CHIDIMMA GEORGINA EWURUM v. THE MINISTER OF FEDERAL CAPITAL TERRITORY & ANOR
(2019)LCN/13895(CA)
In The Court of Appeal of Nigeria
On Monday, the 6th day of May, 2019
CA/A/341/2013
RATIO
CONTRACT:REPUDIATION: THE EFFECT OF NON ACCEPTANCE OF REPUDIATION BY THE OTHER PARTY
The pleadings and evidence of the 1st respondent show that the appellant did not accept the 1st respondent’s repudiation of the 2006 contract of sale of the property to her. Since the appellant did not accept the 1st respondent’s repudiation of the 2006 sale of the property to her, the repudiation has no legal effect. The 2006 sale of the property to her remained valid and was not terminated thereby. See Commissioner for Works, Benue state & Anor v. Devcon Development Consultants Ltd & Anor (1988) LPELR?884 (SC), Olaniyan & Ors v. University of Lagos & Anor (1985) LPELR 2565 (SC) NEPA v. Isieveore (1997) 7 NWLR (Pt. 571) 135 @ 160, Osayameh v. NDIC & Anor (2009) LPELR?8846 (CA), NEPA v. Ango (2001) 15 NWLR (Pt. 737) 627 (CA). PER EMMANUEL AKOMAYE AGIM, J.C.A.
LAND LAW:CONTRACT OF SALE: EFFECT OF RESELLING A LANFD WHICH HAS ALREADY BEEN SOLD TO ANOTHER PARTY
In any case a valid contract of sale of the right of occupancy of the disputed property to the appellant by the 1st respondent had long been concluded in 2006. So the 1st respondent no longer had any right or interest to convey or sell to anybody. So when it purported to offer to the 2nd respondent the same property for purchase, it had no right or interest therein to offer her to purchase. The second sale of the same to the 2nd respondent over a year after it had been conclusively sold to the appellant is void and of no effect. See Oronti v Onigbanjo (2012) 12 NWLR (pt 1313) SC 23, Nura Mohammed vs. The Hon. Minister Federal Capital Territory Administration & Ors (judgement in CA/A/443/2011 delivered on 27/2/20l9) and Virginia vs. Isioma & Ors judgment delivered in CA/A/406/2012 delivered on 23/11/2018.) PER EMMANUEL AKOMAYE AGIM, J.C.A.
LAND LAW: TITTLE TO LAND: PRIORITY OF TITLE BETWEEN EQUITABLE AND LEGAL INTERESTS
SeeKachalla v. Banki & Ors (2006) LPELR1640 (SC) in which the Supreme Court restated the law on priority of titles thusly- “In property law, many different question of priority may arise these may concern rival conveyances of property or as in this case competing interests in the holding of the right of occupancy. The fundamental rule is that competing interests will generally rank according to the order of their creation. See Barclays Bank Ltd. v, Bird (1954) ch. 274; Ugbo v. Aburime (supra); Labode v. Otubu (supra) and Okoye v. Dumez (supra). In Owosho v. Dada (1984) 7 SC 149. This Court per Aniagolu JSC said at 173: The law has been well and long settled, that where a person pays for land and obtains receipt for the payment followed by his going into possession and remaining in possession, equitable interest is created for him in the land such as would defeat the title of a subsequent legal estate purchaser with knowledge of the equitable estate in the land, that was affirmed to be the state of the law in Orasanmi v. Idowu (1959) 4 FSC 40; (1959) SCNLR 97”..In Ogosho v. Dada (1984) 7 SC 149 at 173 the Supreme Court stated the law thus: The law has been well and long settled, that where a person pays for land and obtains receipt for the payment, followed by his going into possession and remaining in possession, an equitable interest is created for him in the land, such as would defeat the title of a subsequent legal estate purchaser with knowledge of the equitable estate in the land. That was affirmed to be the state of the law in Orasamu v. Idowu (1959) 4 FSC 40 … In the same case, prior knowledge by the defendant of the interest of the plaintiff in the land would affect him even though he might not have had actual formal notice.” PER EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
CHIDIMMA GEORGINA EWURUM Appellant(s)
AND
1. THE MINISTER OF FEDERAL CAPITAL TERRITORY
2. MARIA OKAFOR Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This appeal No. CA/A/341/2013 was commenced on 21-7-2010 when the appellant herein filed a notice of appeal against the judgment of the High Court of the Federal Capital Territory delivered on 20-7-2010 in Suit No. FCT/HC/CV/1269/2007 by O. Okeke J.
