IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
DATE: OCTOBER 30, 2017 SUIT NO. NICN/LA/527/2014
BETWEEN
1. Mr. Peter O. Igene
2. Mrs Gladys Onokah
3. Mr Godwin I. Umeh – Claimants
AND
1. Nigerian Civil Aviation Authority
2. Director General, Nigerian Civil Aviation Authority – Defendants
REPRESENTATION
Chukwudi Adiukwu,, for the claimants.
A. O. Oyeniyi, A. J. Fagbemi and S. A. Adeogun, for the defendants.
JUDGMENT
1. This is a transferred case from the Federal High Court sitting in Ikeja. The case had been filed at the Federal High Court on 10th September 2012 vide a writ of summons, statement of claim and other originating processes. By these originating processes, the claimants are praying against the defendants for:
(i) A declaration that the defendants are bound by the Monetization Policy and all Federal Government directives and guidelines as stated in the Obasanjo Reforms Monetization Policy and the letters dated 14th June 2007, 19th June 2007 and 26th June 2007.
(ii) A declaration that the plaintiffs as legal sitting tenants are entitled to the first right of purchase of the Federal Government residential houses in custody of the 1st defendant known as Zone A Strabag Quarters and Zone D Quarters along Agege Motor Road, Ikeja.
(iii) A declaration that the letters with Reference NCAA/P.99/II dated 2nd August 2012 and NVAA/P.46/II/286 dated 8th June 2012 captioned notice of vacation of block D5 Flat 1 and block D7 Flat 3 all in Zone D Quarters along Agege Motor Road directed at the 1st and 3rd plaintiffs are illegal and void.
(iv) An order of perpetual injunction restraining the defendants whether by themselves or through their servants, agents, privies or assigns from ejecting the plaintiffs from Block D5 Flat 1 Zone D, Block A1 Flat 1 Zone A and Block D7 Flat 3 Zone D of the Federal Government Residential houses in custody of the 1st defendant.
(v) An order directing the defendants to obey all Government Guidelines and Directives including the monetization policy and directives for strict compliance as contained in the letters dated 14th June 2007, 19th June 2007 and 27th June 2007.
(vi) An order directing the defendants to send the names of the plaintiffs who are legal siting tenants in the Zone A Strabag Quarters and Zone D Strabag Quarters in custody of the 1st defendant to the Presidential Implementation Committee of the white paper on the commission of inquiry into the alienation of Federal Government landed property.
(vii)Cost of the action.
2. The claimants had initially penciled down the 1st and 3rd claimants to testify at the trial, but ended up calling only the 1st claimant who testified as CW1 for the claimants tendering in the process Exhibits C1 to C44. On the day slated for the defence to open their defence, the defendants and their counsel were not in Court; as such they were foreclosed and final written addresses were ordered. The claimants’ final written address was field on 23rd February 2018, while the defendants’ was filed on 30th August 2018. The claimants’ reply on points of law was filed on 24th September 2018.
THE CASE BEFORE THE COURT
3. The claimants at all material times were employees of the 1st defendant and worked in various positions, grew through the ranks and retired from service. During their employment they were allocated official quarters and lived there till they retired. While they were residing in the staff quarters, the Obasanjo regime came up with the monetization policy of fringe benefits of public servants and as a result Government was no longer going to provide accommodation. Part of the mandate of the policy was to sell off all Government houses first by offering to those in occupation the first right of refusal. The President, through his Principal Secretary, directed the Head of Service who in turn directed the Chief Executives through the Ministry of Aviation to comply strictly with the policy. The Quarters occupied by the claimants were not exempted from the monetization policy but the defendants failed to comply with this directive until the claimants retired. In spite of the fact that the defendants refused to comply, the defendants still sought to eject the claimants from the houses they occupied, which should have been offered to them to purchase. Being aggrieved with the position of the defendants’ unwillingness to obey the directives of the President by offering the claimants the accrued right to purchase the quarters they occupied, the claimants instituted this action seeking declaratory and injunctive orders.
THE SUBMISSION OF THE CLAIMANTS
4. The claimants submitted one issue for determination i.e. whether the claimants have proved their case to be entitled to the reliefs sought in this suit. To the claimants, it is trite law that where a defendant fails to lead evidence it is sufficient proof that the defendant has no defence to the suit and all the averments contained thereto are deemed abandoned, citing WAEC v. Oshionebo [2007] All FWLR (Pt. 370) 1501 at 1509. That the Court should determine these proceedings on behalf of the claimants without more, though the claimants must first prove their case to the most minimal proof, citing Azebanor v. Bayero University Kano [2009] 17 NWLR (Pt. 1169) 96 at 115-116. Te claimant the proceeded to cite paragraphs 2, 3 and 4 of the statement of defence wherein the defendants made admissions. To the claimants, in particular, paragraphs 3 and 4 provide thus:
(3) The Defendants admit paragraph 13 of the Statement of Claim only to the extent that part of the Federal Government’s monetization policy was to prepare public servants for life after retirement by encouraging public servants to own their accommodation but denies that the Plaintiffs possess an automatic right to be offered the first option of purchase of the Federal Government owned properties.
