Mr Thaddeus Obidike & 2 Ors -VS- Minister of Lands, Housing and

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: DECEMBER 4, 2018SUIT NO. NICN/LA/632/2013

BETWEEN

Mr Thaddeus Obidike
Mr victor Okwuma
Mrs Catherine Udeogu

(suing for themselves and on hehalf of other retirees

of NIMET, NAMA, FAAN and NCAA occupying

Strabag Estate and Zone D Quarters along

Agege Motor Road, Ikeja as legal sitting tenants)-Claimants

AND

Minister of Lands, Housing and Urban Development
Minister of Aviation
Attorney General of the Federation
Secretary, Implementation Committee of

Federal GovernmentLanded Property

Director General, Nigeria Meteorological Agency
Managing Director, Nigeria Airspace Management Agency
Managing Director, Federal Airports Authority of Nigeria-Defendants

REPRESENTATION

Dayo Akinlaja SAN, with Ms Oluwatosin Ayodele, for the claimants.

Christian Imy Erhabor I, Assistant Director, Federal Ministry of Justice, for the 1st to 5th defendants.

A. Osighala, with Ms A. N. Abiaziem, for the 6th defendant.
O. Agbola, Dero Daniels and Babatunde Ogungbamila, with Jude Ehiedu, Ms Nkiru Chinwuba. K. B. Olabalu, Ms C. L. Akintilo and Olayinka Suara, for the 7th defendant.

JUDGMENT

The claimant commenced this action by a complaint filed on 2nd December 2013 and accompanied with the statement of facts, list of witnesses, witness statements, list of documents and copies of the documents. By the complaint and statement of facts, the claimant is claiming against the defendant the following reliefs:

A declaration that the claimants are entitled to the right of first purchase or lease of theresidential quarters occupied by them at Strabag Estate and Zone D Quarters along Agege Motor Road, Ikeja, Lagos as retirees of Nigeria Meteorological Agency (NIMET); Nigerian Airspace Management Agency (NAMA); Federal Airports Authority of Nigeria (FAAN); the Nigerian Civil Aviation Authority (NCAA) by virtue of the FederalGovernment Monetization Policy.
A declaration that the claimants have acquired vested rights under the monetization policy in respect of the residential quarters and they cannot be justifiably denied of their right of first purchase or lease in respect thereof by the Nigeria Meteorological Agency (NIMET);Nigerian Airspace Management Agency (NAMA); Federal Airports Authority of Nigeria (FAAN); the Nigerian Civil Aviation Authority (NCAA) acting in league with the Presidential Implementation Committee and the Ministry of Aviation or any person(s) whosoever.
An order mandating the defendants to perfect the transfer of the residential quarters in question to the claimants by way of lease or sale in consonance with the monetization policy of the Federal Government.
An order of perpetual injunction restraining the defendants by themselves, servants, privies or any person(s)whoever described from evicting the plaintiffs/claimants from the residential quarters or in any way adversely affecting their occupation of the said quarters in negation of the monetization policy of the Federal

In reaction, the 1st to 5th defendants filed their statement of defence together with accompanying processes on 11th May 2017 while the 6th defendant filed itsstatement of defence together with accompanying processes on 29th October 2015. The 7th defendant on his part filed his statement of defence together with accompanying processes on 25th May 2015. The claimants filed their reply in response to the 1st to 5thdefendants’statement of defence on 3rd October 2017 and filed their reply in response to the 6th and 7th defendants’ statements of defence on 28th December 2016.

At the trial, the claimants testified through Thaddeus Obidike, Victor Okwuma and Catherine Udeogu respectively as CW1, CW2, and CW3; and they tendered Exhibits C1 to C13. The 1st to 5thdefendants testified through one Habibu Mohammed and tendered a document admitted as Exhibit SFD1. The 6th defendant testified through one Edward Eromosele Osimen, the General Manager Admin of the 6th defendant, and tendered some documents admitted and marked as Exhibits OEE1, OEE2 and OEE3. At the close of trial, parties filed their respective written addresses.

THE CASE OF THE CLAIMANTS

The case of the claimants is that they were residing in their respective residential quarters at Strabag Estate and Zone D Quarters along Agege Motor Road, Ikeja, Lagos, as staff of the 5th to 7th defendants’ agencies and have remained there after retiring from the public service.As a result of the Monetization Policy introduced by the Federal Government in 2003, the residential houses of the Federal Government across the Country were meant to be sold or leased with the sitting tenants given the right of first purchase or lease. A Committee of the 4th defendant was, therefore, put in place to coordinate the sales/leases of the government houses. The President of the Federal Republic of Nigeria approved that the residential quarters in the custody of the 5th to 7th defendants be sold to the legal sitting tenants thereof inclusive of the claimants in this case.In furtherance of that position, the staff of the 5th defendant were issued with letters of offer by the Committee of the 4th defendant while the 6th defendant forwarded the list(s) of the legal sitting tenants in the residential quarters in their own custody to the Committee of the 4th defendant for purposes of leasing or selling the quarters to them in compliance with the monetization policy.The 4th defendant’s Committee collected the expression of interest fees from the staff of the 5th and 6th defendants while the retirees of the 5th defendant (NIMET) were subsequently made to proceed much further by effecting full payments in respect of their own quarters to the 4th defendant’s Committee.Unfortunately, the 6th and 7th defendants subsequently showed a desire to evict their own retirees from the residential quarters occupied by them irrespective of the foregoing background and the admonition of the Committee of the 4th defendant to the contrary.As a result of the constant threats from the 6th and 7th defendants, some of the affected claimants resorted to litigation. In the course of the litigation, the claimants came across a letter dated 29th April 2013, written by the 4th defendant to the 2nd defendant. The letter indicated that it had been resolved that the houses should be treated as institutional properties and that title documents be prepared in respect of the estate in the name of the Ministry of Aviation.Upon sighting the aforesaid letter of the 4th defendant, the claimants instructed the law firm of Dayo Akinlaja & Co. to write the 4th defendant protesting the decision to deprive them of their entitlement to their quarters under the monetization policy and that was done. The said letter also included pre-action notice to each of the 5th to 7th defendants on the subject of the properties.The 4th defendant however did not respond to the letter of the claimants’counsel while those of the defendants who responded by and large confirmed the fears of the claimants that they were going to be deprived of the right to lease or purchase the properties, against the grain of the monetization policy. Indeed, the defendants intensified their efforts to evict the claimants from their respective quarters by, inter alia, disconnecting their source of electricity and threatening physical eviction almost on a daily basis. The 2nd claimant was forcefully ejected from his own quarters about the time this action was filed. It was against the above background that the instant action was filed as earlier mentioned.

THE CASE OF THE DEFENDANTS

The case of the defendants is depicted by the position of the 7th defendant, a statutory corporation established by the Federal Airport Authority of Nigeria Act Cap F5 LFN 2004 established principally to develop, provide and maintain at airports and within the Nigerian air space all necessary services and facilities for the safe, orderly, expeditious and economic operations of air transportation. To the 7th defendant, in order to effectively discharge its statutory functions, it provides accommodation near the Airports for its key staff for their safety, convenience and quick access to the Airports at all times particularly in times of emergency. The 7th defendant went on that it is the owner and operator of the Murtala Muhammed International Airport and has several Staff Quarters in the immediate vicinity and environ of the said Airport including the Staff Quarters situate at Strabag Estate, within the vicinity of the Murtala Muhammed International Airport by the 7th defendant’s Headquarters and Zone D Quarters along Agege Motor Road Ikeja-Lagos. That in the discharge of its statutory obligations to provide safe and conducive environment for the operation of the Airport, the 7th defendant also allocates accommodation to the Staff of its sister agencies including Nigeria Meteorological Agency (5th defendant), Nigeria Airspace Management Agency (6th defendant), and the Nigerian Civil Aviation Authority (the 8th defendant whose name was struck out by order of this Court). Accordingly, that the 7th defendant is the beneficial owner of all the properties occupied by the claimants.

The 7th defendant continued that on the commencement of the Monetization Policy of the Federal Government,some institutions were exempted from this policy. However, that initially, the 5th to 7th defendants were not exempted from this policy but upon a review of the importance of the staff quarters to the operation of the 5th to 7th defendants and the security implication of selling of the property, the 5th to 7th defendants were exempted from the policy, referring to Exhibit OEE1. That the 7th defendant had objected to the sale of its residential properties to its Staff as it will negatively affect the operations of the airports and constitute a security risk due to the proximity of some of the affected quarters to the airports.As a result, the 7th defendant never issued or authorized the issuance of any letter of offer to sell its residential quarters to the claimants or any other staff or at all. The 7th defendant also never collected or authorized the collection of any deposit for the purchase or lease of any of its staff quarters to the claimants or indeed any other staff or at all.Based on its protest to the Federal Government of Nigeria on the impropriety of selling the Staff Quarters, the 4th defendant, which is the agency saddled with the implementation of the Monetization Policy, wrote a letter dated 29th April 2013 excluding all the properties around the airport in Lagos from the operation of the policy and directed that the properties be retained as “institutional properties”. By a letter dated 13th November 2014 from the 4th defendant to the 7th defendant, the Federal Government of Nigeria reiterated the position conveyed in the letter dated 29th April 2013 and directed the 7th defendant to secure the properties.That the categorization of the 7th defendant’s properties as institutional properties was consistent with the determination of properties owned by the Federal Judiciary and similar agencies as institutional properties that could not be sold.That the claimants in this case were each allocated the premises they occupy for the duration of their employment with the 5th to 7th defendants and having retired from service and collected their gratuities, they are now squatters on the premises.That the refusal of the claimants to vacate their staff quarters has imposed a lot of hardship on the current staff of the 5th to 7th defendants who would otherwise have been allocated the staff quarters. That it is in the interest of the general public and public policy that critical staff of the 5th to 7th defendants who work at odd hours be accommodated near the Lagos Airport in view of the acute accommodation shortage in Lagos and the perennial traffic gridlock in the metropolis.

THE SUBMISSIONS OF THE CLAIMANTS

The claimants submitted two issues for determination, namely:

Whether the claimants have not acquired vested interests in their quarters given the circumstances of this case by virtue of which the monetization policy has to be applied to their said quarters.
Whether the defendants have not failed to show that there is/are reasonable ground(s) to deny the claimants the benefit of the monetization policy vis-a-vis their quarters.

