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THE HIGH COURT OF JUSTICE OF THE
FEDERAL CAPITAL TERRITORY ABUJA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT APO - ABUJA
BEFORE: HON. JUSTICE O.C. AGBAZA
COURT CLERKS: UKONU KALU & GODSPOWER
COURT NO: 23
SUIT NO: FCT/HC/GWD/CV /14/2007
BETWEEN:
MR M.C. CHIME………….…..………………………….……..….APPLICANT
AND
MINISTER OF FCT & 1OR.……………….…….…………….DEFENDANTS
JUDGMENT
The Plaintiff commenced this suit by writ of summons filed on 3/10/2007. The pleadings
of the parties are:(1)
The Plaintiff Amended Statement of Claim filed on 12/5/2009.
(2)
The 1st, 2nd Defendant Statement of Defence dated 10/7/2009.
(3)
Statement of Defence of the 3rd Defendant dated 16/9/2008.
(4)
3rd Defendant counter-claim against the 1st, 2nd Defendant dated 1/3/2010
and filed same day.
The Plaintiff in his Amended Statement of Claim, claims the following reliefs:(i)
A declaration that the property known as a Three Bedroom Bungalow and
situate at Senior Staff Quarters 314 NERDC Qtrs, Kwali – Abuja, Federal
Capital Territory, was validly offered for sale to the Plaintiff by the Defendants
through the Ad-Hoc Committee on the Sale of Federal Government of Nigeria
Houses.
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(ii)
A declaration that the Defendant acted ultra-Vires their powers in purporting
to ‘Withdraw the offer’ given to the Plaintiff in respect of the property known
as Three Bedroom Bungalow and situate at Senior Staff Qtrs 314, NERDC Qtrs,
Kwali – Abuja FCT.
(iii)
An Order of specific performance of contract of sale of the Federal
Government of Nigeria Houses known as a Three Bedroom Bungalow and
situate at Senior Staff Qtrs 314 NERDC Qtrs, Kwali – Abuja FCT.
(iv)
An Order of court directing the Defendants to hand over vacant possession of
the three Bedroom Bungalow situate at Senior Staff Qtrs, 314 NERDC Qtrs,
Kwali – Abuja FCT.
(v)
An order of perpetual injunction restraining the Defendant’s, their agents,
privies, officers and any person however described or any person deriving title
from them, from interfering with or in any way auctioning or in any way
advertising the property known as a Three Bedroom Bungalow and situate at
Senior Staff Qtrs 314, NERDC Qtrs, Kwali – Abuja, FCT for sale or in the
alternative.
(vi)
N10,000,000.00 (Ten Million Niara) general damages for breach of contract
evidenced by the accepted Letter of Offer dated 21/5/2007.
(vii)
Interest on the above sum calculated at the rate of 10% from the date of
judgment until the final liquidation of the judgment sum.
The 3rd Defendant also counter-claimed against the Plaintiff and the 1st, 2nd Defendant as
follows:(1)
A declaration that the claimant duly exercised his right in accepting the
offer made to him as a sitting tenant and has since fully paid for
the
house and therefore entitled to be in continued and permanent
possession of the said 3 Bedroom Flat known as SSQ 314 NERDC, Kwali.
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(2)
A declaration that the Minister of the FCT and FCDA in advertising his house
for Public Bidding in the first place, did not exercise due diligence in putting
out a no-vacant house for sale to the public thereby negligently breaching
the Federal Government Policy on the sale of Federal Government Houses in
FCT.
(3)
A declaration that the action by the Plaintiff in brining this suit against the
claimant is misplaced as there was no property available for sale since the
authorities of the Ministry of FCT and FCDA had no powers to sell what
they did not have. You cannot give what you do not have.
(4)
A declaration that the negligence on the part of the FCDA and the Minister
of FCT has brought untold hardship on the 3rd Defendant/counter claimant,
financially, socially by way of paying litigation fees, cutting short of all
engagements to shuttle to attend court proceedings.
(5)
An order of the court declaring that the 1st, 2nd Defendants had no powers
in the first place, to have put up the property for sale when Federal
Government Guidelines on the sale of Federal Government Houses in FCT
is very clear on the procedure to be adopted.
(6)
A declaration that the counter-claim fulfilled all the requisite requirement
leading to his eventual purchase of the said SSQ 314 Kwali.
(7)
The authorities of the Ministry of FCT and FCDA are hereby put on Notice
to produce and bring to the Hon. Court the Federal Government of Nigeria
policy file wherein are contained all relevant documents, transaction/
communication between the claimant and the FCDA/Minister of
FCT leading to the eventual purchase of SSQ 314, Kwali by the 3rd
Defendant/claimant.