(4) The Defendants also admit paragraph 29 of the Statement of Claim only to the extent that the 1st Defendant’s staff Residential quarters located in Zone A and Zone D in Ikeja does not fall under the list of exempted Federal Government’s properties under the monetization policy but puts the Defendants to the strictest proof of the other averments therein.
5. The claimants went on that the trite position of the law is that facts admitted need not be proved. That from these pleadings and the admissions of the defendants in paragraph 2 of their pleadings the following can be deemed as given without more as follows:
(i) The defendants are bound by all Federal Government directives and policies.
(ii) The monetization policy was introduced by the Federal Government sometimes in 2003.
(iii) The quarters known as Zone A and Zone D, Strabag Quarters and along Agege Motor Road Quarters respectively are not exempted from the monetization policy.
(iv) The claimants were at all material times employees of the 1st defendant and came into occupation by virtue of their employment and have been in occupation of the houses before the monetization policy was introduced by the Federal Government.
(v) An implementation committee was set up by the Federal Government to enforce the monetization policy.
That if these aforementioned are not in contention anymore, the only grey areas are whether the claimant are entitled to the first right of purchase of the houses they occupied and the defendants had a discretion not to obey the monetization policy by offering to the claimant the first right of purchase. That this could only have been achieved if the defendants activated the machinery by sending the names of the claimants to the Implementation Committee.
6. The claimants continued that from the records of this Court, the claimants’ only witness was cross-examined. That the question that begs for an answer is whether the veracity and accuracy of the statement/evidence of CW1 was shaken under cross-examination; and the claimants answered in the negative. In fact, that the cross-examination further corroborated the case of the claimants, citing Monkon v. Odili [2010] 2 NWLR (Pt. 1179) 419 at 422. To the claimants, the questions and answers under cross-examination can be surmised as follows:
(i) That CW1 was a staff of the 1st defendant and was allocated the official quarters he resided in.
(ii) That CW1 had the first right of option to purchase the house.
(iii) It is the duty of the Government to implement the monetization policy.
(iv) That the implementation has a process.
(v) Government is entitled to sell its property at all times.
(vi) The right to purchase does not only take effect when the defendant is desirous of selling its property.
7. The claimants then submitted that since the defendants’ counsel was unable to discredit the testimony of CW1, this Court is entitled to accept the evidence, urging the Court to so hold; and given that the claimants have proved their case, citing Neka & anor v. Kunini & ors [2015] LPELR-26031(CA) as to evaluation of evidence. That there was no evidence led by the defendants. The claimants then asked if from the evidence they led, the imaginary scale can be said to have tilted in favour of the claimants. To begin with, that all the exhibits tendered by the claimants were admitted without objection. That a careful analysis of the exhibits will of course tilt the imaginary scale in favour of the claimants, urging the Court to so hold.
8. The claimants referred to Exhibit C22 (the Obasanjo Reforms Monetization Policy) at page 7 Question 10, which states:
CAN AN OFFICER WHO WISHES TO PURCHASE THE ACCOMMODATION HE IS CURRENTLY OCCUPYING DO SO?
ANSWER Yes. The present occupant will be given the first option to purchase the house being occupied by him/her, but at the price of the highest bidder.
Also that Exhibits C23, a letter dated 26th June 2007 from the Federal Ministry of Aviation directed to all agencies under the Ministry of Aviation including the defendants, referred the agencies to Exhibit C25, a letter dated 14th June 2007, which was a directive from the President of the Federal Republic of Nigeria for guidance and strict compliance. Furthermore, that Exhibit C24 is a letter dated 19th June 2007 from the State House Abuja through the office of the Principal Secretary to the President directed to the Head of Service for onward transmission to the all CEOS of the Federal Government Parastatals such as the defendants. Exhibit 26 which is the approved guidelines for the lease of Federal Government Property in Lagos in the preamble item 1 states:
The Federal Executive Council has approved the guidelines for the lease of ALL PRESIDENTIAL FACILITIES (houses, flats, etc.) built, acquired or other owned by the Federal Government and ALL its ministries departments and agencies except those listed in 16 below.
That paragraph 16 of the said guidelines and indeed as admitted by the defendants in their pleadings that the Zone A and Zone D staff Quarters the subject matter of this suit are not exempted by the guidelines.
