HAJIYA RAKIYA MOHAMMED -VS- THE GOVERNING COUNCIL OF THE FEDERAL POLYTECHNIC, KADUNA

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA

BEFORE HIS LORDSHIP: HON. JUSTICE E.D.E ISELE (PRESIDING -JUDGE)

DATE: 22^ND MAY, 2018 SUIT NO. NICN/KD/51/2017

BETWEEN:

HAJIYA RAKIYA A. MOHAMMED—————————————– CLAIMANT

AND

THE GOVERNING COUNCIL OF THE

FEDERAL POLYTECHNIC, KADUNA ————————————- DEFENDANT

REPRESENTATION: Parties absent

Godwin Yakwo —————————————- For the Claimant
Kabir Momoh with Andrew Nerakwo, Y.M. Bonet and A.O. Akinrelere for Defendant

JUDGMENT

This matter originally commenced at the Kaduna State High Court and was transferred to this court by Order of that Court on 10^th October, 2017. By the Originating Summons filed on the 12^th of October, 2017 the Claimant is seeking the following questions for determination:

Whether having regard to the terms and conditions embedded in the allocation of official quarters as contained in the allocation letter dated 10/7/1995 issued in favour of the claimant by the defendant through the Housing Allocation Committee, the claimant could be said to be entitled to the possession, peaceful and quiet enjoyment of the property situate and lying at No. 2 Polytechnic quarters, Marafa Estate, Kaduna by virtue of the substituting contract of employment of the claimant with the defendant?
Whether in the light of Non-violation of any of the terms, conditions and restrictive covenant encapsulated in the Letter of Allocation of Official quarters dated 10/7/1995 by the claimant, the defendant through its Housing Allocation Committee can abruptly revoke the claimant’s allocation vide Letter dated 21/6/2017 and direct the claimant to vacate and handover vacant possession of the said property situate and lying at No. 2 Polytechnic quarters, Marafa Estate, Kaduna to the work’s department of the defendant on or before the 5/7/2017.

And upon the Resolution of the questions above, she seeks the following reliefs:

a)A DECLARATION that the Claimant is a licensee in relation to the property situate and lying at No. 2 Polytechnic Quarters, Marafa Estate, Kaduna by virtue of her subsisting contract of employment and allocation letter dated 10/7/1995 and therefore has the right to continue to remain in the said property and entitled to the peaceful, quiet enjoyment and exclusive possession of same without hindrance whatsoever from the Defendant.
b)A DECLARATION that the Claimant is desirous to continue exercising her possessory rights by holding on to the said property situate and lying at No. 2 Polytechnic Quarters, Marafa Estate, Kaduna having not waived or relinquished her right over same and in the absence of any violation of the terms, conditions and restrictive covenant contained in the letter of allocation dated 10/7/1995 issued in favour of the Claimant by the Defendant through its Housing Allocation Committee.
c)A DECLARATION that what governs the contractual relationship between the Claimant and the Defendant in relation to the property situate and lying at No. 2 Polytechnic Quarters, Marafa Estate, Kaduna is the allocation letter dated 10/7/1995 and not the Defendant’s circular with Ref.No. KPT/CA/S/REG/DUM 5/VOL.II/23 dated 12/9/2013 and therefore wrongful for the Defendant to rely on same as a basis for its decision for the purported revocation of the Claimant’s allocation as contained in the letter dated 21/6/2017.
d) A DECLARATION that the purported revocation of the Claimant’s allocation of the property situate and lying at No. 2 Polytechnic Quarters, Marafa Estate, Kaduna by the Defendant through its taskforce on Housing Allocation Committee as contained in the letter dated 21/6/2017 is illegal, wrongful, malicious, null and void and a clear breach of contract in respect of the license given to the Claimant by the Defendant in the allocation letter dated 10/7/1995.
e)AN ORDER setting aside the purported revocation of the Claimant’s allocation and directive to vacate and deliver vacant possession of the property situate and lying at No. 2 Polytechnic Quarters, Marafa Estate, Kaduna as contained in the letter dated 21/7/2017 by the Defendant for being irregular and in contravention of the terms and conditions contained in the allocation letter dated 10/7/1995 and the extant laws governing the Plaintiff’s occupation of the said property.
f)AN ORDER OF INJUNCTION IN PERPETUITY RESTRAINING the Defendant by itself or through the instrumentality of the taskforce in Kadpoly Housing Allocation Committee, their Agents, servants, assigns, privies and or representatives from using self help with a view to evicting the Claimant, her children, servants, spouse or any relation from the property situate and lying at No. 2 Polytechnic Quarters, Marafa Estate, Kaduna.
g)AND for such further order(s) as this Honourable Court may deem fit to make in the circumstances.

