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National Industrial Court

Mr. Adebayo Fawole & 2 Ors -VS- The Hon. Attoney General of the

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

DATE:  THURSDAY 30TH JANUARY 2020      SUIT NO. NICN/LA/111/2018

 

BETWEEN

  1. Mr. Adebayo Fawole
  2. Mr. Magnus Ogbue              …..                    CLAIMANTS
  3. Mr. Abosede Philip

AND

  1. The Hon. Attorney General

of the Federation                       ..…                       DEFENDANTS

  1. Nigerian Railway Corporation 

 

Representation:

A B Kasunmu with Temitayo Adeniyi appear for the Claimants

Ade Adedeji (SAN) with Ngozi Okoli appear for the 2nd Defendant

JUDGMENT

 

  1. The Claimant commenced this action by an Originating Summons dated 20th February 2018, and amended by Order of Court on 14th June 2018 after the joinder of the 2nd Defendant  The Originating summons is brought pursuant to Order 3 Rules 3 and 17 of the National Industrial Court of Nigeria (Civil Procedure Rules) 2017 and section 254C(A&B) of the 1999 Constitution of the Federal Republic of Nigeria (Third Alteration) and under the inherent jurisdiction of this Court.  The Claimants seek the determination of the following questions:

  1. Whether the Defendants, their agents, servants and privies can validly eject the Claimants from the houses and apartments situate at Nigerian Railway Compound, Ebute Metta and occupied by them as tenants by virtue of their employment with the 2nd Defendant or demolish the houses without complying with the Lagos State Tenancy Law 2011.

  1. Whether the Defendants, their agents, servants and privies can validly
    eject the Claimants from the houses and apartments occupied by them as tenants by virtue of their employment with the 2nd Defendant having regard to the judgment of this Honorable Court delivered by Hon Justice B.A Adejumo, OFR on the 6th January 2015 in Suit No. NICN/11/2011 between the Nigerian Union of Railway Workers & Another and the Nigerian Railway Corporation & 2 Others.

  1. Whether having regards to the judgment of this Honorable Court delivered by Hon Justice B. A Adejumo, OFR on the 6th January 2015 in
    Suit No: NICN/11/2011 between the Nigerian Union of Railway Workers & Another and the Nigerian Railway Corporation & 2 Others, now on appeal by the Defendants to the Court of Appeal, the Defendants, their agents, servants and privies can validly demolish the houses and accommodation of the Claimants and other employees of the 2nd Defendant.

If the above questions 1, 2 and 3 are answered in the negative, the claimants seek the following reliefs:

(a)       A declaration that the Defendants, their agents, servants and privies cannot recover possession and or demolish the houses and apartments of the Claimants situate at the Nigerian Railway Compound Ebute Metta Lagos and occupied as tenants by virtue of their employment with the 2nd Defendant without complying with the Lagos State Tenancy Law 2011.

(b)      A declaration that the Defendants, their agents, servants and privies cannot demolish the houses and apartments of the Claimants occupied as tenants by virtue of their employment with the 2nd Defendant during the pendency of the appeal filed by  the Defendants against the judgment of this Honorable Court in NICN/11/2011 between the Nigerian Union of Railway Workers & Another and the Nigerian Railway Corporation & 2 Others.

(c)       An order of injunction restraining the Defendants, their agents, servants and privies from demolishing and recovering possession of the houses and apartments at the Nigerian Railway Compound, Ebute Metta, Lagos and occupied by the Claimants as tenants without complying with the Lagos State Tenancy Law 2011.

(d)      An order of injunction restraining the Defendants, their agents, servants and privies from demolishing the houses and apartments at the Nigerian Railway Compound, Ebute Metta, Lagos occupied by the Claimants as tenants during the pendency of the appeal filed by the Defendants against the judgment of this Honorable Court delivered by Hon Justice B.A Adejumo, OFR on the 6th January 2015 in Suit No: NICN/11/2011 between the Nigerian Union of Railway Workers & Another and the Nigerian ‘ Railway Corporation & 2 Others.

  1. In response to the originating summons, the 2ndDefendant brought a Notice of Preliminary Objection dated 31stJuly 2018, contending that this suit be dismissed or struck out for being incompetent on the following grounds:

(a)             This Honourable Court lacks the competence to hear this suit for failure of the Claimants to satisfy a condition precedent to the institution of the suit against the 2nd Defendant.

(b)             This Honourable Court lacks the competence to construct and or make any pronouncement concerning the judgment of court delivered in Suit No: NICN/11/2011 between the Nigerian Union of Railway Workers and Anor. Vs. Nigerian Railway Corporation and 2 ors., which the Claimants have placed before it for construction.

(c)             The Claimants lack the locus standi to maintain this suit as presently constituted before this Honourable Court.

(d)             This Honourable Court lacks the competence and requisite jurisdiction to hear this suit.

