DEACONESS (MRS) FELICIA ARIWOLA OGUNDIPE V. THE MINISTER OF FEDERAL CAPITAL TERRITORY & ORS (CA/A/64/2011)[2014] NGCA 49 (28 March 2014)

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  • DEACONESS (MRS) FELICIA ARIWOLA OGUNDIPE V. THE MINISTER OF FEDERAL CAPITAL TERRITORY & ORS (CA/A/64/2011)[2014] NGCA 49 (28 March 2014)

IN THE COURT OF APPEAL OF NIGERIA

On Friday, The 28th day of March, 2014

CA/A/64/2011

BETWEEN

DEACONESS (MRS) FELICIA ARIWOLA OGUNDIPE      .................                 Appellant

V.

1. THE MINISTER OF FEDERAL CAPITAL TERRITORY             ..............   Respondents
2. FEDERAL CAPITAL DEVELOPMENT AUTHORITY
3. HAJIYA YINUSA BAKARI
4. ATTORNEY GENERAL OF THE FEDERATION

APPEARANCES

Oluwasanmi Aiyemowa, Esq. with Mrs. Sandy Tadafurua for Appellant

E. E. Izibili, Esq. with Miss E. C. Akpa for the 1st and 2nd respondents,

Idris Buba, Esq. with Sanusi Salihu, Esq, for the 3rd respondent.

Mrs. C. I. Nebo for (Principal State Counsel, Federal Ministry of Justice) for the 4th respondent.

 

MAIN JUDGMENT

MOORE A. A. ADUMEIN, J.C.A. (Delivering the Leading Judgment):

The appellant was the plaintiff in Suit No.FCT/HC/CV/7361/2004 which was heard and determined by Hon. Justice A. M. Talba of the High Court of the Federal Capital Territory, Abuja.

The claims of the appellant, as endorsed in both the writ of summons and her statement of claim are hereunder reproduced:

 

"1.     A Declaration that the plaintiff is a beneficiary of the Monetization Policy of the Federal Government of Nigeria, having been in active service as at the time the policy took effect.

 

2.       A Declaration that the plaintiff has an accrued right as a result of her being in active service when the Monetization Policy began.
 

3.       An Order directing the 1st and 2nd defendants to give the plaintiff the opportunity to exercise her right of first refusal in respect of Flat 3 Block D44, Zone D Extension Apo Legislative Quarters, Abuja.
 

IN THE ALTERNATIVE

 

4.       A Declaration that the plaintiff was entitled to be given fair consideration in the bidding exercise carried out by the 1st and 2nd defendants in September and November 2005, the plaintiff having submitted the expression of interest form in respect of Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja for the said bidding exercise.

                     

5.       A Declaration that the non-consideration of the plaintiff in the said public bidding before awarding the said flat to the 3rd defendant is null and void.

 

6.       A Declaration that the purported sale of Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja to the 3rd defendant is null and void.

 

7.       An Order restraining the 1st, 2nd and 3rd defendants, their privies, agents, servants, employees or anybody deriving authority from them from disturbing, ejecting, evicting, dispossessing quitting, forcefully removing, harassing and or intimidating the plaintiff from peaceful enjoyment of the said property until she so exercises her right.

 

8.       And for such further order or other orders as the plaintiff may be entitled to under the Law and Constitution."

 

The suit was defended by the 1st, 2nd and 3rd respondents who were the 1st, 2nd and 3rd defendants, respectively, in the court below. The 1st and 2nd respondents filed a joint statement of defence, which spans pages 245-249 of the record. The 3rd respondent's statement of defence covers pages 262-279 of the record. After hearing the parties, the learned trial judge in a reserved judgment (pages 384-406 of the record) delivered on 18/11/2009 dismissed the appellant's claims. Being dissatisfied with the decision of the learned trial judge, the appellant filed a notice of appeal containing the following three grounds:
 

"1. GROUND ONE

 

The trial judge erred in law when it misconstrued and misapplied the principle of vested interest to the facts of the case before it.
 

PARTICULARS OF ERROR

 

(i)      The enjoyment of the right of first refusal by the occupier of the property the subject matter of the suit was not subject to what the court describe as "being a serving career public servant".
 

(ii)     It was unanimously agreed that the commencement of the Monetization Policy by the virtue of which the plaintiff was entitled to the option of first refusal was in 1st October, 2003.
 

2. GROUND TWO

 

The learned trial judge erred in law when he held that the vested right of the plaintiff was subject to her being a "serving career public servant".
 