The Originating Summons was supported by a 19 paragraph affidavit deposed to by the Claimant herself wherein she annexed 13 exhibits, marked variously from RM, RM1 to RM7. The Originating Summons was also accompanied with a written address wherein she formulated a sole issue foe determination being “Whether the Claimant has made out a case for the reliefs being sought”?

In response the Defendant filed a Counter affidavit deposed to by Mohammed Ahmed, the Secretary to the Defendant’s Housing Allocation Committee. In the affidavit were annexed two exhibits, Kadpoly 1 and Kadpoly 2. The Defendant filed a written address in support of the counter affidavit. In the said address this sole was formulated for determination.

“Whether on the facts and evidence before this Honourable Court, the Claimant is not entitled to the reliefs sought”.

In response the Claimant filed a further and better affidavit together with a reply on points of law.

THE CASE OF THE CLAIMANT

It is the case of the Claimant that she is a Staff of the Defendant, where at the time material to filing this action, she remained the legal occupant of the Property situate and lying at No. 2 Polytechnic Quarters, Marafa Estate, Kaduna (referred after wards as the property), having been duly allocated same by a letter dated 10/7/1995 pursuant to her application for a house dated 22/12/1995. Both these letters were annexed as Exhibits RM1 and RM1^Arespectively. She avers that she has been in possession of the property in line with the directive contained in Exhibit RM1^A and continued enjoying peaceful and quiet enjoyment of the said property with her family members.

She maintained that in exercising her possessory rights, she had cause to seek for permission to dig a well, which permission was granted by the Defendant in Exhibit RM2 dated 17/7/2000. And the Defendant has been making monthly deductions from her salary from the period of 1995 uptil date as rent arising from her occupation of the property for which she exhibited payment slips marked RM3^1-5 from May – September 2017. She maintained that she had never made trouble with any neighbours and no complaint had been made against her in respect to the property until February, 2017 when she received Exhibit RM4 dated 8/2/2017 inviting her for an interaction with the Taskforce on Kadpoly Housing Allocation. That on the 13^th February, 2017 the date set for the interaction she appeared before the Committee and answered questions put to her orally after which the Taskforce Housing Committee asked her to reduce same into writing, which she did in Exhibit RM5 dated 13/7/2017.

She maintained that to her greatest shock she received Exhibit RM6 dated 21/6/2017 acknowledged on 23/6/2017 purportedly revoking her allocation with a further Order directing her to vacate the demised property and handover possession of same to the Works Department on or before the 5^th day of July, 2017, a period less than 2 weeks’ notice relying on the circular in Exhibit RM6^A. She sought for a reversal of the purported revocation and directive for the delivery of vacant possession reiterating that she did not breach any conditions attaché to the allocation of the property. This she said through Exhibit RM7 dated 29/6/2017.

The Claimant maintained that the only restrictive covenant attaché to her allocation is not to sublet the property to any other person and she averred she had never sublet the property to any other person. She insists that what governs her contractual relationship with the Defendant in relation to the property is Exhibit RM1^Aand not Exhibit RM6^Awhich is a mere circular for which the directive policy contained therein has not been incorporated into the allocation letter annexed as Exhibit RM1^A. She maintained that the Defendant ought to have ascertained whether there was any breach of the terms and conditions attached to Exhibit RM1^Abefore taking any disciplinary action which may include cancellation of the said allocation but rather relied on Exhibit RM6^Aas a basis for its decision.