On issue (1), the claimants submitted that a major point to note in resolving this issue is that it is not in dispute that there was a Monetization Policy as averred in paragraph 6 of the statement of facts and the existence of which was admitted in the pleadings of the 1st to 7th defendants.Similarly, that it is not in dispute that the claimants, named and unnamed, were living in their respective quarters at the time of the monetization policy and by reason thereof were entitled to benefit in that policy just like other public servants residing in the monetized properties of the Federal Government across the country at that point in time. That it noteworthy that the letters signed by the 4th defendant dated 11th April 2012 (Exhibit C7) and 22nd May 2012 (Exhibit C7A) which were written to the 6th defendant, and another dated 13th September 2012 (Exhibit C7B) addressed to the 7th defendant, all bear an invaluable witness to the fact t6hat the quarters occupied by the retirees of the 6th and 7th defendants had been duly capture in the Data Base of the Federal Government and all the staff that were in for the consideration of the Presidential Implementation Committee in line with the approved guidelines on the lease of Federal Government property.That the fact of the existence of the policy and the fact that the quarters of the claimants were duly captured for the purpose of the policy are also buttressed by Exhibit 11A which is a letter dated 22nd April 2008 written by the 4th defendant to all occupants of the Federal Government Houses titled “ARRANGEMENTS FOR THE AS BUILT SURVEY OF FEDERAL GOVERNMENT PROPERTIES IN STATES” where it was stated thus: “Following the decision of the Federal Government to dispose of, by lease, some of its landed properties in the country, the Presidential Implementation Committee has appointed a team of LAND SURVEYORS to carry out the outstanding AS BUILT SURVEYS of the affected landed properties…”

Furthermore, that the uncontroverted case of the claimants is that the 4th defendant offered the legal sitting tenants of the 5th defendant leasehold interests in their own occupied quarters of the Federal Government landed property with an instruction for them to pay the requisite sum of N2,750,000.00 (Two Million, Seven Hundred and Fifty Thousand Naira) as consideration for the lease of the property. That the letter dated 22 June 2010written to the 1st claimant and admitted in evidence as Exhibit C1 is a specimen of the relevant letter in this regard.The concerned staff of the 5th defendant (including the named 1st claimant) expressed their acceptance of the terms and conditions of the Presidential Implementation Committee (PIC) in the leasing/sale of the said properties. They subsequently completed the processes in the Guidelines for the lease and paid full consideration for lease or purchase of their quarters since 2009 with receipts issued. Exhibit C3E is a specimen of the receipt issued upon the full payment of the money by the staff of the 5th defendant. That in another vein, the 6th defendant, in a letter dated 25th May 2011 (Exhibit C4), wrote to the Secretary, Presidential Implementation Committee on Federal Government Landed Property (4th Defendant) calling his attention to the list of Federal Government residential houses in the custody of the Nigerian Airspace Management Agency, and attached to the said letter a list of the eligible staff of the 6th defendant. Thus, the 6th defendant could be easily seen to have taken steps towards implementation of the monetization policy vis-a-vis the quarters of the Federal Government occupied by her own employees.

That the import of the above highlighted developments is that the claimants have succeeded to firmly establish the fact that their quarters were, doubtless, originally captured for lease or sale under the monetization policy. To put the matter beyond any peradventure, the claimants referred to Exhibit C12, which is a certified true copy of the Certificate of Occupancy issued to one Mrs Murna Sakaba, (a retiree of the 5th defendant) with respect to one of the quarters, the subject matter of this action, sequel to the implementation of the monetization policy. That it is thus beyond disputation that the monetization policy was originally applied to the quarters of the claimants. That it is not in dispute that the claimants were staff of the 5th to 7th defendants and resident in the quarters in question at the time the Monetization Policy was established, which was in 2003. It is also the undisputed evidence of the claimants that since the onset of the Monetization Policy, the claimants had been paying rent on owner-occupier basis in respect of the quarters and as such had been made to believe that the quarters were theirs subject only to the conditionalities of the monetization policy, that is, expression of interest and payment of fees.

That the 4th defendant’s Committee collected requisite fees from the staff of NIMET and NAMA (5th and 6th defendants) as expression of interest to lease or purchase the properties they were occupying. CW1 also testified that he and his colleagues, the retirees of the 5th defendant, were issued letters of offer (Exhibit C1 as specimen) and the 4th defendant eventually collected full payments in respect of their own quarters, to which the witness also tendered the specimen receipt (Exhibit C3E). In a nutshell, that Exhibits C1, C3, C3A-C3E, C5 and C6 are all relevant and showcase the fact that the monetization policy had been applied to the quarters of the claimants. That these documents are neither denied in this case, nor were the claimants’ witnesses cross-examined thereon at the trial.Instructively, that there is no gainsaying the fact that the monetization policy was benefited from by other public servants amongst whom is the Mrs Murna Sakaba of the 5thdefendant who has already been issued her own certificate of occupancy. That against the backdrop of the foregoing, it becomes indubitable that the claimants have acquired vested interests in the quarters under reference. That the issue has been taken beyond the realm of mere privilege as insinuated by the defendants herein. Justice and equity demand that once the benefit of the monetization policy had been accorded to other public servants across the length and breadth of the country, including a public servant occupying one of the quarters concerned in this case, the claimants, as members of that community of Nigerians, have acquired a constitutional right to be given the right of first refusal to purchase or lease their own quarters as enjoined by the monetization policy. That this is the clarion dictate of section 42(1) of the 1999 Constitution, which guarantees the right to freedom from discrimination.

Consequently, the claimants submitted that they have acquired vested rights in respect of the quarters that are the subject matter of this action vis-a-vis the monetization policy of the Federal Government. That any attempt to argue in this case that the monetization policy did not apply to the quarters in question can only amount to the defendants approbating and reprobating, which is not allowed in the temple of justice, citingAG, Rivers State v. AG, Akwa Ibom State [2011] 8 NWLR (Pt. 1248) 31,Dingyadi v. Wamakko [2008] 17 NWLR (Pt. 1116) 395 at 444 andComptroller-General & ors v. Gusau[2017] All FWLR (Pt. 911) 395 at 444.

That from another purview, the defendants are in the circumstances of this case estopped from asserting that the monetization policy would not apply to the quarters of the claimants, citing section 169 of the Evidence Act 2011, Oyerogba &anor v. Olaopa [1998] 12 SC 115 at 118-120,Iga v. Amakiri[1976] 11 SC 1 at 9-10 andBank of the North v. Yau [2001] 10 NWLR (Pt. 721) 408 at 436. The claimants then urged the Court to answer issue (1) in the affirmative.

Issue (2) is whether the defendants have not failed to show that there is/are reasonable ground(s) to deny the claimants the benefit of the monetization policy vis-a-vis their quarters. To the claimants, an apt departure point in arguing this issue is to mention posthaste that the sole basis upon which the defendants are contending that the quarters cannot be leased or sold to the claimants is that such a lease or sale would constitute threat to security at the airport. That this, ostensibly enough, is an afterthought. That the fact that the issue of security threat raised is an afterthought is underscored by the fact that the letters where the issue was first raised were written when cases relating to the sale or lease of the quarters had been pending in court. That Exhibits SFD1 and OEE3 (relied upon by the 1st to 5th defendants and the 6th defendant respectively) dated 29th April 2013 titled,“SITUATION REPORT ON THE FEDERAL GOVERNMENT PROPERTIES AROUND THE AIRPORT IN LAGOS IN THE CUSTODY OF THE MINISTRY OF AVIATION” were written in the course of sister cases to this case, with Suit Numbers FHC/ITKJ/15/90/2012 and FHC/L/08/1035/12, the processes of which were admitted in evidence and marked as Exhibit C13. The same goes for Exhibits OEE1 and OEE2 titled,“EXEMPTION OF FEDERAL GOVERNMENT LANDED PROPERTY IN THE CUSTODY OF FEDERAL AIRPORTS AUTHORITY OF NIGERIA FROM LEASE” relied upon by the 6th defendant, written during the pendency of this suit.Without much ado, that the said letters cannot avail the defendants in this suit on the footing of their being inadmissible under and by virtue of section 83(3) of the Evidence Act2011, which provides thus: “Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish”.

That incontestably, all the letters qualify as statements made by persons interested at a time when proceedings were pending. The letters issued from the Ministry of Aviation and Presidential Implementation Committee who are the 2nd and 4th parties in this suit and also parties in the sister cases mentioned earlier. Both are, doubtless, parties with personal interest in the outcome of the cases i.e. the desire to ensure the retention of the quarters by government agencies. That from all indications, the letters were written sequel to pressure from supposed meetings and deliberations with the 5th to 7th defendants, in the absence of the claimants, for no other reason than that they subsequently did not want the quarters to be leased or sold to the claimants as enjoined by the monetization policy that had been previously applied to the concerned quarters. That the fact that the letters were written to serve personal interest is given impetus by the following words written to the General Manager Legal at the bottom right side of Exhibits SFD1, OEE2 (relied upon by the 1st to 5th and 6th defendants respectively): “This will be used in the ongoing cases against the Agencies please inform Counsel”.

The claimants went on that based on the fact that the Committee of the 4th defendant had previously adjudged the quarters as fit for lease or sale under the monetization policy, the Court should draw the inference that the Committee had only changed gear in a manner suggestive of a melodramatic somersault to suit the whims and caprices of the powers that be in the 5th to 7th defendants, referring toEdokpolo & Co. Ltdv. Ohenhen[1994] 7 NWLR (Pt. 358) 511 at 529 where the court held that the court will presume the existence of one fact from the existence of proved facts where such a presumption or inference is irresistible or where there is no other reasonable presumption or inference which fits all the facts. The claimants referred to Nigeria Union of Railway Workers & ors v. Nigeria Railway Corporation & ors unreported Suit No. NIC/LA/11/2011, the judgment of which was delivered on 6th January 2016, whereat pages 53-54 of the judgment, the Hon. President of this Court discountenanced some documents in which a request for exemption was made during the pendency of the suit on the ground that the request for exemption was made to overreach the claimants’ action. In the instant case, the claimants accordingly urged the Court to discountenance Exhibits SFD1, OEE3, OEE1 and OEE2 as evidence wrongly admitted. That the Court has the power to reject admitted evidence or disregard or expunge such evidence at the stage of writing judgment if it comes to the conclusion that the evidence, whether oral or documentary, was wrongly admitted, citingNwabuoku v. Onwordi[2006] 5 SC (Pt. III) 103 at 115. From this exposition, that there is nothing to prop the case of threat to security hung unto by the defendants in this case as the letters relevant thereto were inadmissible in evidence in the first place. On the standpoint of this position, that the Court is entitled to hold that there is no wicket on which the defendants’ case of threat to security can stand.

Taken from another perspective, going by the evidence on record in this case, the claimants submitted that thedefendants have woefully failed to justify that there is (are) reasonable ground(s) to deny the claimants of the benefit of their quarters under the monetization policy. That the singular reason given or claim made by the defendants to support their position that the properties cannot be leased or sold out is that leasing or selling the said properties poses a security threat to the airport. Interestingly, that the fact that the defendants have not mentioned any occurrence of security breach since the existence of this action, despite the fact that the claimants, save the 2nd claimant who was forcefully evicted, reside in the quarters is a clear and eloquent testimony to the fact that the issue of threat to security is merely contrived.Nevertheless, that it is for the defendants to prove that claim for them to dislodge the vested rights of the claimants in the quarters as he who asserts must prove, citingOrji v. Dorji Textile Mills Nig. Ltd [2009] 12 MJSC. (Pt. II) 97 at 145,Ewo v. Ani[2004] 3 NWLR (Pt. 861) 611 at 630 andEjiniyi v. Adio [1993] 7 NWLR (Pt. 305) 320 at 330. That it is beyond debate in this case that the defendants have not proved that leasing or selling the quarters to the claimants poses any security threat to the Airport or its users. For instance, the nature of the security threat and why leasing or selling the quarters to the claimants would predispose the airport it, are only left to imagination or speculation. Of course, that the Court is not to speculate and imagine that leasing or selling the properties would cause security threat, when there is no scintilla of evidence to that effect, citingOnagoruwa v. Adeniji[1993] 5 NWLR (Pt. 293) 317 at 346 andOdubeko v. Fowler [1993] 9 SCNJ 185 at 196 to the effect that a court of law is not allowed to speculate.

As a matter of fact, that the 7th defendant did not in any way lead evidence to speak to their pleadings; and the law is trite that pleadings are moribund, lifeless, useless and deemed abandoned where there is no witness to speak to it, citingOdunsi v. Bamgbala [1995] 1 NWLR (Pt.374) 641 at 656 and 657 and Ojoh v. Kamalu [2006] All FWLR (Pt. 297) 978 at 1009. Therefore, that the case of threat to security made by the defendants cannot stand as it is bereft of the needed evidence. Be that as it may, ex abundanti cautella, that the claimants have also taken it upon themselves to lay it bare before this Court that there is no genuine issue of security threat and that the claim of security threat being made by the defendants is a mere afterthought, a ruse and subterfuge.