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(8)
An order of perpetual injunction restraining the Plaintiff, FCT Minister, the
FCDA, their privies any person claiming through them from interfering with
the claimant’s peaceful enjoyment of houses which was duly offered to him
and which he duly exercised his right of acceptance.
(9)
The claimant hereby further jointly and severally claim from the Plaintiff,
Minister of FCT/FCDA as follows:(a)
N2,000,000.00 (Two Million Naira) as general damages.
(b)
N500,000.00 (Five hundred thousand Naira) being cost of this
action.
The Plaintiff testified as PW1 and tendered 5 (Five) Exhibits) and called no witness, the
1st, 2nd Defendants called only one witness who testified as DW1 and tendered 1 (one)
Exhibit. The 3rd Defendant testified as DW3 and tendered 8 (eight) Exhibits.
The Plaintiff, M.C. Chime, testified as PW1, and deposed to a 25 Paragraphs statement on
Oath on 3/10/2007. His evidence is that by a letter dated 21/5/2007, he was offer to
purchase a three Bedroom Bungalow situate at Senior Staff Qtrs 314 NERDC Qtrs Kwali –
Abuja, FCT for the sum of N851,500.00 (Eight hundred and fifty one thousand, five
hundred naira) only by the 1st,2nd Defendants. He accepted the offer. That consequent
upon the above offer made payments to the Defendants, but before the expiration of time
limit for the payment of the balance of the property, the Defendant by a letter dated
23/7/2007, Exhibit D, withdrew the offer to them. He testified that a valid contract having
being entered before this letter of 23/7/2007 Exhibit D and having accepted same and
commenced payment, the purported withdrawal of the offer is in total breach of contract
on the part of the 1st, 2nd Defendant, hence this action.
The PW1; tendered the following documents:(i)
The Letter of Offer to Winning Bidder dated 21/5/2007 in favour of one
Mathew Chime Chukwudi by FCDA as Exhibit “B”.
(ii)
The receipt issued by Ad-Hoc Committee on sale of FGN Houses in favour of
Chukwudi Mathew Chime, dated 4/12/2006 and 27/6/2007 as Exhibit C1 –
C2 respectively.
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(iii)
A letter of Withdrawal to Winning Bidder addressed to Chime Chukwudi
Mathew by FCDA dated 23/7/2007 as Exhibit “D”.
(iv)
A letter dated 15/1/2007 tilted “Tie in 7th Auction for the Sale of Nonessential FGN Houses, in Abuja addressed to Chukwudi Mathew Chime, as
Exhibit “E”.
(v)
A letter of protest on the withdrawal of the Winning bid of the Chime
Mathew Chukwudi dated 13/8/2007 addressed to the 1st Defendant as
exhibit “F”.
(vi)
Photocopy of Skye Bank Cheque for N60,000.00 (Sixty thousand naira)
dated 27/11/2006, Photocopy of First Bank Cheque dated 27/11/2006 for
N10,000.00 (Ten Thousand Niara) and Photocopy of Skye Bank Cheque
dated 24/01/2007 for N25,150.00 (Twenty Five thousand one hundred and
fifty naira) all in favour of Ad-Hoc Committee as Exhibit G1 – G3
respectively.
During cross-examination by the counsel for the 1st, 2nd Defendant, the PW1, stated that
the offer was made to him in May 2007 and the withdrawal letter also in July 2007. He
stated that he was informed that the offer to him was in error by the 1 st, 2nd Defendants.
He also stated that it is correct that the 3rd Defendant offer from the Defendants was in
April 2007. He stated that he inspected the property to know if it was vacant. He stated
there was a letter of withdrawal from the 1st, 2nd Defendants which prompted this action.
He also stated that there was no provision for refund in the said letter of withdrawal
Exhibit “D”, but admitted that his Exhibit “D” contained the mention of refund but no date
of when to get the refund. He further admitted that the Chairman of Ad-Hoc Committee
mentioned it to him and his counsel.
He stated that he is not willing to receive the
refund.
Cross-examined by the 3rd Defendant, he stated that the property was advertised in the
dailies. He admitted that he received Exhibit “D” but expressed his objection on the copy
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before he signed for it. He admitted inspecting the property before bidding, but met it
under lock and key. He stated that he did not carry out being investigation before making
the 1st payment to the Defendants. He stated that he took steps to resolve the matter
with the Defendant that to be given alternative property, but was refused. He stated that
he does not have any business with the 3rd Defendant; rather the 3rd Defendant was
joined at the instance of the 1st, 2nd Defendants.
There was no Re-examination by Plaintiff counsel.