She maintained that the Defendant through its Taskforce on the Housing Allocation Committee had perfected plans to evict her through self help if she did not deliver vacant possession on or before 5/7/2017 notwithstanding her appeal for the reversal of its decision.

She maintained that as a statutory licensee, she had not been served with any statutory notice to warrant the instant threat of eviction by the Defendant. That as a licensee whose contract of employment with the Defendant is still subsisting, the Defendant ought to have allowed her to continue in quiet occupation of the property without any interference in the absence of any breach of the terms and conditions attached to the property.

THE CASE OF THE DEFENDANT

In the Counter affidavit to the Originating summons the Defendant adduced the fact that the Claimant was allocated one of its Staff Quarters by Exhibit RM1^A on 10/7/1995 and has remained in possession of the said quarters. It also admitted its Taskforce, the Housing Allocation Committee invited the Claimant for an interaction in respect of the property and she appeared before it on 13/2/2017 where she made both oral and written representations dated 13/2/2017 and stated amongst others that she shuttles between the Staff Quarters allocated to her and her matrimonial home. Here, the Defendant relied on Exhibits RM4 and RM5 as relied on by the Claimant.

The Defendant averred further that the Claimant had stated orally and in writing before the Taskforce Committee that her children who are also Staff of the Defendant reside also in the Staff Quarters allocated to her because of proximity to their place of work and accommodation challenges and pleaded for an extension of the privilege accorded to other Staff to her as well to remain in possession of the Staff Quarters allocated to her until she waives same or relinquishes her use and occupation of the quarters due to retirement. The Defendant maintained that in its report dated March, 2017, at page 6, it recommended that its Housing Allocation Committee should determine the Claimant’s case as deemed appropriate on the face value of the Claimant’s case and relied on the Exhibit KADPOLY1. And upon a careful deliberation the Housing Allocation Committee at its meeting held on the 24^th and 31^st May, 2017 observed that the Staff Quarters allocated to the Claimant had witnessed successive transfers among her relations and resolved that the allocation of the Quarters at No. 2, Marafa Estate, Kaduna to the Claimant be revoked as contained in Exhibit KADPOLY 2 of the 24^th and 31^st May, 2017.

The Defendant maintain that its decision was as a result of the Claimant’s refusal as well as other Staff whose allocation of the official Staff Quarters was also revoked to comply with the Defendant’s directive that Staff allocated with official quarters should occupy them physically and not to vacate the Quarters or leave them with children and relatives who are not the allottee of the Staff Official Quarters. Here the Defendant relied on its circular KPT/CA/S/REG/DUM.5/VOL.II/23 dated 12/9/2013, relied on also by the Claimant as Exhibit RM6^A. This at paragraph 10 of the Counter affidavit.

At paragraph 11 the Defendant averred that the admission of the Claimant that her children are in occupation of the Staff Quarters allocated to her and that she shuttles between the Staff quarters and her matrimonial home clearly demonstrated a breach of the Defendant’s directive in Exhibit RM6^A and confirms the observation of the Defendant’s Housing Allocation Committee that the Staff quarters allocated to the Claimant has witnessed successive transfers between the relatives and children of the Claimant culminating in the revocation of the allocation of Staff quarters.

The Defendant insists that the Claimant is not a licensee of the Defendant and was duly notified by Exhibit RM6 of the Defendant’s decision to the Claimant to vacate the Staff Quarters allocated to her. That being the employer of the Claimant, the Defendant has the authority and power to issue directives to its employees who are in occupation of the Staff Quarters allocated to them by the Defendant notwithstanding the terms of offer of the said allocation of Staff Official Quarters.

THE CLAIMANT’S REPLY

In reply, the Claimant in her further and better Affidavit denied the averment by the Defendant that the property had witnessed successive transfers among her relatives, that she rather occupied the property with her children as she had stated in Exhibit RM5.