To start with, that the claimants have been able to establish that there is no threat to security in that the quarters are outside the perimeter fence of the airport and in locations that are entirely open to the general public, referring to the oral evidence of the claimants in this regard, which could not be discredited under cross-examination and ipso facto, deserve to be acted upon, citingGuinness (Nig.) Ltd v. Agoma [1992] 7 NWLR (Pt. 256) 728,Adejumo v. Ayantegbe[1989] 3 NWLR (Pt. 110) 417,Obembe v. Wemabod Estates Ltd[1977] 5 SC 115 at 140,Shell BP v. Pere Cole [1978] 3 SC 183 at 195-196 andModupe v. The State [1988] 9SCNJ 1 at 4. Significantly, that under and by virtue of section 124(1) of the Evidence Act, the proof of the nature of the locations of the quarters is easily excusable as the knowledge thereof is not reasonably open to question and is a common knowledge in the locality of the place, where the proceedings of this case are being held. Moreover, that the locations are capable of verification, for instance, through the printed Google Map tendered in this case as Exhibit C10, urging the Court to note that the Google map was only printed and not made in the course of this action. Thus, it is not assailed by the provision of section 83(3) of the Evidence Act.At whatever event, that the 6th defendant’s witness admitted the fact that the quarters are outside the airport and that the locations of the quarters are located entirely within public domain in his oral evidence during cross-examination, which evidence constitutes admission against interest and is fatal to the case of the defendants, citing Fagunwa v. Adibi [2004] All FWLR (Pt. 226) 340 at 357, Sanya v. Saumam [2012] All FWLR (Pt. 618) 917 at 941 and Akomolafe v. Guardian Press Ltd (Printers) [2010] All FWLR (Pt. 517) 773 at 784.

The claimants continued that beyond the foregoing, there is evidence in this case that the Presidential Implementation Committee duly inspected the quarters to determine if the quarters were eligible for monetization before the process of sale/lease was commenced, referring to Exhibit C11A, which was written as far back as 2008. That paragraphs 5 to 7 of the reply to the statement of defence of the 1st to 5th defendants and the corresponding evidence of the witnesses as contained in attached written statements on oath are germane. That none of the claimants’ witnesses was cross-examined on their evidence relating to this point. In other words, it was not disputed that there was an inspection that was conducted and a letter of survey dated 22nd April 2008 from the Presidential Implementation Committee requesting all the occupants of the Federal Government Houses to grant access to the appointed Surveyors. Notably, that there was no issue of security after the said inspection and survey was done. To then make a melodramatic somersault and say that the properties would not be leased or sold to the claimants on alleged basis of threat to security is apparently an afterthought and a mere ruse propagated by the defendants as a leeway to refrain from total compliance with the Monetization Policy.By virtue of the aforementioned inspection and survey carried out by the 4th defendants’ Committee,that the lease or sale of government properties to other public servants, amongst whom is one Mrs Muma Sakaba of the 5th defendant’s agency, the steps taken by some of the defendants, are caught by the principle of estoppel by conduct and they cannot be heard to turn round to claim that the quarters could not be sold or leased on the premise of an unproven threat to security, citingsection 169 of the Evidence Act andOyerogba & anor v. Olaopa, ICA v. Amakiri, Bank of the North v. Yau andAG, Rivers State v. AG, Akwa Ibom State (all supra).

The claimants conceded that in a declaratory action, a claimant is only entitled to succeed on the strength of his own case. Howbeit, that a declaratory action is still a civil suit in which proof is only on preponderance of evidence as different from proof beyond reasonable doubt, citingIseogbekan v. Adelakun[2013] All FWLR (Pt. 664) 168 at 188. In the instant case, that the claimants have given cogent, credible and compelling evidence to warrant the grant of the prayers sought in this action. Per contra, that there is no cogent or compelling evidence from the stable of the defendants to disprove the case of the claimants. Taking the totality of the evidence on record into consideration, that the case of the claimants is virtually one sided and should succeed as a matter of course, citingEkwunife v. Wayne (WA) Ltd[1989] 5 NWLR (Pt. 122) 422 at 438 andMogaji v. Odofin[1978] 4 SC 91 at 94. Without further ado, the claimants urged the Court to answer this issue in the affirmative thereby resolving it in favour of the claimants. In conclusion, the claimants urged the Court to give judgment to the claimants in this case.

THE SUBMISSIONS OF THE 1ST, 2ND, 3RD 4TH AND 5TH DEFENDANTS

The 1st to 5th defendants submitted a sole issue for determination: whether the claimants have a right that this Court can uphold in the circumstance of this case. That it is agreed between parties that the Federal Government of Nigeria in 2003 introduced the Monetization Policy by virtue of which the Government sought to divest itself of all its Residential Facilities (houses, flats, etc), across the country. To this end, it issued a guideline for the process by its “Public Notice No.1, Approved Guidelines for the Sale of Federal Government Houses in the FCT to Career Public servants, Federal Capital Territory Act Cap F6 LFN 2004, Official Gazette No. 82, Vol. 92 of 15th August, 2005”. Paragraph 1 of the Public Notice No. 1 states thus: “The Federal Executive Council has approved Guidelines for the sale of allresidential facilities (houses, flats, etc.) built, acquired or otherwise owned by the Federal Government and ALL its ministries, departments and agencies except those listed in Paragraph 4 below”. Paragraph 4 of the Notice states thus:

The following residential facilities owned by the Federal Government of Nigeria will not be sold for constitutional, statutory or administrativereasons, and are accordingly exempted from the sale programme, that is the residences occupied by:

(a) President of the Federal Republic of Nigeria;

(b) Vice-President of the Federal Republic of Nigeria;

(d) Speaker of the House of Representatives;

(e) Deputy Senate President;

(f) Deputy Speaker of the House of Representatives;

(g) Chief Justice of Nigeria;

(h) Minister of the Federal Capital Territory;

(i) Presidential Guest Houses and Safe Houses of the Intelligence Community;

(j) Houses within the Security Zone of the State House;

(k) Justices of the Supreme Court, Court of Appeal, Federal High Court, and HighCourt of the FCT;

(l) Barracks of the Military, Police, Para-Military and approved uniformed services; and

(m)Institutional residences within schools, hospitals, power plants, dams and universities, etc.

That the defendants tendered Exhibit C8, Letter from the Implementation Committee dated 29th April 2013,paragraph 2 of which reads: “You are to please, note, that having established the fact leasing the properties around the Airport in Lagos that are in the Custody of the Ministry of Aviation can constitute serious security threat, it has been resolved that the houses should be treated as institutional properties”. To the 1st to 5th defendants, the decision by the Government to sell its houses, first, to sitting occupying Public Servants, and later to the public (referring toparagraph 9 of Notice No.1) was a decision taken in good faith and properly streamlined. That a combined reading of Notice No. 1 of 15th August 2005 and the Implementation Committee’s letter of 29th April 2013, shows that the Federal Government, ab initio, had no intention of selling certain houses, referring topara. 4(m) of Notice No.1. That by the ejusdem generis rule, the words ‘schools’,‘hospitals,‘power plants’,‘dams’ and ‘universities’, etc in para. 4(m) would admit of the word ‘airport’ as used in Exhibit C8, relying on Udoro v. Gov. Akwa Ibom State[2010] 11 NWLR (Pt. 1205) 322 at 336. That the Federal Government had no intention of selling houses falling within the purview of para 4 (m). Furthermore, that the houses described in the claimants’complaint as per relief (i) are houses exempted from the Government’s divestment policy on the ground that they are institutional houses. That the word ‘institution’ is defined by the Sixth Edition of the Black’s Law Dictionary as “an establishment, especially one of public character or one affecting a community”. That the houses within schools premises, universities premises are in no way different from the houses within the airport premises.That when a statute makes a provision, the provisions of the same should be given their ordinary meanings, citingFRN v. Alhaji Mikaanache&ors[2004] 17 NSCQLR 140 at 188-189.

From the foregoing argument, the claimants urged the Court to hold that the houses in Strabag Estate, and Zone D Quarters, Agege Motor Road, are institutional houses within the meaning of Public Notice No. 1 of 15th August 2005 and the Implementing Committee’s letter of 29th April 2013. That the claimants did not and could not establish how they became entitled to the declaration they seek. On that leg alone, they are not entitled to the declaration they seek, citingDmez Nig Ltd v. Nwakhaba & 3 ors[2008] 2 SC (Pt. III) 142 at 152.

To answer the question whether or not the monetization policy of government is a right to these claimants, who are all retirees, the claimants submitted that it is not a right but rather a privilege, citingEregbowa v. Obanor[2010] 16 NWLR (Pt. 1218) 33 at 57, which held that it is the statement of claim that has to be examined to ascertain whether there is a reasonable cause of action at the instance of a person who has a right of action. That the claimants’complaint did not show any instrument conferring a right on them to buy these government houses. That they could have fully participated in the programme by their privileged position as Public Servants, were the houses, ordinarily available. That they could have approached the Court to remedy the wrong done them if thehouses they occupy, or better put have held over, had formed part of their ‘Condition of Service’. Testifying before this Court, that CW1, CW2 and CW3 unanimously testified to the fact that the houses (in whatever shape, form or character), did not form part of their contract of employment. That CW3 who retired before the policy came to be, made a show under cross-examination that the house later formed part of her entitlement. That the Court records show that she did not tender any instrument, evidencing this position. By section 167(d) of the Evidence Act, this Court cannot infer the existence of any contract or instrument in that behalf. The 1st to 5th defendants, therefore, submitted that the claimants have no cause of action before this Court for which they are entitled to a relief, citingEgbe v. Adefarasi [1987] 1 NWLR (Pt. 47) – no page supplied.

The 1st to 5th defendants also urged the Court to hold that it has no jurisdiction to even entertain this matter since no cause of action has been disclosed. That the pleadings do not show that the claimants can buy or lease their official houses upon retirement by virtue of their condition of service; and this takes the weight out of the matter and puts jurisdiction in issue. That the subject matter of a claim before a court is determined with reference only to the plaintiff’s claim, citing Anakwe & anor v. Nweke [2014] 4 SC (Pt. III) 69. To the 1st to 5th defendants, the claimants, having failed to connect or link their employment with any relief of housing, whether to buy or lease, their claim ought to fail before this Court; as such, this Court lacks jurisdiction to proceed on this case as nothing in section 254C of the 1999 Constitution and section 7 of the National Industrial Court (NIC) Act 2006 covers or deals with housing matters or housing requests or issues inter-se between individuals and Government agencies on interpretation of Government Policies.

The 1st to 5th defendants went on that they made a claim for mesne profit for the claimants’ continued occupation of the of the quarters at Two Million, Five Hundred Thousand Naira (N2,500,000) per annum from the date of their retirement till judgment is entered in this matter and at the rate of Three Million Naira (N3,000,000) per annum, until delivery of possession. That the claimants did not contest this claim and so it stands admitted. In conclusion, the 1st to 5th defendants urged the Court to enter judgment in their favour and order the claimants to pay the sum of Two Million, Five Hundred Thousand Naira per annum from the date of their retirement till judgment is entered and at the rate of Three Million Naira per annum until delivery of vacant possession.

THE SUBMISSIONS OF THE 6TH DEFENDANT

The 6th defendant submitted three issues for determination, namely:

Whether the claimants are by their contract of employment entitled to the purchase and or lease of the official quarters, upon retirement.
Whether the claimants are entitled to possession and or lease of the residential houses,under the extant government policy of monetization and its modifications.
Whether there is a valid cause of action by the claimants against the 6th defendant.

