEFENDANTS

  1. The 1st and 2nd Defendants raised three issues for determination namely:

  1. Whether in the light of the evidence before the Court there is a competent plaintiff in this suit?

  1. Whether the Plaintiff has sufficiently proved their case as to entitle them to the reliefs sought in this case?

  1. Whether the Court has the right to look at a document in the file which is not tendered as an exhibit?

Arguing issue one, learned Counsel submitted that where there is absence of authority to prosecute a suit in a representative capacity, there would be no competent plaintiff, which affects the jurisdiction of the Court and referred to Ikalama v. Derekoma [2008] All FWLR [pt.433] 1376 at 1388. He explained that the Claimants who brought the action in a representative capacity failed to show that they have the authority of the other people whom they claim to be representing. He contended that the absence of this authority is an incurable defect which goes to the jurisdiction of the Court and urged the Court to strike out the matter for lack of jurisdiction.

On issue two, learned Counsel argued that the Claimants have failed to prove their case and as such not entitled to the reliefs sought in this matter. He submitted that exhibit 1 amounts to hearsay evidence as the expert who produced it was not cross-examined and urged the Court to reject it and referred to Shell Petroleum Development Co. v. Isaiah [1997] 6 NWLR [pt. 508] 236 and Bernard Anyanwu v. Jack Sagrani [2008] All FWLR [pt.426] 1995 at 2004-2005. He also submitted that exhibits 4 to 15 which are purported receipts of payment of rent made to other persons amounts to hearsay evidence as it is not in compliance with section 83 of the Evidence Act 2011. On exhibits 16 and 17, he submitted that they were tendered through Mr. Ochokwu Kenechukwu who is not a witness in the case and urged the Court to disregard it. He referred to page 233 of exhibit 3 and submitted that it supports the case of the Defendants in that it states that sale of the houses shall be on the basis of highest bidder and the current occupants having the right of first refusal. He explained that page 233 of exhibit headed “valuation and pricing of Houses” states that the value of the building as determined by FCDA or its appointed professional valuers shall constitute the reserve price and urged the Court to ignore the valuation report by Phil Anozia and Company.

Canvassing issue three, learned Counsel submitted that there is no law which precludes the Court from looking at a document in its file which is not tendered as exhibit and referred to Agbaisi v. Ebikorefe [1997] 4 SCNJ 147 at 160. He urged the Court to look at the documents tendered by the Defendants which were rejected for lack of certification since the Court is interested in doing justice and referred to sections 13 and 15 of National Industrial Court Act 2006. Finally, it was submitted that where a principal is known an agent ought not to be joined in a suit and relied on Samuel Osigwe v. PSPLS Management Consortium Ltd & Ors. [2009] 3 NWLR [pt.1128] 378. It was also submitted that the 2nd Defendant is a mere business name and lacks the capacity to sue and be sued in its name and referred to Ladejobi v. Odutola Holdings Ltd. [2002] 3 NWLR [pt.753] 121.

 

SUBMISSION ON BEHALF OF THE CLAIMANTS

  1. The Claimants formulated four issues for determination to wit:

  1. Whether the Court is competent to grant the Claimants prayer for declaration?

  1. Whether the Court has power to order the Respondents to accept the legal value of the respective properties the Claimants want to pay for?

  1. Whether the Court can restrain the Defendants from alienating the rights and interests of the Claimants in their respect houses?

  1. Whether the Court may order the Defendants to pay for the cost of this action or make further order or consequential orders?

Canvassing issue one, learned Counsel argued that the Court is competent to grant the Claimants prayer for declaration. He submitted that by Order 13 Rule 1 all persons may be joined in one action as Claimants in whom any right to relief is alleged to exist and judgment may be given as the Claimants may be entitled.