9. The claimant proceeded that they have through Exhibits C14 – C18 established that they were allocated staff quarters and are legal sitting tenants. Also that Exhibits C19 – C21 show that deductions were made from the salaries of the claimants as rent a clear indication that they are the legal sitting tenants. All these were admitted by the defendants in their pleadings. Furthermore, that the claimants through Exhibit C26 established that a sister agency (Nigerian Airspace Management Agency) of the defendants whom Exhibits C23 – C25 were addressed to as well had began compliance by sending the names of all legal sitting tenants to the implementation committee as shown in Exhibit C26. The claimants then submitted that a community reading of the aforementioned exhibits will show that the claimants by a preponderance of evidence are the lawful sitting tenants and entitled to the first right of refusal of the houses they occupy by virtue of the monetization policy, urging the Court to so hold. That it is also worthy of note that this right accrued to the claimants since 2003 when the policy was enacted and was further rehashed for strict compliance by the President and Commander in Chief of the Federal Republic of Nigeria through Exhibits C23 – C25, urging the Court to so hold.
10. Continuing, the claimants submitted that they also led evidence as stated in paragraph 29 of the statement of claim and paragraph 27 of the witness statement on oath of CW1 that Nigerian Meteorological Agency which is also a sister agency of the defendants under the Ministry of Aviation and whom Exhibits C23 – 25 were also addressed to have fully complied with the Monetization Policy as can be gleaned from Exhibits C30 – C43. Referring to Registered Trustees of the Brotherhood of the Cross and Star v. Edet Okon Edet [2016] 5 NWLR (Pt. 1505) 387 at 403, the claimants submitted that on a preponderance of evidence, they have proved their case by providing sufficient evidence in support of their pleadings and are entitled to the reliefs sought in their claims.
11. Finally, the claimants urged the Court to grant the declaratory and injunctive reliefs they seek; submitting that by section 254D(1) of the 1999 Constitution, this Court can exercise the powers of the High Court and as such can grant declaratory and injunctive reliefs, citing Omomeji v. Kolawole [2008] 14 NWLR (Pt. 1106) 180 at 199 – 200. Also, that this Court is a superior Court of record; as such it is clothed with the jurisdiction to grant declaratory and injunctive reliefs, citing AG Cross Rivers State v. AG Federation [2012] 16 NWLR (Pt. 1327) 479. Furthermore, that to be entitled to the grant of declaratory reliefs, a party must show the existence of a legal right either subsisting or in the future and that right is being contested. That the claimants from Exhibits C14 – C26 have established that they have a legal right and the defendants have neither denied nor led evidence in rebuttal of this legal right. That where there is a continual invasion of a person’s legal rights or threat of continuance of such invasion, and the legal right of the person has been determined in final judgment, the successful party is entitled to a perpetual injunction, citing Goldmark (Nig) Ltd v. Ibafon Co. Ltd [2012] 10 NWLR (Pt. 308) 291 at 352. That flowing from the above, reliefs 4, 5 and 6 are thus consequential orders flowing from the declaratory reliefs sought by the claimant. That if the Court holds that the claimants have proved their case there will be no legal impediment to grant the ancillary orders sought by the claimants. The claimants concluded by urging the Court to grant their prayers as contained in the writ of summons and statement of claim just like was the case in Nigeria Union of Railway Workers & anor v. Nigeria Railway Corporation & 2 ors Suit No. NICN/LA/11/2011 decided on 6th January 2016.
THE SUBMISSIONS OF THE DEFENDANTS
12. The defendants on their part submitted two issues for determination, namely:
(i) Whether default of the defendants to adduce evidence at the trial automatically entitles the claimants to judgment.
(ii) Whether with regard to the evidence tendered by claimants, they have discharged the burden of proof on them/proved their case so as to be entitled to the reliefs sought in this suit.
13. On issue (i), the defendant submitted that it is trite that the failure of a defendant to adduce or call evidence in a particular proceeding does not automatically entitle the claimant to judgment. That the claimant must lead positive, cogent, credible and convincing evidence before the Court. In essence, that the claimant must survive on the strength of his own case and not on the weakness of the defendant,s case, citing Azebanor v. Bayero University Kano [2009] 17 NWLR (Pt. 1169) 96 at 115-116 and Ogunlowo v. Ogundare [1993] 7 NWLR (Pt. 307) 615. That it is clear from the above that the inability of the defendants to lead evidence does not automatically entitle the plaintiffs to judgment. That the burden of establishing the assertions contained in the plaintiffs’ pleadings rest heavily on them and this must be proved through credible evidence to the satisfaction of the Court.
14. The defendants went on that the Court touched on the functions of pleading and the effect of such pleadings without proof in Awuse v. Odili [2005] 16 NWLR (Pt. 952) 416 in these words: “Pleadings serve as the life-wire of a claim but without proof it serves no effectual purpose…” On the meaning of proof, that the Court in Olufosoye v. Fakorede [1993] 1 NWLR (Pt. 272) 747 defined “proof” thus: “Proof is a process by which the existence of facts is established to the satisfaction of the Court”. That from the foregoing, notwithstanding the failure of the defendants to call evidence at the trial, the plaintiffs still has the burden of proving their case to the satisfaction of the Court through credible and positive evidence failure of which the plaintiffs’ case shall be dismissed.