On issue (1), the 6th defendant referred to the complaint and statement of facts of the claimant, particularly to paragraphs 1, 2, 5 and 6 ofthe witness statement on oath of the 1st claimant (Thaddeus Obidike). To the 6th defendant, nowhere is the claim founded on any contract of employment nor an addendum to any of the retirement benefits. That under cross-examination, the 1st and 2ndclaimants admitted that keeping the houses or buying them upon retirement wasn’t a part of the engagement as a staff. That the 1st claimant admitted that his entitlements are being paid having retired and his last employer owes him nothing in terms of housing, referring to the testimony of CW2 and CW3. That of all the documents and exhibits tendered, none shows any claim founded on the residential houses as part of employment benefits, referring to the evidence of the 6th defendant’s witness (Osimen Edward Eremosere)especially paragraphs 1, 2, 3, 6, 12, 20 and 21 of his witness statement on oath; and that there being noclaim on employment benefit incorporating housing upon retirement the case of the claimants ought to fail.That the pleadings herein devoid of any matter tying the employments of the claimants to owning the official houses upon retirement takes the weight out of the matter. That the subject matter of a claim before a court is determined on the plaintiff’s claim per the pleadings filed, citing Anakwe & anor v. Nweke[2014] 4 SC (Pt. III) 69 and submitting that the claimants, not having tied their employment with any relief of housing, their claim ought to fail in this Court.

Furthermore, that the Court in essence lacks the jurisdiction to proceed on any of the issues not related to employment, citing section 254C of the 1999 Constitution. Also that by virtue of section 7(1) to (6) of the National industrial Court (NIC) Act 2006, the jurisdiction of this Court does not cover nor extend to interpretation or dealing with housing matters or housing requests or issues inter-se between individuals and Government agencies on interpretation of Government policies. That sections254C of the 1999 Constitution is clear and unambiguous as the reliefs are not connected or relating to any labour or employment trade unions, industrial relations norconditions of work place nor does it constitute unfair labour practice. That where the Court lacks the jurisdiction to hear any matter or by the pleadings the jurisdiction of the Court is whittled down the proper order is to dismiss the matter, citingAG, Lagos State v. Dosumu [1989] 6 SC (Pt. II) – the page is not supplied; and Madukolu v. Nkemdilim [1962] 1 All NLR 587. That upon a critical examination of the endorsement on the complaint and statement of facts (not the statement on oath) it will be found that the Court lacks the jurisdiction to hear the subject matter, urging a resolution of issue (1) against the claimants.

For issue (2), the 6th defendant referred to the general complaint; paragraphs 6, to 12, 14, 15, 17, 18 and 19 of the statement of facts; paragraphs 6 to 11 and 13 to 20 of the written deposition of CW1 (Thaddeus Obidike); paragraphs 6 to 9, 16, 17, 19 and 20 of the deposition of CW2 (Victor Okwuma); and the deposition of CW3. To the 6t defendant, the burden of proof is on the claimants in establishing the facts of a matter, citing section 131(1) and (2) of the Evidence Act, Odom & 2 ors v. PDP & 2 ors [2015] 2 SC (Pt.I), Calabar Central Cooperative Thrift & Credit Society Ltd & ors v. Bassey Ebong Ekpo [2008] 1-2 SC 224 and Apena & anor v. Aileru & anor[2014] 6-7 SC (Pt. III) – the page is not supplied. That the burden of showing a legal binding agreement on sale of the residential property lay on the claimants. That from the pleadings the claimants trace their involvement to a Government Policy as averred in paragraph 6 of the statement of facts; and in paragraph 7 that a committee was put in place and in paragraph 9 that the President of the Federal Republic of Nigerian approved that the quarters in custody of the 5th to8th (sic – 7th?)defendants be sold to sitting tenants.To the 6th defendant, it denied the allegations of facts thereby putting the claimants to proof of all the allegations therein contained. Referring to the entire evidence of the claimant, the 6th defendant submitted thatthe proof of Government decisions on the issue was not brought forth, referring to Exhibits C1, C2, C3, 3A, 3B, 3D, 3E, C4C. That Exhibits C1, C7, C7a and C7b are all prior and made before Exhibit C8 dated 29th April 2013 and for Exhibits EE01, EE2 and EEE3, Exhibit C8 is later in time and is quite clear and equivocal in conclusion of the issue earlier on raised in Exhibits C7a,C7b and C7d, tendered by the claimants.That the law is that a statute or document later in time has more recent development, referring tosections 4(1) and (2)(c) of the Interpretations Act Cap I23 LFN 2004.

The 6th defendant went on that the Presidential Committee on Alienation of Government Property, the 4th defendant, issued Exhibits C1 and C2, C3E, C4, C4E, C7(a), C7(b), which exhibits were later in time toExhibit C8; referring tosection 12(1)(b) of the interpretation Act Cap 123, which allows additional provisions as to powers to make subsidiary instruments etc. Thatsubsection (b) provides:

(a) Power to make different provisions to different circumstances.

(b) Power, exercisable in the like manner and subject to the like consent and conditions (if any) to vary and revoke the instruments, proclamation or notification.

The 6th defendant then submitted that Exhibits E01, E02 and EE03 are made pursuant to powers conferred above; and in convention, that a later correspondence on an issue is the last reference. That Exhibits E01, E02 and EE03 act as minesweeper on the root of the claimants’ case as the claimants cannot now attempt to repudiate Exhibit C8 signed by Kola Adeyemi who wrote Exhibits C4, C4E, C7, C7(a), C7(b) and C7(c). That no witness was brought or subpoenaed by the claimants from the Federal Government sustaining their positions in paragraphs 4, 6, 8 and 7, no extracts from the Federal Executive Council were tendered nor any officer from the Presidential Implementation Committee was called. No witness summons was issued to any unwilling witness. That the 4th defendant who is relied on by the claimants had retracted the expression of interest offered. There is no contrary evidence to this, Exhibits Cl0 and C11 were under cross-examination admitted by CW1 to be made in view of proceedings and during the pendency of this matter, citingsection 83(4) of the Evidence Act, and so are inadmissible being documents made while proceedings were pending and made ostensibly to overreach the Court and the defendants, referring toKahilia Barakat Chami v. UBA Plc[2010] 2-3 SC (Pt. II) – the page was not supplied.

The 6th defendant continued that the claimants upon their own pleadings and evidence alone stand to fail in this suit. That the privilege they are rooting their claim on vide Exhibit C1, was extinguished by Exhibit C8. That the 4th defendant in the first place isn’t the owner of the property and only acted as an interim body who realising Government position rectified its position to fall in line with existing and modified structure as shown in Exhibit C8, E01, E02 and EE03. That the claimants are not entitled to the purchase and lease of the residential quarters estate occupied by them at Strabag Zone D quarters along Agege Motor Road as retirees.

The 6th defendant proceeded that the purported rights allegedly acquired do not flow from claimants’ employment as the 6th defendant isn’t owing any of its retirees as acknowledged by CW1 and CW2. That the entire sets of Exhibits C1, C2 and C3, issued by the 4th defendant ought to be read in conjunction with Exhibits C7, C7b and C8 and the claimants’ reliefs are extinguished by Exhibits C7(b) and C8. Exhibits C8 reads as follows:

I wish to recall the meeting that took place in the Office of the Secretary of Government of the Federation recently in which the above Subject matter was raised.

You are to note that having established the fact leasing the properties around the airport in Lagos that are in custody of the Ministry of Aviation can constitute serious security threat, it has been resolved that the houses should be treated as institutional properties.

Meanwhile, the committee shall go ahead to prepare title documents in respect of the Ministry.

The 6th defendant the submitted that where there are documentary evidence as well as oral evidence, the documentary evidence is a hanger upon which oral evidence is weighed, citing Kimdey v. Military Governor of Gongola State [1988] 2 NWLR (Pt. 77) – the page is not supplied; and Fashanu v. Adekola[1974] 6 SC 83.

The 6th defendant went on to refer to the testimony of CW1, CW2, and CW3 and DW1. That the oral testimonies of CW1, CW2 and CW3 while contradictory in that CW1 and CW2 testified that their remunerations have been fully paid and not owed by their respective employers and that their residential houses upon retirement didn’t form part of their contract of employment, CW3 testified under cross-examination that it was a later part of her entitlement even when she retired before the monetization policy. That the said contract of employment was not tendered nor shown, thereby an inference of non-existence, citingsection 167(d) of the Evidence Act. The 6th defendant urged the Court to compare the testimony of the 6th defendant’s witness, Edward Osimen, who gave evidence on the conditions of service of the 2nd claimant with the testimony of CW1, CW2 and C3. That the evidence of CW1, CW2 and CW3 under cross-examination left gaps; and at times deliberately feigned ignorance of the truth.That all witnesses for the claimants agreed that the 4th, 5th, 6th and 7th defendants were Agencies of Government. Secondly, they also agreed under cross-examination that as Government Agencies they take directives from Government.Thirdly, all the claimants’ witnesses agreed that Government position changes and varies from time to time. That even the claimants’ pleadings in paragraphs 14, 15, 17, 18 and 19 of the statement of facts shows that Government Policy changed but the claimants are contending that it cannot. That DW2’s testimony is also key as he gave copious evidence on Government positions. To the 6th defendant, the claimants’ witness who pleaded and gave evidence that it was while at the initial trial they first got hint of the letter of 29th April 2013, pleaded in paragraphs 14 and 15 of the statement facts, 8 months before filing of the suit, could still feign ignorance of Government position, citing Aiguokhian v. The State [2004] 4 SC (Pt. 1) 63.

The 6th defendant then urged the Court to so hold on the knowledge of the new position of Government. That judicial notice be taken of the fact that the Monetization Policy was not wholesale as it exempted certain institutions and bodies. Moreover, that ignorance of the law has never been an excuse. That the claimants are imputed with knowledge when attempts were made by the various organs to eject them legally. It put them on notice upon receipt of Exhibits C7(a), 7C(d) and C8. That Exhibits EE1, EE2 and EE3 only acted as minesweepers to an already concluded matter vide Exhibit C8. That the declaratory reliefs sought have not been proved, citingDmez Nig Ltd v. Nwakhaba & 3 ors [2008] 2 SC(Pt. III) 142 at 152, where Mohammed, JSC held thus:

The Law on the requirement to plead and prove his claim for declaratory reliefs on the evidence called by him without relying on the evidence called by the Defendant is well settled. The burden of proof on the Plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy in the sense that such a declaratory reliefs are not granted even on admission by the Defendants, where Plaintiffs fails to establish his entitlement to the declaration by his own evidence.

…it has always been my experience and I believe it to be a long standing that the Courts does not make declarations of rights either on admissions or in default of pleadings but onlyif the Court is satisfied by evidence. See also Bello v. Eweka [1981] 1 SC 101 and Motunwase v. Sorungbe[1988] 12 SC 1.

To the 6th defendant, being declaratory reliefs sought, the claimants must by evidence establish their claims to the right, which by pleadings and evidence they haven’t; urging issue (2) to be resolved in favor of the defendants.

Issue (3) is whether there is a valid cause of action against the 6th defendant. The 6th defendant referred to the complaint, paragraphs 4, 10, 11, 15, 16, 17, 18 and 19 ofthe statement of facts and to the four reliefs sought. That the claimants by paragraphs 10 and 11 of their statement of facts averred that the 4th defendant collected requisite fees from them.This was also in the witness depositions of CW1, CW2 and CW3. That under cross-examination,the witnesses all agreed that 6th defendant didn’t collect any monies, or deal with them. That CW2 admitted that his full entitlements have been paid by the 6th defendant. That DW2, Eremosele Osimen, who testified for 6th defendant gave evidence that all the entitlements of CW2 had been paid; and that based on the employment, CW2 was debited his housing allowance while in employment. That the 6th defendant, not having collected monies nor initiated any action with regard to the residential houses,the claimants’ cause of action does not lie against it. That the cause (if any) isn’t against the 6th defendant who by the claimants’ pleadings and evidence on record has nothing to do with the purported expression of interest nor payment. That Exhibits C1, C2, C3, C3A, C3B, C3c, C3(d), C3(e), C5 and C6are all related to the 4th defendant who is not even a juristic person, nor a legally enforceable entity. That it is settled by a plethora of authorities that there must be a cause of action before an intending litigant can initiate any legitimate proceedings against any party and where such cause of action does not exist, the action is an exercise in futility. That there is no cause between the claimants and the 6th defendant since only the claimants’ claim determine whether or not a reasonable cause of action or cause of action exist, citing Thomas v. Olufusoye[1986] 1 All NLR 201 at 272,AG, Federation v. AG, Abia & ors[2001] 7 SC 1 at 108, Egbe v. Adefarasin[1987] 1 NWLR (Pt. 47) and Green v. Green[1987] 3 NWLR (Pt. 61) – the pages are not supplied.That this matter accordingly ought to be struck out as against the 6th defendant once issue (3) is resolved in favour of the 6th defendant. The 6th defendant conceded by urging that the case be dismissed.