On issues 2 and 3 learned Counsel explained that exhibits 4 – 15 are not hearsay evidence as they are tendered by one of the recipients and exhibits 16-17 are pleaded, frontloaded and relevant. It was also argued that exhibit 3 supports the Claimants case and there is no evidence before the Court that the Defendants want to sell to the highest bidder. It was also argued that the totality of the argument of the 1st and 2nd Defendants in their final address are based on assumption and misconceived facts and law. It was further argued that the 3rd Defendant gave no evidence in this case and that the issues canvassed in the 3rd Defendant’s final address are misconceived. The Court was therefore urged to take into consideration the claim of the Claimants and the reply to the Defendants defence and hold that the 3rd defendant is confused and did not address the issues derived from the statement of claim. On pre-action notice, learned Counsel submitted that this was not raised at any point in the case and applies only to the 3rd Defendant. He conceded that the Court could strike out the name of the 3rd Defendant.

COURT’S DECISION

  1. I have considered the processes filed in this suit and the submissions of learned Counsel for the parties. The facts of this case are simple. The Claimants are disengaged staff of Nigerian Coal Corporation and sue on behalf of themselves and other disengaged staff of the Corporation with whom they have common rights, interests or grievances in the claim before the Court. The Claimants averred that at different times they demanded monetization of their respective official apartments which was approved. The 2nd Defendant sent offer letters to the Claimants and the Claimants objected to the stated sale prices and the dates of the assessments insisting that they are entitled to pay for the value of their respective houses from the time of their disengagement. They also claimed that they developed and maintained the properties and that the Nigerian Coal Corporation deducted rent directly from their salaries and pensions up till 2015 and buying at the stated prices would amount to paying for their developments. Contrariwise, the Defendants averred that the National Council policy on privatization and commercialization of Nigerian Coal Corporation vested in the 3rd Defendant had nothing to do with monetization of houses to anybody but rather to value the core and non-core assets, advertise and sell to the highest bidder and that the Claimants are only entitled to the right of first refusal. The Defendants denied receiving rents from the Claimants and stated that majority of the Claimants have paid for their properties while some have made part payments.

  1. In view of the prolixity of issues formulated by the parties which are mere repetition of the main issue, I will adopt issue two of the Defendants’ issues for determination as it addresses the main issue arising from the pleadings of the parties. In dealing with this issue, I will consider other ancillary issues raised by the parties in their written addresses. Therefore, the issue for determination in this suit is whether the Claimants have proved their case on a balance of probabilities to entitle them to the reliefs sought or any of them? The law is now settled that in civil cases the burden of proof is on the person who asserts same. See sections 131[1] and 133[1] of the Evidence Act 2011 and Alhaji Ganiyu M. B. Iseogbekun & Anor. v. Alhaji Sikiru Gberigi Adelakun & Ors. [2013] All FWLR [pt.664] 168 at 188D-E. It is also the law that the Claimants who seek a declaratory relief have the onerous burden of establishing their entitlement to the relief. Evidence which must support a legal right or claim must be overwhelming, total, convincing and credible. The Claimants must succeed on the strength of their case and not on the weakness of the defence. See Isiyaku Musa Jikantoro & 6Ors. v. Alhaji Haliru Dantoro & 6Ors. [2004] 5 SC [pt.11] 1 at 15, Diamond Bank Plc v. Alhaji Usman Yahaya & Anor. [2011] LPELR-4036[CA] at page 27 and Yakubu Wondo & 2Ors. v. Mal. Ibrahim Bello & 2Ors. [2016] LPELR-40824[CA] at page 53. It must be noted, however, that the standard of proof remains the same, that is, proof on a balance of probabilities. The Claimants are only required to show that the law and facts of their case support their claims and cannot rely on the mere admission of the Defendants or absence of defence. Before I go into the merits of the case, I would like to make a few comments on some of the issues raised by the Defendants.