15. For issues (ii), the defendants adopted their argument in respect of issue (i) and further stated that it is elementary in law that he who asserts must proof through cogent, credible and convincing evidence. In fact, that section 131 of Evidence Act put the burden of proving the existence of facts on the party who asserts the existence of such fact, citing Maximum Ins. Co. Ltd v. Owoniyi [1994] 3 NWLR (Pt. 331) 183. That the plaintiffs have not discharged the burden of establishing the fact of their assertion contained in their pleadings to the effect that they are entitled as of right to the first right of purchase of residential staff quarters located in ZONE A Strabag quarters and Zone D Strabag Quarters in custody of the 1st defendant so as to have judgment in their favour. That analysis of the exhibits relied and tendered by the plaintiffs in this trial will shed light on the defendants’ position and further drive home the defendants’ arguments and submissions.
16. The defendants continued that it is trite that oral evidence cannot take the place of documentary evidence in any judicial proceedings. In fact no oral evidence shall be accepted to vary the content of a transaction reduced in to writing, citing Gerhard Heuber v. Aeronautical Industrial Engineering and Project Management Co. Ltd [2017] LPELR–42078(SC).
17. The defendants then proceeded to analyze the documents tendered by the claimants. That in proof of their case, the plaintiffs had tendered 44 exhibits and of major importance are:
(i) Exhibit C22 (the Obasanjo Reforms Monetization policy);
(ii) Exhibit C23 (letter dated 26th of June, 2007);
(iii) Exhibit C24 (letter dated 19th of June, 2007);
(iv) Exhibit C25 (letter dated 14th June, 2007); and
(v) Exhibit C26 (Guidelines for lease of Federal Government Properties in Lagos)
18. To the defendants, Exhibit C22 at page 7 Question 10 states:
CAN AN OFFICER WHO WISHES TO PURCHASE THE ACCOMMODATION HE IS CURRENTLY OCCUPYING DO SO?
ANSWER; YES. THE PRESENT OCCUPANT WILL BE GIVEN THE FIRST OPTION TO PURCHASE THE HOUSE BEING OCCUPIED BY HIM/HER BUT AT THE PRICE OF HIGHEST BIDDER.
That a construction of “WILL BE” and “AT THE HIGHEST BIDDER” does not compel the 1st defendant to sell to the plaintiffs; neither does it even confer a duty on the 1st defendant to sell to the plaintiffs even if they are willing to sell. That the exhibit merely says the plaintiffs will be considered should the defendants want to sell.
19. As for Exhibits C23, C24 and C25, the defendants submitted that there is nothing in them to suggest what the plaintiffs claim in paragraphs 16 and 18 of their pleadings. Paragraph 18 of the plaintiffs’ pleadings provides:
The plaintiffs aver that in the directive from the President of the Federal Republic of Nigeria in 2007, President Umaru Musa Yar’adua of Blessed memory, directed for strict compliance with the monetization policy as contained in the letters dated 14th June, 2007, 19th June, 2007 and 26th June 2007.
That for Exhibit C25 dated 14th June 2007, the tone and the word and grammar employed in the said exhibit do not reflect the position of the plaintiffs on strict compliance of Monetization policy. It is the defendants’ opinion that the exhibit is merely informing the President of the position of the monetization policy.
20. That Exhibits C26 contains the approved guidelines to be followed if the Government intends to sell/lease the Federal Government houses/quarters occupied by Federal Government Civil servants in custody of various parastatals, particularly the 1st defendant. That paragraph 5 of the exhibit contains the condition for lease of the subject matter of the suit and it compels the defendants to obtain a bidding form to qualify for the lease should the defendants want to sell. That paragraph 10 of Exhibit C26 is most important as it states that Civil Servants who are legal sitting tenant are entitled to right of first refusal but they will be required to express their interest by completing the application form to qualify to be offered this right. To the defendants, it is clear from Exhibit C26 that the terms and conditions contained therein are essential and mandatory for any civil servant desirous of owning the quarters in dispute. In fact, that the terms and conditions contained therein are key cards to the activation of the benefits contained in Exhibit C22 (the monetization policy). That it is clear from the exhibits tendered by the plaintiffs in this suit that they have not complied with the terms and conditions contained in Exhibit C26 as there is no exhibit showing that they have duly complied with the conditions therein.
21. The defendant went on that even if the plaintiffs complied with the terms and conditions contained in Exhibit C26, the phrase “AT THE HIGHEST BIDDER” contained in Exhibits C22 and 26 does not still compel the defendants to sell to the plaintiffs neither does the phrase give the plaintiffs automatic ticket to buy because of the phrase “RIGHT OF FIRST REFUSAL”. In fact, that the claims of the plaintiffs that Exhibits C23, C24 and C25 compelled the defendants to comply strictly with Exhibit C22 (the monetization policy) also include the strict compliance with Exhibit C26 (Guidelines for lease of Federal Government Properties in Lagos) since same exhibit is part of the document forming part of this transaction and failure of the plaintiffs to strictly comply with the terms and conditions therein means their claim will fail. Also, that assuming without conceding that the contents of Exhibits C23, C24 and C25 confer rights of first refusal on the plaintiffs, the plaintiffs’ refusal to comply with the terms and conditions contained in Exhibit C26 means they are not entitled to the relief sought.