SUBMISSIONS OF THE 7TH DEFENDANT

The 7th defendant submitted two issues for determination, namely:

Whether the suit as presently constituted does not rob the Honourable Court of jurisdiction to hear and determine the claimants’ claims.
In the unlikely event that the Honourable Court resolves issue (1) against the 7th defendant, whether the claimants have proved their case to entitle them grant of the reliefs sought.

Regarding issue (1), after restating the law as to the importance of jurisdiction, the three conditions laid down in Madukolu v. Nkemdilim [1962] All NLR 587; [2001] 3 SCM 185 and the four reliefs claimed by the claimants, the 7th defendant submitted that this case as presented by the claimants has deprived this Court of jurisdiction; and gave five reasons.

The suit is premature and unripe for adjudication because the condition precedent to activate the cause of action has not arisen. The claimants can only be entitled to the right of first purchase or lease of their residential quarters if and only if the7th defendant wants to sell or lease out the properties. To the 7th defendant, the factual elements that ought to make up the claimants’ cause of action in this suit (particularly the fact that the 7th defendant has not put up its staff residential quarters for sale, has not offered or requested submission of expression of interest in relation to its staff residential quarters, but rather, the 7th defendant was excluded from the monetization policy) had not come into being as of 2nd December 2013 when the action was commenced. Consequently, this action is premature and unsustainable, urging the Court to so hold, while referring toEsin v. Matzen and Timin Nig Ltd [1966] 1 All NLR 233.
This matter is not in any way related to employment or labour issue, citing section 7 of the NIC Act 2006, section 254C(1) of the 1999 Constitution and Bisong v. Unical [2016] LPELR- 41246(CA). The claimants’reliefs clearly show that they relate to declaration of right to sale or conferment of title to the claimants’residential quarters situate at Strabag Zone D Quarters, along Agege Motor Road. It is only the High Court of a State that has the requisite jurisdiction to handle matters relating to declaration of title.It is not open for contest that a claim for declaration of title (reliefs i and ii), perfection of title (relief iii) and eviction of squatters (relief iv) do not fall among the causes or matters, which by virtue of section 7 of the NICAct 2006 and section 254C(1) of the 1999 Constitution, the National Industrial Court has jurisdiction to entertain, be it exclusive or concurrent.
The claimants are seeking declarations or injunctions by challenging the validity of an executive or administrative action or decision of agencies of the Federal Government of Nigeria. By virtue of section 251(1)(r) of the 1999 Constitution, exclusive jurisdiction is vested in the Federal High Court.
The defendants herein are Federal Government Agencies. It is now settled law that the Federal High Court is vested with exclusive jurisdiction to the exclusion of any other Court in any matter involving or arising from the administration, management and control of the Federal Government Agency, the operation and interpretation of the Constitution as it affected the Federal Government, as well as any action or proceedings for declaration or injunction affecting the validity of any executive or administrative action or decisions by the Federal Government, referring to Inegbedion v. Selo-Ojemen & anor [2013] 8 NWLR (P 1356) 211, ABSIEC v. Kanu [2013] 13 NWLR (Pt. 1370) – the page is not supplied; Ayeni v. University of Ilorin [2002] 2 NWLR (Pt. 644) 290 at 234 and Gbileve v. Addingi [2014] 16 NWLR (Pt. 1433) 394 at 419.
The claimants have not disclosed any legal right that can be protected by this Court. The claimants’ claim is that by virtue of the monetization policy of the Federal Government, they are entitled to the right of first refusal of their staff quarters upon their retirement. What the claimants are relying on as source of their right is an Executive Policy. An executive policy is usually made to guide government departments on the practical steps to be followed in effectively and correctly implementing that executive policy. In order words, these are internal procedure documents or administrative guidelines which give directions on steps to be followed in a particular subject matter. An executive policy can be revoked or varied at any time and is not enforceable in court because policies are not law. CW2 admitted under cross-examination that indeed Government Policy can be varied.Government policy will only create an enforceable right when it is implemented and until it is implemented, it is not enforceable. In other words, the implementation constitutes administrative action which can be subjected to judicial review. In this case, the claimants are praying for the implementation of an executive policy that lacks the force of law, citing the Indian case of GJ Fernandez v. State of Mysore&ors(AIR 1967 SC 1753), which held that that guidelines or executive instructions which are not statutory in character or under some provision of the Constitution, are not ‘laws’, and so not judicially enforceable. At best a policy only creates a privilege in the sense that if the defendants choose to implement the policy, the claimants would be given the privilege of the right of first refusal and nothing more; and until that is done, the claimants’ interest, their right to sue cannot be said to have arisen. To put it in a proper perspective, the so called right remains in abeyance until the 7th defendant chooses to implement the policy.Since it is a policy, the Government can re-evaluate its policy after the decision was taken and cancel same when necessary for public interest. The defendants have been able to show through the evidence of the 5th – 6th defendants’ witnesses that selling the property or quarters would constitute a security challenge to the airports. The claimants, through CW1, tried vainly to rebut the evidence that the property will not constitute a security challenge. CW1 is not a security expert and, therefore, he is not in a position to know the security implication of the sale of the property to the public. The Court cannot compel a man to sell his property that he is not willing to sell. From the evidence given by CW3 who is actually a retiree from the 7th defendant, it is clear that the 7th defendant did not at any time show interest to sell the property. In her evidence under cross-examination she stated thus: “I am not a member of the Implementation Committee. FAAN did not and has not given me letter of offer. That is what I am waiting for.” Her testimony clearly shows that the 7th defendant is not willing to sell its quarters. Since the 7th defendant is not willing to sell its property, it cannot be compelled to sell or part with its property as it would be against equity and good conscience.

The 7th defendant accordingly urged the Court to dismiss the suit for want of jurisdiction to hear and determine the suit as presently constituted.

Issue (2) is whether the claimants have discharged the burden of proof required of them to be entitled to the reliefs sought.To the 7th defendant, the claimants’ claims before the Court are declaratory reliefs. That the position of the law is that the claimant must establish his case or satisfy the Court by credible evidence that he is entitled to the declaration as the Court does not grant declaratory relief on admission of the defendant, referring toOoze v. Ogug[1996] 6NWLR (Pt. 455) 451. The 7th defendant then submitted that the claimants who are duty bound to prove their case have failed to prove their case against the 7th defendant. That the claimants have failed to prove that they are entitled to the 7th defendant’s quarters;and they have failed to show that their right of first purchase has arisen. That it is clear that for this right to arise, the 7th defendant must have signified intention to sell or lease the property to a third party, or evinced intention to sell; and the 7th defendant is not selling or leasing out the property. In fact, the properties have been exempted from the monetization policy on which the claimants premised this action, referring to the 6th defendant’sletter dated 29th April 2013, which emanated from The Office of the Presidency, Implementation Committee of the White Paper on the Commission of Inquiry into the Alienation of Federal Government Property and addressed to the Honourable Minister of Aviation reacting that the houses in issue be treated as institutional properties. That the residential quarters estate situate at Strabag Staff Quarters situate at Strabag Estate,within the vicinity of the Murtala Muhammed International Airport by the 7th defendant’s Headquarters and Zone D Quarters along Agege Motor Road Ikeja-Lagos fall under the custody of Ministry of Aviation and the claimants cannot feign ignorance of the directives given. That in compliance with the directive, the 7th defendant did not make any offer to any of the claimants for the purchase of its quarters. None of the claimants obtained a form of expression of interest for the purchase of 7th defendant’s quarters nor did the 7th defendant sell its quarters to any of the claimants or to any other person(s). That the claimants confirmed this in their various testimonies.

The 7th defendant went on that it filed its pleadings but did not call any witness to establish the facts pleaded. That the position of law is: that notwithstanding, a party who did not lead evidence is at liberty to rely on evidence led by other parties in the case which support its case. Furthermore, a party is entitled to lead evidence through his own witness or extract evidence under cross-examination in line with his pleading from the adverse party’s witness, referring to Bamgboye v. Paye[1991] 4 NWLR (Pt. 184) 132. Furthermore, that evidence elicited during cross-examination is as valid and authentic as evidence given during examination-in-chief. Consequently, evidence elicited under cross-examination is admissible provided it is relevant to the fact in issue, citingGaji v. Paye [2003] 8 NWLR (Pt. 823) 583.

The 7th defendant proceeded to consider the evidence given by the claimants’ witnesses which supports its case. That in the testimony of the CW1, he said: “No, I am not a staff of FAAN. No, I was never a staff of FAAN. I was a staff of NIMET, but I have retired. No, I do not have any letter from FAAN giving me a house. The offer I have is from NIMET”. To the 7th defendant, the evidence of CW1 is not relevant for the determination of the case against the 7th defendant:CW1 is not a staff of the 7th defendant;he is not occupying the 7th defendant quarters and neither did the 7th defendant make an offer to him for the purchase of its quarters. So, his evidence cannot be used as proof against the 7th defendant. As for CW2, that in his evidence he testified under cross examination thus: “No I am not a staff of FAAN. No, I was never a staff of FAAN. I was a staff of NIMET, but I have retired. No, I do not have any letter from FAAN giving me a house. The offer I have is from NIMET”.That CW2’s testimony suffers the same fate as that of CW1:he is neither a staff of the 7th defendant nor is he occupying the 7th defendant’s quarters;he was also not offered the 7th defendant’s quarters for purchase nor did he obtain expression form for the purchase of the 7th defendant quarters. That his evidence is also not relevant.

That the only relevant evidence as it relates to the 7th defendant is the evidence of CW3 who is an ex-staff of the 7th defendant. That in her testimony, she testified thus: “I am not a member of the Implementation Committee. FAAN did not and have not given me letter of offer. That is what I am waiting for and why I am in court”. That CW3 went further in her testimony to say:“Monetization accordingly met me while still in service. Monetization was later added to my contract of employment. FAAN is still deducting rent from my pension at 200%. Because of this deduction, my pension presently is nil”. That from the first leg of her testimony, she confirmed that she was not offered the quarters for purchase by the 7th defendant. That this means that there was no offer and acceptance from both parties and, therefore, there is no enforceable contract between them. Again, that the 3rd defendant (sic) never obtained expression of interest form. The 7th defendant could not have offered the quarters to her or any other person when they have not obtained their expression of interest form in respect of the 7th defendant’s quarters. That CW3 also alleges that the 7th defendant is deducting rent from her pension. It is the 7th defendant’s submission that that is a different kettle of fish. One, she is no longer staff of the 7th defendant and as such she cannot be staying in the quarters for free as it is not part of her retirement benefit. Even as a staff, rent is deducted from the staff salary. The 7th defendant went on that CW3 alleged that the Monetization Policy was later added to her contract of employment but she failed to show how the monetization policy was added to her conditions of employment. She did not produce any evidence or instrument to establish this assertion. That the Court cannot infer the existence of this fact as it would amount to the Court speculating. That from the forgoing, even though the 7th defendant did not lead evidence, the claimants have failed to discharged the burden of prove expected of them.