She maintained that the directive contained in the circular dated 12/9/2013 cannot override the terms and conditions contained in the allocation letter which is specific and unambiguous relative to her possessory right over same. And that the Allocation Letter issued her did not anticipate or contemplate her occupation without her children, and did not equally prohibit her occupation of same with her children and only prohibited subletting and she did not sublet the property to warrant the Defendant’s action.

She insisted she is a licensee over the property having a contractual license with the Defendant to occupy the disputed property.

THE WRITTEN ADDRESSES OF THE PARTIES

As to the issue whether the Claimant has made out a case for the grant of the reliefs she seeks.

Counsel states at paragraph D3 that the question thrown up for determination relate to Exhibit RM1^A which is the contract between the Claimant and the Defendant relative to the said property in issue between her and the Defendant. That the Claimant had approached the Court for a declaration of rights arising from Exhibit RM1^A and whether it was right for the Defendant to rely on Exhibit RM6^A instead of Exhibit RM1^A in arriving at its decision in Exhibit RM6 which purportedly revoked the Claimant’s allocation of the property via Exhibit RM1^A.

At paragraph D11 it was stated for the Claimant that with regards to declaration of rights, the Claimant had demonstrated that her Contract of Service was still subsisting with the Defendant and she has a legal right which should be protected by the Declarations sought as a licensee. Here, reliance was placed on the case of CHUKWUMAH VS. SHELL PETROLEUM (1993) 4 NWLR (pt. 289) 512.

At paragraph D13 it was argued for the Claimant that it is wrong for the Defendant to rely on a circular as a basis for the revocation of the Claimant’s letter of allocation. That the directive policy in the circular (RM6^A) had not been incorporated in to the allocation letter and therefore cannot be relied upon by the Defendant as a basis for its decision for the revocation of the Claimant’s allocation and cited CHUKWUMAH V. SHELL (supra).

The Defendant on the issue, whether on the facts and evidence before this Honourable Court, the Claimant is entitled to the relief sought. Here, Counsel stated that it was not in doubt that the Claimant is an employee of the Defendant with a subsisting contract of employment. And there was also no dispute to the fact that the Claimant was allocated an official Staff quarters by Exhibit RM1^A. That Exhibit RM1^Ahad clearly stipulated that Staff allocated quarters must not in any way, sublet any part of the premises and any officer found to have violated this condition will face disciplinary action in addition to having his allocation cancelled.

Counsel for the Defendant continuing at paragraph 3.2 stated that in the Claimant’s view it was only upon subletting any part of the premises that the Defendant may revoke or cancel the allocation and not on the basis of the directive contained in Exhibit RM6^A which prohibits the occupation of official Staff quarters allocated to Staff by persons other than the Staff mandated to occupy the Staff quarters physically. It was argued for the Defendant that the case of CHUKWMAH VS. SHELL (supra) as relied on by the Claimant was with respect, very dissimilar in terms of fact with the fact of the present case. That in the CHUKWMAH’s case the dispute was related to the termination of employment wherein the appellant sought to rely on a circular issued by the Nigerian National Petroleum Corporation to all Oil Exploration Refinery and Marketing Companies on the 16^th February, 1978 on the Government’s policy on effective Nigerianisation within the Oil Industry specifically requesting the Industry… that the said circular was made by the NNPC, an organisation with whom (the Claimant) the appellant had no relationship whatsoever neither was he privy to the contract between the Respondent and the Corporation and it was one of the reasons why the Supreme Court held in the case that the circular made by the Corporation, having not been incorporated into the Contract of Service of the Appellant with the respondent, the appellant could not claim benefit there under at page 534 (E-H).