Kaka Senchi, a staff with FCDA, on secondment to the Ad-Hoc Committee on Sale of FGN
Houses, testified on behalf of the 1st, 2nd Defendants as the DW1. In his statement on
Oath of 12 paragraphs deposed to on 13/7/2009, he stated that the 1st, 2nd Defendant
erroneously advertised and offered the SSQ 314, NERDC Qtrs for Sale to the Plaintiff.
He stated that at the time the property was offered for sale, the occupant of the property
was out of time to pay for the property, but by FGN intervention, the occupant was given
extension of time for the payment. He stated that consequent upon this, the occupant
was offered the property as a Civil Servant having first right of refusal. He stated that the
1st, 2nd Defendant accepted the error and made efforts to resolve the issue with the
Plaintiff. He stated that the Letter of withdrawal issued to the Plaintiff was in compliance
with the FGN guidelines on sale of FGN Houses in Abuja, FCT Exhibit “H”.
Cross-examined by the Plaintiff counsel, stated that as a lawyer and head of Legal Unit of
the Ad-Hoc Committed, he is aware of the circumstances of this case. He admitted that
the property was advertised to the whole world, but was done in error. He stated that
only the Plaintiff participated in the bidding and not the 3rd Defendant. He stated that he
does not know the number of persons who participated in the bidding exercise. He stated
that extension was granted to several Civil Servants, but cannot remember the exact date
granted to the 3rd Defendant.
He stated that all sales of FGN Houses are in strict
compliance with the guidelines Exhibit “H”. He stated that the offer to the 3 rd Defendant
was made upon the extension granted by the National Assembly to all erring Civil
Servants. He maintained that the 3rd Defendant had an offer before the bidding.
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By way of cross-examination, the DW1 explained that he did not make any statement to
the National Assembly, but rather referred to the Plea made to the Federal Government.
Cross-examined by the 3rd Defendant counsel. He stated that advert was made to the
public. He stated that the 3rd Defendant benefitted from the offer as a sitting tenant.
There was no Re-examination.
Ibiam Ogbonna, the 3rd defendant a staff of Nigeria Educational Research Council,
testified as DW2. In his statement on Oath of 17 paragraphs filed on 16/9/2009, he
stated that upon his employment by the Federal Ministry of Education on the 30 th June
1978, he was on 9/1/1996 allocated a three bedroom bungalow at the NERDC Qtrs 314,
Kwali and has been living in the said property since then.
monthly deductions of rents from his salary.
He stated that there are
Further stated, that by a letter dated
16/2/2007 he was offered the said property for outright purchase as a sitting tenant by
the management of FCT Administration. He stated that between that date and 19/6/2007
he made full payment for the said property to the total sum of N599, 500.00 (Five
Hundred and Ninety Nine thousand, five hundred naira only) with proof of receipts as
Exhibit K1 – K3 that after full payment for the property, rent deduction on his monthly
salary was stopped, and evidenced by Exhibit L1 – L7. He urged the court to strike out
his name from this suit and hold that the property was properly allocated and sold to him
by the management of FCT as a sitting tenant.
Under cross-examination Plaintiff counsel stated that he was a tenant to FGN and rents
were deducted from his salary. He maintained that he was given only one (1) Letter of
Offer in respect of the property and not aware of the said property was advertised. He
maintained that he purchased the property through invitation by the FGN to buy and on
the offer value which was N599,500.00 (Five Hundred and Ninety Nine Thousand five
hundred naira). He maintained that he did not bid for the property. He stated that he
followed the due process set out for the purchase of FGN Houses as a sitting tenant at the
market value, plus a 10% interest. He maintained that he filled the expression of interest
from as part of the process for purchase as a sitting tenant and paid the mandatory
N10,000.00 (Ten Thousand Naira).
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There was no Re-examination by the 1st, 2nd Defendants counsel.
On the counter-claim, the 3rd Defendant/claimant, deposed to 14 paragraphs statement
on Oath dated and filed on 1/3/2010, and stated that as a sitting tenant, and by virtue of
the FGN policy on sale of FGN Houses to Civil Servants, he became eligible to purchase.
Consequent upon he duly exercised that right to purchase and complied with all the
processes and made full payment to the FCT Administration. He stated that the 1 st, 2nd
Defendant action of advertising the property for sale was not right as it was in breach of
the FGN policy on sale of FGN Houses to sitting tenants. He urged the court to hold that
having duly fulfilled all the requisite requirements leading to the purchase of the property,
he be declared as the rightful owner of the property.