The claimants had argued that the policy having been implemented in other Federal Government establishments, that it is discriminatory to deny them the benefit and as such offend section 42(1) of the 1999 Constitution. To the 7th defendant, contrary to this submission, it was never implemented in all the Federal Government establishments. That by virtue of the Public Notice No.1, quarters in public institutions were exempted from the application of this policy. This included the 5th – 7th defendants’ quarters. In any event, that the claimants can only talk about discrimination if the policy is implemented by the 5th – 7th defendants in favour of some of their staff and denied the claimants the enjoyment of the policy; that is not the case here as it was never implemented at all.What is more, that the properties fall within those exempted by the Federal Government from the application or implementation of the policy. The Government by virtue of Official Gazette No 82 Vol. 92 of 15th August 2005, paragraph 1 of the Public Notice No.1 listed the properties within the public institution that are exempted from the policy. Initially, these properties, the subject matter of this case, were not listed in the Public Notice No. 1 but after further review and due consideration of the security implications and the importance of the quarters to the operation of the 5th – 7th defendants, the 4th defendant issued a Notice, Exhibit OEE1, exempting the property from the application of the policy.

Furthermore, that CW1 tendered Exhibit C10 which he generated from the internet to show that the property does not constitute a threat. That aside from the fact that the document was generated by a person interested when the action was pending before this Court which rendered the document inadmissible by virtue of section 83(3) of the Evidence Act, the document is also not relevant as it did not explain anything aside from showing the proximity of the property to the airport. It is the 7th defendant’s submission that it is not useful for the just determination of the suit. Accordingly, that the property having been exempted from the policy, the issue of the defendants not selling or the right of first refusal is of no moment as the 7th defendant cannot be compelled to give what it does not have, citingAdzama & anor v. Adamu&ors[2014] LPELR-24363 (CA). That it is also important to note that the claimants never sought to review the decision of the Committee to add the quarters to the property exempted from the application of the monetization policy but they are insisting that they are entitled to the right of purchase of the property.

The claimants had also argued that Exhibit OEE1 is not admissible as it was procured by person interested when the action was pending in court. To the 7th defendant, it is the law that where a document was procured by person interested when an action in court is pending or anticipated, the document is not admissible. However, that there is an exception to this principle of law i.e. where a document was executed by Government official or where the interest of the maker is purely official or as a servant without a direct interest of a personal nature, or in the normal course of duty, the document is admissible even though the document was made when the action was pending in court, citingOlomo v. Ape [2013] LPELR-22327(CA). That Exhibit OEE1 was made in the course of implementing the policy by a person duty bound to make same. The document was not made by 5th – 7th defendants. The document was tendered by the 5th defendant. It, therefore, follows that the document is admissible and the Court should consider same. More so, the document was made before the commencement of this action. That the Court will see that the Notice, Exhibit OEE1 was made on 29th April 2013, whereas this suit was commenced on 2nd December 2013.

The claimantshad further argued that having collected from them expression of interest form and taken further steps, they are vested with interest in the quarters i.e. the subject matter of this case. To the 7th defendant, that may be true but subject to the implementation of the policy. That until the policy is implemented the alleged vested right remains inchoate. That in the event that this Court disagrees with it, the policy is not even applicable to the 7th defendant as none of the claimants or any person at all collected expression of interest form as regards to the 7th defendant’s quarters. No person has taken any step as regard to the 7th defendant, urging the Court to disregard the claimants’ submission.

The claimants yet argued that the defendants’ conduct would amount to approbating and reprobating which is not allowed in law and, therefore, they are estopped from doing so. To the 7th defendant, this argument does not avail the claimants in the circumstances of this case and the cases cited are not applicable. That this is a government policy. As a government policy, it can be changed or varied at any time before its implementation or during the implementation based on the exigency.

Additionally, the claimants had argued that the defendants are bound by estoppel by conduct, having offered the quarters to the claimants and they have taken steps by purchasing expression of interest form and while one of them have made payment. To the 7th defendant, this argument is not applicable to the 7th defendant. No person has obtained expression of interest form neither did it offer to anybody let alone talking of making payment. More so, this is government policy that can be rescinded at any time before its implementation or during its implementation; and Government cannot be compelled to implement its policy where the implementation is not practicable. The 7th defendant concluded by urging the Court to dismiss the claimants’ claims for lack of merit and with costs.

THE CLAIMANTS’ REPLY ON POINTS OF LAW

The claimants responded to the respective submissions of the all the defendants in one reply on points of law although the reply was structured according to each written address of the respective defendants.

Response to the Written Address of the 1st to 5th Defendants

To the claimants, it is self-evident from the provision of paragraph 4 of the Public Notice No. 1, approved guidelines for the sale of federal government houses, quoted in the address of this set of defendants that the staff quarters of the 5th to 7th defendants were not exempted under the monetization policy. Their quarters are not mentioned under that provision and are as such deemed not covered. The principle is well settled in the canons of interpretation that express mentioning of one thing leads to the exclusion of others not so mentioned, as given expression in the Latin maxim of expressio unius est exclusio alterius, citingUdoh v. OHMB [1993] 7 NWLR (Pt. 304) 139 at 148. That contrary to the postulation of this set of defendants, paragraph 4(m) of the said Notice mentions institutional residences within named places.The point remains indubitable that the quarters involved in this case are not within the airport premises but in public places, as could be seen from the undisputed and unchallenged evidence in this case. Thus, that the claim that the quarters in this case were exempted in the Notice is sheer wishful thinking on the part of the defendants.

That Exhibit C8 referred to cannot avail the 6th defendant or any of the defendants for that matter. This is so because having admitted that the Federal Government issued the Gazette hitherto setting out exempted residences, the defendants ought to have shown another Gazette and not mere letter extending the frontiers of the exempted residences to cover those of the 5th to 7th defendants herein. This is aside, that the fact that the letters cannot enjoy any probative value in this case as pointed out in the claimants’ address for the reason that they were made pendens litis.

As regards the contention that the claimants are not entitled to succeed on their claims because monetization policy was not part of their contracts of employment, that the reality on ground is that the monetization policy came into being when the claimants were still in service and as such they could not have been denied the benefits of the policy when other public servants were benefiting therefrom, without any evidence in this case that the policy was part of their contracts of employment.

With respect to the issue of jurisdiction raised in the 6th defendant’s address, it is the claimants’ submission that the same is without merit. That the instant action raises a reasonable cause of action and is well within the province of the jurisdiction of this Court as donated by section 254C of the 1999 Constitution. The claimants then urged the Court to resolve the sole issue formulated in the written address of the 1st to 5th defendants against them.

Response to the Written Address of the 6th Defendant

To the claimants, a reading of the address of the 6th defendant will show that the submissions therein are by and large a rehash of the arguments in the addresses of the two other sets of defendants i.e. the 1st to 5th and 7th defendants. The claimants accordingly simply adoptedtheir submissions in response to the address of the 1st to 5th defendants and those below in response to the address of the 7th defendant in response to the three issues formulated and the submissions canvassed therefor in the 6th defendant’s address.

Response to the Written Address of the 7th Defendant

To the claimants, the issue of jurisdiction raised by the 7th defendant is improper, belated, misplaced and liable to be dismissed peremptorily. To start with, the 7th defendant was expected to have raised this issue in her statement of defence for the Court to take cognizance of it, citing Order 30 Rule 8(1) of the NICN Civil Procedure Rules 2017. That by virtue of this rule, it is forbidden for a defendant to spring surprise on the claimant. That what the 7th defendant has attempted to do here is to spring a surprise on the claimants and this should not be allowed in the interest of justice. That even though it is conceded that issue of jurisdiction can be raised at any stage, the fact remains that relevant facts to ground the issue of jurisdiction must be raised in the pleadings so as to prevent a surprise from being sprung on the adversary. That the golden rule is not to surprise the adversary, urging the Court to discountenance the issue of jurisdiction raised in the address of the 7th defendant, citing Oyebamiji v. Lawanson[2008] 15 NWLR (Pt. 1109) 122 at 133 and 137.

On another note, the claimants pointed out that all the defendants in this matter raised preliminary objections to the hearing of this suit by this Court; and all the preliminary objections were dismissed by his Lordship, the President of this Court, Hon. Justice B.A. Adejumo, OFR vide a ruling delivered on 8th October 2014. The claimants conceded that the specific issues raised in the final address of the 7th defendant were not directly canvassed in the objections, but that the fact remains that the 7th defendant is not allowed in law to raise objections piecemeal. That having raised the issue of jurisdiction once, it is estopped from revisiting this issue before this Court, citing Ijale v. Leventis[1965] All NLR 182 at 186-187,Oloriegbe v. Omotesho[1993] 1 SCNJ 30 at 40 and Owodunni v. Registered Trustees CCC[2008] All FWLR (Pt. 421) 824 at 847-848 to the effect that a party is not allowed to litigate piecemeal. That remarkably, what the 7th defendant is indirectly asking the Court is to overrule the previous decision of the this Court, coram the President that had ruled that the Court has the jurisdiction to entertain this suit. That it is elementary that a court of coordinate jurisdiction cannot overrule another decision of another court of coordinate jurisdiction, citing Agwu v. Julius berger (Nig.) Plc [2012] All FWLR (Pt. 653) 1852 at 1893. Therefore, that the issue of jurisdiction as raised constitutes a gross abuse of court process, citing Owodunni v. Registered Trustees CCC (supra) at 847-848.

Viewed from yet another perspective, that from Exhibit C13 the 2nd claimant had before the filing of the present suit instituted an action in respect of the subject matter of the present suit before the Federal High Court; andthat action had to be withdrawn sequel to the objection of the 6th defendant that the proper court to try the action was this Court. That this explains why the issue of section254C of the 1999 Constitutionnow raised in the final address of the 7th defendant was not canvassed by any of the defendants at the stage of preliminary objection. The claimants then urged the Court to discountenance the issue of jurisdiction raised.

Taken on their merits, however, the claimants submitted that the submissions of the learned counsel to the 7th defendant are misconceived and without substance, responding to the issues under the four heads formulated by the 7th defendant.

