AWOSANYA v. FED. MINISTRY OF ENV. HOUSING & URBAN DEVELOPMENT & ORS (2021)

AWOSANYA v. FED. MINISTRY OF ENV. HOUSING & URBAN DEVELOPMENT & ORS

(2021)LCN/14971(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, January 29, 2021

CA/L/724/2016

RATIO

BRIEF: WHAT CONSTITUTES A REPLY BRIEF

A reply brief is not meant to give appellant a second chance to argue and improve on his argument of the Appeal, but to respond to fresh issues or points of law, raised in the Respondent’s brief, which were not contemplated in the Appellant’s brief. See Iheka vs Njoku (2017) LPELR-42002(CA); Akayepe & Anor Vs Akayepe (2009) LPELR-326(SC); Mathew Vs State (2019) LPELR-46930 (SC); Akwaiwu & Anor Vs Akwaiwu & ors (2020) LPELR- 51954 (CA). PER ITA GEORGE MBABA, J.C.A.

JUDGMENT: EFFECT OF THE DECISION OF COURT NOT APPEALED AGAINST

The law is trite that a finding or decision of Court not appealed against is taken as admitted and remains binding and conclusive. See Ezike & Anor Vs Egbuaba (2019) LPELR-46526 (SC):
“The law is trite, that where a party has not challenged a finding by way of appeal, that finding stands, see Dabo Vs Abdullahi (2005) 2 SC (Pt. 1) 75, (2005) 7 NWLR (Pt. 923) 181; Leventis Technical Vs Petro Jessica (1999) 6 NWLR (Pt. 6050 45, (1999) 4 SCNJ 121 at 127, Per Okoro JSC.” PER ITA GEORGE MBABA, J.C.A.

COURT: ATTITUDE OF THE COURT TO APPROBATING AND REPROBATING

Appellant cannot be allowed to approbate and reprobate on the said date of delivery of the judgment. See the case of R. A. Oliyide & Sons Ltd Vs. Obafemi Awolowo University, Ile-Ife (2018) NWLR (Pt. 1622) 564 at 575 – 576, where the Supreme Court held:
“It is well settled principle of law that Counsel should not approbate and reprobate. See Akaninwo vs. Nsirim (2008) ALL FWLR (pt. 410) 610 at 479… A litigant should not be allowed to speak at the same time or the same moment from the two sides of his mouth. He can only be allowed to speak from one side of the mouth at the same time… “ PER ITA GEORGE MBABA, J.C.A.

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Between

MAJOR GENERAL S. A. AWOSANYA (RTD) APPELANT(S)

And

1) FEDERAL MINISTRY OF ENVIRONMENT HOUSING & URBAN DEVELOPMENT 2. ATTORNEY GENERAL OF THE FEDERATION IMPLEMENTATION COMMITTEE ON THE SALE OF FEDERAL GOVERNMENT LANDED PROPERTY 3. PROFESSOR OLUGBEMIRO JEGEDE RESPONDENT(S)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this Appeal on 5/5/2016, as per the Notice of Appeal, on pages 360 to 374 of the Records of Appeal, which was amended as per the Order of this Court, made on 10/12/2020, deeming the Amended Notice of Appeal, filed on 9/1/2017, as duly filed and served. The Appeal is against the decision of Federal High Court, Lagos Division in Suit No. FHC/L/CS/702/2008, delivered on 26th April, 2016, by Hon. Justice I.N. Buba, wherein the learned trial Judge dismissed the claim of the plaintiff and gave judgment to the 4th Defendant, as per his counter-claim. Appellant was the claimant at the trial Court and the 4th Respondent, 4th Defendant.

At the trial Court, Appellant had sought (in the 2nd Amended statement of claim) as follows:
1. A Declaration that the failure of the 1st to 3rd Defendants, jointly and severally, to issue the Plaintiff with the letter of offer to purchase the property as a sitting tenant of the property at No. 9 Mekunwen Road, Ikoyi, Lagos, as contained in the Federal Government Guideline for sale and alienation of its property, is wrongful.

A Declaration that the plaintiff, as a sitting tenant of the 1st-3rd Defendants, is entitled to a right of first offer in the purchase of the property, known as No. 9 Mekunwen Road, Ikoyi, Lagos, the subject matter herein.
3. A Declaration that the purported sale of the property known as No.9 Mekunwen Road, Ikoyi, Lagos, to the 4th Defendant is illegal, null and void and of no effect whatsoever.
4. An order of Court setting aside the purported sale of the aforementioned subject matter to the 4th Defendant, for non-compliance with the terms and conditions of the sale.
5. An order of Court, setting aside the issuance of the certificate of occupancy, dated 28th October, 2008 and registered as No. 13 at page 13 in volume 121 at the Federal Lands Registry, Ikoyi, Lagos State, to the 4th Defendant.
6. An order directing and or compelling the 1st-3rd Defendants, their agents, privies or whatsoever to issue the plaintiff with the letter of offer for outright purchase of the said property.
7. An order of perpetual injunction restraining the Defendants, their agent, privies or whosoever, from selling, alienating and or dealing with the said property in any

manner that may adversely affect the plaintiff’s interest in the property.
8. The sum of N5,000,000 as general damages.
9. N1,000,000 cost of action (see page 133-134 of the Records of Appeal).

The 4th Respondent (as 4th Defendant) had counter-claim, as follows (as per the 4th Defendants, 2nd Amended counter-claim, filed on 4/5/15):
1. A Declaration that the counter claimant herein is the lawful beneficial owner and title holder of the property known as and situate at No. 9 Mekunwen Road, Ikoyi, Lagos by virtue of the certificate of occupancy, granted to me by the Federal Government of Nigeria and registered as No. 13 at page 13 in volume 121 at the Federal Lands Registry, Ikoyi, Lagos and dated the 28th of October, 2008, to the extent that the said title is still subsisting.
2. An order of this Honourable Court commanding the plaintiff, his servants, agents, privies and howsoever called, to immediately surrender and relinquish the possession and use of the said property known as No. 9 of Mekunwen Road, Ikoyi, Lagos covered by the Federal Government of Nigeria certificate of occupancy registered as No. 13 at page 13 in

volume 121 at the Federal Lands Registry, Ikoyi, Lagos in the name and for the benefit of the 4th Defendant/Counter claimant.
3. Possession of the said piece or parcel of land, buildings and appurtenances thereon, lying and situate at 9 Mekunwen Road, Ikoyi, Lagos Eti Osa Local Government Area of Lagos State, having an area of approximately 2671.974 sq mts, verged Red on survey man No. L4919/H.
4. N10,000,000 (Ten million Naira) special and general, damages suffered by this Counter Claimant herein, as a result of loss of use of the said property due to the refusal of the Defendant to the Counter claim to vacate the property, after the same had been sold to the Counter claimant by the Government of Federal Republic of Nigeria.
5. N1,050,000 (One million and fifty thousand Naira) paid to the counter-claimants solicitors, MESSRS Onuzuruike Law chambers, being their professional fees for the defense and prosecution of this suit for me as the 4th defendant/counter claimant. (see pages 229-230 of the Records of Appeal).