22. To the defendants, it is only when the defendants intend to sell that Exhibits C22, C23, C24, C25 and C26 tendered by the plaintiffs can serve them a good purpose. Owing to the importance and sensitive nature of the quarters in question to the success of the operations of NCAA as a parastatal of the Federal Government, the defendants do not intend to sell but keep it for the new staff occupying the same position of the plaintiffs, citing UBN v. Nwaokolo [1995] 6 NWLR (Pt. 127) as to the construction of documents. That the plaintiffs cannot input or contradict Exhibits C23, C24, C25 and C26 through oral evidence neither can they interpret the document according to their wishes. That once a document forms part of a transaction the content of the document stands supreme in constructing the same.
23. With regard to Exhibits C19-C21, the defendants conceded that rent was deducted from their salary monthly while they were in active service and an eviction notice in line with NCAA conditions of service was served on them in 2012 after they retired voluntarily in 2010 and 2011 respectively. That there is nothing in Exhibits C23-C26 to the effect that the names of the plaintiffs are to be sent to the Implementation Committee as claimed by the plaintiffs in paragraph 19 of their pleadings. That this requirement is just a product of figment of their imagination rooted in mischief to mislead the Court.
24. As for Exhibits C30-C43, that the dumping of the said exhibits on the Court is of no moment and just a sheer waste of the precious time of the Court. Though pleaded, the person the exhibits referred to, is not a party to this suit. It is thus the defendants’ position that the grant of declarative rights or relief by the Court is discretionary, which discretion must be exercised judicially and judiciously. That before a party can benefit from such discretion, he must have convinced the Court through positive, cogent, reliable and credible evidence. That the party seeking such right must succeed on the strength of his own case because declarative relief cannot be granted on admission by the defendant neither can it be granted in default of defendant’s defence, citing Ogunjumo v. Ademolu [1995] 4 NWLR (Pt. 389) 254 SC, Dumez Nigeria Ltd v. Nwakhoba [2008] 18 NWLR (Pt. 1119) 361, Nwokidu v. Okanu [2010] 3 NWLR (Pt.1181) 362, Alechendu v. Oshoke [2002] 9 NWLR (Pt. 773) 521 at 535 and Dantata v, Mohammed [2000] 7 NWLR (Pt. 664) 176. To the defendants, the evidence relied on and tendered by the plaintiffs in proof of their case in this suit is at variance with their pleadings; as such evidence which is contrary to his pleadings goes to no issue, citing Emejokwe v. Okadigbo [1973] 4 SC 113. In conclusion, the defendants urged the Court to dismiss the case of the plaintiffs as they have not discharge the burden on them to prove their case.
THE CLAIMANTS’ REPLY ON POINTS OF LAW
25. In response to the defendants’ submission as to oral evidence not taking the place of documentary evidence, the claimants submitted that in as much as they agree with this principle, where there is oral as well as documentary evidence, the document(s) should be used as the hanger from which to access the oral evidence and by which the veracity or credibility of oral evidence is tested. Which means that documentary evidence shall serve as the basis of evaluating the oral evidence of a witness. Where the oral evidence of the witness is credible and in line with the documentary evidence, the argument of the defendants does not come to play. That the defendants failed to point out how and in what way the evidence of the claimants was discredited at trial or how the evidence given contradicts the documents tendered, citing Ramada International and Pharmaceutical Ltd v. Felix Ezeonu & 2 ors [2016] 14 NWLR (Pt. 1533) 339 at 356. That the oral evidence of the claimants is in line with documentary evidence before this Court.
26. The defendants had also submitted that Exhibit C22 (the Obasanjo Reforms Monetization Policy) does not compel the defendants to sell. To the claimants, the defendants are misinterpreting Question 10 at page 22 of Exhibit C22, as this document clearly indicates that the claimants have a right to purchase the accommodation they are occupying, by the affirmative answer, of “YES” to the question. Exhibit C22 should be interpreted in a literal context, same not being ambiguous. In doing so, that the Court would see that the document portrays the claimants’ right to purchase the accommodation they are occupying. For guiding principles to interpretation of documents, the claimants referred to UBN Ltd v. Nwaokolo [1995] LPELR-3385(SC).