The notice of appeal which contains 2 grounds of appeal, was amended with the leave of this Court. The amended notice of appeal contains 4 grounds of appeal.
The appellant and 2nd respondent filed their respective briefs as follows- appellant’s brief, 2nd respondent’s brief and appellant’s reply to 2nd respondent’s brief.
The appellant’s brief raised the following issues for determination-
1. Whether or not the learned trial Court was right to have admitted uncertified photocopies of public documents and relied on same in arriving at its decision, and if this question is answered in the negative, whether this has occasioned a miscarriage of justice against the appellant? (Covers Ground 1)
2. Whether or not the trial Court was right in setting aside the sale of the property in dispute by public auction for being unlawful and validating the subsequent sale of same to the 2nd Respondent without having regard to the equitable interest of the Appellant who first purchased the property in dispute? (Covers Ground 2)
3. Whether or not the judgment of the trial Court is pervasive for failure to adequately evaluate the evidence, thereby occasioning miscarriage of justice? (Covers Ground 3)
4. Whether or not the trial Court was right in awarding exemplary damages against the Appellant? (Covers Ground 4)
The 2nd respondent’s brief adopted the issues raised for determination in the appellant’s brief.
I will determine this appeal on the basis of the issues raised for determination in the appellant’s brief.
I will determine this appeal on the basis of the issues raised for determination in the appellant’s brief.
Let me start with issues Nos. 2 and 3 which asks- (2) “Whether or not the trial Court was right in setting aside the sale of the property in dispute by public auction for being unlawful and validating the subsequent sale of same to the 2nd Respondent without having regard to the equitable interest of the Appellant who first purchased the property in dispute?
(3) Whether or not the judgment of the trial Court is perverse for failure to adequately evaluate the evidence, thereby occasioning miscarriage of justice?”
The part of the judgment complained against under these issues reads thus- “The gravamen of her case is that as a staff of Code of Conduct Bureau, she was allocated the flat being Flat 4, in Block 30, Emutan Street, Phase 2, Site 2, Kubwa Abuja vide the letter of Allocation dated 19th April 1991 to be used in conjunction with the 2nd Defendant who is a junior colleague. The letter of allocation was admitted as Exhibit B. she has been living thereat with her family.
By a letter dated 12th May 2005, their employer stopped the joint residence arrangement and reallocated the flat entirely to her. The letter was admitted as Exhibit C.
In the same 2005, the Federal Government of Nigeria embarked upon sale of its houses in Abuja to carrier public servants on an arrangement, whereby public servants in occupation of such houses were given the right of first refusal in purchase of the houses in which they resided. Pursuant to the invitation to the public servants in the above regard, she filled in the Expression of Interest Form admitted as Exhibit D signifying her intention to purchase the flat being the public service occupant thereof. One of the conditions for sale of the properties to an applicant is that he/she is to produce evidence of rents for the premises having been deducted from his/her monthly salary for the past six months.
On account of this requirement, the 1st Defendant rejected the Plaintiff’s application on the ground that there is no such evidence disclosed by her. She however promptly wrote a letter dated 23rd September 2005 to the 1st Defendant debunking this claim. The letter was admitted as Exhibit F. she followed this up with causing her employers to send the letter dated 23rd September 2006 to the 1st Defendant, wherein it was explained that she and the other staff listed therein have been having rents deducted from their salaries for the flats occupied by them and they should be accorded the rights of first refusal for purchase of the flat. The letter was admitted as Exhibit G. The 1st Defendant did not yield to this explanation. Sometime in 2007, the 1st Defendant purportedly sold the flat to the 2nd Defendant by a public auction without having accorded the Plaintiff the right of first refusal to purchase the flat. They followed it up with serving her a notice to quit the flat. The notice was admitted as Exhibit H.