That the suit is premature and unripe for adjudication because the condition precedent to activate the cause of action has not arisen. The claimants can only be entitled to the rightof first purchase or lease of their residential quarters if and only if the 7th defendant wants to sell or lease out the properties. To the claimants, this contention has no basis in this suit having not been premised on the pleadings of the 7th defendant. Put succinctly, it is not the case formulated in the pleadings of any of the defendants that the claimants are not entitled to lay claim to their quarters until the 7th defendant wants to sell the quarters. It is settled that a party must be consistent with its case and cannot make one case in the pleadings and a different case in the final address, citingAjide v. Kelani [1985] 2 NSCC (V16) 1298 at 1318. The arguments of the 7th defendant under this head largely border on the merits of the suit. Whether the claimants are entitled to succeed or otherwise in respect of their claims is not relevant in the determination of the issue of cause of action, citing Henry Stephens Eng. Ltd v. S. A. Yakubu (Nig.) Ltd[2009] 5-6 SC (Pt. I) 60 at 71-72 and Dada & ors v. Ogunsanya & anor[1992] 4 SC (Pt. II) 134 at 150. The 7th defendant’s position does not have support in the evidence in this case considering the fact that the decision to lease or sell government residential quarters under the monetization policy was made by the Federal Government and not the 7th defendant. It is also not in dispute that the Committee of the 4th defendant was the one put in place by the Federal Government to implement the monetization policy and not the 7th defendant.
That this matter is not in any way related to employment or labour issue and that the claimants’ reliefs clearly show that they relate to declaration of right to sale or conferment of title of the claimants’residential quarters…and that it is only the High Court of a State that has the requisite jurisdiction to handle matters relating to declaration of title. To the claimants, contrary to the posit of the 7th defendant, the claims in this case relate to employment and/or labour issue. This is so because all the claimants are retired public servants and the claims are upshots of their employments with the Federal Government. The crux of the case of the claimants is that they have acquired vested interests in their quarters by reason of the monetization policy that was introduced by the Federal Government when they were still in service as staff of the 5th – 7th dThere is no truth whatsoever in the impression sought to be given by the 7th defendant that the claims have to do with declaration of right to sale or conferment of title to land simpliciter. The claims made in respect of properties by the claimants in this case arose from their employment in the public service of the Federation. Without much ado, the claims in this case squarely fall within the ambit of section 254C(1)(a), (d) and (k) of the 1999 Constitution.
That the claimants are seeking declaration or injunction by challenging the validity of an executive or administrative action or decision of agencies of the Federal Government of Nigeria and by virtue of section 251(1)(r) exclusive jurisdiction is vested in the Federal High Court. To the claimants, by similar token, the submissions of the 7th defendant under this head are misconceived and lacking in merit. Section 251 of the 1999 Constitution is subject to the overriding provisions of section 254C of the same Constitution. Therefore, the jurisdiction of this Court is not excluded by the provision of section 251 of the Constitution on declarations or injunctions dealing with issues covered by section 254C(1) of the Constitution.The judicial authorities cited by the 7th defendant under this head are just not apposite. This Court doubtless has jurisdiction in respect of Federal Government agencies once the issues involved come within the ambit of section 254C of the Constitution, as the case is in the instant suit. Ayeni v. University of Ilorinreferred to by the 7th defendant to the effect that every cause of action against the Federal Government or its agency irrespective of its nature shall be heard and determined in the Federal High Court was given in 2002 before the introduction of section 254C in 2010.
That the claimants have not disclosed any legal right that can be protected by this Court; that the claimants’ claim is that by virtue of the monetization policy of the Federal Government they are entitled to the right of first refusal of their staff quarters upon their retirement and that what the claimants are relying on as source of their right is an Executive Policy.To the claimants, the submissions of the 7th defendant under this head also have to do with the substance or merit of the case. Again, this has nothing to do with the issue of jurisdiction, citingHenry Stephens Eng. Ltd v. S. A. Yakubu (Nig.) Ltd andDada &ors v. Ogunsanya &anor(all supra). At any event, the submissions of the 7th defendant under this head are defeated by the first two lines of paragraph 6.47 of its same address. According to the 7th defendant:“Government policy will only create an enforceable right when it is implemented and until it is implemented, it is not enforceable”.This quoted submission of the 7th defendant renders the entire submissions in paragraphs 6.45-6.53 of the 7th defendant’s address nugatory. This is so because there is undisputed evidence in this case that a colleague of the claimant has actually been issued with the Certificate of Occupancy in respect of her own quarters. That simply confirms that the monetization policy was implemented and stridently sounds the death knell of all submissions made by the 7th defendant under this head.

On the 7th defendant’s issue (2), the claimants submitted that the 7th defendant has not put before this Court a separate set of evidence to challenge that of the claimants in this case.That the import of this position is that the case of the claimants especially vis-a-vis the 7th defendant is unchallenged and the claimants are, ipso facto, entitled to succeed on minimal proof, citingNzeribe v. Dave (Eng.) Co. Ltd[1994] 8 NWLR (Pt. 361) 124 SC at 137 and 148. There is nothing in the evidence led by the claimants that supports the case of the 7th defendant.

The claimants went on that the contention that the monetization policy did not form part of the claimants’ contract of employment is of no moment in this case. There is undisputed evidence that the Federal Government introduced the monetization policy and put up the Committee of the 4th defendant to implement the policy. It is not in dispute as well that monies were collected from some of the claimants in the implementation of the policy just as it is not in dispute that other public servants enjoyed the benefits of the monetization policy even when there is no evidence that the policy formed part of the contracts of employment of such other public servants. The claimants urged the Court to note the following submissions of the 7th defendant:“In any event, the Claimants can only talk about discrimination if the policy is implemented by the 5th – 7th defendants in favour of some of their staff and denied the Claimants the enforcement of the Policy”. That it is on record in this case that the 4th defendant’s Committee collected the requisite fees as expression of intent to purchase their quarters from the staff of 5th and 6th defendants pursuant to the monetization policy, referring to Exhibits C3-C3E and C6. Similarly, that it is on record that the staff of the 5th defendant epitomised by the 1st claimant were subsequently made to effect full payment in respect of their quarters by the said Committee of the 4th defendant, referring to Exhibit C3D. Therefore, the monetization policy was implemented in favour of the staff of the 5th and 6th defendants. So, by the admission of the 7th defendant, the staff of the 7th defendant can justifiably complain of discrimination in this case.

What follows as the other submissions of the claimants in response to the address of the 7th defendant is merely a rehash of their earlier submissions, or at best an attempt to bring in points earlier forgotten or meant to improve on the quality of earlier arguments or to repair/correct/put right errors or lacuna in the initial brief of argument.

COURT’S DECISION

After due consideration of the processes and submissions of the parties, I start off with the claimants’ reply on points of law. A reply on points of law is meant to be just what it is, a reply on points of law. It should be limited to answering only new points arising from the opposing brief. It is not meant for the party replying on points of law to reargue its case or bring in points it forgot to advance when it filed its final written address. It is not a form to engage in arguments at large. Alternatively put, a reply on points of law is not meant to improve on the quality of a written address; a reply brief is not a repair kit to correct or put right an error or lacuna in the initial brief of argument. See Dr Augustine N. Mozie & ors v. Chike Mbamalu [2006] 12 SCM (Pt. I) 306; [2006] 27 NSCQR 425, Basinco Motors Limited v. Woermann Line & anor [2009] 13 NWLR (Pt. 1157) 149; [2009] 8 SCM 103, Ecobank (Nig) Ltd v. Anchorage Leisures Ltd & ors [2016] LPELR-40220(CA), UBA Plc v. Ubokolo [2009] LPELR-8923(CA), Musaconi Ltd v. Aspinall [2013] LPELR-20745(SC), Ojo v. Okitipupa Oil Palm Plc [2001] 9 NWLR (Pt. 719) 679 at 693, Ogboru v. Ibori [2005] 13 NWLR (Pt. 942) 319 and Cameroon Airlines v. Mike Otutuizu [2005] 9 NWLR (Pt. 929) 202. The effect of non compliance is that the Court will discountenance such a reply brief. See Onuaguluchi v. Ndu [2000] 11 NWLR (Pt. 590) 204, ACB Ltd v. Apugo [1995] 6 NWLR (Pt. 399) 65 and Arulogun & ors v. Aboloyinjo & anor [2018] LPELR-44076(CA). The part of the claimants’ reply on points of law that I indicated are a rehash of earlier arguments or attempts at bringing in points forgotten, etc shall accordingly be discountenanced for purposes of this judgment. I so hold.

The 7th defendant raised the issue of jurisdiction arguing that this Court lacks jurisdiction to hear this case as it is not an employment issue. I must state, and here I agree with the claimants, that once a matter comes within the purview of section 254C(1) of the 1999 Constitution, section 251 of same Constitution is subordinated. This is because section 254C(1) of the 1999 Constitution bestows on this Court exclusive jurisdiction over ALL and ANY labour/employment matter and matters connected with or incidental thereto. See Coca-Cola Nigeria Limited & ors v. Mrs Titilayo Akisanya [2013] 18 NWLR (Pt. 1386) 255; [2013] 1 ACELR 28; [2013] 36 NLLR (Pt. 109) 338 CA; affirmed by the Supreme Court in [2017] 17 NWLR (Pt. 1593) 75. Before addressing the specific issue whether or not this Court has jurisdiction over the case at hand, I need to clarify certain submissions made by the claimants.

In opposing the objection raised as to jurisdiction by the 7th defendant, the claimants had relied on Order 30 Rule 8(1) of the NICN Civil Procedure Rules 2017, arguing that it is forbidden for a defendant to spring surprise on them, which should not be allowed in the interest of justice. I do not know how the raising of the issue of jurisdiction by the 7th defendant is springing a surprise on the claimants when they have the opportunity to react to the submission of the 7th defendant in that regard.The claimants themselves conceded that the issue of jurisdiction can be raised at any stage, though they went on to submit that the point remains that relevant facts to ground the issue of jurisdiction must be raised in the pleadings so as to prevent a surprise from being sprung on the adversary. The 7th defendant raised the issue of jurisdiction as a question of law, and so I do not see what facts the claimants wanted to be first in the pleadings aside from what is already in the pleadings. Order 30 Rule 8(1) of the NICN Rules 2017 talks of “all grounds of defence or reply which makes an action unmaintainable or which if not raised will take the opposite party by surprise or will raise issues of facts not arising out of the pleadings shall be specifically pleaded”. This provision has nothing to do with questions of law where their determination depends on the pleadings of the claimant himself. In Rule 8(2), the Rules go on to enumerate the kind of facts needed to be pleaded upon which a defence may depend; even here, they relate to grounds that make a transaction void or voidable including matters as to limitation law, release, payment, performance and facts showing insufficiency in the contract of employment or illegality. In any event, Nasir v. Civil Service Comm. & ors [2010] 2 SCM 105 at 123 held thus:

In this regard, it is now firmly settled that issue of jurisdiction or competence of a court to entertain or deal with a matter before it, is very fundamental. It is a point of law and therefore, a Rule of court, cannot dictate when and how, such point of law can be raised. Being fundamental and a threshold issue of jurisdiction, it can be raised at any stage of the proceedings in any court including this court (the emphasis is this Court’s).

The argument of the claimants on Order 30 Rule 8(1) accordingly goes to no issue and so is hereby discountenanced.

The claimants also pointed out and thereby argued that all the defendants in this matter raised preliminary objections to the hearing of this suit by this Court; and all the preliminary objections were dismissed by his Lordship, the President of this Court, Hon. Justice B.A. Adejumo, OFR vide a ruling delivered on 8th October 2014. The claimants would, however, concede that the specific issues raised in the final address of the 7th defendant were not directly canvassed in the objections, but that the fact remains that the 7th defendant is not allowed in law to raise objections piecemeal. That having raised the issue of jurisdiction once, it is estopped from revisiting this issue before this Court, citing Ijale v. Leventis[1965] All NLR 182 at 186-187,Oloriegbe v. Omotesho[1993] 1 SCNJ 30 at 40 and Owodunni v. Registered Trustees CCC[2008] All FWLR (Pt. 421) 824 at 847-848 to the effect that a party is not allowed to litigate piecemeal.That what the 7th defendant is indirectly asking the Court is to overrule the previous decision of the this Court, coram the President that had ruled that the Court has the jurisdiction to entertain this suit. Even from the case law authorities relied on by the claimants, it can be seen that they bear no relevance to the question whether a preliminary objection on a different ground cannot be raised simply because a preliminary objection on another ground had been raised and ruled upon. The cases the claimants cited talk of the rule being that a party is not allowed to litigate piecemeal. On the specific issue whether a second preliminary objection can be raised but on a different ground, Ibrahim v. JSC, Kaduna State & ors [1998] 14 NWLR (Pt. 584) 1; [1998] 12 SC 20 answered in the affirmative as the very issue amongst others as to whether a public office or institution itself is a person for purposes of the public officers protection law came about because of a second objection that was raised subsequent to another already considered and ruled on. Once again, I do not agree with the claimants on this score and so their argument here goes to no issue and so is hereby discountenanced. The 7th defendant is accordingly right in raising the objection it did since the ground of the objection was not previously raised and decided. I so hold.