  1. The 2nd Defendant supported its preliminary objection with an affidavit deposed to by Obiorah Emedolibe, Secretary to the 2ndDefendant. There, 2nd Defendant stated that the originating processes served on the 2nd Defendant/Applicant and affidavits filed in support state that the Claimants instituted this suit in a representative capacity for themselves and on behalf of members of the ‘EBJ/Spencer Community”. That the ‘EBJ/Spencer Community’ is not an entity known to the 2nd Defendant/Applicant.  That nothing in the affidavits of Adebayo Fawole dated 8th June, 2018, and Magnus Ogbue dated 16th July, 2018 filed by the Claimants in support of the originating Summons discloses the identity of the persons that refer to themselves as ‘EBJ/Spencer Community’ whom the Claimants purport to represent in this suit.  That nothing in the said affidavits disclose the authority of the Claimants to institute this suit on behalf of the supposed ‘EBJ/Spencer Community’.  The 2nd Defendant states that it believes that the Claimants do not have the authority to act on behalf of the persons they purport to act and lack the capacity to maintain this action before this Court as presently constituted.  That the Claimants did not comply with a necessary pre-condition to the commencement of this suit as no evidence of the pre-action notice supposedly served on the 2nd Defendant was placed before this Court by the Claimants.  That the 2nd Defendant/Applicant is not involved in the demolition exercise, the object of the Claimant’s grievance in this suit; rather, the Federal Government of Nigeria, through the Federal Ministry of Transportation contracted to construct the Lagos – Ibadan standard gauge double track railway line in furtherance of its railway reform and modernization program.  That though the 2nd Defendant/Applicant is the beneficiary of the project, it is not a party to the contract nor is it the executor of the contract as the contract for the construction of the railway line is between the Federal Government of Nigeria, through the Federal Ministry of Transport and China Civil Engineering Construction Corporation (CCECC).  That the planned demolition of properties along the railway corridor is pursuant to the construction contract/project between the Federal Government of Nigeria through the Ministry of Transport, and CCECC. That meetings were held by representatives of CCECC and persons resident in areas to be affected by the project wherein parties were informed of the planned demolition. Representatives of the 2nd Defendant/Applicant were in attendance at some of these meetings.  The Claimants and all persons to be affected by the demolition were given notice of the demolition before the marking of affected properties.  In line with the agreement between the Federal Government and CCECC, the Federal Government, through the Federal Ministry of Transport instructed CCECC to make funds available to the 2nd Defendant to cover 1 year’s rent of alternative accommodation for occupants of its Staff Quarters whilst the project is ongoing. That the 2nd Defendant, upon receipt of the money from CCECC, disbursed same to its employees affected by the demolition exercise to enable them secure alternative accommodation during the construction period. The Claimants were also given their due funds and the Staff of the 2nd Defendant occupying houses affected by the exercise, upon receipt of funds to secure alternative accommodation, voluntarily moved out of their houses. The 2nd Defendant has begun the construction of new living quarters for its displaced employees and same is scheduled to be completed in 12 months. Additional funds will be made available by the Construction Company to these employees to renew their tenancies should the construction of the new living quarters fail to be completed within the scheduled 12 months. The 2nd Defendant further states that it did not eject the Claimants or any of its employees from their places of residence. That the relationship between the it and the Claimants is not one of Landlord and Tenant.  That, the Claimants are aware the demolition is being carried out by officers of the Federal Ministry of Transport.  That the Claimants’ suit before this Court discloses no cause of action against the 2nd Defendant, hence the 2nd Defendant is an improper party to this suit.  That the judgment of this Court delivered in Suit No: NICN/11/2011 between the Nigerian Union of Railway Workers and Anor. Vs. Nigerian Railway Corporation and 2 Ors is the subject of an appeal in appeal no: CA/L/750/2015 before the Court of Appeal which appeal has been entered.  That the appropriate court to be approached for any preservative order concerning the issue on appeal is the Court of Appeal; thus this Court lacks the jurisdiction to make any pronouncement on that judgment.  That the issues in this case are unrelated to the issues decided in Suit No: NICN/11/2011 and no construction of the judgment delivered in Suit No: NICN/11/2011 by this Court will determine the issues in this suit; and that the Claimants suit constitutes an abuse of the processes of this Court.

  1. The 2ndDefendant attached the following documents in support of its objection:

  1. Exhibit ‘OE1’ – Letter dated 6th June, 2018 by Federal Ministry of Transportation, instructing the 2nd Defendant to pay one year rent to its relocated staff.
  2. Exhibit ‘OE2’ – list of persons paid by the 2nd Defendant.
  3. Exhibits OE 3 – 5 – photographs of residents removing their belongings from affected houses.

  1. The Claimants opposed the preliminary objection by filing a counter affidavit dated 29th November 2018 deposed to by Magnus Ogbue (2nd Claimant) wherein he stated that he has the consent of the persons they represent in this action to institute this action. That the expression EBJ/Spencer Community is just the umbrella name under which the Claimants and other tenants employed by the 2nd Defendant refer to themselves; and that this present action was not instituted in the name of EBJ/Spencer Community. That a pre action Notice was served on the 2nd Defendant.  That the 2nd Defendant was involved in the demolition of their houses and was mandated to deliver vacant possession of the staff quarters. That the 2nd Defendant was responsible for the eviction of the Claimants from their houses and they supervised the demolition of the houses. That it is not true that they held meetings with the representatives of CCECC and the Federal Ministry of Transport.  That several meetings were held with officials of the 2nd Defendant to persuade us to vacate our houses which we refused to yield up because we were not issued statutory notices as required by law and more so, when there is still a subsisting judgment of the National Industrial Court granting us the right to purchase our houses. That the Claimants and the other employees are tenants of the 2nd Defendant by virtue of the fact that rent is deducted from their salary and possession of the houses they occupy can only be recovered after statutory notices have been served in accordance with tenancy law of Lagos State.  That the payment of 1 year’s rent for alternative accommodation was done unilaterally without the knowledge and consent of the Claimants and other tenants since 2nd Defendant is in possession of the account details of the Claimants and other employees. That the Claimants are ready, willing and able to refund the unsolicited funds paid into their accounts. That the Claimants and the other employees of the 2nd Defendant never agreed to vacate their houses upon receipt of 1 year rent, rather, it was officials of the 2nd Defendant that evicted them from their houses while the contractor demolished the buildings with the assistance of some officials of the Defendants. That the 2nd Defendant is the Landlord of the Claimants and other employees and cannot claim not to be aware of the eviction and demolition of the houses. That the subject matter of the judgment of the NICN/11/2011 now on appeal to the Court of Appeal in CA/L/750/2015 is in respect of the right
    of employees of the 2nd Defendant to purchase the houses occupied by them. That this present action is not re-litigating the issue appealed in
    CA/L/750/2015. That the issues before this court is limited to whether the Defendants can evict the Claimants without complying with the tenancy law of Lagos State and whether the Claimants houses can be demolished during the pendency of the 2nd Defendant appeal in CA/L/750/2015. That the judgment of the National Industrial Court in NICN/11/2011 is valid and subsisting and has not been set aside.

  1. The 2nd Defendant attached the followings documents in furtherance of their opposition to the preliminary objection:
  2. EXHIBIT 01 – authority to institute this matter.
  3. Exhibit 02 – pre action notice served on the 2nd Defendant.

Counsel Arguments on the Preliminary Objection:

  1. In arguing its application, the 2nd Defendant/Applicant formulated 5 issues for determination by this Court:

1:   Whether the Claimants have the locus to institute and maintain this suit before this Honourable Court in a representative capacity

2:   Whether the Claimant commenced this suit in compliance with all statutory requirements.

3:   Whether the Claimants have disclosed a reasonable cause of action against the 2nd Defendant/Applicant.

4:   Giving the existence of Appeal No:  CA/L/750/2015 before the Court of Appeal, whether this Honourable court has the competence to consider the Claimant’s claims before it.

5:   Whether this Honourable Court has the competence and jurisdiction to hear and determine the Claimant’s suit before it as presently constituted.

  1. The 2nd Defenant/Applicant argued issues 3 and 4 together. On issue 1, the Applicant argued that a reading of the affidavit of Adebayo Fawole dated 8th June, 2018, and Magnus Ogbue dated 16th July, 2018, filed by the Claimants in support of their Originating Summons to ascertain if the Claimants indeed have the locus to bring this suit as they have done shows that their affidavits failed to disclose the identity of the persons whom the Claimants represent.  They argue that granted reference was made to EBJ/SPENCER Community in the affidavit of the Claimants, without stating who or what EBJ/SPENCER Community is.  On issue 2, the Applicant submits that nothing in the affidavits in support of the originating summons discloses that the Claimants complied with the mandatory provision of Section 83(2) of the Nigerian Railway Corporation Act.  On issue 3, the Applicant contends that the Claimants’ suit discloses no cause of action against it and that the order of this Court made on the 4th day of June, 2018 making it a party to this suit was in fact, a misjoinder; as the ‘wrong’ complained about by the Claimants is actually perpetuated by the Officers of the Federal Ministry of Transport and the accompanying damage is due to the activities of the same officers. On issue 4, the Applicants contend that the Claimants seek to place before this Court an issue which has been litigated upon and decided by this same Court and which said decision is the subject of an appeal pending before the Court of Appeal in Suit No: CA/L/750/2015.  On issue 5, the Applicant submits that the cumulative effect of finding in favour of issues 1 – 4 above as argued, is that this Court lacks jurisdiction to entertain this matter.