  1. First, I would like to observe that the Claimants formulated four issues for determination but addressed the Court on three issues. Issue four appears to have been abandoned and it is hereby struck out. The next is the issue of non-service of pre-action notice. Learned Counsel for the 3rd Defendant referred to section 23[1], [2] & [4] of the Public Enterprises [Privatisation and Commercialisation] Act and argued that there must be prior complaint to the 3rd Defendant three months before commencement of the action and failure to do this robs the Court of jurisdiction to hear the case and relied on Nigercare Development Co. Ltd v. Adamawa State Water Board & Ors. [supra]. In his response, learned Counsel for the Claimants submitted that the issue of pre-action notice was not raised at any point in the case. He argued that the 3rd Defendant was only joined by the Court’s direction as a necessary party and that there was no reason to join the 3rd Defendant but conceded that the Court could strike out the name of the 3rd Defendant. With due respect to learned Counsel for the 3rd Defendant, the submission is misconceived. Section 23[2] of the Public Enterprises [Privatisation and Commercialisation] Act deals with limitation of action and not pre-action notice. Section 23[3] of the Act has been deleted by Statutory Instrument 19 of 2001. In addition, this issue was not raised in the statement of defence. Accordingly, I hold that the issue of pre-action notice has not been properly raised and it is hereby discountenanced.

  1. The 1st and 2nd Defendants raised two issues: one is that they are agents of a disclosed principal and that the 2nd Defendant is not a legal person and lacks the capacity to be sued in its name. The Claimants’ response is that the totality of the 1st and 2nd Defendants’ arguments are based on assumptions and misconceived facts and law. First, let me deal with the issue of agency. Order 13 rule 4 of the National Industrial Court of Nigeria [Civil Procedure] Rules 2017 provides, inter alia:

“Any person may be joined as Defendant against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative.” [underlining mine]

For a right to a relief to exist against the 1st and 2nd Defendants, there must be a reasonable cause of action against them. The law is settled that a reasonable cause of action means a cause of action with some chances of success. For a statement of facts to disclose a reasonable cause of action, it must set out the legal rights of the Claimants and the obligations of the Defendants; and show in what way the Defendants failed to fulfil their obligation so that if there is no proper defence, the Claimants will succeed in the remedy they seek. Thus, a pleading can be said to disclose no reasonable cause of action where it is such that nobody can understand what claim the Defendants are required to meet. See Nokia West Africa [Nigeria] Limited v. Mr. Williams Orioha [2016] LPELR-40189[CA] at pages 18-19 and Oba Ilufemiloye Adesola & Anor. v. Oba Oludele Falade-Fatila & 2Ors. [2014] LPELR-23800[CA] at page 38. Consequently, where no cause of action is disclosed against a Defendant, the Court may strike out the name of that party. See Veralam Holdings Limited v. Galba Limited & Anor. [2014] LPELR-22671[CA] at page 13 and Order 13 rule 6[2] of the National Industrial Court of Nigeria [Civil Procedure] Rules 2017. Paragraph 5 of the statement of facts acknowledges that the 1st and 2nd Defendants are agents of the 3rd Defendant. It states:

“5.      The 1st and 2nd Respondents are engaged by the National Council on Privatisation/Bureau of Public Enterprises to value houses, the subject matter in this suit.”

Their joinder is on the strength of the performance of their duties as agents of a disclosed principal. The 3rd Defendant is a juristic person capable of maintaining an action in its name. In J & J. Techno Nigeria Ltd. & Anor. v. Yubah H. Quality Services Ltd. & 2Ors. [2015] 8 NWLR [pt. 1460] 1 at 21, the Court of Appeal, per Orji-Abadua, J.C.A., held:

“It is the law that an agent acting on behalf of a known and disclosed principal incurs no personal liability. It is settled law that there must be a cause of action before an intending litigant can initiate any legitimate proceedings against a party. Further, an agent of a revealed principal is an unnecessary party to the action.”

See also Ikemefuna C. Amadiume & Anor. v. Mrs. Agnes Solomon Ibok & 2Ors. [2006] 6 NWLR [pt.975] 158 at 176. I am of the firm view and I so hold that the joinder of the 1st and 2nd Defendants is unnecessary. Order 13 rule 6[2] of the National Industrial Court of Nigeria [Civil Procedure] Rules 2017, empowers this Court to make such orders as may be necessary to prevent the Defendants from being embarrassed or put to unnecessary expense. Although this issue is being raised at this stage of the proceedings, I find merit in the objection and it is hereby sustained. The 1st and 2nd Defendants are not proper parties to this action and their names are hereby struck out from this suit. See Order 13 rule 14[2] of the National Industrial Court of Nigeria [Civil Procedure] Rules 2017.