27. The claimants went on that contrary to the submission of the defendants, Exhibits C23, C24 and C25 are all in line with the issue of Monetization Policy for the benefit of both political office holders and public servants, most especially Exhibit C23 (the letter dated 26th June 2007), which is a letter from the Ministry of Aviation directed to various Federal Government agencies (defendants inclusive), for strict compliance with the Monetization Policy as rightly stated in paragraph 18 of the claimants’ statement of claim. Indeed, that the grouse of the claimants is their right of purchase of the accommodation they occupy as provided for in the Obasanjo Reforms Monetization Policy and this case is clearly spelt out in the claimants’ statement of claim, and Exhibits C23, C24 and C25 are all relevant in considering the claimants’ claims before this Court. That the defendants have also gotten it wrong in submitting that the position of strict compliance does not reflect in the exhibits, as Exhibit C23, which was written after Exhibits C24 and C25 directs as stated in the letter thus: “I am directed to forward the attached Circular Ref.2454/S.1/VOL 111/18 dated 14th June 2007 on the above subject matter and to request you to note Mr President’s directive for strict compliance please”. That without further ado, Exhibit C23 does not need any further interpretation as the intendment of the writer for strict compliance with the monetization policy is clearly portrayed in the letter.
28. The defendants had argued that Exhibit C26 (Guidelines for the lease of Federal Government properties in Lagos) was not complied with by the claimants. That this line of argument of the defendants is contrary to the defendant’s case, which is that they don’t intend to sell and cannot be compelled to sell. It is worthy of note that the bidding form the claimants are supposed to obtain comes from the defendants and it is the failure of the defendants to comply with the monetization policy, by availing the accommodation to the claimants to buy that led the claimants to Court in the first place. Even though Exhibit C26 clearly points out that the legal sitting tenants (the claimants) are entitled to the right of first refusal, the defendants have failed to acknowledge same just as they have repeatedly stated that they don’t intend to sell. That it is trite that parties cannot blow hot and cold at the same time, citing Oladapo & anor v. Bank of the North Ltd & anor [2000] LPELR-5284(CA). That if the defendants are saying that the claimants herein failed to pick up the bidding forms, it goes to show that the defendants are aware of the fact that the claimants have a right of first refusal in this case, though the defendants failed to avail them the opportunity to exercise this right.
29. Also, that the defendants argument as to the phrase “AT THE HIGHEST BIDDER” contained in Exhibit C26 does not come to play. This is because not until the defendants allow the claimants to exercise their right of purchase, the issue of the claimants obtaining the accommodation as the highest bidder cannot be determined.
30. To the claimants, the defendants had argued back and forth about Exhibit C26 being the key card of the activation of the monetization Policy and the essence of strict compliance with the same. However, that the defendants have clearly stated their unwillingness to sell, even though part of their argument shows that they are aware of the rights of the claimants but have failed to allow the claimants to exercise this right, which also amounts to the defendants blowing hot and cold.
31. The claimants continued that contrary to the submission of the defendants that Exhibits C23 – C26 is a product of mischief and Exhibits C30 – C43 is of no moment, all the named exhibits are documents that reflect the rights of the claimants as stated in the claimants’ case. That the exhibits are also relevant to the case of the claimants and in line with the claimants’ pleadings before this Court. That assuming without conceding that the exhibits are at variance with the claimants’ pleadings and of no moment, since the defendants failed to raise any objection at the point of tendering the documents, the documents having been properly tendered and admitted by this Court, this Court has the duty of evaluating same in arriving at its decision, citing Ogory Lawrence Alelu v. Christian Eze [2015] 13 NWLR (Pt. 1475) 74 at 116. That having received Exhibits C23 – C26 and C30 -C43, it is the duty of the Court to weigh these exhibits in line with the oral evidence given by the claimants’ witness and the case of the claimants before the Court in arriving at its decision.
32. The claimants concluded by submitting that taking a cursory look at the submissions made in the defendants’ final written address, counsel seems to be giving evidence in place of the evidence they would have given at trial. That this practice is unacceptable as it is the law that counsel’s address cannot be a substitute for evidence before the Court, citing NBA v. Anthony Ojigho Esq [2015] 15 NWLR (Pt. 1481) 186 at 202. That from the foregoing that the claimants have adduced sufficient and credible evidence that will entitle them to judgment, urging the Court to discountenance the defendants’ submissions and enter judgment for the claimants as per the reliefs sought.
COURT’S DECISION
33. I have carefully considered the processes filed and the submissions of the parties. In support of their case, the claimants referred to Nigeria Union of Railway Workers & anor v. Nigeria Railway Corporation & 2 ors Suit No. NICN/LA/11/2011 decided on 6th January 2016, a case they said is on all fours with the instant case. Unfortunately, contrary to Order 45 Rule 3(1) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 (NICN Rules 2017),, which provides that “where any unreported judgment is relied upon, the Certified True Copy shall be submitted along with the Written address”, the claimants did not submit to this Court the certified true copy of the said judgment in Suit No. NICN/LA/11/2011. It is not the duty of this Court to shop for cases for a litigant. In fact, by Rule 3(2) of Order 45, “failure to comply with rules 2 and 3(1) of this Order may render the written address incompetent”.