PARTICULARS OF ERROR IN LAW

 

(i)      The Monetization Policy did not subject the enjoyment of the policy benefits to being a "serving" career civil servant.
 

(ii)     The word "serving" was an invention of both the defendants and that of the court."

 

3. GROUND THREE

 

The learned trial judge erred in law when [it] failed to consider the evidence of the plaintiff to the effect that the house in issue was actually offered to her in compliance with Monetization Policy even after her retirement and the court thereby came to wrong conclusion which led to miscarriage of justice.

 

PARTICULARS OF ERROR IN LAW

 

(i)      Exhibit 14 which is before the court made it clear that the property in issue was offered to the plaintiff even after her retirement under the Monetization Policy;

 

(ii)     The trial court did not consider this documentary evidence and hence its arrival at wrong conclusion;

 

(iii)    The trial court failed to also consider the evidence of the plaintiff which was not controverted that the property the subject matter of the suit was also offered to the plaintiff after the purported claim of its being sold earlier."

 

In accordance with the rules of this court, the parties filed and exchanged briefs of arguments. In her brief filed on 08/04/2011 and deemed properly filed on 18/03/2013, the appellant identified two issues as arising for determination. The issues are:

 

"1.     Whether the learned trial judge was not wrong in the interpretation and construction of the principle of vested right (Grounds 1 & 2).

 

2.       Whether the rights of the appellant was not violated and breached when her uncontroverted and direct evidence were not considered by the learned trial judge? (Ground 3)."
 

The 1st and 2nd respondents filed a joint respondents' brief on 20/01/2014 but was deemed filed on 21/01/2014. In their joint respondents' brief, the 1st and 2nd respondents formulated the following 2 issues for determination.
 

"1.     Whether the learned trial judge was not wrong in the interpretation and construction of the principle of vested right.
 

2.       Whether the right of the appellant was not violated and breach when her uncontroverted and direct evidence were not considered by the learned trial judge."

 

The 3rd respondent's brief was filed on 15/05/2012 and deemed properly filed on 18/03/2013. The 3rd respondent framed the following questions for determination:
 

1.       Whether the learned trial judge was right when he held that the plaintiff/appellant is not entitled to right of first refusal in respect of Flat 3 Block D44, Zone D Extension, Apo Legislative Quarters, Abuja, in the sale of non-essential Federal Government of Nigeria (Residential) houses exercise and/or the subsequent bidding exercise carried out by the 1st and 2nd defendants/respondents which returned the 3rd defendants/respondent as the winner of same.?
 

2.       Whether the learned trial judge properly appraised or evaluated the evidence before him?"

 

The two issues framed by the 4th respondent in his brief filed on 27/03/2013 are as follows:

 

(i)      Whether the learned trial judge correctly interpreted the principle of vested right as it relates to the subject matter.
 

(ii)     Whether the trial judge heard the matter on the merit, properly evaluated evidence before the court and dismissed the matter,"
 

Apart from the way they are couched, the issues formulated by the contending parties are substantially the same. In this judgment, I adopt the issues as couched or framed by the 4th respondent as the issues that arise for determination in this appeal.

ISSUE 1

 

Whether the learned trial judge correctly interpreted the principle of vested right as it relates to the subject matter.

 

The appellant argued that "vested right" had been judicially defined as accrued rights arising from law, policy, custom, etc. It was also submitted that it is not the law that an accrued or vested right could be divested or terminated by a subsequent act such as law, policy or custom. She stated that "this is based on the fact that any law or policy which seeks to take away an accrued right of a citizen must be strictly interpreted and more so where the taking away of such accrued right will adversely affect a party," The appellant proceeded to state as follows:
 

"It is our submission that upon the commencement of the monetization policy in October 1st, 2003 while the appellant was in service has vested a defined right on her to take full and not partial benefits from all the rights arising therefrom. Even though it was a mutual point of agreement that the appellant retired from service in January 15, 2004, while the "Approved Sites guidelines for Federal Government Houses Gazette No. 7 came into operation in April, 2004"

 

Relying on the case of Wilson v. A. G. Bendel State (1985) 1 NWLR (Pt.4) 575 at 589 the appellant argued that it would have been "more lenient" and "more reasonable" for the lower court to have interpreted the Gazette No. 1 on the Guidelines on the Sale of Federal Government Houses in favour of the appellant. The appellant contended, in other words, that "the Gazette should have been harmoniously interpreted with the Monetization Policy commencement date of 1st October, 2003."