 

  1. Having so found the issue of legal personality of the 2nd Defendant becomes academic. In the event I am wrong, Order 13 rule 26 of the National Industrial Court of Nigeria [Civil Procedure] Rules 2017 provides thus:

“22.    Any person carrying on business within the jurisdiction in a name or style other than the person’s own name may be sued in such name or style as if it were a Firm name, and, so far as the nature of the case will permit, all Rules relating to proceedings against Firms shall apply.”

Indubitably, under the Rules of this Court the 2nd Defendant is properly sued in its name. This rule finds support in the case of Iyke Medical Merchandise v. Pfizer Inc. & Anor [2001] LPELR-1579[SC] at page 15, where the Supreme Court interpreted a similar provision in the Federal High Court Rules. Accordingly, I hold that the 2nd Defendant was properly sued in its firm name.

 

  1. Next, is the issue whether the Court can look at documents in its file which are not tendered as exhibits. Learned Counsel for the 1st and 2nd Defendants urged the Court to look at its documents which were tendered and rejected. With all due respect to learned Counsel, this submission is misconceived. There is a difference between a document in the Court’s file and a document which is tendered and rejected and so marked. While the Court is at liberty to look at a document in its file, it cannot use a document marked rejected. Such document is in the eyes of the law not properly before the Court. SeeEbonyi State University & 3Ors. v. Dr. [Mrs.] Mary J. Eteng [2012] LPELR-19973[CA] at page 42 where the Court of Appeal held:

“…the position of law is that a document once rejected in evidence and so marked, is not an exhibit for use in the evaluation of evidence in the case. Such document is no longer relevant and the content cannot be used for the determination of any issue in the case.”

See also Sampson Ibekwe & 2Ors. v. Udo Azubuike [2016] LPELR-40546[CA] at page 28 and Nigerian Ports Plc v. Beecham Pharmaceuticals PTE Ltd & Ors. [2012] LPELR-15538[SC] at page 31. In addition, whether the documents were rejected in error or not is not within the province of this Court at this stage of the proceedings. This Court cannot sit on appeal over its decision. Be that as it may, the law is settled that before a copy of a public document can be tendered and accepted by the Court it must be certified. See Moses Ademola Agbaje v. Ademola Coker [2016] LPELR-40157[CA] at page 13.

  1. The next issue is whether this action is brought in a representative capacity. In both the claim and statement of facts establishing the cause of action, the Claimants stated that they are suing in a representative capacity. The title of the case has this note: “for themselves and on behalf of Disengaged Pensioners who were public servants of the Federal Republic of Nigeria”. Paragraphs 1, 2, 3 and 9 of the statement of facts also indicate that the action is brought in a representative capacity. It is not the law that parties suing in a representative capacity must tender a power of attorney or written authority to sue. The fundamental principle which governs suits brought in a representative capacity is that those represented must have a common interest and a common grievance; and the reliefs sought must in its nature be beneficial to all those whom the Claimants are representing. InMark Obinyiri & 6Ors. v. Peter Ibe & 2Ors. [2014] LPELR-22482[CA] at pages 17-18, the Court of Appeal relying on the case of Olatunji v. The Registrar of Cooperative Societies [1968] NMLR 393, listed the essential requirements for people who desire to sue in a representative capacity to include:

  1. There must be numerous persons interested in the case on the side to be represented.
  2. All those interested must have the same interest in the suit, that is to say, their interest must be joint and several.
  3. All of them must have the same grievance
  4. The proposed representative must be one of them
  5. The relief sought must be in its nature beneficial to all the persons represented.

See also Busari Ayinde & 2Ors. v. Adedokun Akanji & 9Ors. [1988] LPELR-676[SC] at pages 26-27. Learned Counsel’s argument appears to be rested by the Court of Appeal decision in Universal Trust Bank Ltd & 2Ors. v. Chief Oludotun Olajide Koleoso [2006] LPELR-7743[CA] at page 16, where the Court, per Agbo, J.C.A., held:

 

“As rightly stated by the court below, rules of court relating to representative suits are rules of convenience that cannot be allowed to frustrate proceedings in any suit – see Busari v. Oseni [1992] 4 NWLR [pt.237] 557. In the instant case, the non-obtaining of the leave of other defendants by the defendants on record to defend the suit in a representative capacity does not in any way affect the competence of the suit filed. It is certainly not a threshold matter as suggested by the appellants and it is not required of the respondent to force the persons represented to avail the appellants of the authority they contend is a condition precedent for proper representation.”