It was submitted further for the Defendant that by the doctrine of stare decisis, a case is only an authority for what it actually decided and for a previous decision of a higher court to bind the lower court including the Court that made the decision, the fact and the law in the subsequent case must be the same or similar to those which informed the court’s earlier decision. Citing ALL PROGRESSIVE CONGRESS V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & 7 ORS (2014) 11 S.C. 157 AT 216 (line 10), IBRAHIM V. JUDICIAL SERVICE COMMISSION, KADUNA (1998) 12 S.C. 20 and DANGOTE V. CIVIL SERVICE COMMISSION, PLATEAU STATE (2001) 4 S.C. (pt. 11) 43. That in the instant case, RM6^Awas not made by a stranger to the relationship between the Claimant and the Defendant with whom the Claimant is employed. That it is the Defendant that had averred in paragraph 13 of its Counter affidavit that it has the authority and power to issue directives to its employees who occupy the Staff Quarters allocated to them notwithstanding the terms of offer of the said allocation of official Staff Quarters.

That Exhibit RM6^A was made as far back as 12^th September, 2013. That the directive in Exhibit RM6^Ais clear and unambiguous. That it was never challenged. And it was submitted that the Claimant like other Staff affected by the decision in Exhibit RM6 is deemed to have accepted to be bound by it and urged the Court to so hold.

And referred further to Exhibit KADPOLY 2 that persons other than the Claimant occupy the official quarters allocated to her.

It was also submitted for the Defendant that Section. 30 of the Federal Polytechnics Act (cap. F17) LFN, 2004 by which the Defendant is established and applicable to the Defendant, all property (movable or immovable) held by or on behalf of the Kaduna Polytechnic by the Kaduna Polytechnic Board of Governors or any state, shall vest in the Federal Polytechnic, Kaduna with effect from 27^th August, 1991. That by dint of Section 30 of the Act, the Defendant can in addition to Exhibit RM1 give directive and ensure compliance in so far as it affects its property including the premises in dispute notwithstanding other conditions stipulated therein that the Claimant’s occupation of the property is a mere privilege which does not and cannot confer any legal right on the Claimant capable of being protected by an Order of Injunction and urged the Court to so hold.

It was submitted further that declaratory reliefs were not granted as a matter of course but subject to the discretion of the Court being an equitable relief which can only be granted when the court is of the opinion that the party seeking it is entitled to the grant of same. Citing ONUOHA V. OKAFOR (1983) 10 S.C. 75 and OBI V. INEC & 6 ORS (2007) 7 S.C. 268.

Counsel submitted further that the claim in this case does not relate to permanent interest in land or trespass to land to warrant the claim for perpetual Injunction, citing GOLDMARK NIG. LTD V. IBAFON CO. LTD & 4 ORS (2012) 3 S.C. (Pt. III) 72; ORIORIO & 14 ORS V. OSAIN & 2 ORS (2012) 5 S.C. (Pt. III) 95. The Defendant urged the court to go on to hold that the Claimant is not entitled to any of the reliefs sought by her.

In the reply on points of law it was submitted for the Claimant on the authority of the Defendant to issue directives to its employees who occupy the Staff quarters allocated to them that notwithstanding the terms of the said Allocation of Official Staff Quarters relying on the provision of Section 30 of the Federal Polytechnics Act LFN 2004, that by virtue of Section 128 (c) of the Evidence Act 2011 (As Amended) there is nothing extrinsic and extraneous that can be used to alter, modify or change the content of Exhibit RM1^A. That parties are bound by the contract they entered into and the terms and conditions therein must be respected by the Courts. Citing the case of LEWIS V. UBA PLC (2016) 6 NWLR (PT. 1508) 329 at 352- 353 G-B.

Counsel relied on the provisions of Section 30 which provides:

“By virtue of this Act, all property (movable and immovable) held by or on behalf of Kaduna Polytechnic Board of Governors or any state, shall vest in the Federal Polytechnic, Kaduna with effect from 27 August 1991.”

And submits that nothing in the section suggests any power and authority to issue directives in the face of a subsisting contract which regulates the occupation of the Claimant. That it is an undeniable fact the property belongs to the Kaduna Polytechnic, but the Claimant is occupying same and enjoying possessory rights as a licensee having regard to her subsisting contract of employment and allocation letter as Exhibit RM1^A. Stating that the Claimant is a contractual licensee paying rent to the Defendant on a monthly basis as evidenced by Exhibit 3 series which is still going.