After hearing the case and considering the evidence and addresses of Counsel, the trial Court held for the counter claimant, as follows:

“In sum this Court upholds the defence case and hereby dismiss (sic) the case of the plaintiff without any formality. Upon a calm reflection, what then is the faith (sic) of the counter claim: this Court having arrived at a conclusion that the case of the plaintiff is built on shifty sand as its foundation, and has cascade (sic) and collapsed to the ground, the Court equally has no doubt that there is ample evidence in support of the 4th defendant/counter-claim to which, again, the plaintiff has no defence, except for his recalcitrant attitude that has denied the 4th Defendant of his right to enjoy the occupation of No. 9 Mekunwen street, Ikoyi, Lagos. This Court, again, upon a calm reflection is entitled to enter judgment for the 4th Defendant/counter-claimant in the following terms:
That the 4th Defendant/Counter-claimant 2nd Amended statement of Defence and Counter-claim, dated and filed on 4th May, 2015, claims in the following terms:
a. A Declaration that the counter-claimant herein is the lawful beneficial owner and title holder of the property known as and situate at No. 9 Mekunwen Road, Ikoyi, Lagos, by virtue of the

certificate of occupancy granted to him by the Federal Government of Nigeria and registered as No. 13 at page 13, in volume 121 at the Federal Lands Registry Ikoyi, Lagos and dated the 28th October, 2008, to the extent that the said title still subsists.
b. Possession of the said piece or parcel of land, building and appurtenances thereon lying, being and situate at No. 9 Mekunwen Road Ikoyi, Lagos Eti-Osa Local Government Area of Lagos State, having an area approximately 2671.974 sq mts and verged red on survey plan No. L4919/H.
The plaintiff held the premises for years not paying rent and dressing the area close and that (sic).
c. N10,000,000 (Ten million Naira) special and general damages suffered by the counter claimant herein, as a result of loss of use of the said property due to the refusal of the Defendant do (sic) counter-claim to vacate the property after the same has been duly and legally sold to the counter claim (sic) by the Government of the Federal Republic of Nigeria.
d. N1,050,000 ( One million and fifty thousand naira) paid to the counter claimants solicitors… being solicitors fees for the prosecution of his defense

and counter claim…you cannot transfer your legal fees to your (sic).
Claim (d) for solicitor’s fees has no basis, it is struck out…” (See pages 354-355 of the Records).

That is the decision Appellant appealed against, being aggrieved, as per the Amended Notice of Appeal, disclosing five (5) grounds of Appeal. He filed Brief of arguments on 30/6/2017, which was deemed duly filed on 10/12/2020. He filed Reply Brief on 8/12/2020, upon being served with the 4th Respondent’s brief, filed on 5/5/20 and which was also deemed duly filed on 10/12/2020.

Appellant distilled four (4) issues, for the determination of the Appeal, as follows:
1. Whether the trial Court erred in law when it held that the Appellant is not a sitting tenant of the 1st Respondent, despite the Appellants lawful occupation of the property. (Ground 1).
2. Whether the trial Court erred in law, when it failed to hold and pronounce on the issue that the 1st to 3rd Respondents acted mala fide, which actions were contrary to the provisions of the Guidelines for the sale of Federal Government properties? Grounds 2 and 3.

Whether the trial Court erred in law by adjudicating over the 4th Respondents counter claim founded on title and possession, which are matters outside the jurisdiction of the trial Court Ground 4.
4. Whether there exist a valid judgment considering the conflicting dates in the said judgment by the trial Court (Ground 5)

The 4th Respondent also distilled 4 issues in his brief of arguments for the determination of the Appeal, as follows:
1. In view of the established facts of this case, whether the trial Court was not right to have held that the Appellant is not a legal sitting tenant of the subject property at plot 9 Mekunwen Road, Ikoyi, Lagos and thus not entitled to exercise the right of first refusal for the purchase of the said property? ( Ground 1)
2. Whether the trial Court is bound to pronounce on a particular issue the way and manner a party formulated the said issue and whether the trial Court did not pronounce on the property or otherwise of the action of the 1st-3rd Respondents as regards the sale of the subject property to the 4th Respondent? (Ground 2 and 3)
3. Whether from the peculiar facts of this case, the Court below has (sic) the

jurisdiction and competence to hear and determine the 4th respondents counter claim. ( Ground 4)
4. Whether the judgment of the trial Court is valid, notwithstanding any alleged minor slips contained therein? ( Ground 5)

Arguing the Appeal on 10/12/2020, Appellants Counsel, Efe Ize-Iyamu, Esq., who settled Appellants brief, on issue one, said the trial Court was wrong to have held that Appellant was not a sitting tenant of the 1st Respondent, upon his retirement, having said that Appellant’s contention that he remained a statutory tenant of the 1st Respondent, was untenable; Counsel said that Appellant was the allottee and occupier of the property; that by Exhibit P2 (the Federal Establishment Circulars 2003 -2005), the Government had approved the monetization of fringe benefits, particularly Residential Accommodation, furniture etc, which were hitherto provided for by Government. He said that the Exhibit P2 provided that residential accommodation allowance of officers will be converted to rent for quarters they occupied and the said property would be sold to the Public officers occupying such houses by public auction, upon the of the right of

first option to purchase the houses; that Appellant was not only in service as at the time of issue of Exhibit P2 (27/7/2003), but was also in physical possession and occupation of the said property, 9 Mekunwen Road, Ikoyi, Lagos. Invariably, Counsel said Appellant was the sitting tenant of the property in the light of clause 12 of the Exhibit D2C (Bid form and information Brochure). He relied on the case of African petroleum Ltd Vs Owodunni (1991) 8 NWLR (Pt. 210) 391, for the meaning of the word “Tenant”; “that the qualification for becoming a tenant is lawful occupation, whenever the initial entry is lawful. Such occupier becomes a tenant to the landlord.”