Cross examined by the Plaintiff counsel he stated that he applied to purchase the property
in 2005, and through bid process. He stated that he did not received any warning letter in
2007. He maintained that there was only one offer made to him and that was the offer of
2007. He stated that the original owners of the property are his employers – Nigerian
Educational Research and Development Council. He Maintained that no C of O have been
issued to him. He further stated that all payment were made through Bank Draft- that is
First Bank PLC. He stated that what is referred to as bid form, is an application form
given to him to complete in the office of FCDA as application form, accompanied by his
Bank Draft.
There was no Re-exanimation and cross-examination by 1st, 2nd Defendant.
At the close of trial, the learned counsel for the 1st, 2nd Defendants (Chinyere
Uchegbulem) filed a Final Written Address dated 5/4/2011. It must be noted that counsel
did not move its motion to adopt the said Final Address out of time, but merely filed it in
court. This procedure is not in consonance with the law. However, it is law that a court is
entitled to look at a document on its file while writing its Judgment or Ruling, despite the
fact that the document was not tendered and admitted as Exhibit at the trial. In this
instant case, not adopted by counsel. See Akinola Vs Vice Chancellor, Unilorin (2005) ALL
FWLR (PT.259) Pg 1944 Para C – D.
Counsel raised three (3) issues for determination, namely:8
(1)
Whether the Plaintiff has proved its case before this Honourable Court to
entitled him to the reliefs and general damages claimed.
(2)
Whether or not the contract of sale between the Plaintiff and the 1 st, 2nd
Defendant was vitiated by mistake.
(3)
Whether the 3rd Defendant counter-claim is competent as to be determined
by the court.
The Learned Counsel for the 3rd Defendant (O.O. Arua Esq.) filed a Final Written Address
on 10/10/11 and formulated three (3) issues for determination namely:(i)
Whether the sitting tenant exercised the right of first refusal validly in
accepting the offer to purchase of the SSQ 314 NERDC Kwali FGN Housing
Unit.
(ii)
Whether or not the management of FCT was right in withdrawing the offer
made to the Plaintiff when they discovered that offer was made in error
having regards to the fact that the house –object of this litigation was not
vacant for sale at the material time?
(iii)
Whether or not the 3rd Defendant has established a cause of action arising
from his counter-claim against the Plaintiff.
Anthony O. Chukwurah Esq, Learned Counsel for the Plaintiff filed his Final Written
Address on 1/3/2011 and raised only one (1) issue for determination namely:(A)
Whether there was a contractual relationship between the Plaintiff and the
1st, 2nd Defendants?
And replied in the said address to issues raised by the 3 rd Defendant counsel contained in
their address.
Having carefully considered the pleadings evidenced the submissions of counsel, it is the
view of this court that there are four (4) issues for determination:9
(1)
Whether or not there was a valid subsisting contract between the plaintiff
and 1st, 2nd Defendants.
(2)
If yes to issue (1) whether or not there was a breach of the contract.
(3)
Whether the 3rd Defendant has made out a case against the Plaintiff and
1st, 2nd Defendants in their counter claim, entitling him to the reliefs
sought?
(4)
Whether the Plaintiff has established facts entitling him to the reliefs
sought.
The issues 1, 2 encapsulate issue 2, formulated by 1st, 2nd Defendant counsel, issue 1 by
the Plaintiff counsel. Issue 2 by 3rd Defendant counsel. Issue 3 covers issue 1 by 1st, 2nd
Defendant. Issue 4 covers issues 1, 3 by the 3rd Defendant counsel, issue 3 by the 1st, 2nd
Defendant counsel.
Issue 1
It is the evidence of the PW1, that he was offered the property, the subject matter of this
suit by the 1st, 2nd Defendant and consequent upon that offer to him, he promptly
accepted the offer and made payments. These facts are contained in Paras 3, 4, 5, 6, 7,
8, 9, 10 and 11 of the statement on Oath and Exhibits B, C1 – C2.
The 1st, 2nd Defendant by their Paras 1 – 11 admits Paras 1 – 11 of the Plaintiff Statement
of Claim in Para 1 of the 1st , 2nd Defendants Statement of Defence . By implication,
Plaintiff averments particularly Paras 3 – 11 of the Statement of Claim and Statement on
Oath are to be regarded as true, because by law, facts admitted need not be proved. See
section 75 of Evidence Act.
In line with the evidence, counsel submits that a valid contract between the Plaintiff and
1st, 2nd Defendant have been completed, having all the ingredients to make it so.
Referred to the case of Orient Bank (Nig) PLC Vs Bilante International Limited (1997) 8
NWLR (PT.515) 37 Ratio 1 @ 76 Para B – C and Exhibit “B”.