REVIEW OF EXHIBITS AND UNDISPUTED FACTS

Now Exhibit RM1^A is dated 10^th July, 1995. It is headed:

ALLOCATION OF OFFICIAL QUARTERS

It reads:

“I have the pleasure to inform you that you have been allocated House/Flat No.: NO. 2 MARAFA ESTATE

With effect from: IMMEDIATELY.

You are expected to take possession of the House/Flat latest by: _____ otherwise the allocation will be withdrawn and the House/Flat allocated to somebody else.
Any application for repairs or renovation works should be made in writing to the Director of Works. It is emphasized that officers would move in first before application for renovation is made. Under no circumstances should officers retain keys to two houses at the same time.
Staff allocated quarters must not, in any way, sublet any part of the premises. Any officer found to have violated this will face disciplinary action in addition to having his allocation cancelled.
Please see the Director of Works for keys and formal checking in procedures.”

Exhibit RM6^A dated 12^th September, 2013 is addressed to all occupants of Kaduna Polytechnic Quarters and headed:

PHYSICAL OCCUPATION OF QUARTERS

It reads:

“The Management has observed with dismay that some staff allocated official Quarters do not occupy them physically with their spouses. Rather, they leave them with their children or relations to occupy. This action no doubt contravenes the condition for the allocation of staff quarters/houses which makes it mandatory for allottees to occupy them physically.

In view of the above, all staff allocated official quarters are by this circular warned to desist from such act and to immediately occupy the quarters, failure of which their allocation will be revoked and the houses allocated to interested members of staff that are ready to occupy them physically.

Furthermore, I am to inform all concerned staff that the Housing Allocation Committee had constituted a Task Force which will go round the official quarters to identify staff who contravened the provision of the Housing Allocation for further disciplinary action.”

The Letter was signed for the Registrar.

Now it is not in dispute who the Claimant and the Defendant are to each other. And I would not go over again agreed matters of facts which from the affidavits of both Claimant and defendant, parties are in agreement about. I would then proceed to answer the two questions set out for determination in the Originating Summons.

The first question is “whether having regard to the terms and conditions embedded in the allocation of official quarters as contained in the Allocation letter dated 10/7/1995 issued in favour of the Claimant by the Defendant through the Housing Allocation Committee, the Claimant could be said to be entitled to the possession, peaceful and quiet enjoyment of the property situate at No. 2 Polytechnic quarters, Marafa Estate, Kaduna by virtue of the Claimant with the Defendant”

On this question the Claimant had insisted on the primacy of the Exhibit RM1^A whose brief contents have been reproduced earlier. While the Defendant insists that it is Exhibit RM6^A whose contents have equally been reproduced earlier that should apply to the exclusion of Exhibit RM1^A the allocation letter. Wherein the Defendant had gone on to rely on the representation of the Claimant in RM5 that other person’s are in occupation of the property and in the provision of the Federal Polytechnic Act Section 30 thereof.

I had cause to read through Exhibit RM5 dated the 13^th of February, 2017 written by the Claimant to the Secretary Task Force on the Defendant’s Housing Allocation Committee in two pages. Two paragraphs stand out in the first page; the 3^rd paragraph there reads:

“The property in question was initially allocated to me on compassionate grounds to salvage my marriage having regard to the difficulties I was experiencing then in the discharge of my statutory functions to the institution and my matrimonial obligations.”

The 6^th paragraph reads:

“That I have been in occupation of same since and I have never breached any of the terms and conditions stated in the Allocation letter.”

And the 1^st and 2^nd paragraphs on the second page reads:

“That I shuttle between my husband’s house and the house allocated to me by the institution of which monthly deductions are made appropriately from my salary.”

That my children who equally stay in the said property are staff of the institution and equally occupy same due to proximity to their respective colleges of primary assignment.”

These pieces of the Claimant’s representation were captured in the two exhibits the Defendant annexed to the Counter affidavit. At page 6 paragraph f of Exhibit KADPOLY 1 the Report of the Task Force of March, 2017.