Following public disgust over the way and manner the 1st Defendant handled the sale of Federal Government Houses, the Senate intervened and held a public hearing on the matter. The 1st Defendant in the attempt to unrest perceived anomalies as directed by the Senate issued her Letter of Offer/Conveyance in respect of the flat dated 30th June 2008 and admitted as Exhibit I. upon payment of the required fee of N1,250,000.00, was also admitted as Exhibit K.
On or about January 31st 2008, the 1st Defendant purportedly handed over the flat which has been made the subject matter of this suit in this Court. The 2nd Defendant’s Solicitors followed this up with serving her with a notice to quit admitted as Exhibit M. Despite the Plaintiff’s Solicitors letters admitted as Exhibit N, 0, and P, the 1st Defendant refused to give effect to the Plaintiff’s purchase of the flat. It also refused to call the 2nd Defendant who has been disturbing her quiet occupation of the flat to order.
The foregoing represent the Plaintiff’s case as disclosed in both her Amended Statement of Claim and evidence.
By the records of the Court, the 2nd Defendant was duly served with the Amended Statement of Claim after being joined as a party to the case. The party however did not file a Statement of Defence in challenge or opposition of the averments in the Plaintiff’s Statement of Statement of Claim. This was despite the opportunity she had to do so. She also did not testify in challenge or contradiction to the Plaintiff’s above stated evidence. Equally, her Counsel failed to cross examine the Plaintiff on her above testimony despite the opportunity afforded him having been duly served with hearing notice but she failed without explanation to appear in Court on the day the plaintiff testified.
It is settled in adversarial system of law that where a Plaintiff files and selves a Statement of Claim on a Defendant but the latter fails or neglects to file a Statement of Defence in opposition or challenge to the facts averred in the Plaintiff’s Statement of Claim’ despite the opportunity he had, he deemed to have admitted those facts. Similarly, where a plaintiff’s witness testifies on the facts averred in his Statement of Claim and the Defendant who had opportunity fails to call evidence in rebuttal or contradiction or fails to cross examine the Plaintiff’s witness on his testimony’ he is deemed to have admitted the said evidence of the witness, unless the Court has reasons not to believe them. Where such is the case ,the burden of proof placed on the plaintiff to prove that which he asserts shall be deemed discharged in a minimal of proof.
The 2nd Defendant in this case having failed to file a Statement of Defence, despite the opportunity she had after being joined as a party to the case and having failed to lead evidence in challenge or contradiction of the Plaintiff’s evidence and having equally failed to cross examine the Plaintiff on her testimony despite the opportunity made available to her, is deemed to have admitted the facts averred in the Plaintiff’s statement of Claim and the evidence as set out above. There being nothing on the other side of the proverbial scale of balance put in by her against which the Plaintiff’s evidence could be weighed, I have no basis to disbelieve them as it relates to her. They are therefore accepted as established with regard to her.
The 1st Defendant however did file Amended Statement of Defence and called a witness who testified in opposition as DW1.
I have examined the facts averred in the Amended Statement of Defences and the evidence of DW1. The gravamen of its case is that the Plaintiff’s Expression of Interest Form was rejected because the allocation of the flat to her as disclosed in the Expression of Interest Form was done on the 12th of May 2005 and that the allocation was new. Further, that the Plaintiff did not meet the requirement in the Guideline regulating the sale of the houses to the effect that any allocation made less than 6 months before the commencement of the sale shall not be entertained. That the Plaintiff was not resident in the flat but deceived the 1st Defendant’s Counsel in that regard and was consequently issued with a letter of offer. That she spent only eight days in the flat before she expressed her interest