Counsel also relied on Registered Trustee of Mission Vs All States Trust Bank Plc (2003) FWLR (pt. 72) 1804. Counsel therefore said the trial Court was wrong to hold, as it did (on pages 341-342 of the Records of Appeal) to the effect that, the main determinants of tenancy are the conditions listed by the trial judge therein. He asserted, again, that Appellant was a lawful occupier of the property; that the parameter in determining who a sitting tenant is in this case, cannot

therefore be the payment of N10,000 and the 12 months deductions etc. He submitted that Appellant was a sitting tenant, having been in lawful occupation as at the date of issuance of the Exhibit P2; he said that the 3rd Respondent was duty bound to treat Appellant as such.

Counsel also argued that the trial Court was wrong to hold that Appellant was a licencee on the property, having retired from the service of the 1st Respondent. He relied on the case of African Petroleum Ltd Vs Owodunni (Supra), which limits the definition of a tenant to a lawful occupier or one in lawful occupation. He also relied on Abeke Vs Odunsi & Anor (2013) LPELR-20640 (SC), where it was held:
“A tenancy at sufferance arises where a tenant, having valid tenancy, holds over without the landlord’s assent or dissent. Such a tenant differs from a trespasser in that his original entry was lawful and from tenant at will, in that his tenancy exists without the Landlords assents.”

Counsel said that Appellant being a valid sitting tenant should have been given the right of first offer, or opportunity to exercise his right of first refusal at the moment he

wrote the Exhibits P3, pursuant to 1st Respondent Exhibits P2, clauses 12 and 13 and Exhibit D2C, He relied on the Black’s Law Dictionary, on the meaning of “Right of first Refusal” and said that without Appellant exhausting his right of first refusal, any sale of the property to 4th Respondent (or any third party) was null and void. He relied on Owosho Vs Dada (1984) 7 SC 149. He added that the 4th Respondent cannot rely on the legal doctrine of innocent purchaser of the property for value without notice of the interest of the Appellant, as the 4th Respondent was aware of the presence and interest of the Appellant, as per the pleadings and evidence. He founded on paragraph 12 of the 2nd Amended statement of defense on page 195 of the Records.

On the Issue 2, whether the trial Judge failed to hold and pronounce on the issue, that 1st to 3rd Respondent acted mala fide, which actions were contrary to the provisions of the Guidelines for the sale of Federal Government properties, Counsel answered in the affirmative.

Counsel said the trial Court was quick to juxtapose the Appellant’s evidence with the Exhibit D2F (approved guidelines for lease of Federal Government Land properties in Lagos), without carrying out a corresponding evaluation of the 4th Respondents evidence; he said that the Court proceeded to hold that 1st to 3rd Respondents were free to deal with the property, meaning that they were not under any obligation to comply with their set guidelines as it affected the 4th Respondent; thus, that the 1st to 3rd Respondents acted mala fide in favor of the 4th Respondent. Counsel referred us to Exhibits P3 (wherein Appellant expressed his interest in the property, seeking to be offered the right to buy; that the trial Court had held that Appellant “never applied nor did he express any interest form and also never paid a non-refundable fee of N10,000” (Page 343 of the Records). Counsel argued that the 3rd Respondent had a duty to act, bonafide, and relied on Exhibits P2, D2C and D2F

Counsel further argued that the 4th Respondent had also applied in Exhibit D5A (as Appellant did in Exhibit P3) expressing interest in the property he (4th Respondent) occupied and the 3rd Respondent promptly attended to him, while ignoring that of Appellant. Thus, 3rd Respondent acted in bad faith towards the Appellant.

Again, Counsel argued that the 1st to 3rd Respondents flaunted their guidelines and conditions stated in Exhibits D5B and D2F, and that 4th Respondent derogated from them, as his payments (Exhibit D5D) were made outside the stipulated period. He said that from the evidence presented to the trial Court, it was clear that there was condition precedent in Exhibit D5B; that once the condition precedent was incorporated into the Agreement, the same must be fulfilled, before the effect can follow. Thus, any failed payment outside (sic) the stipulated time line will automatically void Exhibit D5B; he said that 3rd Respondent was duty bound to return all payments made in excess of the initial 10%, after deductions of all and administrative costs that may have been incurred. He relied on Nigerian Bank of Commerce and Industry Ltd Vs. Integrated (Nig) Ltd (2005) 4 NWLR (pt 916) 617.

Counsel said Exhibit D5B gave the 4th Respondent a total of 180 days to pay up all installments as provided by the Guidelines; that the parties were bound by the terms that any non-conformity will amount to a void transaction. He relied on Ajayi-Obe Vs. Executive Secretary (1975) SC 1 at 6-7.

On Issue 3, whether the trial Court erred by entertaining the Counter-claim founded on title and possession, matters outside the jurisdiction of the trial Court, Counsel answered in the affirmative. He argued that a counter-claim is a separate action from the main claim, to be proved by the counter-claimant. (Nsefik & Ors Vs. Muna & Ors (2013) LPELR – 21862; Jeric Nig Ltd Vs. UBN Plc (2000) 12 SC (pt. 11) 133; Obmiami Brick & Stone (Nig.) Ltd Vs. ACB Ltd.(1992) 3 NWLR (pt. 229) 260; Dantata Vs. Mohammed (2000) 7 NWLR (pt. 664) 176; Abubakar Vs Bebeji Oil & Allied Products Ltd & Ors (2007) 2 SC 48).

Counsel reproduced the reliefs sought by the 4th Respondent in the Counter-claim and said the same was predicated on “title” and “possession of land”; that the trial Federal High Court had no jurisdiction over claims for possession and title to land. He relied on the case of Adetayo & Ors Vs. Ademola & Ors (2010) LPELR – 155 (SC); Azagba Vs Nigerian College of Aviation Technology, Zaria & Anor (2013) LPELR – 20740 (CA); Omotosho Vs. Abdullahi Nig Plc (2008) ALL FWLR (Pt. 402) 1114.

Counsel referred us to Section 251 of the 1999 Constitution, on what constitutes the jurisdiction of the Federal High Court and the case of Okonkwo & Ors Vs. Okonkwo & Ors (2010) LPELR – 9357; Okulate Vs. Awosanya (2000) 2 NWLR (pt. 646) 530. Counsel noted that the 4th Respondent’s claim was against Appellant (who was not agency of Federal Government). He said that the trial Court had entered judgment for the 4th Respondent, as per the Counter-claim.
He urged us to set aside the decision of the trial Court for want of jurisdiction to entertain the counter claim. He relied on Utih & Ors Vs. Onoyivwe & Ors (1991) LPELR – 3436; Mobil Oil (sic) Producing Nig. Unltd Vs. LASEPA & Ors (2002) 12 SCNJ 1; Nwokoro Vs. Ashue (2010) LPELR – 4653; WAEC Vs. Adeyanju (2008) LPELR – 3467. He urged us to strike out the counter claim.