  1. In opposing the preliminary objection, the Claimants addressed the issues as formulated by the Applicants.  On issue 1, the Claimants argued that the Claimants in their own right can institute this action against the Defendants; and can also bring this present action on behalf of the other employees and tenants of the 2nd Defendant since they all have a common grievance against the 2nd Defendant and the relief claimed is beneficial to all those whom the Claimants are representing. On issue 2, the Claimants submit that the provisions of Section 83 (2) of the Nigerian Railway Corporation Act Cap N129 was complied with as a pre-action notice was issued via exhibit 01 attached to the counter
    affidavit of Mr. Nnamdi Oghue in opposition to the Notice of Preliminary
    objection.  On issue 3, the Claimants argued that the Claimants who are tenants of the 2nd Defendant and who are by law entitled to have statutory notices served upon them before possession of their houses can be recovered have a cause of action against the Landlord and not against the Federal Ministry of Transport.  They submit that a holistic reading of all the paragraphs of the affidavit in support of the Originating Summons shows that the complaint of the Claimants is against activity of the 2nd Defendant and the Federal Ministry of Transport, an agency of the Federal Government of Nigeria. They further submit, with respect to the 4th issue for determination that the Claimants do not seek to re-litigate any issue pending before the Court of appeal in CA/L/750/2015 and that the mere fact that the affidavit of Adebayo Fawole places facts relating to the matter on appeal will not amount to a re-litigation. They argued that the issue on appeal in CA/L/750/2015 concerns the right of the Claimants and other employees of the 2nd Defendant to a right of first refusal to purchase their respective houses; and that this Court is not being asked to make any pronouncement on the right of the Claimants to purchase their houses. They submit further on the 5th issue that even if this Court holds that it has
    no jurisdiction or it is not competent to determine the 2nd issue stated above, it can certainly determine the first issue which deals only with whether the Defendants can eject and demolish the Claimant’s houses
    without complying with the tenancy law of Lagos State. They also state that there are no proceedings pending between the parties in this action in
    any other Court.

  1. In Reply on Points of Law, the 2nd Defendant submitted, with respect to the Claimant’s locus to bring this action that the description, “for themselves and on behalf of all other tenants occupying houses and apartments at Railway Compound Ebute Metta, Yaba, Lagos by virtue of their employment and known as the EBJ Spencer community”, is vague in view of the fact that no entity exists by the name: EBJ Spencer Community. 2nd Defendant argued that exhibits 01 (document purporting to give authority to the Claimants to institute this suit) attached by the Claimants to the counter affidavit of Magnus Ogbue filed in opposition of the 2nd Defendant’s preliminary objection, cannot avail the Claimants, having not been attached to the originating summons as held by the Court of Appeal in Ruthlinz Inter’l Invest. Ltd v. Iheabuzor (2016)11 NWLR part 154 page 409.  They further argued that it is not the law that where litigants attempt to institute a suit in a representative capacity fails, the suit translates to one brought in a personal capacity as has been imputed by the Claimant. On the compliance with section 83(2) of the Nigerian Railway Act, the Applicants submit that this Court is precluded from considering exhibits attached to the Counter affidavit of Magnus Ogbue in the determination of this issue; and that recourse is to be had only to the originating processes filed by the Claimants in this suit.  On the competence of this Court to hear this suit, the Applicants insist that this suit calls on the consideration of a suit already before the Court of Appeal.  On the applicability of the Tenancy Law of Lagos State, the Applicants submit that no tenancy agreement/relationship exists between the parties in this suit; and if the Tenancy Law were to apply, then this Court would not have jurisdiction by virtue of section 2(5) which grants to the High Court of Lagos State, the jurisdiction to hear such matters.

  1. By consent of the parties, it was agreed that this application be taken together with the substantive suit as permitted by Order 18 Rule 3 of the National Industrial Court Rules 2017.

  1. The 2nd Defendant subsequently filed a counter affidavit in opposition to the originating summons dated 29th January 2019 deposed to by Obiora Emedolibe, Secretary and Director of Legal Services of the 2nd Defendant.  In compliance with the Rules, they also filed a written address of same date.

Case of the Claimants:

  1. The case of the Claimants as stated in the affidavit of Adebayo Fawole(1st Claimant), in support of the originating summons, is that the Claimants instituted this action in a representative capacity for themselves and on behalf of all the other tenants occupying houses and apartments at Railway Compound Ebute Metta, Yaba, Lagos by virtue of their employment and who are known as the EBJ/Spencer Community” within the area designated by the Federal Ministry of Transport for the construction of a railway station.  That the Claimants and all the other persons represented in this action are employees of the 2nd Defendant and are members of the Nigerian Union of Railway Workers. That they are tenants of the 2nd Defendant in the houses and apartments they occupy by virtue of their employment and rent deducted from their salaries.  That on the 19th of January 2018 the Claimants acting for themselves and on behalf of other employees wrote a letter to the 2nd Defendant to complain about demolition markings inscribed on their houses by the 2nd Defendant and the Federal Ministry of Transport. That upon receipt of the letter, they were invited to a meeting with the Managing Director of the 2nd Defendant, Mr. Fidet Okhira on the 20th of January 2018, where they were told that the Federal Ministry of Transport wants to make use of the land where their houses are located. The Managing Director of the 2nd Defendant told those attending the meeting to go and talk to their members and warned that they should not cause problem for the Minister of Transport. He also admonished them for publishing in the newspaper an article relating to the planned demolition. Despite their protest the officials of the Federal Ministry of Transport continued to mark and survey their houses and told them that the houses will be demolished to make way for a modern station/Terminal. The deponent stated that the Claimants and the employees they represent have not been served the required statutory notices provided for under the Tenancy Law of Lagos State and thus cannot be evicted by force. That the officials of the Federal Ministry of Transport have continued to harass them daily with the threat of eviction and demolition.