I now move on to the merit of the objection of the 7th defendant. I indicated earlier that section 254C(1) of the 1999 Constitution bestows on this Court exclusive jurisdiction over ALL and ANY labour/employment matter and matters connected with or incidental thereto. On a preliminary basis, I need to state two things. First, in labour relations, labour rights inure at three levels: pre-employment rights i.e. those rights that arise prior to the start of an employment e.g. rights inuring to job applicants; employment rights i.e. rights arising during the pendency of an employment; and post-employment rights i.e. rights inuring at the end of the employment such as pension rights. See Mr Ahmed Ishola Akande v. Lilygate Nigeria Ltd (The Lilygate) unreported Suit No. NICN/LA/209/2016, the judgment of which was delivered on 16th November 2017 and Kefre Ekpo Inyang v. Alphabeta Consulting LLP unreported Suit No. NICN/LA/550/2016, the judgment of which was delivered on 4th June 2018. Second, in the main, it is an instrument (a law, circular or collective agreement) that confers entitlements in labour relations. See Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39, Otunba Gabriel Oladipo Abijo v. Promasidor (Nigeria) Limited unreported Suit No. NICN/LA/602/2014 the ruling of which was delivered on 17th January 2016, Senior Staff Association of University Teaching Hospitals, Research Institutions and Associated Institutions (SSAUTHRIAI) and ors v. Federal Ministry of Health and anor, unreported Suit No. NIC/12/2000 the judgment of which was delivered on 30th March 2006, Senior Staff Association of Nigerian Universities v. Federal Government of Nigeria unreported Suit No. NIC/8/2004 the judgment of which was delivered on 8th May 2007, Ondo State Government v. National Association of Nigeria Nurses and Midwives and anor unreported Suit No. NIC/1/2007 delivered on July 4, 2007 and Oyo State v. Alhaji Apapa & ors [2008] 11 NLLR (Pt. 29) 284. The claimants in this case are claiming as per the monetization policy that inured to them in virtue of their respective employment even now that they are retirees. Whether or not they have proved their entitlement is not a relevant consideration at this level. It is enough that they are claiming in virtue of their employment contracts with the respective organs of the Federal Government. In determining jurisdiction, this is all that matters. Section 254C(1) of the 1999 Constitution is quite clear that this Court has jurisdiction over civil causes and matters “relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith”. This provision is broad enough to cover the instant case: the claimants claim in virtue of their employment; what they claim relates to their workplace, their welfare. Even if all of this fails, it is not in doubt that what they claim is incidental to or connected with their employment. For this reason, I am not in doubt whatsoever that the instant case comes within the remit of this Court; and the Court has the jurisdiction to hear and determine it. I so find and hold.

Referring to section 83(3) of the Evidence Act 2011 andNigeria Union of Railway Workers & ors v. Nigeria Railway Corporation & ors, the claimants urged the Court to discountenance and hence treat as wrongly admitted Exhibits C8, SFD1, OEE1, OEE2 and OEE3 on the ground that they are documents in which a request for exemption was made during the pendency of the suit and to serve personal interest of the defendants; as such, the request for exemption was made to overreach the claimants’ action. The claimants made a distinction here. Exhibit C8 is same with Exhibit SFD1 and Exhibit OEE3; and are all dated 29th April 2013 and titled, “SITUATION REPORT ON THE FEDERAL GOVERNMENT PROPERTIES AROUND THE AIRPORT IN LAGOS IN THE CUSTODY OF THE MINISTRY OF AVIATION”. To the claimants, they were written in the course of sister cases to this case i.e. Suit Nos. FHC/ITKJ/15/90/2012 and FHC/L/08/1035/12, the processes of which were admitted in evidence and marked as Exhibit C13. For Exhibits OEE1 and OEE2, they were made during the pendency of the instant suit. The application of section 83(3) of the Evidence Act 2011 has not been held to be absolute by the courts. It is the claimants’ case that because Exhibit C8/SFD1/OEE3 have the handwritten words at the bottom i.e. “This will be used in the on going cases against the Agency. Pls inform counsel”, this is sufficient personal interest to make section 83(3) of the Evidence Act 2011 applicable to justify the disregard of the said exhibits.

The yardstick for its application has thus been laid down in a number of case law authorities. Section 83(3) provides thus: “Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish”. In Nigeria Social Insurance Trust v. Klifco Nigeria Ltd [2010] LPELR-2006(SC), His Lordship Chukwuma-Eneh,JSCheld as follows:

The nature of the disqualifying interest will depend upon the nature of duty undertaken by the servant. Where from the nature of the duty he can be relied upon to speak the truth and that he will not be adversely affected thereby, the document has always been admitted in evidence. This is because the rationale of the provision is that he must be a person who has no temptation to depart front the truth on one side or the other – a person not swayed by personal interest, but completely detached judicial, impartial, independent.

Similarly, in the case of UTC (Nig.) Plc v. Lawal[2013] LPELR-23002(SC), the Supreme Court per Ariwoola, JSC held as follows:

…the interest that is envisaged by the law which disqualifies is a personal interest not merely interest in an official capacity…It does not mean an interest in the sense of intellectual observation or an interest purely due to sympathy. It means an interest in the legal sense, which imports something to be gained or lost.

By these authorities, a distinction is made by the Supreme Court between personal and official interest. Where the interest is official, an exhibit would be admitted even if made during the pendency of a case. Other than the interest of justice, the defendants have no personal interest shown to this Court to warrant the conclusion that Exhibits C8, SFD1, OEE1, OEE2 and OEE3 were wrongly admitted. Their interest is merely official. Do the defendants have the temptation to depart from the truth? The answer is in the negative. I hold, therefore, that Exhibits C8, SFD1, OEE1, OEE2 and OEE3 were not wrongly admitted. Exhibit C8/SFD1/OEE3 was actually made on 29th April 2013, whereas this suit was commenced on 2nd December 2013; as such, it could not have been made for purposes of the instant suit. The claimants’ argument that it was made for purposes of other sister suits assumes that the said suits are same with the instant suit. That is not correct, and so cannot render inadmissible the said exhibit. I so hold. Exhibits C8, SFD1, OEE1, OEE2 and OEE3 shall accordingly remain admitted and be used for purposes of this suit. I so hold.

I now proceed to the merit of the claimants’ case. In Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39, this Court held thus:

Now 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.

And by Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47, a claim is circumscribed by the reliefs claimed; andthe duty of a claimant, therefore, is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. Now, a look at all the reliefs (four in all) claimed by the claimants will show that they are hinged on the monetization policy, reliefs (i) and (ii) of which are for declarations. The case of the claimants is that they have acquired vested rights in respect of the quarters that are the subject matter of this action vis-a-vis the monetization policy of the Federal Government. In other words, their claim is hinged on the monetization policy. The claimants acknowledge that the monetization policy was established in 2003; and that it hasconditionalities, the examples of which are expression of interest and payment of fees. To the 1st to 5th defendants, it is agreed between parties that the Federal Government of Nigeria in 2003 introduced the Monetization Policy. But where is the instrument called (or that established) the Monetization Policy itself i.e. the 2003 instrument? The claimants did not frontload this instrument. So how can the Court ascertain the ambit of this policy and its conditionalities?

This was the same problem this Court had in Mr. Peter O. Igene& 2 ors v. Nigerian Civil Aviation Authority& anor unreported Suit No. NICN/LA/527/2014, the judgment of which was delivered on 30th October 2018, essentially for which the claimants were held not to have proved their case. In Peter Igene, this Court held thus at paragraphs 36 and 39:
…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.

………………………………………………..

… 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.

So, like in Peter Igene, in not frontloading the instrument that gave birth to the monetization policy, it is just not possible determining the nature of the rights that the claimants are claiming as per that policy. For what it may be worth, I reiterate the reliefs of the claimants. Relief (i): “A declaration that the claimants are entitled to the right of first purchase or lease of the residential quarters occupied by them…by virtue of the Federal Government Monetization Policy”. Relief (ii): “A declaration that the claimants have acquired vested rights under the monetization policy…” Relief (iii): “An order mandating the defendants to perfect the transfer of the residential quarters in question to the claimants…in consonance with the monetization policy of the Federal Government”. Relief (iv): “An order of perpetual injunction restraining the defendants…from evicting the plaintiffs/claimants from the residential quarters or in any way adversely affecting their occupation of the said quarters in negation of the monetization policy of the Federal Government”. The rights of the claimants from these reliefs are said to inure to them in virtue of the monetization policy. Yet this policy is not before the Court.

Reliefs (i) and (ii) are the declaratory reliefs sought for upon which the orders in reliefs (iii) and (iv) are hinged. The law, which the claimants acknowledged, is 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 key to unlocking the rights of the claimants is the monetization policy itself, which like I indicated is not before the Court. Dmez Nig Ltd v. Nwakhaba & 3 ors [2008] 2 SC (Pt. III) 142 at 152 paras 10 to 25, relying on Bello v. Eweka [1981] 1 SC 101 and Motunwase v. Sorungbe [1988] 12 SC 1, throws more light in insisting that the claimant praying for a declaratory relief proves his case on his own evidence and not the evidence of the defendant. The monetization policy is not before the Court; as such, the claimants cannot establish any entitlement as per the policy. I so find and hold.

Aside from all of this, the case of the defendants is that paragraph 4(m) of Public Notice No. 1, Approved Guidelines for the Sale of Federal Government Houses in the FCT to Career Public servants, Federal Capital Territory Act Cap F6 LFN 2004, Official Gazette No. 82, Vol. 92 of 15th August 2005 (Public Notice No. 1) exempts “Institutional residences within schools, hospitals, power plants, dams and universities, etc” from the monetization policy. It has to be noted that the use of “etc” in paragraphs 4(m) and the definition of “institution” and hence “institutional” means that the houses of the defendants are covered by the exemption under paragraph 4(m). In this sense, I agree with the defendants that the word “institution” is not to be restricted to just the institutions listed in paragraph 4(m) but extended to other governmental institutions since the word institutional as an adjective connotes “of, in, or like an institution”.

It is because the Federal Government treated the houses of the defendants as institutional houses that resulted in them being exempted from or taken out of the application of the monetization policy. This decision was not just taken lightly. It was the product of intense consideration given that it involved a reconsideration of the decision of the Federal Executive Council (FEC) in terms of the monetization policy itself. Parties on both sides of the divide have laid appropriate complaints: the claimants against eviction, the defendants to brand the houses as institutional houses that have security implications. The reaction of the 4th defendant to all of this can be seen in Exhibit C7(a) dated 13th September 2012, which is a letter from the said 4th defendant to 7th defendant. In paragraph 3, it states: “In this regard, I implore you to please tarry a while, pending when a concrete decision will be taken on the Federal Government properties in the custody of the Ministry of Aviation as anything to the contrary may be seen as a total disregard to the FEC directive on the lease exercise”. So as at 2012, the 7th defendant was asked to tarry a while before a concrete decision is taken. That concrete decision came vide Exhibit C8/SFD1/OEE3 dated 29th April 2013, written by the 4th defendant to the 2nd defendant who has supervisory control over all the Agencies in the aviation sector. Exhibit C8/SFD1/OEE3 in paragraph 2 states: “You are to please, note that having established the fact leasing the properties around the Airport in Lagos that are in the custody of the Ministry of Aviation can constitute serious Security threat, it has been resolved that the houses should be treated as institutional properties”. All of this occurred before the claimants filed the instant suit; and certainly was not a decision taken because of personal interest as the claimants would want this Court to believe. I am accordingly satisfied that the houses in issue, assuming the claimants correctly placed all the necessary documents before the Court in making their claims, come within the class of institutional houses and so are exempted from the application of the monetization policy. I so find and hold. This being so, the claimants’ case fails and so is hereby dismissed.