On Issue 4, whether there exist (sic) a valid judgment considering the conflicting dates in the said judgment by the trial Court, Counsel answered in the negative. Counsel said the 4th Respondent was not originally a party

to the suit; that the 4th Respondent had applied to be joined on 16/4/2009, and was obliged and made the 4th Respondent, on 18/6/2009 (Page 51 of the Records of Appeal).

He said that after hearing the case and taking addresses of the Counsel, the trial Court had adjourned to 25/4/16, for judgment, but was unable to deliver the judgment on that date and asked the parties to return, the next day – 26/4/2016; and the judgment was delivered on the said 26/4/2016. Counsel said that a perusal of the Records of Appeal, rather reveals three erroneous and conflicting dates of delivery of the judgment, namely:
1) 26th April, 2016 – page 357-358 of the Records;
2) 2nd June, 2015 at the heading of the judgment (page 393 of the Records)
3) 26th April, 2014, as signed by the Honourabe Judge at the end of the Judgment (Page 419 of the Records).

Counsel said the effect of the error, in the dates of the judgment, was fatal and relied on Nnodi Vs. Thanks Investment Ltd (2005) 11 NWLR (pt. 935) 29.
He argued that the errors, were not accidental slips, as there was a vast difference in the dates – 2nd June, 2015 and 26th April, 2014, and

the actual date 26/4/2016. Thus, he said there was no valid judgment by the lower Court; that any attempt to correct the erroneous dates by the trial Court is both contemptuous and disdainful.

Counsel urged us to resolve the issues for Appellant, allow the Appeal and set aside the decision of the trial Court, and strike out the Counter claim, for absence of jurisdiction by the trial Court to entertain it.

Responding, the learned Counsel for the Respondent, FES Eze Eke Esq., on the issue 1, answered in the affirmative, saying that the trial Judge held rightly, that Appellant was not a sitting tenant of the property, given the evidence adduced, and so not entitled to being given the right of first refusal to purchase the property. He said that the law is trite, that the duty of evaluating evidence is that of the trial Judge, which has to ascribe probative value to same and that Appellate Court cannot interfere with the findings from such evaluation, except it was perverse or reached wrong conclusions.

He relied on Emeka Vs. Okoroafor (2017) 11 NWLR (pt. 1577) 410 at 469, and argued that the Appellant was not a legal sitting tenant at the time he

wrote Exhibit P3 on 13/7/2004 to 3rd Respondent, seeking to purchase the property (Page 474 of the Records); that at that time, the Appellant had already retired from the employment of the Federal Government; and even more so, as the approved guidelines for the lease/sale of Federal Government property in Lagos took effect from 1st April, 2004. Thus, as at July, 2003, when Appellant retired from service, he ceased to have capacity to even apply for the allocation of government quarters – the subject matter of the suit. Thus, he said that the trial Court was right, when it held that the lease of Federal Government, property is a contract between the Federal Government as lessor and legal sitting tenant or individual member of public, as lessee, (Pages 340 – 341 of the Records) especially as the Bid form and Information Brochure (Exhibit D2C) came into effect in 2004; he said that Appellant had even admitted the obvious, when he said, under cross examination:
“I retired in 2003. I am aware that sitting tenants has right of first refusal. I am aware the guidelines came into effect in 2004… I did not express interest in form. I did not deposit.” Page 340 of the Records.

Counsel said that the ingenious arguments of Appellant’s Counsel to circumvent the true fact an evidence of the admission cannot replace the evidence, and relied on the case of Dosunmu Vs Joto (1987) ANLR 479 at 510; (1987) 4 NWLR (pt. 64) P.N. Udoh Trading Co. Ltd Vs. Abere (2001) SC (pt. 2) 64; Nigeria Arab Bank Ltd vs. Femi Kane Ltd (1995) 4 NWLR (pt. 387) 100; Chukwujekwu Vs. Olalere (1992) 2 NWLR (pt. 221) 86 at 93.

Counsel asserted that Appellant, having retired in 2003 from the military, as per the confirmation by the Directorate of Legal Services (Army) Headquarters – (Exhibit D2E), there was no basis for his claim of being a sitting tenant of the property and even for his letter (Exhibit P3) applying for purchase of the property; he said that one cannot place something on nothing and expect it to stand, relying on Macfoy Vs. UAC ltd (1961) 3 ALL ER 1169; Rossek Vs. ACB ltd (1993) 8 NWLR (pt. 312) 382.

Counsel referred us to clause 12 of Exhibit D2C, which states:
“Public servants who are legal sitting tenants are entitled to right of first refusal but they will be required

to express their interest by completing the application form to be offered this right.” (Page 499 of the Records).

He added that the Guideline also required each bidder to fill and complete the bidding form along with the following documents (and failure to do so to result in disqualification):
1) Bank draft/certified cheque equal to non-refundable bidding fee of ₦10,000.00.
2) Bank draft/certified cheque equal to 10% bid value. All bids which fail to meet this requirements, stand disqualified.
3) A copy of Tax Clearance Certificate for past three years (for individual and corporate Bodies).
4) Copy of Certificate of Incorporation (for Corporate Bodies).

Counsel said Appellant did not comply with any of the above, did not apply, and was not a sitting tenant. Counsel said that Exhibit P2 (Federal Establishment Circular 2003 – 2005) cannot take precedent over Exhibit D2C and Exhibit D2F, having been issued before the Exhibit D2C; that by law, where there are two documents, with conflicting provisions on a particular subject, the latter in time takes precedence over the former and represents the latest intention of the maker/parties. He relied on Abubakar Vs. Nasamu (2012) 17 NWLR (pt. 1330) 407 at 587.

Thus, Appellant, having retired from public service in 2003, had no mandate to continue to say in the property, till 2016, when the lower Court delivered its judgment, and so he became a licencee on the property, not a legal sitting tenant. He referred us to the Public Service Rules 2000, Rule 12114, to the effect that any retiree from the public service of the Federation was entitled to stay for three months in the Government Quarters occupied by him. Thus, Appellant ought to have moved out of the property, 3 months, after retirement in July 2003, but he refused to give up possession, for over 17 years! Counsel relied on the case of Nwanna Vs. Federal Capital Development Authority & Ors (2004) 13 NWLR (pt. 889) 120 at 139 – 140, which stated that:
“It is settled that where an agent or servant is allowed to occupy premises belonging to his principal for the more convenience of his duties, he acquires not estate. Also see Woodfall’s Law of Landlord and Tenant Page 294 – 295. He is merely a licencee and he has no right to continue to remain in the premises on the cessation of his employment.”