  1. The 1st Claimant stated further in his affidavit that sometime in 2011 the Nigerian Union of Railway Workers and the Senior Staff Association of Communications Transport and Corporations instituted suit NICN/LA/11/2011 against the Defendants, seeking amongst other reliefs, a declaration that all the members of the Nigerian Union of Railway Workers and the Senior Staff Association of Communications Transport and Corporations are entitled to the first right of refusal to bid for and buy the houses they occupy as tenants. That the National Industrial Court in a judgment delivered on the 6th of January 2015 granted all the reliefs Claimed by the Nigerian Union of Railway Workers and the Senior Staff Association of Communications Transport and Corporations in suit NICN/LA/11/2011 and directed the Defendants to issue and avail the Claimants members who are sitting tenants in their houses, flats and other tenanted accommodation, bidding forms to enable them exercise their right of first refusal to purchase their tenanted houses and apartments. The Defendants have appealed the judgment in NICN/LA/11/2011 but still intend to demolish the houses occupied by the Claimants and other tenants while the appeal is pending. That the threatened eviction of the Claimants and demolition of their houses is designed to frustrate and over reach the judgment of this Honorable Court in NICN/LA/11/2011 and also render nugatory any decision of the Court of Appeal in CA/L/750/2015. That if they are forcefully evicted they will be put at a great disadvantage in the enforcement of their right to purchase the houses occupied by virtue of their employment.

  1. The following documents were referred to and attached by the deponent:
  2. Exhibits R1 – letter dated 10/10/2001 by 1st Claimant indicating accommodation occupation and instruction for deduction of rent.
  3. Exhibit R2 – Allocation of quarters letter for 3rd Claimant dated 1st February 2006.
  4. Exhibit R3 – Allocation of quarters letter for 2nd Claimant dated 27th June 2000 and payment slips showing house rent deductions for the three Claimants.
  5. Exhibit R4 – letter written by the Claimants to the 2nd Defendant.
  6. Exhibits R4a, R4b and R4c – pictures of properties marked.
  7. Exhibit R5 – newspaper publication.
  8. Exhibit R6 – The judgment in NICN/LA/11/2011.

Case of the 2nd Defendant:

 

  1. It is the case of the 2nd Defendant that the identity of the persons who the Claimants purport to represent by this suit is unknown to the 2nd Defendant; and that the Claimants have no authority from the persons they purport to represent to institute this action.  The 2nd Defendant has not embarked on any demolition and is not responsible for the planned demolition within its premises.  That the Federal Government of Nigeria, through the Federal Ministry of Transportation, contracted to construct the Lagos – Ibadan standard gauge double track railway line in furtherance of its modernization program, entered into a contract for the construction of the railway line with CCECC, and that the planned demolition of residence along the railway corridor is in furtherance of that contract. That the 2nd Defendant, though the beneficiary of the contract, is not a party to that contract nor is it in anyway involved in its execution. Its only involvement is the disbursement of funds provided by the construction company to its employees affected by the demolition.  That the Federal Government has commenced the construction of alternative residence for the displaced employees within the railway compound and also made the arrangements for provision of funds by the Construction Company to these employees to enable them secure interim accommodation.  That notice of the planned demolition was issued to employees of the 2nd Defendant, including the Claimants, and funds advanced to them for the purpose of securing interim accommodation pending the completion of the alternative residence under construction. That the Federal Government has made arrangements with the construction company to provide additional funds to the affected employees of the 2nd Defendant should the alternative residence fail to be completed within the stated 12 months period.  That employees of the 2nd Defendant affected by the planned demolition upon receipt of funds, willingly vacated their premises and were not forced out.  That the apartments occupied by employees of the 2nd Defendant, the Claimants inclusive are service apartments held by them pursuant to their employment with the 2nd Defendant.  The amount paid by the employees supposedly as rent is not commensurate to the value of the apartments occupied by them to qualify them as tenants under the Tenancy Law; and that the relationship between the 2nd Defendant and its employees is that of master/servant and not landlord/tenant as to be regulated by the Lagos State Tenancy Law.  That the letter dated 19th January, 2018 purportedly addressed to the Managing Director of the 2nd Defendant was not received by him or his office.  Meetings were held by representatives of the Construction Company and persons affected by the planned demolition and some members of the 2nd Defendant were in attendance. That the planned demolition of houses along the railway corridor is unconnected and in no way detracts from the rights which may inure to the Claimants in Suit No: NICN/LA/11/2011 – Nigerian Union of Railway Workers and Anor v. Nigerian Railway Corporation & Ors should the appeal be decided in their favour.  That employees of the 2nd Defendant displaced due to the construction will be put into occupation of the alternative residence upon its completion and can exercise their rights thereon, should the appeal court so hold. That the 2nd Defendant does not seek to recover its premises from its employees affected by the construction and should that be the case, the employees are not entitled to the issuance of statutory notices by the 2nd Defendant being service tenants who occupy the premises based on their employment with the 2nd Defendant; and that the Lagos State Tenancy Law vests the High Court of Lagos State with the jurisdiction to hear disputes arising therefrom; and that the judgment of this Court delivered in Suit No: NICN/LA/11/2011 – Nigerian Union of Railway Workers & Anor v. Nigerian Railway Corporation & Ors is subject of a competent appeal entered before the Court of Appeal.

  1. The Defendant attached a document marked Exhibit OE 1 being a list of the 2nd Defendant’s employees affected by the planned demolition and sums advanced to them by the construction company through the 2nd Defendant, for the purpose of securing accommodation pending the completion of the alternative residence.

Arguments on the Originating Summons:

  1. In their written address in support of the originating summons, Counsel, on behalf of the Claimants, raised the following issues for determination:

  1. Whether the Defendants by themselves or through their agents, servants and privies can evict the Claimants from their houses and apartments occupied as tenants or demolish their houses without complying with Lagos State Tenancy Law 2011.

 

  1. Whether the Defendants by themselves or through their agents, servants and privies can demolish the houses occupied by the Claimants as tenants during the pendency of the appeal filed by the Defendant against the judgment of the National Industrial Court in NICN/la/11/2011 conferring on the Claimants the right to purchase the houses and apartments occupied as tenants.

 

  1. On issue 1, the Claimants contend that a tenancy agreement for the  purpose of the law shall be deemed to exist where premises are granted by the landlord to a person for value whether or not it is express or implied, oral or in writing and for a fixed period, and that where there is a breach or non-observance of any of the conditions or covenants in respect of the premises, the landlord shall subject to any provision to the contrary and upon service of the necessary processes in accordance with the relevant provision of the law have the right to institute proceedings for an order to re-enter and determine the tenancy – Section: 12 of the Tenancy Law of Lagos State. On issue two, the Claimants submit that the eviction of the Claimants during the pendency of the appeal filed by the Defendant against the judgment of the National Industrial Court in NICN/LA/11/2011, which gives the Claimants and other tenants of the 2nd Defendant the right to purchase their houses and residential accommodation will amount to over reaching the matter on appeal and will deprive the Claimants the benefit and fruits of their judgment.