 

The appellant relied on the case of Ojo v. Government of Oyo State (1989) 1 NWLR (Pt. 95) 1 at 12 to show that courts "guard vested right jealously" and submitted that Gazette No. 1 did not take away her accrued rights as vested by the Monetization Policy which commenced on the 1st day of October,2003 "even though the Gazette was dated April, 2004'. The appellant argued that "a statute is said to be retroactive when it takes away by clear and unambiguous words or impairs any vested right acquired under the existing law, creates a new obligation or imposes a new duty or attaches a new disability in respect to transaction or considerations already past and closed" and, in support of this argument, reliance was placed on the case of Afolabi v. Gov. Of Oyo State (1985) 2 NWLR (Pt.9) 734.

 

It was also contended that by Exhibit 14, the appellant had acquired a vested right and that the appellant's position was strengthened by the equitable maxim "equity takes that which ought to be done as done". Referring to the case of Oyeyemi v. Commissioner for Local Government (1992) 2 NWLR (Pt. 226) 661 at 684 - 685 it was argued that courts have a duty to protect vested rights.
 

In finally urging the court to resolve this issue in her favour, the appellant submitted that the lower court misconstrued the law when it held in its judgment as follows:

 

"The plaintiff in this case therefore does not have a vested interest of the said flat 3 hence the right to the enjoyment of her interest is subject to condition precedent, which is being a serving career public servant. The right of the plaintiff to exercise the first right of refusal option was divested by the fact of her retirement from public service on the 19th January 2004, four months prior to the commencement of sale of Federal Government Houses"

 

In their joint response, the 1st and 2nd respondents argued that the exercise and enjoyment of the Federal Government Monetization Policy in respect of the Sale of Federal Government Houses was by Exhibit 18 subject to certain conditions and that "the appellant did not lead any evidence to show that she had met those conditions." On the meaning of "vested interest', the 1st and 2nd respondents referred to the case of Eleran v. Aderonpe (2008) 11 NWLR (Pt.1097) 50. The 1st and 2nd respondents further submitted that "the appellant had no vested interest in the house in dispute as the right hinged on the Monetization Policy of the Federal Government was hinged conditions evident on exhibit 18 which became effective on 1st April, 2005 - a date when the appellant was no longer in service."

 

On the effect of a Gazette, the 1st and 2nd respondents referred to the Supreme Court decision in Ogbunyiya v. Okudo (1979) 3 LRN 318; (1979) All NLR 105.
 

The 1st and 2nd respondents urged the court to resolve this issue in their favour.
 

In addition to the joint arguments of the 1st and 2nd respondents, the 3rd respondent submitted as follows:

 

"In any case, their (sic) of vested right is hinged on the doctrine of common law as such cannot override exhibit 18 which is statutory. The law is settled that where a subject matter is regulated by a statute, the principles of common law on the subject have by implication been suspended from regulating the subject. See M.C.S (NIC) LTD/GTE vs. ADEOKIN RECORDS (2007) ALL FWLR (Pt.391) C.A. @ 1637, PARS. C - D."

 

The 3rd respondent also contended that exhibit 18 is not retrospective.
The 4th respondent referred to the definition of "vested right' in Black's Law Dictionary with Pronunciations (Sixth Edition) and argued that the term "does not mean that the provision of a statute should be construed retrospectively or right that is accrued."

It was further contended by the 4th respondent that since the Approval Sales Guidelines came into operation in April 2004, the trial court rightly interpreted the law by holding that the appellant had no vested interest because she retired 4 (four) months before the commencement of the sale of Federal Government Houses.

ISSUE 2
 

Whether the trial judge heard the matter on the merit, properly evaluated evidence before the court and dismissed the matter.
 

The appellant submitted that the trial court reached its conclusion that she had no "vested right of the said flat 3" without considering her overwhelming evidence which is that:

 

"(i)     She had lived in the property over seven years before she was illegally and forcefully removed from the property while the suit the monetization policy met her in service;
 

(ii)     That all her entitlement were calculated in accordance with monetization policy;

 

(iii)    That before her retirement she had commenced the process of purchasing the house in question;

 

(iv)    The learned trial judge was also told that even upon her retirement the respondents wrote to her and requested that she should exercise her right of refusal over the property through exhibit 14."