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Submits that the 1st, 2nd Defendant having admitted the existence of the contract, their
non-performance is in breach and a party may be entitled to an action for specific
performance of the contract. Referred to Mini Lodge Limited Vs Ngei (2010) ALL FWLR
(PT. 506) 1806 @ 1831 – 1832 Para G-A and 1832 Para A, Oseni Vs Bajulu (2010) ALL
FWLR (PT. 511) 813 @ 829 Para D – E.
Submits further that the 1st, 2nd Defendant having admitted to the existence of a valid
contract in Para 1 – 11 of their Statement of Defence and Para 5, 3rd defendant is
estopped from relying on the assertion of “erroneous action” as a defence to the claim
and referred to section 151 of the Evidence Act and the case of Ughulevbe Vs Shonowo
(2004) ALL FWLR (PT. 220) 1185 @ 1211 – 1212 Para E - A.
Finally submits that where there is such breach, suffered the Plaintiff as in this case, is
entitled to damages. Referred to Kaydee Ventures Ltd Vs Hon. Minister, FCT & Ors (2010)
ALL FWLR (PT.519) 1079 @ 1115 Para G, and N.B. C & 1 Vs Integrated Gas (Nig) Ltd
(2005) ALL FWLR (PT. 250) 1 @ 27 Para F – G.
It is trite that for the there to exist a valid contract, the following must exist,
(i)
There must be an offer.
(ii)
There must be acceptance.
(iii)
There must be consideration.
(iv)
An Intention to create legal relationship.
(v)
Capacity to contract. See Metibaiye Vs Narelli International Limited (2009)
16 NWLR (PT. 1167) 326 @ 346 – 347 Para H – A Ratio 2.
In determining, acceptance, it may be inferred by the conduct of the parties, by their
word by document that have passed between them.
In the Metibaye vs Narelli
International Limited (Supra) at Page 347 – 348 Para D – C Aboki JCA had this to say:
“The conduct of the parties must be unequivocally traceable to the
transaction to constitute acceptance.
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Where there is a missing link
between the conduct of the parties and the transaction, a court of law
will not be prepared to hold that a valid contract exist between them”.
See also, the dictum of Odili JCA (As she then say) in B.F.I. Group Vs Bureau of Public
Enterprises. (2009) ALL FWLR (PT.416) Pg 1915 @ 1937 – 38 Para H – B;
“A contract is an obligation between two or more parties which creates
reciprocal legal obligation or obligation to do or not to do a particular
thing.
For a valid contract to be formed, there must be mutuality of
purpose and intention. The two or more minds must meet at the same
point, event or incident. They must not meet at different point, event or
incidents. They must be saying the same thing at the same time. They
must be saying different thing at different times. Where or when they
say a different thing at different times, they are not “ad idem” and
therefore no valid contract is formed.
The meeting of minds of the
contracting parties is most crucial and overriding factor or determinant
in the law of contract. An agreement will not be binding on the parties to
it until their minds are at one both upon matters which are cardinal to
the species of agreement in question and also upon matters that are
part of the particular bargain” Orient Bank (Nig) Ltd Vs Biliante Int’l Ltd
(1997) 8 NWLR (PT.515) 37 at 76 referred to).
Clearly, from the evidence and facts before this court as gleaned from the processes
before it, all the elements of a valid contract are present and there seems to be nothing to
the contrary to suggest that the contract between the Plaintiff and 1 st, 2nd Defendant is
not valid. There was offer and acceptance of the offer and consideration for value, was
the amount paid and received. It is therefore the view of this court that there is a valid
and subsisting contract between the Plaintiff and the 1st, 2nd Defendant in this suit, more
so, the 1st, 2nd Defendant admitted these facts in their Statement of Defence.
Consequently, issue 1 is answer in the affirmative.
Now to issue 2, whether or not there is a breach of contract?
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In the evidence of the Plaintiff, averred in Para 14 of Statement of Oath and Para 14 of
Statement of Claim that before expiration of 90 days limit before final payment the 1st, 2nd
Defendants through Exhibit “D” that this action of the 1st, 2nd Defendant is in breach of
the contract between them.
The 1st, 2nd Defendant on the other hand, in their Para 3 of the Statement of Defence
admitted para 14 of the Plaintiff’s Statement of Claim, stated that the said withdrawal
through Exhibit “D” was due to the facts that the offer to them was made in error. In line
with the evidence of the DW1, 1st, 2nd Defendant counsel in their written address,
submitted that this contract between the Plaintiff and 1st, 2nd Defendant is vitiated by
mistake. Simply put, that at the time of the contract, the state of fact on which they
contracted did not exist. The said property was not vacant, therefore not available for
bidding and subsequent offer to the Plaintiff therefore show the presence of the mutuality
of agreement between the parties for the formation of contract missing, submits that the
mistake could be mutual, referred to Knight Frank & Righty Vs A.G. Kano State (1990) 4
NWLR (PT. 143) P. 210.