  1. The 2nd Defendant, for the purpose of arguing against the originating summons instituted by the Claimants, formulated for the determination of this court, 3 issues. viz:

  1. Whether the Lagos State Tenancy Law, 2011 or any other tenancy law in force, is applicable to the relationship existing between the Claimants and the 2nd Defendant.

  1. Whether the Claimants can through the instant suit, seek to preserve the object of dispute between parties being the subject of the decision of this Honourable court delivered in Suit No: NICN/LA/11/2011 – Nigerian Union of Railway Workers & Anor v. Nigerian Railway Corporation & 2 Ors now on appeal to the Court of Appeal.

  1. Whether the Claimants are entitled to the reliefs sought.

  1. On issue 1, the 2nd Defendant submits that where no tenancy agreement exists, the Lagos State Tenancy Law is inoperative as the law clearly is designed to regulate rights and obligations under Tenancy agreements.  On issue two, the 2nd Defendant submits that the consequence of the appeal filed by the Defendants against the judgment of Court is that no right or benefit can inure from it to the Claimants or the Defendants until its determination. On issue 3, the 2nd Defendant submits that the Claimants have not placed sufficient evidence to establish the declaratory reliefs they seek.  They also submit that they also failed to establish their legal rights to the injunctive reliefs they seek.

  1. In their Reply on Points of Law, the Claimants referred to the jurisdiction of this Court pursuant to Section 254(c) (1)(a)(k) of the 1999 Constitution of the Federal Republic of Nigeria (Third Alteration) which provides for the jurisdiction of the National Industrial Court, and submit that the issue of the tenancy of the Claimants is connected to their employment. The houses they occupy as employee is part of their benefit and the rent deducted from their salary whether as “rent subsidy” or commercial rent is all for value.  The Claimants further submit that the judgment in NICN/LA/11/2011 confers a legal right and benefit on the Claimants and they have a legal interest to protect the houses which the Court in NICN/LA/11/2011 has said they should be given the first right of purchase.

 

Decision:

 

  1. I have carefully considered the processes filed in the Originating Summons.  I have also considered the processes filed in respect of the Preliminary Objection raised by the 2nd Defendant.  The issues raised in both processes are consolidated in this judgment.  I set the following issues down for consideration:

1:   Whether the Claimants have the locus to institute and maintain this suit before this Court in a representative capacity

2:   Whether the Claimant commenced this suit in compliance with all statutory requirements.

3:   Whether the Claimants have disclosed a reasonable cause of action against the 2nd Defendant/Applicant.

4:   Giving the existence of Appeal No:  CA/L/750/2015 before the Court of Appeal, whether this Court has the competence to consider the Claimant’s claims before it.

5:   Whether this Court has the competence and jurisdiction to hear and determine the Claimant’s suit before it as presently constituted.

  1. Whether the Claimants are entitled to their claim.

 

Issue 1:

  1. Issue one is whether the Claimants have the locus to institute and maintain this suit before this Court in a representative capacity.  This issue queries if the Claimants have the locus to bring this action, and in a representative capacity.  The issue of locus standi or standing to sue is indeed primeval and fundamental in any action in court. The law is trite that in our civil jurisprudence, a defendant can impeach the locus standi of a plaintiff under Section 6 (6) (b) of the 1999 Constitution. Once the locus standi of a party is challenged by the defendant, the issue must first be resolved before any other consideration of the matter – Agboola v. Agbodemu & Ors (2008) LPELR-8461(CA).  In law, locus standi denotes the legal capacity based upon sufficient interest in a subject matter to institute proceedings in a court of law to pursue a specified cause.  It entails the legal capacity for instituting, initiating or commencing an action in a competent court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever, including the provision of any existing law.  See Agboola v. Agbodemu & Ors (Supra), Oyewumi v. Osunbade (2001) FWLR (Pt. 82) 1919.
  2. In their preliminary objection in this case, the 2nd Defendant did not challenge the competence of the Claimants to bring this action, rather, their competence to bring this action in a representative capacity.  I have considered the originating processes filed by the Claimants.  The suit is stated to be filed in a representative capacity.  Further consideration of the affidavit in support of the summons show Claimants averring to their representing “other tenants occupying houses and apartments at Railway Compound Ebute Metta, Yaba, Lagos”.

  1. The Rules of this Court envisages actions in a representative capacity.  Thus, it provides in Order 4 Rule 2 that “Where a claimant sues, or a defendant or any of several defendants is sued in a representative capacity, the originating process shall state that the suit is brought in that capacity.”  I find that it is thus stated in the originating process that the suit is in a representative capacity.  The Courts have severally determined the conditions for a representative action.  In the case of Ighedo & Anor v. PHCN (2018) LPELR-43863(SC) the apex Court held that :

It is settled already that for an action to lie in a representative capacity, the following conditions or ingredients must exist:

(a) There must be a common interest;

(b) There must be a common grievance and;

(c) The relief claimed must be beneficial to all.

See; Adediran & Anor Vs. Interland Transport Ltd (1991) 9 NWLR (214) 155; (1991) LPELR 88; Elijah Idise & Ors Vs. Williams International Ltd (1995) 1 NWLR (pt.370) 142; (1995) SCNJ 120; (1995) LPELR – 1424. Generally, from the evidence adduced before the trial Court, upon review of the totality of the available evidence on record, the trial Court found on the facts that the appellants proved their case beyond reasonable doubt.

  1. In this case, I find that from the averments in the affidavits in support of the originating summons, these conditions have been met.  As stated by the Claimants, the Claimants and the people they represent are all tenants occupying houses at the Railway Compound Ebute Metta by virtue of their employment and rent deducted from their salary. They also stated that they have complained about the demolition marking inscribed on their houses by the 2nd Defendant and the Federal Ministry of Transport.  These occupants are in existence and verifiable.  The Claimants in response to the preliminary objection attached exhibit 01, showing a ‘Community Resolution’ signed by persons under the auspices of EBJ/Spenser Quarters-Community.  The text of the Resolution shows an authorisation to act on behalf of the signatories.  Though not attached to the originating summons, having been brought in response to the preliminary objection, I have a duty to consider it in the interest of justice.  See Cavendish Petroleum (Nig) Ltd & Anor v. Deribe (2018) LPELR-45540(CA).
  2. Assuming the above community resolution was not tendered, I do not think it is in the place of the Defendant to challenge the representative capacity of a party.  In the case of Elf Petroleum v. Umah & Ors (2018) LPELR-43600(SC) , the apex Court, while considering the question of who can institute a suit in a representative capacity; and who can challenge the representative capacity of a party to sue stated as follows:

I seek to restate affirmatively that none of the Respondents and those represented is opposed to the Respondents’ capacity or authority to represent them. In the case of Shell Petroleum Dev. Company Nigeria Limited V. Amadi under reference supra, the issue of legal personality of the plaintiffs/respondents was raised on appeal before the Court of Appeal. Their Lordships relied on the decision of this Court in Yusuf V. Akindipe (2000) FWLR (Pt. 5) 709, (2000) 8 NWLR (Pt. 669) 376 at 386 wherein it was held by this Court that:

The challenge of the plaintiffs/respondents to sue in a representative capacity for themselves and on behalf of the members of the 5 villages does not lie in the mouth of the Defendant/Appellant who has nothing to share in the victory of the plaintiffs/Respondents. This is in view of the settled law as held by this Court that a Defendant/Appellant cannot challenge the capacity of the plaintiffs/Respondents. See the decision delivered on Friday 10th day of July, 2009 in the case of Shell Petroleum Dev. Company Nig. Ltd. V. Chief T. Edamkue & Ors. (Under reference supra) at page 430 wherein it held that:

“Once the Plaintiff/Plaintiffs expressed on a writ or statement of claim that the action was brought in a representative capacity as appear in the two (2) consolidated suits in the instant case it is/was prima facie, though not conclusive evidence of authority by his/their group, family or community to sue in that capacity. It is only a member of that group, family or community who can dispute, intervene or challenge the proper representation or the capacity in which the plaintiff/plaintiffs sued. It will be futile from a defendant who is not one of those the plaintiff/plaintiffs purport to represent, to challenge his/their said authority, for or because, if the plaintiff/plaintiffs wins/win, the losing defendant, cannot share in the victory and if the plaintiff/plaintiffs case be dismissed, such dismissal can never affect the defendant adversely.” Per OGUNBIYI, J.S.C. (Pp. 38-43, Paras. D-E)

  1. The Supreme Court , in the earlier case of A.G KWARA STATE & ANOR v. LAWAL & ORS (2017) LPELR-42347(SC) took the same position when it held that:

It would seem from S.P.D.C. Nig. Ltd. V. Edamkue (2009) 14 NWLR (pt.1160) 1 at 27 – 28 that the defendant, in a suit or action brought in a representative capacity, upon authorization of the other persons with common interest, has no locus standi to object to the said representation since he is not member of the group of persons that authorized the named plaintiff(s).” Per EKO, J.S.C. (P. 21, Paras. C-D).

  1. Based on the above reasoning, I find and hold that the Claimants have the locus to institute and maintain this suit before this Court in a representative capacity.

Issue 2:

  1. Issue 2 is whether the Claimant commenced this suit in compliance with all statutory requirements.  The statutory requirement referred to is the provision of Section 83(2) of the Nigeria Railway Corporation Act Cap N129 which provides that:

“No suit shall be commenced against the Corporation, until three months at least after written notice of intention to commence the same, shall have been served upon the Corporation by the intending plaintiff or his agent, and such notice shall clearly and explicitly state the cause of action, the particulars of claim, the name and place of abode of the intending plaintiff and the relief which he claims.”

  1. Parties are in agreement on the import of this provision.  The 2nd Defendant however contends that in the instant case, nothing in the affidavits of Adebayo Fawole dated 8th June, 2018, and Magnus Ogbue dated 16th July, 2018, filed by the Claimants in support of their Originating Summons discloses that the Claimants complied with the mandatory provision of Section 83(2) of the Nigerian Railway Corporation Act.  This argument is made because of the provision of Order 3 Rule 23 of the Rules of this Court, which provides that:

(1) Whenever service of pre-action notice is statutorily required for a party to bring an action against a defendant, the party bringing the action shall file a photocopy of the pre-action notice served on the Defendant along with the originating process.

(2) Where an action is filed without a photocopy of the pre-action notice, the court may declare the process incompetent”.

  1. Exhibit 01 attached to the affidavit of Magnus Ogbue is a Pre-action notice dated 14th February 2018 issued on the 2nd Defendant by Claimant’s Counsel. 2nd Defendant was subsequently joined in the suit by Order of this Court made on 14th June 2018.  I find that the Claimants complied with the provision of Section 83(2) of the Nigeria Railway Corporation Act Cap N129.  In the interest of justice, and not to adhere to undue technicality, I set aside the provision of sub-section 2 of Rule 23 of Order 3 and hold that the Claimant commenced this suit in compliance with all statutory requirements.

Issue 3:

  1. Issue 3 is whether the Claimants have disclosed a reasonable cause of action against the 2nd Defendant/Applicant. In AFOLAYAN V. OGUNRINDE (1990) 1 NWLR (pt.127) 269 @ 382 F – H. His Lordship Obaseki, JSC defined a cause of action thus:

In its simplest terms, I would say that a cause of action means:

(1) a cause of complaint;

(2) a civil right or obligation fit for determination by a Court of law;

(3) a dispute in respect of which a Court of law is entitled to invoke its judicial powers to determine.

It consists of every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment.

  1. In determining when a cause of action arises, the Supreme Court held in H.S Engr. Ltd. v. SA. Yakubu (Nig.) Ltd. (2009) 10 NWLR (Pt. 1149) 416 S.C. that it is irrelevant to consider the weakness of the plaintiffs claim. What is important is to examine the averments in the pleadings and see if they disclose some cause of action or raise some questions fit to be decided by a Judge.  See also Atiba Iyalamu Savings & Loans Ltd v. Suberu & Anor (2018) LPELR-44069(SC).  I have considered the facts averred by the Claimants in the affidavits in support of the originating summons.  The Claimants have asserted entitlement to certain rights.  These are rights which they assert accrue to them by virtue of their employment by the 2nd Defendant. They have also asserted infringement of those rights.  I find the issues arising from those assertions to be triable.  The strength of the Claimant’s case is not a relevant consideration when the question is whether or not a statement of claim had disclosed reasonable cause of action.  See Obidike & Others v. Ministry of Lands, Housing and Urban Development & Ors. (2016) 230 NLLR (Pt. 230 206.  I therefore hold that this suit discloses a reasonable cause of action, against the 2nd Defendant.

Issue 4:

  1. Issue 4 is whether, given the existence of Appeal No:  CA/L/750/2015 before the Court of Appeal, this Court has the competence to consider the Claimant’s claims before it.  It is the Defendant’s contention that the Claimants seek to place before this Court an issue which had been litigated upon and decided by this Court and which is the subject of an appeal pending before the Court of Appeal in Suit No: CA/L/750/2015.  I have considered the reliefs sought in this action, against the judgment of this Court in Suit No NICN/LA/11/2011 now on appeal in Suit No: CA/L/250/2015.  I find that the issues resolved in that suit are different from the issues sought to be resolved in this suit. That case had to deal with the extant ‘Approved Guidelines for the sale of Federal Government Property’ as well as the ‘Generic Guidelines for the Reform of Parastatals’ issued by the Bureau of Public Service Reforms in collaboration with the Bureau of Public Enterprises published by the Presidency in March 2006 as binding on the Management of the Nigerian Railway and the Implementation Committee of the White Paper on the Commission of Inquiry into Alienation of Federal Government Landed Property in the disposal of all residential facilities {houses, flats etc) built, acquired or otherwise owned by the Nigerian Railway Corporation being an agency of the Federal Government of Nigeria.  It established the Claimant’s right to first refusal (as part of their fringe benefits) to bid for and buy the affected properties before any such affected properties can be validly offered to the public to bid for and purchase. I do not find that these issues arise in this case.  I do not find that Claimants seek to re-litigate any issue pending before the Court of appeal in CA/L/750/2015 as contended by the 2nd Defendant; thus this Court can entertain this suit.  The rights granted in the judgment in NICN/LA/11/2011 would crystalise any time the 2nd Defendant want to sell the accommodation.