#2 Marafa Estate

“Preliminary report had it that the above property was allocated to Hajiya Rakiya Mohammed. It was reported she had moved to her personal house and that the official residence had witnessed successive transfers between her son and one of her sisters, a Poly staff, who presently occupies the facility…

Findings/Observation

In line with the principle of fair hearing, Hajiya Rakiya Mohammed was invited for interaction with the Task Force on 13^th February, 2017… She tendered that she shuttles between her official quarters and matrimonial house and she is unwilling to relinquish the property at the moment as all statutory monthly rent deductions are still made from her salaries in respect of the rent. She further disclosed… that her children who are equally staff of the Polytechnic are quartered in the facility due to problems associated with accommodation and the proximity to their offices in the Polytechnic. She prayed that the accorded privilege given to all other staff that are occupants of such property should continue to be extended to her until such a time when she decides to waive same or relinquish the house due to exigency or retirement.”

And at pages 6 and 7 of Exhibit KADPOLY 2, the minutes of meeting of Housing Allocation Committee held on 24^th and 31^st May, 2017 at 7.00 on consideration of cases of alleged head at paragraph F the committee decided to revoke the Claimant’s allocation.

That is the reason she is in court to have the two questions resolved. Now, in the course of this Judgment. I had course to go through the written addresses of both counsel representing the parties. The Claimant’s contention and submission is that she is a licensee and the Defendant contended that she is not.

COURT’S DECISION

On the legal status of an employee in Official Accommodation, it is important to note that the provision of Official Accommodation by employers is a common feature of employment conditions in Nigeria, particularly in the Public Sector (as in the present case). According to the learned author Professor Chioma Agomo in her book Nigerian Employment and Labour Relations Law and Practice Concept Publications (2012) at page 186, this does not give rise to any troublesome issue, until the employment relationship is determined. Then the status of the employee vis a vis the accommodation becomes a critical issue. Is such an employee a licensee or a tenant? The courts in their pronouncements have in two cases decided that the employee in such an accommodation is a licensee. In EMEKA NWANA V. FEDERAL CAPITAL DEVELPMENT AUTHORITY (2004) 10 CLRN 63 and CHUKWUMAH V. SHELL PETROLEUM DEVELOPMENT COMPANY (1993) 4 NWLR (pt. 289) 512. Having read these cases it is clear that the similarity between them and the present case is that the employee was provided official accommodation. In both cases the employee’s employment relationship had been determined and as to the status of the legal employee in accommodation the Supreme Court in CHUKWUMAH V. SHELL decided that the employee was a licensee. This decision was followed by the Court of Appeal at pages 73-74 in the EMEKA NWANA V. FEDERAL CAPITAL TERRITORY case it was held by Edozien JCA as he was:

“…in regard to the house he was occupying, that is to say whether he was a tenant… or whether he was merely a licensee liable to vacate the house on cessation of his employment. It is settled law that where an agent or servant is allowed to occupy premises belonging to his principal for the more convenient performance of his duties he acquires no estate therein. See Woodfall’s Law of Landlord and Tenant pages 294-295. He is merely a licensee and he has no right to continue to remain in the premises on the cessation of the employment…”

Here, in this case it is abundantly clear that the Claimant is a licensee whose employment is still subsisting, she is not a tenant.

As to whether Exhibit RM6^A dated 12^th September, 2013 can override that in Exhibit RM1^A dated 10^th July, 1995. I would state straight away, having reviewed the arguments of counsel on the point, that both the common law and the general laws recognises sanctity of contracts. The Latin Maxim pacta sunct servanda is a sacred doctrine for the preservation of contracts which is entitled to the greatest respect. With due respect to Exhibit RM6^A, it does not constitute a contract it is more of a dictate letter or a circular which the Defendant seeks to rely on to undo the terms of a contract entered in between the Claimant and itself. From the facts of the case, the Defendant have not shown that the Claimant had breached the terms in the Exhibit RM1^Aby subletting the premises. The relevant parts of Exhibits KADPOLY 1 and 2 did not show that the Claimant had sublet the property. That the allottee’s children were staying in the property and going to work from where she shuttles between and her matrimonial home can hardly amount to a breach of any terms at all.