Further submits that this mistake nullifies consent of the presumed willingness and
consent of the Defendants to grant the offer of house to the Plaintiff.
In this instant, the issue to be addressed is whether the reason adduced by the 1 st, 2nd
Defendant for the alleged breach of contract, suffices in law to excuse them from liability
under the contract. These issue boarders on mistake in the law of contract. Without
attempting into to go into the area of academic on the issue, the effect of mistake simply,
is that the parties having agreed on the terms of contract, but did so under a shared and
fundamental misapprehension as to the facts. Where this is so, it vitiates the contract
because the contract will become void abnitio.
Mistakes in law only becomes legally
relevant if both parties have contracted under the same misapprehension. See Chitty on
contracts Vol. I. Page 371.
In this instant, to succeed on the grounds of mistake to vitiate this contract, the 1 st, 2nd
Defendant must show that the mistake relied on is as a result of a shared or mutual
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apprehension on to the state of facts as at the time the contract was entered. The
operative word is mutuality of purpose or interest.
The word “Mutual” in Oxford Learner Dictionary – means “of or pertaining to each of two
or more; held in common; shared Mutual Interest”.
In the records, 1st, 2nd Defendant in Para 3 of Statement of Defence stated that the offer
was made in error, but the DW1 under cross-examination stated that the 1st, 2nd
Defendant do not take decision in error. Further, the 1st , 2nd Defendant by Para 3 of
Statement on Oath, stated that the 3rd Defendant was out of time, hence the advert of the
property and further in Para 5, of Statement of Defence, admitted the fact that the offer
to the plaintiff was made, believing that since the occupant 3rd Defendant at that time was
unable to pay for the house.
Further, it is in evidence that “bidding took place in December 2006 and the Letter of
Offer granted to the 3rd Defendant in April 2007.
Also a cursory look at Para 6 of
Plaintiff’s Statement of Claim is to the effect that the Plaintiff was invited for a run off
auction, Consequent upon a tie in the previous bid and Exhibit B, the 1st, 2nd Defendant’s
Letter of Invitation.
All of these facts highlighted in my firm view does not suggest that the mistake was a
shared or mutual one, sufficient to vitiate the contract.
These inconsistence and
contradiction on the part of the 1st, 2nd Defendant. I therefore, hold that the 1st, 2nd
Defendant are in breach and therefore liable. Issue 2, is resolved in favour of the Plaintiff.
On issue 3, whether the 3rd Defendant has made out a case against the Plaintiff and the
1st, 2nd Defendant in their counter claim, entitling them to the reliefs sought?
In line with his evidence as contained both in the statement on Oath in support of his
pleadings and the Statement of Oath in support of his counter claim, the 3rd Defendant
stated that as a sitting tenant, he is entitled to the property by virtue of the FGN’s policy
guideline for sale of FGN Houses. He stated that having fully paid for the property; he is
entitled to peaceful enjoyment of the said property. He stated that the action of the 1 st,
2nd Defendant by advertising the property in the first place was in breach of the FGN’s
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policy guideline, that the 1st, 2nd Defendants were at all material times expected to know
that the property was never vacate.
In line with his evidence, counsel submits that as a sitting tenant, the 3 rd Defendants is
entitled to exercise his rights of first refusal in accordance with the Exhibit “H” the
Approved Guidelines for sale of FGN Houses in FCT to career public servant. And submits
that the 3rd Defendant never bidded for the property rather was offered to him by FCT
Management referred to Exhibit “J”.
Also, submits that the Exhibit “D” – Letter of Withdrawal to the Plaintiff is an admission of
the fact that the offer was wrongly made when the property was not available. Further
that the Plaintiff instead of accepting the 1st, 2nd Defendant’s offer to refund, alluded to
raising issue relating of fraud on the part of the 1st, 2nd Defendants in Exhibit “F”. And in
the instant that the Plaintiff did not lead any evidence to establish fraud on that failure
submits, makes the allegation a no issue.
On their counter claim, submits in line with the evidence, that the 3rd Defendant has a
cause of action giving them right to sue and seek remedy in this suit against the Plaintiff
and 1st,2nd Defendant. Referred the court to the case of Rock shell International Ltd Vs
Best Quality Service Ltd (2009) 12 NWLR (PT. 1156) 640 pp 665 – 666 Para H – A.
Onuoha Vs Achugwo (1998) 9 NWLR (PT. 564) 37 @ 66.