Counsel urged us to resolve the Issue against Appellant.
On issue 2, Counsel said that the Court had pronounced on the propriety or otherwise of the action of the 1st to 3rd Respondents as regards the sale of the property to the 4th Respondent; that the trial Court was not bound to pronounce on a particular issue in the manner slated or formulated by parties; that the Court has inherent power to reformulate or retouch issue(s) for determination, formulated by the parties. He relied on Poroye Vs. Makarfi (2018) 1 NWLR (Pt. 1599) 91 at 137. He said that the trial Court had correctly evaluated the evidence led, before holding, correctly, that the property was sold to the 4th Respondent by the1st -3rd Respondents. He referred us to pages 341 – 346 of the Records of Appeal. He said that it was erroneous and mischievous for Appellant to allege that the lower Court failed to evaluate. He relied on the evidence of the case of Brown Vs. State (2017) 4 NWLR (Pt. 1556) 341 on the meaning and quality of proper evaluation of evidence.

Counsel said that Appellant merely alleged that the 3rd Respondent acted mala fide in selling the property to 4th Respondent, without stating the wrong doings or unlawful act of the 3rd Respondent, which can vitiate what it did. He added that motive for doing an act does not, necessarily, determine the legality of the said act; thus, if there is a right to an act, the fact that the motive for doing it is bad, will not affect the validity or legality of it. He relied on the English case of Mayor of Brandford Vs. Pickles (1895) AC 587 and the Nigerian case of Taiwo Vs Kingsway Stores Ltd (1960) 19 NLR 122.

Counsel also founded on Exhibit E (circular by government dated 15/4/04, which provided that allocation of Government property has been stopped, forthwith and that retired civil servants should no longer be allowed to retain the quarters they occupied while in service); he said that Appellant did not dispute the Exhibit E and so, even if the Exhibit P3 (his application letter) were to be countenanced, it served no useful purpose, as the policy that made him to apply had been reversed by the Exhibit E. He relied on Olofu & Ors Vs Itodo & Ors (2010) 18 NWLR (pt. 1225) 548, and said that Appellant failed to establish bad faith by the 3rd Respondent.

On Issue 3, whether the Court had jurisdiction to hear the Counter claim, Counsel answered in the affirmative. He argued to show that the case was not that of a title land, but as to who the Government (1st to 3rd Respondents); who owned the property, in fact, sold the property to, and whether 1st to 3rd Respondents acted properly by selling the property to 4th Respondent; he said that both the Appellant’s claim, and the Counter claim pointed to the same thing – sale and transfer of the property of the Federal Government at 9 Mekunwen Road, Ikoyi, Lagos. Counsel said Appellant, interestingly did not raise that issue (jurisdiction) at the lower Court. Counsel observed that the reliefs sought by the Counter claim were similar to those sought by Appellant in the 2nd Amended Statement of Claim, and said that the trial Court had the jurisdiction to hear and determine the claims – as to the rightful person the property was sold to by the owner – 1st to 3rd Respondents.

Counsel relied on Section 251 (1)(r) of the 1999 Constitution, to locate the jurisdiction of the Federal High Court to adjudicate on the dispute, same touching on administrative action of the Federal Government or any of its agencies, whereof; the Federal High Court has exclusive jurisdiction; He said that the Court was called upon to determine the action of the 1st to 3rd Respondents, selling the property and whether they had transferred lawful title to the 4th Respondent by selling the property to him. Counsel also relied on Section 49(1) of the Land Use Act, and the effect of same on the lands held by the Federal Government or its agencies, whereof it can administer by administrative action, and the appropriate Court to determine such administrative action in the event of conflict- Section 251(1)(r) of the 1999 Constitution. Counsel therefore submitted that the case has to do with the administrative action of the 1st to 3rd Respondents – a declaration affecting the validity of the executive action or decision, with respect to the sale of No. 9 Mekunwen Road, Ikoyi, Lagos, to the 4th Respondent, as contemplated under Section 251 (1)(r) of the 1999 Constitution, as amended.

He added that any law which purports to exclude the jurisdiction of the Federal High Court in proceedings to validate or question the executive or administrative action(s) of the Federal Government or any of its agencies shall be declared null and void, in so far as that law or any of its provisions is in-inconsistent with the provisions of Section 251(1)(r) of the Constitution. He relied on A. G. Abia State Vs. A. G. Federation (2006) 16 NWLR (pt. 1005) 265 at 381; NDIC Vs. Okem Enterprises Ltd (2004) 10 NWLR (pt. 880) 107; A. G. Bauchi State Vs. A. G. Federation (Supra), with regards to the judicial interpretation of the word “Notwithstanding”, used in Section 251(1) of the 1999 Constitution, which conveyed jurisdiction on Federal High Court. Counsel also founded his argument on the case of Minister, Federal Housing Authority & Urban Development & Anor Vs Bello (2009) 12 NWLR (Pt. 1155) 345 at 364-365, where my Lord, Okoro JCA (as he then was) held:
“Ordinarily, by virtue of Section 39 and 41 of the Land Use Act, only Courts enumerated in those sections have original jurisdiction over land matters. While the State High Court has exclusive jurisdiction over Lands in urban area, by virtue of

Section 39(1) of the Act, it shares concurrent jurisdiction with the Customary Court or other Courts of equivalent Jurisdiction by virtue of both its unlimited jurisdiction under Section 272 of the 1999 Constitution, and the jurisdiction conveyed on the Customary Courts or other Courts by Section 41 of the Act. However, State High Court exercise their original jurisdiction on land matters as conveyed on them by the Act, subject to the provision of Section 251 of the 1999 Constitution with regards to the jurisdiction of the Federal High Court. Consequently, where the Federal Government or any of its agencies is a party in a suit, the jurisdiction of the State High Court would be surrendered to the Federal High Court in the instant case, in view of the fact that the Appellant are agencies of the Federal Government, the trial Court rightly assumed jurisdiction over the respondents’ suit, notwithstanding the claim of the respondent.”