Issue 5:

  1. Issue 5 is whether this Court has the competence and jurisdiction to hear and determine the Claimant’s suit before it as presently constituted.  I agree with the Defendant on the conditions for the assumption of jurisdiction by a Court.  The Defendant referred to the case of LOKPOBIRI V. OGALA (2016)3 NWLR Part 1499 page 328, where the Supreme Court held that a court is competent to adjudicate over a matter before it only when:

  1. It is properly constituted with respect to the number and qualifications of its members;
  2. The subject matter of the action is within its jurisdiction
  3. The action is initiated by due process of law and
  4. Any condition precedent to the exercise of its jurisdiction has been fulfilled.

  1. The Applicant founded the argument that this Court lacks the competence and jurisdiction to hear this matter on the grounds that the Claimants lacked the competence to bring this suit in a representative capacity; that the Claimants failed to issue the statutorily required pre-action notice on the 2nd Defendant; that the 2nd Defendant ought not to have been made a party to this suit, and that this Court lacks the jurisdiction to consider the questions brought before it by the Claimants in view of the pendency of Suit No: CA/LA/250/2015.  I have already under issues one to four determined these questions.   As a result, it can only be concluded that this Court has the jurisdiction to hear this matter.  I so find and hold.  I now proceed to the substantive suit.  I set the following three issues for determination:
  2. Whether the relationship of landlord and tenant exists between the Claimant and the 2nd Defendant;
  3. Whether the Claimants can through the instant suit, seek to preserve the res in Suit No: NICN/LA/11/2011 – Nigerian Union of Railway Workers & Anor v. Nigerian Railway Corporation & 2 Ors now on appeal to the Court of Appeal.
  4. Whether the Claimants are entitled to their claim.

Issue1:

  1. The issues the Claimants have placed before this Court revolves around their status as tenants of the 2nd Defendant.  It is not in dispute that the relationship between the Claimants and the 2nd Defendant commenced upon their employment by the 2nd Defendant.  They became employees; which status qualified them for allocation of houses and apartments in the premises of the 2nd Defendant.  The various definitions of ‘tenant’ would accommodate the Claimants as tenants.  For instance, the Black’s Law Dictionary 10th Edition, defined a tenant as “someone who holds or possesses lands or tenements by any kind of right or title”.  In this case, that right would be the employment of the Claimants.  Section 47 of the Tenancy Law of Lagos state defines a tenant to include “a sub-tenant or any person occupying any premises whether by payment of rent howsoever or by operation of law and not persons unlawfully occupying any premises under a bona fide claim to be the owner”.  This definition again accommodates the Claimants.  In considering who a tenant is and what qualifies one to be considered a tenant, the Court of Appeal in the case of Nigeria Airways Ltd. (Inliquidation) & Ors. v. Mahdi (2013) LPELR-20742(CA) stated that:

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. See: Registered Trustee of Mission v. All States Trust Bank Plc (2003) FWLR (pt. 72) page 1804.

  1. Again, on the above premise, Claimants would be regarded as tenants.  It is trite that many classifications of tenants exist, and the rights that accrue to each differ.  What then is the type of tenancy enjoyed by the Claimants?

  1. In the case of Bocas Nigeria Ltd v. Wemabod Estates Ltd (2016) LPELR-40193(CA), the Court of Appeal, stated that “there are 3 main types of tenancy, tenancy at will, periodic tenancy and fixed term (or term certain).” Per AUGIE, J.C.A. (as she then was)(P. 18, Para. A). On a tenancy for a fixed term, the Court of Appeal had this to say in the case of OSEF v. ADOLE (2010) LPELR-4367(CA):

The position of the law is that a lease or tenancy for a fixed term automatically determines when the fixed term expires. Quit notice is usually obviated in the case of a fixed tenancy since the term of expiration is normally known unlike periodic tenancies that continues automatically from period to period until the determines.by a notice to quit. See Nweke v. Ibe (1974) 4 ECSLR page 54.” Per Aboki, J.C.A. (P.16, Paras.B-C).

  1. Periodic tenancy is a tenancy that automatically continues for successive periods, usually, month to month or year to year, unless terminated at the end of a period of notice – Black’s Law Dictionary 10th Edition.  Tenancy at Will on the other hand is a “tenancy in which the tenant holds possession with the landlord’s consent but without fixed terms; specifically a tenancy terminable at the will of either the transferor or the transferee and that has no designated period of duration.  Such a tenancy may be terminated by either party upon fair notice”.  In the case of Odutola v. Papersack (Nig.) Ltd (2006) NWLR (Pt.1012)470, it was defined as:

A tenancy at will, which is held by a tenant at will, generally conveys a mutual wish or intention on the part of the tenant and the landlord in the occupation of the estate. There is general understanding that the estate may be legally terminated at any time. A tenancy at will is built into the mutual understanding that both the tenant and the landlord can terminate the tenancy when any of them likes or at any time convenient to any of them.