On the defence of the 1st, 2nd Defendant to their counter-claim, submits that having
adopted and admitted averment contained in their Paras A, B, E, & F of their counter
claim, that it trite law that facts admitted need no further proof – referred to section 75
of Evidence Act and the case of Aliyu Vs Adewuyi (1996) 4 NWLR (PT. 442) 284, 291 Para
B – C.
The Plaintiff counsel in response to the issues raised by 3 rd Defendant submits firstly that
the failure of the 3rd Defendant as a sitting tenant to comply with Para 20 of Exhibit A,
resulted to the 1st, 2nd Defendant putting up the property for sale by way of competitive
bidding – Referred to Para 3 of the Statement on Oath of DW1 and Para 5 of the 1st, 2nd
Defendant Statement of Defence.
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On the 2nd issue raised by the 3rd Defendant, Plaintiff counsel, submits that the parties are
bound by their pleadings and evidence lead to prove same. Therefore, any submission on
facts not pleaded goes to no issue. Referred to SALLZIGITTER STAHL GMBH Vs TUNJI
DOSUNMU IND LTD (2010) ALL FWLR (PT. 529) 1024 Para D – E.
On the issue of fraud, submits that there was no where fraud that was pleaded, hence no
basis for proving same by the Plaintiff.
Refer to OMOBORIOWO Vs AJASIN (1984) 1
SCNLR 108, 131, AROWOLO Vs IFABIYI (2002) 4 NWLR (PT. 757) 356 Ratio 4.
On the issue of the whether the 3rd Defendant has made a case in their counter claim, the
Plaintiff submits that the only claim against the Plaintiff is misconceived because it was
not the Plaintiff that caused a joinder but the 1st, 2nd Defendant more so, the Plaintiff have
no direct claim against the Defendant.
Finally, submits that the 3rd Defendant have not been consistent in the evidence before
the court about how they came about the offer of the property. Referred to Para 11 & 12
of 3rd Defendant’s Statement on Oath.
That this inconsistence does not ascribe any
credibility upon the witness. Referred to Daggash Vs Bulama (2004) 14 NWLR (PT. 892)
144 Ratio 42.
In this instant case, the counter claim of the 3rd Defendant is completely separate and
independent claim from the main claim in the suit. The law is that the counter claimant,
must lead evidence in prove of his claim in order to succeed.
See UNITED NIGERIA
COMPANY LTD Vs NAHMAN (2000) FWLR (PT. 27) 1988 @ 1991 Ratio 9. The case of the
3rd Defendant is hinged on the fact that his right over the property in dispute is being
disturbed by the action of the Plaintiff ‘s claim due to the alleged negligent conduct of the
1st, 2nd Defendant in making an offer to the Plaintiff for the property that was not available
for sale.
The joinder of the 3rd Defendant in this suit is at the instance of the 1st, 2nd Defendant. It
is law that a party may be joined where his interest, subject matter of the suit would be
affected by the judgment of the court.
See OSUN STATE GOVT Vs CHRISORE
ENGINEERING PLC (2009) 16 NWLR (PT.1168) Pg 511 – 512 Para H – B.
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In my view, the joinder of the 3rd Defendant is proper for proper full and effectual
determination of this suit.
Having considered the evidence and submission of counsel to 3 rd Defendant in its
totoality. I do agree that the 3rd Defendant has a cause of action in this suit, worthy of
protection by the court. As a sitting tenant, having 1st right of refusal.
From the evidence before the court, I hold that the 3rd Defendant is entitled to reliefs A, F,
H of their counter-claim. Relief B, C, D, E, G, L of the counter claim fails and hereby
refused.
On issue 4, whether the Plaintiff has established facts entitling him to the Relief sought.
The court adopts its decision in respect of issues 1, 2 and hold that the Plaintiff is entitled
to Relief A, set out in Amended Statement of Claim. In respect of Relief B, the Plaintiff is
not entitled to this Relief, I say so because the Plaintiff relies on the Exhibit B to the
extent that it does not contain right to the 1st, 2nd Defendants to act in the way they did.
It is in evidence that the 1st, 2nd Defendants through DW1 stated that they acted pursuant
to the provision of Exhibit “H” and also pursuant to the Relief granted to the 3 rd Defendant
along with other sitting tenants by the National Assembly who failed to take the
appropriate steps at the right time. This in my view cannot be action outside the powers
of the 1st, 2nd Defendants. They simple have acted within their powers guiding them in
the Sale of FGN properties and also in compliance with other Government Regulatory
Authorities on the matter at the time that is Public Policy Consideration.