Counsel also relied on the case of Fawehinmi Vs NBA (No. ll) (1989) 2 NWLR (Pt. 105) 558 at 650
On issue 4, whether the judgment is valid, in view of conflicting dates of the judgment, Counsel answered in the

affirmative and said that the complaint raised by the Appellant are minor slips, especially as Appellant has acknowledged that the judgment was delivered on the 26/4/2016; he said that Appellant cannot approbate and reprobate, at the same time, having dutifully stated that the judgment was delivered on the 26th April, 2016, he cannot resort to the error apparent on the Records which suggest another date, as the date of delivery of the judgment. He said there was no doubt that the judgment was delivered on the 26th April, 2016. He relied on the case of Oliyide & Sons Ltd Vs Obafemi Awolowo University, Ile-Ife (2018) 8 NWLR (Pt. 1622) 564, to say that a party or counsel is not allowed to approbate and reprobate at the same time or to speak at the same time or on the same moment with both sides of his mouth.

He urged us to discountenance the Appellant’s argument in this regard for being irrelevant and not helpful to the Appellant’s case, since he knows that the judgment was delivered on 26/4/2016. He said Appellant was seeking the use of technicality to void the judgment; Counsel asserted that the law is trite, that technicalities should not be allowed to deflect the course of justice and relied on Akpan Vs Bob (2010) 17 NWLR (Pt. 1223) 421 at 478-479.

Counsel also argued and submitted that there is no conflicting dates on the judgment of the lower Court (pages 330 to 356 of the Records), which was compiled by Appellant; that pages 355-356 of the Records, which contain the signatures of the learned trial Judge, clearly show 26/4/2016 as the date of the judgment, as well as the judgment order on pages 357-359 of the Records. He said that the alleged conflicting dates were made a heavy weather of, mischievously by the Appellant, whereas, the alleged conflict had been corrected by the trial Court, being a minor accidental slip. He relied on the case of Elias Vs Ecobank (Nig.) Plc. (2017) 2 NWLR (Pt. 1549) 175 at 196, and on the case of Osareren Vs FRN (2018) 10 NWLR (Pt. 1622) 221 at 235, where the Supreme Court said:
“It is not every error or mistake in a judgment that will result in allowing the appeal against it. The appeal Court will only interfere, where the error or mistake is shown to have occasioned a miscarriage of justice. Because, miscarriage of justice varies from case to

case, the facts and the circumstances of the case, where miscarriage of justice is alleged, must be examined. In effect, the error resulting in miscarriage of justice is the mistake or error that is prejudicial or inconsistent with the right of a party.”

See also Darlington Vs FRN (2018) 11 NWLR (Pt. 1629) 152 at 166; Muhammad Opara Vs A.G. Federation (2017) 9 NWLR (Pt. 1569) 61.

Counsel also urged us to invoke the Wisdom of Solomon in the Book of 1st Kings, Chapter 3, verse 16-27, as recorded in the Holy Bible, to resolve the alleged conflict, in favour of the 4th Respondent. He urged us to dismiss the Appeal.
The 1st to 3rd Respondents filed no brief.

RESOLUTION OF ISSUES
Appellant’s Reply brief had sought to make clarifications on the meaning of tenant and to clarify misconception as held by the 4th Respondent on issue of jurisdiction. I think that effort amounted to further arguing of the Appellant’s brief, with a barrage of cases, to better it, and that is not what a reply brief should do or attain. A reply brief is not meant to give appellant a second chance to argue and improve on his argument of the Appeal,

but to respond to fresh issues or points of law, raised in the Respondent’s brief, which were not contemplated in the Appellant’s brief. See Iheka vs Njoku (2017) LPELR-42002(CA); Akayepe & Anor Vs Akayepe (2009) LPELR-326(SC); Mathew Vs State (2019) LPELR-46930 (SC); Akwaiwu & Anor Vs Akwaiwu & ors (2020) LPELR- 51954 (CA).

I think the real issue for determination of this Appeal are three:
1. Whether the trial judge was right to hold that Appellant was not a sitting tenant qualified to enjoy the rights of first refusal as stipulated in the Government Guideline- Exhibit D2C and/or was not qualified to purchase the property in contention- No. 8 Mekunwen Road, Ikoyi, Lagos.
2. Whether the trial Court was right to give judgment to the respondent in respect of his Counter-claim, considering the text of the reliefs sought and whether the trial Court had jurisdiction to entertain the claim.
3. Whether there was a valid judgment considering the allegation of conflicting dates of delivery of the judgment.

I think the first issue, above, is a summary of Appellant’s 1st and 2nd Issues, while the issues 2 and 3, above, agree with Appellant’s issue 3 and 4, respectively.

The fact of this case at the lower Court, shows that the Appellant , a Rtd. Major General and army officer, occupied the property in question – No. 9 Mekunwen Road, Ikoyi, Lagos, by virtue of his service as a public officer in the Ministry of Defence, and the property belonged to the Government, and regulated by the 1st Respondent. He retired from service in 2003, but held over the property, and when in 2008, the 1st Respondent sold the property to a 3rd party – the 4th Respondent, the Appellant brought this case to seek a declaration that he was the sitting tenant on the property, entitled to the right of first refusal before 1st Respondent could sell the property to any other person, and he sought to compel the government to issue him with the letter of offer to buy the property, an order of injunction restraining Defendants from selling the property or dealing with it, in any manner adverse to him (Appellant). Appellant also sought damages.

The suit was initiated against 1st and 3rd Respondents, but the 4th Respondent, to whom the property was sold, applied to join and was

joined as 4th Respondent, and he Counter-claimed, seeking to be declared the lawful beneficial owner and title holder of the property (by virtue of the sale to him of same, by the Government (1st Respondent). The 4th Respondent also sought possession and order of Court for Appellant to vacate the property, and for injunction and damages. The trial Court was more impressed by the case of the 4th Respondent in the Counter-claim, which agreed with the position of the 1st to 3rd Respondent, and granted same, while also dismissing the claims of the Appellant.

Appellant had argued, strongly, that he was a sitting tenant on the property, entitled to the right of first refusal, as per the Exhibit D2C, before the property could be sold to a 3rd party. He relied on many authorities, for the meaning of tenant; including Nigerian Airways ltd (In Liquidation) & Ors Vs Mahdi (2013) LPELR-20742, to say that what defines a tenant is lawful occupation:
“A tenant has been defined to include all persons who occupy premises lawfully, whether that person pays regular rent or indeed no rent at all. The qualification for becoming a tenant is lawful occupation, whenever the initial entry is lawful, such occupier becomes a tenant to the Landlord.”

He also relied on African Petroleum Ltd Vs Owodunni (1991) 8 NWLR (Pt. 210) 391 and Registered Trustees of Mission Vs All State Trust Bank PLC (2003) FWLR (Pt. 72) 1804.