Also, in Onyemaechi Nwaosu & 2Ors. v. HFP Engineering Nigeria Limited [2014] LPELR-23197[CA] at page 38, Ndukwe-Anyanwu, J.C.A., held:

“A representative is a person authorized to act or speak for another or others. Therefore means that, the party wishing to sue or defend in a representative capacity must obtain the authorization to sue or defend from the person or persons he wishes to represent. Okukuje v. Akwido [2001] 10 WRN 1. It is not in all cases that the Court will hold that a party has no authority to sue in a representative capacity where there is no formal authorization by way of documents. The Court adopts a flexible attitude, based on the facts and circumstances of each case. Adukwu v. Commissioner for Works, Enugu State [1997] 2 NWLR [pt.489] 588.”

I therefore resolve this issue against the 1st and 2nd Defendants and hold that there is a competent Claimant in this suit.

  1. This now leads me to the main issue for determination, which is whether the Claimants have proved their case on a balance of probabilities to entitle them to judgment. The first relief seeks a declaration that the Claimants are only entitled to pay to the respondents the value of the properties as at the time of offer. The burden of proof of the time of the offer and the value of each property at the time of the offer is on the Claimants. I have looked at the statement of facts, the amended reply to the statement of defence, the Claimants’ witnesses’ statements on oath and the exhibits but did not find any evidence in proof of this claim. The offer made by the Claimants, whether orally or in writing was not proved. The time the offer was made by the Claimants was equally not stated and the value of the property at the time of the alleged offer was also not disclosed in the pleading or witness depositions. CW1’s evidence in paragraph 4 of his statement on oath is that “the Claimants have been granted the right to purchase their respective individual [sic] properties in accordance with the directives of Federal Government Agency on monitisation [sic] of public officers’ residences.” The instrument of grant was neither pleaded nor tendered in evidence. CW3 although filed a statement on oath dated 15th November 2017, did not adopt it but adopted his further statement on oath dated 7th February 2018 and his verifying affidavit. In paragraph 6 of his further statement on oath, he stated that “the Claimants are the legal owners of the monetized properties respectively base on the 2003 and 2005 circular by the Federal Government for monetization of the said properties.” This circular was not tendered in evidence. What is before the Court is Federal Government of Nigeria Official Gazette dated 15th August 2005, exhibit 2. Even in the unadopted statement on oath there is no paragraph proving this claim. Of the exhibits tendered by the Claimants, exhibit 1 is the inspection and valuation report by Phil Anozia and Company; exhibit 2 is the Federal Government of Nigeria Official Gazette dated 15th August 2005 and exhibit 3 is Nigerian Coal Corporation, Enugu guidelines for allocation of residential quarters. The other exhibits are rent receipts. There is nothing in exhibit 2 monetizing the Claimants’ properties to them. Section 6 under conditions of sale provides:

“The houses will be sold on “as is, where is” basis at the evaluated price with the current occupants having the first right of refusal to purchase within thirty days of offer. The said right to purchase is neither transferable, assignable nor alienable in any way or form.” [Underlining mine].

This merely gave the Claimants the right of first refusal which is exercisable within thirty days of receipt of the offer from the 3rd Defendant. Paragraphs 3[e] and [g] of exhibit 3 provide inter alia:

“[e]    On retirement of a mine worker living in official residential quarter, the worker is entitled to his/her full retirement/allowance benefits and any other entitlement and further rent free three months occupation of his/her residence to enable him/her organize him/herself before gracefully parking out of his/her official residential quarters.”

“[g]    Every occupant must adequately maintain the premises attached to his/her official residence irrespective of the expanse of his/her official premises, in addition to tidiness, and minor landscape problems as specified in the layout plan of the residential housing estate.”