On Relief C, the Plaintiff is not entitled to this Relief. I say so because it is law that
specific performance may arise only where circumstances make it equitable to do so. In
OHIAERI Vs YUSUFU (2009) 6 NWLR (PT.1137) 207 @ 229 Para A-D, TABAI JSC had this
to say.
“An action for specific performance arise once there exist a contract
complied with circumstances which make it equitable to grant a decree
of same”.
In this instant, it is in evidence that the 3rd Defendant a sitting tenant was offered the
property, shortly after initial bid on 4/12/2006, in April 2007 and made full payment in
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respect of the property on 19/6/2007. All this happened before the Exhibit “D” was issued
to the Plaintiff. And it shows that the 3rd Defendant had a better equity in his favour over
the property. It is on this basis, the court find that the Plaintiff cannot be entitled to this
Relief.
On Relief D, the Plaintiff is not entitled to the relief. The court adopts the reason given in
the Relief C above as the basis for the refusal and more so on that the property was not
vacant.
On Relief “E”, this relief cannot be granted to the Plaintiff. The act complained of is a
completed act. It is in law that injunctive Relief cannot be granted to restrain a completed
act. See UWAIFO Vs Govt. Lagos State (2009) NWLR (PT. 1122) 241 @ 246.
On Relief “F”, claim of N10 Million as general damages for the breach of contract. The
Court had found that the 1st, 2nd Defendant are in breach of contract between them and
the Plaintiff. On the authority of GBADAMOSI S. OLORUNFEMI & ORS Vs CHIEF RAFIU E.
ASHO & ORS (1999) 1 NWLR (PT. 585) the Plaintiff is entitled to general damages. The
assessment, quantum and award of general damages is the exercise of court’s discretion.
See OZIGBU ENG. CO LTD Vs IWUAMADI (2009) 16 NWLR (PT. 1166) 44 @ 48 – 49. A
court would refuse to grant an unreasonable exaggerated and oppressive claim for
general damages. In exercise of this discretion, for award of general damages, the court
must make award that is reasonable with the particular circumstances of the case. In the
circumstances, the Plaintiff is entitled to an award of general damages for breach of
contract against the 1st, 2nd Defendant, which I assess at N200,000.00 (Two Hundred
Thousand Niara).
On Relief G, the Plaintiff is not entitled to this relief, I say so because to do so will amount
to double compensation, which this court has a duty to avoid. See OZIGBU ENG. CO. LTD
Vs IWUAMADI (supra) @ Pg 47 Ratio 2 GARBA KCA, had this to say at Pg 61 – 62 Para H
– C.
“The law is that a court is not permitted to award damages that amount
to double compensation to a party. This is largely based on the principle
that the primary objective or purpose of award of damages to an
aggrieved party is to restore the party to the situation, so far as money
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can do so, it would have been so if there had not been the wrong from
which the damages resulted”……… “A party is only entitled to claim and
be compensated once for any wrong suffered as a result of the
wrongful act or conduct of another.
Such a party cannot claim or be
awarded damages that tend to compensate it
more than once for the
same wrong complained of”.
From all of these, judgment is entered for the Plaintiff in part of the following terms:(1)
A declaration that the property known as a Three Bedroom Bungalow and
situate at Senior Staff Qtrs 314, NERDC Qtrs, Kwali, Abuja FCT was validly
offered for sale to the Plaintiff by the Defendant through the Ad-Hoc
Committee on the sale of FGN Houses.
(2)
N200,000.00 (Two Hundred Thousand Niara) as general damages against
the 1st, 2nd Defendant for the breach of contract.
In the same vein, Judgment is entered in respect of the counter of the 3 rd Defendant as
follows:
(i)
A declaration that the claimant duly exercised his right in accepting the offer
made to him as a sitting tenant and has since fully paid for the house and
therefore entitled to be in continued and permanent possession of the said 3
bedroom Flat known as SSQ 314, NERDC Kwali.
(ii)
A declaration that the counter-claimant fulfilled all the requisite requirements
leading to his eventual purchase of the said SSQ 314 Kwali.
(iii)
An Order of perpetual Injunction restraining the Plaintiff, 1st, 2nd Defendants,
their privies or any person claiming through them from interfering with the
claimant peaceful enjoyment of the house which was duly offered to him
and which he duly exercised his right of acceptance.
(iv)
The parties are to bear their cost.
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HONOURABLE JUSTICE O.C. AGBAZA
(Presiding Judge)
26/7/2011
ANTHONY O. CHUKWURAH FOR THE PLAINTIFF
CHINYERE UCHEGBULEM FOR 1ST, 2ND DEFENDANTS
O.O. ARUA FOR THE 3RD DEFENDANT
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