But in this case, apart from relying on the simple meaning of the term “TENANT”, which Appellant appeared to be, on the property (though he overstayed and was no longer paying rent), I think he had a duty to establish that he was a legal sitting tenant, for the purpose of clause 12 of the Exhibit D2C, to entitle him to the right of first refusal to purchase the property, as claimed by him. The clause 12 of Exhibit D2C stated:
“Public Servants who are legal sitting tenants are entitled to right of first refusal but they will be required to express their interest by completing the application form to be offered this right.”

The Respondents had argued, strongly, that Appellant was no longer a public servant at the time of sale of property, having retired in 2003, and was no longer legal sitting occupier of the property, having held over and refused to surrender

possession; that he was a licencee on the property, or tenant at the sufferance, thus, he was not entitled to the right of first refusal. Moreover, Respondents said that Appellant did not comply with the Exhibit D2C (Bid Form and Information Brochure, which came to effect in 2004), namely, failing to submit completed bidding form along with requisite payments of deposits, etc. They also referred us to the evidence of the Appellant (under cross examination), where he admitted, as follows:
“I retired in 2003. I am aware that sitting tenant (sic) has right of first refusal. I am aware the guidelines came into effect in 2004… I did not express in form. I did not deposit.” (See page 240 of the Records).

Making findings on the above evidence, the trial Court said:
“This Court must quickly point out that by the evidence, this 2008 case ought not to have been in Court at all these years. All the grammer (sic) can be narrowed to the issue identified by Mrs. O. Coker for the 1st – 3rd Defendant (sic) wherein it has been more clearly demonstrated that the plaintiff was not a sitting tenant, to this Court; that goes to the

root of the plaintiff’s claims. The Court thinks Mrs. Coker, Learned counsel has gone for the jugular (sic) of the plaintiff, if the Court hold (sic) and finds out that the plaintiff was not a sitting tenant, that is the end of the road for the plaintiff. All other argument collapsed like a pack of cards, since it is also admitted by the Plaintiff… Indeed PW1 admitted; I am not paying that to anybody. I did not buy the place. I was not offered the house to buy. I am not aware of the cut-off-date for offer to purchase. I know I am supposed to buy and it was not offered to me.” (Pages 339- 340 of the Records).

The trial Court added:
“One would have thought that, from the pleadings and the evidence of the plaintiff, the plaintiff should not have proceeded pursuing this case… this Court upon a calm reflection on the pleadings and evidence, both oral and documentary, has no difficulty, without going into other issues which were agued in agreeing with learned counsel for the d 1st -3rd Defendants and 4th Defendant, that: The lease of the Federal Government property is a contract between the Federal Government as Lessors and

Legal sitting Tenant or individual member of the public as lessee. According to the provisions of the approved Guidelines for the lease of Federal Government property in Lagos, to have a successful conclusion of contract will involve invitation to treat, offer, acceptance and consideration. At the invitation to treat member(sic) of the public who are interested to leave the… property under this scheme must satisfy the following conditions as provided by the approved guidelines for full result on the print media… The Federal Government is the offeror, while either the civil servant occupying Government property to be leased, or highest bidder will become offeree… where an occupant of House to lease satisfied all the requirements stated in the Approved Guidelines, such occupant will be qualified as being sitting tenant and he/she will be automatically served with a letter of offer by the committee after bidding. Thus, he/she will enjoy such right of the first refusal.
On the other hand, where the committee considered the occupant’s documents forwarded to it and discovered that the occupant failed to satisfy all the requirements

stated in the Approved Guidelines for the lease of the Federal Government property, as in the instant case, the committee will not qualify such occupant as legal sitting tenant, and therefore not issue letter of offer to him/her after the bids. The option of first refusal to legal sitting tenant from the pleadings of the parties and the evidence had in the matter is a privilege and not a right. The option does not rob the Federal Government of the power to deal with the property in whichever way it pleases, including the sale to the 4th respondent.” See pages 341-342 of the Records.

The above findings of the trial Court on the admission by the Appellant, the wanting-ness of the case presented by the Appellant (as Plaintiff), and the interpretation of the Approved Guidelines (Exhibit D2C) as to who qualifies as a sitting legal tenant, to be entitled to right of first refusal, has not been challenged or appealed against by the Appellant in this Appeal. Appellant who admitted that he did not even fill the Bid form, nor applied to purchase the property, and so did not comply with the conditions precedent to expression of interest in the property, appear

to have expected the committee that handled the sale, to accord him right of first refusal to purchase the property, which he forcefully occupied since after his retirement in 2003. Probably as a military officer, he expected the property to be surrendered to him to buy, by way of military fiat.

Like the trial Judge rightly observed, I think the claims of the Appellant were hopeless and merely wishful and audacious, when he sought to be declared a sitting tenant of 1st to 3rd Respondent and to be issued with letter of right of first refusal to buy the property, and an order nullifying the sale to the 4th Respondent and compelling the sale to be made to him, after

admitting he was no more a servant of the 1st Respondent, having retired, and that he was holding the property, forcefully, and did not even fill the requisite forms, nor complied with the conditions stipulated for the purchase of property! I resolve the issue one against the Appellant.

Was the trial Court right to give judgment to the 4th Respondent in respect of his counter-claim, considering the text of the reliefs sought, and did the trial Court have jurisdiction to entertain the counter-claim?

I think the Appellant’s Counsel was only grandstanding, when he tried to fault the jurisdiction of the trial Court, on appeal, to entertain the counter-claim, on the allegation that the 4th Respondent was seeking “declaration of title to land and possession”, which is outside the jurisdiction of the Federal High Court. Appellant did not raise any such issue of lack of absence of jurisdiction at the trial Court, because, I believe, he knew the truth that the real issue in the case was the sale of the property to 4th Respondent by the 1st to 3rd Respondents, rather than to him, Appellant!

The case was never one for title to land, despite the inelegant couching of the reliefs by the 4th defendant at the trial Court. It could not have been issue of title and possession to land, because both Appellant and the 4th Respondent had acknowledged the Government (represented by 1st to 3rd Respondents) as the owner of property, No. 9 Mekunwen Road, Ikoyi, Lagos, and that the same was sold to the 4th Respondent, even when he (Appellant) was still on the property and wanted same to be sold to him (Appellant)! See the reliefs 2, 3, 4, 5 and 6 by the Appellant in this case (earlier produced).

And so all the legal gymnastics/arguments and cases cited as to whether the trial Court (Federal High Court) had jurisdiction to hear and entertain a case seeking title to land and possession of land, were, in my opinion, completely unnecessary, and a distraction in this case, as the case of the 4th Respondent, was obviously, a counter-claim, to affirm the sale of the property to him by the 1st to 3rd Respondent and for the consequential orders for Appellant to vacate the property!