There is nothing in these exhibits showing a grant by the Federal Government to the Claimants or making them automatic owners of their respective residences. There is no evidence of when each of the Claimants retired. The rent receipts, exhibits 4 to 15 show that apart from Mr. Joseph Ani and Christopher who paid rent till 2014 and 2012 respectively, the rest of the Claimants paid rent for 2006, 2007 and 2009. Paragraph 3[e] of exhibit 3 gave them three months to vacate their official residences after disengagement. Exhibit 2 only gave them the right of first refusal. In fact, section 5 of exhibit 2 provides that “The valuation of the houses will be based on current replacement cost of the building as determined by FCDA or its appointed professional valuers; excluding the cost of land and infrastructure.” The right to determine the value of the properties is reposed in the FCDA or its appointed professional valuers and not the Claimants. Therefore, exhibit 1 cannot be the basis for ascertaining the value of the properties. But, assuming it is anything to go by exhibit 1 is not dated and evidently was not in existence at the time of the alleged offer by the Claimants. Paragraph 2 page 2 of exhibit 1 shows that its authors undertook the assignment on 23rd June 2015 by which time the Claimants have received the offers to purchase from the 3rd Defendants. A valuation carried out in June 2015 cannot fix the price of the property prior to that date. A declaratory relief is one which seeks the pronouncement of the Court as to the status of a named matter, thing or situation. It is thus a discretionary relief and for the discretion of the Court to be exercised judicially and judiciously, it must be backed up by concrete evidence. That is to say, the Claimants must plead and lead evidence to establish that the status exists and that it enures in their favour. There is no proof of the time of offer or the price at the of offer. There is equally no evidence that the Claimants are entitled to their respective residences. Exhibit 2 gave them thirty days to accept the offer after which it lapsed. Paragraphs 13 and 14 of the statement of facts confirms that the 3rd Defendant made offers to the Claimants which was rejected due to disagreement on price. The right to the respective properties occupied by the Claimants does not enure in their favour. This relief is not one that can be granted just for the asking. See Simon Nwagu v. Elder Rufus Fadipe [2012] LPELR-7966[CA] at pages 16-17.  In Nigerian Postal Service v. Ibrahim Musa [2013] LPELR-20780[CA] at page 35, Ige, J.C.A., had this to say:

“Now the law is now firmly and well established that in claims for declaratory reliefs the Plaintiff or the Claimant must plead sufficient facts to constitute a platform for the relief being sought and he must lead or proffer cogent and credible evidence to sustain or support the said reliefs. The reason for this is obvious. A Plaintiff or Claimant seeking for a declaratory relief must rely and succeed on the strength of his own case and not on the perceived weakness in the Defendant’s case.”

Accordingly, I find and hold that the Claimants have not established that they are entitled to pay to the 3rd Defendant the value of their respective properties as at the time of offer. This relief fails and it is dismissed.

  1. Relief two is for an order that the respondents accept the value of the properties at the time of offer by the Claimants to purchase the properties. This claim flows from and is dependent on the success of relief one above. There must be a declaration of right in favour of the Claimants before an order can be made that the 3rd Defendant should accept the value of the Claimants’ respective properties as at the time of their offer to purchase. Once the principal relief sought is refused, no order incidental to the principal relief can be granted. SeeBenjamin Ukelere v. First Bank of Nig. Plc [2011] LPELR-3869[CA] at page 29. No such declaration was made in favour of the Claimants. In addition, there is no subsisting offer before the Court. The Claimants failed to anchor their complaint upon the necessary legal framework upon which the Court would grant the remedy desired. The statement of facts is vague where details of important facts are called for. This gap cannot be filled by this Court because it is not within the province of a Court of law to dish out remedies in vacuo. See Sunday Emeje v. National Institue for Pharmaceutical Research and Development [2010] LPELR-8986[CA] at page 18. This relief fails and it is dismissed.