  1. It is a common practice for accommodation to be provided to employees because the nature of the employment duties requires it. Such situation may create what is termed as service occupancy or service tenancy.  In this case, no facts were averred to show that they were such service occupants.  Here again, evidence shows that the Claimants paid certain amounts as rents after the houses/apartments were allotted to them (exhibit R3).  This fact renders Defendant’s argument that the Claimants were service apartments nugatory as consideration need not be adequate – S.P.D.C. (Nig.) ltd V. Allaputa (2005) 9 NWLR (Pt. 931) 475 at 500 Paras.C-D(CA).  In the whole scenario of the arrangement between the Claimants and the 2nd Defendant, no document evidencing a lease agreement or tenancy agreement is shown to exist to indicate the responsibilities of each party to the arrangement.  The classification closest to the relationship between parties in this case would be tenant at will.  I say this because the Claimants’ occupation of the premises of the 2nd Defendant was as a result of their employment; it has no tenure attached to it; its terms and conditions are not shown to be stated anywhere, and there is no duty on the part of the Claimants to live in the premises, and no shown responsibility on the part of the 2nd Defendant to provide it.  I find and hold that, at best, the Claimants were tenants at will.
  2. The 2nd Defendants had stated certain facts which now question the continued tenancy of the Claimants.  In its affidavit in opposition to the originating summons, the 2nd Defendant made the case that:
  • I know the Federal Government of Nigeria, through the Federal Ministry of Transportation, contracted to construct the Lagos – Ibadan standard gauge double track railway line in furtherance of its modernization program.
  • The contract for the construction of the railway line was entered between the Federal Government and CCECC, the construction company, and planned demolition of residence along the railway corridor is in furtherance of that contract.
  • I know that the 2nd Defendant, though the beneficiary of the contract, is not a party to that contract nor is it in anyway involved in its execution. Its only involvement is the disbursement of funds provided by the construction company to its employees affected by the demolition.
  • I know that the Federal Government has commenced the construction of alternative residence for the displaced employees within the railway compound and also made the arrangements for provision of funds by the Construction     Company to these employees to enable them secure interim accommodation.
  • I am aware that notice of the planned demolition was issued to employees of the 2nd Defendant, including the Claimants, and funds advanced to them for the purpose of securing interim accommodation pending the completion of the alternative residence under construction. Produced and shown to me marked Exhibit OE 1 is a list of the 2nd Defendant’s employees affected by the planned demolition and sums advanced to them by the construction company through the 2nd Defendant, for the purpose of securing accommodation pending the completion of the alternative residence.
  • I know the Federal Government has made arrangements with the construction company to provide additional funds to the affected employees of the 2nd Defendant should the alternative residence fail to be completed within the stated 12 months period.
  • I am aware that employees of the 2nd Defendant affected by the planned demolition upon receipt of funds, willingly vacated their premises and were not forced out.
  1. The Claimants did not dispute that the Federal Government through the Federal Ministry of Transport was indeed engaged in the said construction which affected the quarters of the Claimants.  If that is so, then the 2nd Defendant had lost total control over the premises and the apartments, and the requirement of issuing  of statutory notices had become overtaken by events; or in a more legal sense, the arrangement had become frustrated and the 2nd Defendant was no longer in a position to issue any form of notice.
  2. The reasoning above would totally absolve the 2nd Defendant; but additionally, exhibit OE1 attached to 2nd Defendant’s counter-affidavit show that the Ministry of Transport had gone ahead to pay the Claimants varying amounts to secure alternative accommodation.  I find that in the circumstance, the relationship of ‘tenancy at will’ which I had found, had come to an end.
  3. Assuming I am wrong in the conclusion above, I further find that by exhibit 01, attached to the 2nd further and better affidavit of Magnus Ogbue dated 10th July 2018 from the 2nd Defendant and addressed to “All Official Occupants of NR Staff Quarters, Lagos District”, the 2nd Defendant has taken the steps which this Court would have ordered, that is, to notify the Claimants.  That exhibit provides in part, as follows:

NOTICE OF PAYMENT TO AFFECTED STAFF IN NRC QUARTERS AT ALAGOMEJI IN LIEU OF THE DEMOLITION OF THE SAID QUARTERS

Following the office circular dated 14.06/18 notifying you of the need for NRC to take vacant possession of your official quarters in order to give right of way for the Lagos/Ibadan Standard Gauge line project, also that you have already being paid the required/amount for your temporary re-location as stated in the circular of 14/06/18 under reference.

You are therefore by this letter advised to vacate your respective official quarters on or before 13th July, 2018 for the reason stated above,

……..

  1. Section 13(1) of the Tenancy Law of Lagos State 2011 did not provide for a higher standard.  It provides that:

13.-(1) where there is no stipulation as to the notice to be given by either party to determine the tenancy, the following shall apply-

(a) a week’s notice for a tenant at will;

Additionally, there is no evidence that the Claimants or any of the persons they represent refunded the money paid to them.  Though Claimants have averred that the money was paid without their consent, there are avenues for the refund of such money, especially, where the payer is known.

  1. In conclusion on this first issue, I find and hold that the relationship of tenant at will, or any other form of tenancy had ceased to exist between the parties upon the entry of the Federal Government, through the Ministry of Transport into the premises; upon the letter of the 2nd Defendant to “All official occupants NRC Staff Quarters”, and upon receipt of the money for the acquisition of alternative accommodation.

Issue 2.

  1. Issue 2 is whether the Claimants can through the instant suit seek to preserve the res in Suit No: NICN/LA/11/2011 – Nigerian Union of Railway Workers & Anor v. Nigerian Railway Corporation & 2 Ors now on appeal to the Court of Appeal.  I have already made a finding, under issue 4 of the preliminary objection, to the effect that this suit cannot purport to preserve the subject of Suit No: NICN/LA/11/2011.  This is because as stated earlier, whereas the former suit sought to give the Claimants the right of first refusal in the event of the sale of the houses; in this case, the sale of houses is not in issue.  What is the issue is whether, the Claimants are such tenants as are entitled to statutory notices in the face of the Federal Government acquisition of the premises of the 2nd Defendant, which they occupy.  There is therefore no right granted in the previous suit, that can be preserved in this suit.

Issue 3.

  1. Issue 3 is whether the Claimants are entitled to their claim.  The Claimants first relief seeks a determination of the question:

 

  1. Whether the Defendants, their agents, servants and privies can validly eject the Claimants from the houses and apartments situate at Nigerian Railway Compound, Ebute Metta and occupied by them as tenants by virtue of their employment with the 2nd Defendant or demolish the houses without complying with the Lagos State Tenancy Law 2011.

  1. From all I have found under issues 1 and 2, I hold that the Claimants did not establish that the 2nd Defendant’s agents, servants and privies ejected them from the houses and apartments situate at the Nigerian Railway Compound, Ebute Metta.  The Claimants occupied the premises by virtue of their employment; the premises having been acquisitioned by the Federal Government for public cause, whatever rights that may have accrued to the Claimants under any agreement with the 2nd Defendant became frustrated.  With respect to the 1st Defendant, the Claimants have not established that it acted ultra vires its powers under any law.

  1. The Claimant’s second relief sought for the determination of the question:

  1. Whether the Defendants, their agents, servants and privies can validly eject the Claimants from the houses and apartments occupied by them as tenants by virtue of their employment with the 2nd Defendant having regard to the judgment of this Honorable Court delivered by Hon Justice B.A Adejumo, OFR on the 6th January 2015 in Suit No: NICN/11/2011 between the Nigerian Union of Railway Workers & Another and the Nigerian Railway Corporation & 2 Others.

  1. This question is already determined by virtue of issue 2 above.  I have already found that the subject of interest in judgment in NICN/LA/11/2011 is different from the subject of interest in this case.  The resolution of this question also resolves question three sought for determination by the Claimants.  The questions are related.

  1. The questions not having been resolved in the negative, the declarative and injunctive orders sought by the Claimants cannot be granted. This action fails and is hereby dismissed.

Judgment in entered accordingly.  I make no order as to cost,

…….…………………………………………

HON. JUSTICE ELIZABETH A. OJI PhD

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