34. The case of the claimants is simple. It is that as sitting tenants they ought to enjoy the benefit of the monetization policy of the Federal Government in terms of the Government houses they occupy. Exhibit C22 in Question 1 defines monetization in this context as the quantification in money terms of those fringe benefits which government used to provide for its workers as part of their conditions of service; such benefits include residential accommodation, chauffeur-driven cars, residential furniture, utility services, etc. The resolution of the instant case, therefore, depends largely on the interpretation of the exhibits before the Court. Question 10 in Exhibit C22, relied upon by both parties, states:
CAN AN OFFICER WHO WISHES TO PURCHASE THE ACCOMMODATION HE IS CURRENTLY OCCUPYING DO SO?
ANSWER: Yes. The present occupant will be given the first option to purchase the house being occupied by him/her, but at the price of the highest bidder.
I must state that Exhibit C22 is not a contract. It is merely a publication by the Federal Government, which seeks to address the questions and misconceptions that trailed the introduction of the monetization programme. See the last but one paragraph at page 1 of Exhibit C22 and headed “Introduction”.
35. Both parties relied on both Question 10 and its answer in Exhibit C22 to push their respective cases. Relying on Exhibit C26, the claimants submitted that they are the lawful sitting tenants of the houses they occupy and so are entitled to the first right of refusal of the said houses they occupy by virtue of the monetization policy. The defendants, on their part, talked of paragraph 10 of Exhibit C26 as most important as it states that Civil Servants who are legal sitting tenants are entitled to right of first refusal but they will be required to express their interest by completing the application form to qualify to be offered this right. Now, neither Exhibit C22 nor C26 used the phrase “the first right of refusal” (used by the claimants as in Exhibit C30) or “right of first refusal” (used by the defendants). What Exhibit C22 used was the phrase “the first option to purchase”. In other words, by Exhibit C22, the claimants, as present occupants, “will be given the first option to purchase the house being occupied by [them], but at the price of the highest bidder”. The parties, in their respective submissions, interpreted the phrase “the first option to purchase” to mean “the first right of refusal” (the claimants’ usage) and “right of first refusal” (the defendants’ usage).
36. I indicated that Exhibit C22 is not a contract but a Federal Government publication. Exhibit C22 did not generate a right (Exhibit C22 did not generate the monetization policy); it merely seeks to explain a right that was already generated. And here, I must state that the actual circular which gave birth to the monetization policy itself (Exhibit C25 puts the take-off date of the monetization policy as 2003) is not before the Court. Both Exhibits C23 and C24 refer to a circular dated 14th June 2007. Exhibit C25 is a circular dated 14th June 2007. However, Exhibit C25 deals with the monetization programme as it relates to all political office holders and how it applies to this category of public officers. The claimants do not fall within the class of public officers called political office holders, which were enumerated in Exhibit C25. Paragraph 2 of Exhibit C25 acknowledged that the monetization of fringe benefits in the Federal Public Service was introduced in 2003. However, the instrument which introduced this policy in 2003 is not before the Court. Exhibit C26 dated June 2005 lays down the approved guidelines for the lease of Federal Government Property in Lagos. Exhibit C26 itself is thus not the document that gave birth to the monetization policy. What all this means is that it is difficult (in fact there is no way) to ascertain under what terms and conditions the monetization policy was framed given the documents tendered by the claimants.
37. Of course, without more, like in terms of special damages, the ipse dixit of a claimant is insufficient to ground a claim of the instant mould. See Mr Joseph Akinola & ors v. Lafarge Cement WAPCO Nigeria Plc [2015] LPELR-24630(CA). So when the claimants, for instance, pray as in relief (i) for “a declaration that the defendants are bound by the Monetization Policy and all Federal Government directives and guidelines as stated in the Obasanjo Reforms Monetization Policy and the letters dated 14th June 2007, 19th June 2007 and 26th June 2007” i.e. Exhibits C25, C24 and C23 respectively, on what basis can the claimants then be granted this declaratory relief? I do not know. The duty is on the claimants to bring to the fore the instruments they rely on for a claim to an entitlement; and even at that, to draw the Court’s attention to the specific provisions they rely on as per the said instruments. See Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39, where this Court held thus:
… the claimants made no attempt whatsoever to indicate to the Court the exact provisions of the documents they frontloaded that grants them the entitlements they claim. Merely frontloading a document and saying that a right inures from it without indicating the clause, section, article or paragraph that grants the right is not sufficient. Counsel should not expect that it is the Court that will shop for the relevant article that substantiates the claim of his/her client. This is very bad advocacy; and cases can be lost just on that score.