  1. The third relief is for an order of the Honourable Court restraining the respondents by itself, principal, agents or privies from alienating the rights and interests of the Claimants in their respective properties, contrary to the provisions of the approved guidelines for the sale of Federal Government or its agency’s houses. This relief is in the nature of a perpetual injunction and it is trite law that a perpetual injunction will only be granted in favour of the Claimants if they have satisfied the Court that they have a legal right to be protected by the Court. SeePa Tayo Ojo v. Chief Jerome Akinsanoye [2014] LPELR-22736[CA] 60 and Prince Rasak Yesufu Ogiefo v. HRH Jafaru Isesele 1 & Ors. [2014] LPELR-22333[CA] 59. In the latter case, Saulawa, J.C.A., held:

“A Court of law cannot grant a perpetual injunction on a mere prima facie case. Perpetual injunction cannot be granted on speculation or conjecture on the part of the trial judge that the plaintiff seems to have proved his case. Perpetual injunction, because of its very nature of finality can only be granted if the plaintiff has successfully proved his case on the balance of probability or the preponderance of evidence.”

There is nothing before me showing that the Claimants have a legal right to be protected by an order of injunction. The evidence of CW1 is that “the Claimants have been granted the right to purchase their respective individual [sic] properties in accordance with the directives of Federal Government Agency on monitisation [sic] of public officers’ residences.” See paragraph 4 of his statement on oath. The instrument of grant was neither pleaded nor tendered in evidence. CW3 in paragraph 6 of his further statement on oath stated that “the Claimants are the legal owners of the monetized properties respectively base on the 2003 and 2005 circular by the Federal Government for monetization of the said properties.” Again, he failed to show evidence of ownership. Paragraph 3[e] of exhibit 3 shows convincingly that the Claimants were merely service tenants and upon retirement were given three months within which to vacate their respective apartments. Exhibits 4 to 15 are not evidence of title but mere rent receipts which do not translate to purchase receipts. It is an incidence of their occupation under the service tenancy. In paragraphs 17 and 18 of the statement of facts, the Claimants averred that they maintained and developed their respective properties and as a result entitled to buy the properties at a price they have determined. The Claimants are oblivious of paragraph 3[g] of exhibit 3 which was tendered by them. This paragraph imposed a duty on the Claimants to maintain their respective properties. From the totality of the evidence before me, I am of the firm view that the Claimants have not proved that they have a legal right to their respective properties to be protected by this Court. Injunction is an equitable remedy and he that comes to equity must come with clean hands and do equity. See Daniel Okunola Alalade v. National Bank of Nigeria Limited [No.2] [1997] LPELR-5540[CA] at pages 10-11. The Claimants were given right of first refusal and instead of negotiating with the 3rd Defendant and coming to a compromise embarked on acts that appear to be a challenge of the 3rd Defendant’s ownership rights. They did not accept the offer and there is no evidence that they made a counter offer to keep negotiations alive. They locked in the 3rd Defendant in Court and took no steps to negotiate during the pendency of this suit. A party who has not done equity cannot enjoy the sympathy of a Court of equity. Equity follows the law. An owner of property has an indefeasible right to dispose of his property as he considers fit. This right cannot be taken away from the 3rd Defendant under any guise. It is trite that ownership connotes a complete and total right over a property. The owner of a property is not subject to the right of another person, as long as he has full and final right to put the property or make use of it anyway, including planning of the land, if the need arises. The owner of a property can use it for any purpose; and in so far as the property inheres in him nobody can say anything. The property begins with him and ends with him. See Hyacinth Nzenwata & 3Ors. v. Rev. Dr. Mike Nzenwata [2016] LPELR-41089[CA] at page 37-38. I therefore find and hold that the Claimants have not made out a case for an order restraining the Defendants from alienating their rights and interests in their respective properties. This relief fails and is hereby dismissed.

  1. Reliefs four and five are for cost of this action and any further order or consequential orders as the Honourable Court may deem just. Cost follows events. The Claimants action is unmeritorious and as a result the Claimants are not entitled to cost. See Order 55 rule 5 of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017.

  1. On the whole, this suit fails in its entirety and it is hereby dismissed. The order of interlocutory injunction made on 8th December 2017 is hereby discharged. There shall be no order as to costs. Judgment is entered accordingly.

………………………………………….

IKECHI GERALD NWENEKA

JUDGE

4/10/18

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