Having found that the Claimant is a licensee, it becomes apparent that the Allocation in RM1^A amounts to a license coupled with an interest that has been established with the Claimant pays a rental deducted from her salary monthly; it may be irrevocable depending on the construction of the terms of the contract between the parties. Here, I have found that the Terms of the Contract in Exhibit RM1^A have not been breached. I hold that it cannot also be varied or added to by extrinsic means as in Exhibit RM6^A and the others the Defendant relies on. I also hold that being a licence coupled with an interest, it is in the nature of a grant and is irrevocable until the benefit granted has been enjoyed. See Osborn’s Concise Law Dictionary 8^th Edition for the meaning of Licence.

Here, I hold that the Claimant is still entitled to the peaceful and quiet enjoyment of the property until her employment relationship is determined or she waives or relinquishes her rights in the property, as her employment with the Defendant is still subsisting.

On the second question which is whether in the light of the non violation of any terms, conditions and restrictive covenant encapsulated in the Letter of Allocation of Official Quarters dated 10/7/1995 by the Claimant, the Defendant through its Housing Allocation Committee can abruptly revoke the Claimant’s allocation vide letter dated 21/6/2017 and direct the Claimant to vacate and handover vacant possession of the said property to the Works Department on or before the 5/7/2017.

I have earlier, just now, held that Exhibit RM1^A cannot be varied or added to by extrinsic means as in Exhibit RM6^A and other Exhibits the Claimant relies on. On this, the Claimant had cited the case of LEWIS V. UNITED BANK FOR AFRICA (supra) and Section 128(c) of the Evidence Act 2011 as amended. The Section reads:

“When a Judgment of a court or any other judicial or official proceeding, contract or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceeding or of such terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this act, nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence”

In LEWIS V. UBA the Supreme Court held per Okoro JSC held at pages 352 and 353 G-B:

“In the case, the appellant neither repaid the loan nor delivered the car as contained in Exhibit B, the contract document. The argument of the appellant that Exhibits C and D ought to be taken into consideration in determining the terms of the contract did not fly at all. The general rule is that where the parties have embodied the terms of their agreement or contract in a written document as it is done in this case, extrinsic evidence is not admissible to add, to vary, subtract from or contradict the terms of the written instrument. See O. OLAYODE V. PANALPINA (1996) 6 NWLR (P. 456) 544, OLATOYE V. BALOGUN (1990) 5 NWLR (PT. 148) 24, UNION BANK OF NIGERIA LTD V. OZIGI (1994) 3 NWLR (pt. 333) 385.

I hold the view that Exhibit B was the contract document between the parties herein. Exhibit C and D being correspondences cannot add to or vary the content of Exhibit B, I think the two courts below did not use the word “alone” in its judgment with reference to Exhibit B, I think the courts below were right to base their findings on Exhibit B.”

I am persuaded by the submissions of the Claimant and the authorities relied on.

Here, in this present case I hold that Exhibit RM6^A was a correspondence between the Defendant and the Claimant and other occupants of its quarters and it could not alter the terms set out in RM1^A. I hold that the second question for determination is determined in favour of the Claimant.

Consequently, the declaratory reliefs sought by the Claimant in heads a – d are granted as prayed. So also is the prayer for the Order setting aside the purported revocation of the Claimant’s revocation in head e.

An Order of perpetual Injunction hereby issues restraining the Defendant by itself or through its Task Force in the Kadpoly Housing Allocation Committee, their agents, servants and assigns, privies and or representatives from evicting the Claimant, her Children, Servants, Spouse or any relation from the property situate and lying at No. 2 Polytechnic Quarters, Marafa Estate, Kaduna.

Judgment is entered accordingly there are no awards as to cost.

…………………………………

Hon. Justice E.D.E Isele.