38. In the instant case, the claimants are seeking for declaratory reliefs; at least that is what reliefs (i), (ii) and (iii) pray for. Here, legal policy has it that a claimant seeking for declaratory reliefs must prove his case on the strength of his evidence, not on the weakness of the defence of the defendant. See Okereke v. Umahi & ors [2016] LPELR-40035(SC), Nyesom v. Peterside & ors [2016] LPELR-40036(SC) and Mrs Catherine Udeogu & 11 ors v. Federal Airports Authority of Nigeria (FAAN) unreported Suit No. NICN/LA/326/2017, the judgment of which was delivered on 16th February 2018. The argument of the claimants that they defendants did not defend this action and so the claimants must be read to have proved their case cannot absolve the claimants from the minimal evidence rule which enjoins that they can only succeed on the strength of the their case and the evidence they bring to the fore. See See Mr. Lawrence Azenabor v. Bayero University, Kano [2011] 25 NLLR (Pt. 70) 45 CA at 69, Ogunyade v. Oshunkeye [2007] 4 NWLR (Pt. 1057) 218 SC at 247, Attorney General Osun State v. NLC & ors [2013] 34 NLLR (Pt. 99) 278 NIC and Mrs Ruth Abayomi & anor v. Federal Fire Service & a anor unrepoetted Suit No. NICN/LA/290/2013, the judgment of which was delivered on 24th May 2018.
39. Additionally, the rule is that it is the claimant who claims that must prove; and in labour relations, an employee can only claim if he/she shows an entitlement. An entitlement is shown by reference to the law that gives it, the collective agreement from which the entitlement was agreed on between the contracting parties or the conditions of service governing the relationship of the employee and his/her employer. See Dungus. The document that in 2003 gave birth to the monetization policy (if paragraph 2 of Exhibit C25 is anything to go by) has not been shown to this Court. How then is this Court to determine the terms and conditions of the monetization policy under which they make the present claims? I really do not know.
40. Even taking the parties on their submissions i.e. “the first right of refusal” or “right of first refusal”, what do we have? Wikipedia on “right of first refusal” available at https://en.wikipedia.org/wiki/Right_of_first_refusal as accessed on 14th October 2018 conceptualizes right of first refusal thus:
Right of first refusal (ROFR or RFR) is a contractual right that gives its holder the option to enter a business transaction with the owner of something, according to specified terms, before the owner is entitled to enter into that transaction with a third party. A first refusal right must have at least three parties: the owner, the third party or buyer and the option holder. In general, the owner must make the same offer to the option holder before making the offer to the buyer. The right of first refusal is similar in concept to a call option.
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Because an ROFR is a contract right, the holder’s remedies for breach are typically limited to recovery of damages. In other words, if the owner sells the asset to a third party without offering the holder the opportunity to purchase it first, the holder can then sue the owner for damages but may have a difficult time obtaining a court order to stop or reverse the sale. However, in some cases the option becomes a property right that may be used to invalidate an improper sale.
41. An entry by Iowa State University on “Option Agreements” available at https://www.extension.iastate.edu/agdm/wholefarm/pdf/BFC10OptionAgree.pdf as accessed on 14th October 2018 states thus:
One of the most common option agreements is a first right of refusal. This is an option contract between a future seller and a potential buyer that allows the buyer the first chance to purchase property by matching other bids. This type of agreement may be useful when current property owners wish to retain the property, but ensure that it will first be offered for sale to a specific individual or group of individuals.
The agreement will always be triggered by the sellers and not the potential buyer. The potential buyer has no right to force the sellers to give up their property, only the right to be the first in line to buy the property if the sellers decide to put the property on the market. There is no guarantee that the property will ever be put up for sale or even that it will be put up for sale at a time when the option holder is able to cash flow the sale.
42. What can we glean from all of this? The following points are self evident:
• A first refusal right must have at least three parties: the owner, the third party or buyer and the option holder. In the instant case, no third party was made evident to this Court.
• Because an ROFR is a contract right, the holder’s remedies for breach are typically limited to recovery of damages. The claimants are not seeking for damages; they are seeking for declaratory, injunctive and specific performance reliefs.
• In some cases the option becomes a property right that may be used to invalidate an improper sale. The claimants are not seeking the invalidation of any improper sale.
• This is an option contract between a future seller and a potential buyer that allows the buyer the first chance to purchase property by matching other bids. The presence of other bids have not been shown to this Court. This is the sense in which the defendants argued the claimants did not fulfill the conditions laid down by the monetization policy. The answer to Question 10 in Exhibit C22 talks of “at the price of the highest bidder”. The claimants did not show to this Court the higher or highest bidders that were present in their case.
• The potential buyer has no right to force the sellers to give up their property, only the right to be the first in line to buy the property if the sellers decide to put the property on the market. The defendants argue that they have no desire to sell and so did not put up the houses for sale though it is the argument of the claimants that the choice to sell has already been taken by the Federal Government, not the defendants.
• There is no guarantee that the property will ever be put up for sale or even that it will be put up for sale at a time when the option holder is able to cash flow the sale. This point is self evident. If there is no guarantee that the property will be sold, how are the claimants to insist that the houses must be sold to them?
43. Given all of this, can it be said that the claimants have proved their case? I do not think so. This means that the claimants’ case must fail; and I so find and hold. It is accordingly dismissed.
44. Judgment is entered accordingly. I make no order as to cost.
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Hon. Justice B. B. Kanyip, PhD