It is however conceded, that the couching of the reliefs sought by 4th Defendant’s Counsel in the counter-claim were

quite inelegant, talking about declaration that 4th Respondent was the lawful owner and title holder of the property; and for possession of the said piece or parcel of land.”

I do not think the Appellant or any of the parties failed to understand the real issues before the trial Court, by the two sides, for determination, as earlier stated in this judgment, and so none can claim to have been misled by the said in-elegance in the drafting and presenting the claims (reliefs) in the counter-claim, nor by the findings and decision of the trial Court thereon. Courts are expected to pursue substantial justice, not technicalities.

It is also quite glaring, that the substance of the two cases questioned or sought, to justify the power of the 1st to 3rd Respondents to deal with the property, No. 9 Mekunwen Road, Ikoyi, Lagos, by selling same to 4th Respondent, and how the sale was made. While Appellant questioned the sale, the 4th Respondent justified it and sought an order for Appellant to vacate the property, and because the 1st to 3rd Respondents are Federal Government Agencies, which controlled and administered the property, by virtue of

Section 49 of the Land Use Act 1978. The Section concedes to the Federal Government or its agency to hold title to land. The provision says:
“49 (1) Nothing in this Act 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 and shall continue to rest in the Federal Government or the agency concerned.
49 (2) In this section, ‘agency’ includes any statutory corporation or any other statutory body (whether corporate or unincorporate) or any company wholly owned by the Federal Government.”
Of course, Section 251 (1)(r) of the 1999 Constitution of Nigeria, as amended, says:
“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;
(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 agency and…”

There is no doubt that the action or decision of the 1st to 3rd Respondents (Federal Agencies) to sell the property owned by the Government, to the 4th Respondent is at the root of this case of the Appellant and the 4th Respondent. The trial Court (Federal High Court) is therefore the appropriate Court with requisite jurisdiction to determine the dispute(s), in my opinion. See the views of my lord Okoro JCA (as he then was) in the case of Minister, Federal Housing Authority & Urban Development & Anor Vs. Bello (2009) 12 NWLR (pt. 1155) 345 at 364 – 365
Certainly, this was not a land case, or one for declaration of title, since the parties had agreed that title was vested in the Federal Government, and which transferred the title to the 4th Respondent. Appellant only disputed the sale, saying it ought to have been to him! The trial Court was therefore properly located to pronounce on the sale, whether it was valid or not, and whether the Appellant was entitled to it or not.

I think that, even if the trial Judge/Court were not to have jurisdiction to entertain the 4th Respondent’s counter-claim because of the inelegance or wrongs in the drafting of the reliefs sought, that the striking out of the counter-claim would not affect the value passed to the 4th Respondent by the 1st to 3rd Respondents in the property, upon the dismissal of the Appellant’s case by the lower Court. The challenge of jurisdiction, in the circumstances, was not well thought out, in my opinion.

On issue 3, whether there was a valid judgment in view of the conflicting dates of its delivery, paraded by the Appellant, I noticed that there were so many errors, slips and mistakes in the judgment, some typographical and some sheer carelessness of the lower Court and its registry, including the Registrar that compiled the Records of Appeal. The different dates of delivery, attributed to the same judgment is one of such obvious errors or slips by the Registry of the lower Court, which produced two separate judgment alleged to be of the same suit No. FHC/L/CS/702/2008, delivered by the same Hon. Justice I. N. Buda! See pages 330 to 356 of the Records, which carry the authentic judgment delivered on

26/4/2016, and pages 393 to 419 of the Records, which purports to carry the same judgment, but delivered on 26/4/2014! Such error and carelessness appears unpardonable, and is condemnable, but I cannot see how that error and confusion can affect the validity of the judgment, which Appellant, clearly stated, was delivered on 26th April, 2016, and he explained why it was so done.

Thankfully, the cover of the Records of Appeal, transmitted to this Court, and the Amended Notice of this Appeal, filed on 9/1/2017. And deemed, duly filed on 10/12/2020, had stated the correct date of the delivery of the judgment, being 26th April, 2016. Also the entire arguments of Counsel on both sides, were founded on the said judgment recorded on pages 330 to 356 of the Records of Appeal. (See paragraphs 5.08, 5.10, 6.01, where the Appellant’s brief specifically referred to the said judgment on pages 330 to 356 of the Records). Appellant cannot therefore be heard to raise issues about the date of judgment, neither can he contend the date of the judgment, having duly identified the correct judgment appealed against as the one dated 26/4/2016 and signed by the learned trial

Court, on pages 355 and 356 of the Records, and duly reflected in the orders of Court, issued by the Registry of the Court on the said 26/4/2016 – See page 357 to 359 of the Records of Appeal.
Having admitted that the judgment was delivered on 26/4/2016, Appellant cannot be allowed to approbate and reprobate on the said date of delivery of the judgment. See the case of R. A. Oliyide & Sons Ltd Vs. Obafemi Awolowo University, Ile-Ife (2018) NWLR (Pt. 1622) 564 at 575 – 576, where the Supreme Court held:
“It is well settled principle of law that Counsel should not approbate and reprobate. See Akaninwo vs. Nsirim (2008) ALL FWLR (pt. 410) 610 at 479… A litigant should not be allowed to speak at the same time or the same moment from the two sides of his mouth. He can only be allowed to speak from one side of the mouth at the same time… ”

I cannot, therefore, see any merit in this Appeal, as I resolve the issues against the Appellant and dismiss the Appeal. Appellant shall pay the cost of this Appeal, assessed at One Hundred Thousand Naira (N100,000.00) only.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: The draft of the lead judgment just delivered by my learned brother, ITA G. MBABA, JCA was served on me which I read through and in firm agreement with the reasoning and also conclusion reached.

The appeal as presented has no merit, it obviously failed and accordingly dismissed as done in the lead judgment.
I abide by the consequential order of costs assessed at One Hundred Thousand Naira (N100,000.00) only.

ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother I. G. MBABA, JCA. I entirely agree with the reasoning and conclusion reached therein that the appeal is devoid of any merit. I too dismiss the appeal and abide by all the consequential orders as contained in the lead judgment.

Appearances:

EFE IZE-IYAMU, ESQ., with him, JOSHUA BABADE, ESQ. For Appellant(s)

COKER (MRS.) ASSISTANT DIRECTOR, FEDERAL MINISTRY OF JUSTICE – for 1st to 3rd Respondents
FES. EZE EKE, ESQ. – for 4th Respondent For Respondent(s)