 

Relying on the case of Onyeachimba v. State (1998) 8 NWLR (Pt. 563) 587, the appellant submitted that the trial court had a duty to evaluate the evidence before it. The appellant argued that the lower court failed in its duty of evaluating the evidence before it and that this court would be justified to consider and review the appellant's evidence. In support of this leg of her argument, the appellant referred the court to the cases of S.D.P.C. (Nig.) Ltd v. Ekwems (2009) 4 NWLR (Pt.1131) 236 and Garuba v. Yahaya (2007) 3 NWLR (Pt.1021) 396.

 

The appellant opined that "the failure to evaluate a party's evidence would lead to denial of fair hearing." Referring to the case of Adigun v. A.G., Oyo state (1987) 1 NWLR (pt. 53) 678, the appellant argued that a denial of fair hearing would result in the trial to be set aside.
The appellant urged the court to resolve this issue in her favour, to set aside the judgment of the trial court and to grant all her claims.
 

The 1st and 2nd respondents jointly disagreed with the appellant's submissions. They argued that the trial court considered and evaluated "in full" the evidence adduced by the appellant. They contended that all the material facts "weighted against the appellants". The 1st and 2nd respondents urged the court to resolve this issue against the appellant and to affirm the decision of the lower court.
On her part, the 3rd respondent submitted that "the learned trial judge had properly appraised, evaluated and assessed the evidence adduced before him thereby justifying his findings... "The 3rd respondent contended that where a trial court had unquestionably evaluated the evidence and had dispassionately appraised the facts, it would not be the business of an appellate to substitute its views for those of the trial court. On this point, the appellant cited and relied on the case of Hamza v. Kure (2010) All FWLR (Pt.539) 1070 at 1090, paras. B - C.

In urging the court to resolve issue 2 against the appellant, the 3rd respondent stated as follows:

 

"The learned trial judge who had the exclusive opportunity of seeing and hearing the witnesses testifying and who had first hand appraisal of documents before him, properly matched his findings with evidence and tied each to credible evidence having weighed the evidence of both parties on an imaginary scale and rightly found that the preponderance of credible evidence weighs more in favour of the respondents See OSASONA v. AJAYI (2010) ALL FWLR PT.549, C. A. 1065 AT 1075. PARAS E-H."
 

In his submissions, the 4th respondent referred to the case of Agbabiaka v. Saibu (1998) 7 SCNJ 305 at 318 and argued that evaluation of evidence and ascription value thereto is the primary duty of a trial court. It was contended by the 4tn respondent that where a trial court properly evaluated the evidence before it, an appellate court would not interfere. The case of Nkebisi v. State (2010) 5 NWLR (Pt. 1188) 471 at 492 was cited and relied upon by the 4th respondent.

The 4th respondent submitted that in this case, the learned trial judge properly evaluated the evidence and "applied the imaginary scale in appraising the evidence" and that this issue should be resolved against the appellant in favour of the respondents.

 

RESOLUTION OF ISSUES

 

The two issues that call for determination are closely intertwined and they shall be resolved simultaneously.

 

The appellant's complaints, as summarized earlier, are two-fold.
 

The parties, as set out earlier in this judgment, have proferred arguments on the principle of "vested right" and legal authorities have been cited to this court. The term "vested right" is defined in Black's Law Dictionary, Deluxe Ninth Edition, page 1438 as:

 

"A right that so completely and definitely belongs to a person that it cannot be impaired or taken away without the person's consent."
 

In their views, the learned authority authors of Bouvier Law Dictionary at pages 1159 - 1160 have explained vested right as follows:

 

"In law, vesting is the creation of some right, estate, claim, or other legal or equitable interest that from that moment is settled and established; it is not dependent upon a condition to be satisfied or an event to occur for the party in whom it is vested to enforce it."

 

In the case of Alhaji Sobalaje Eleran & 2 Ors. v. Dr. Atiku Aderonpe (2008) 11 NWLR (Pt.1097) 50 at 81 this court per Sankey,JCA quoted with approval the definition of "vested interest" in Black's Law Dictionary, Seventh Edition as:
 

"An interest the right to enjoyment of which, either present or future, is not subject to the happening of a condition precedent."

 

From the definition of "vested right" as set out in the Law Dictionaries and the decision of the court referred to above, it is clear that for a right to be said to be vested in a party or claimant, it must be proved that the right is complete and definite, that the right belongs to the claimant or party; that the right cannot be tempered with or impaired or taken away from the claimant without his consent. A vested right is, therefore, not a technical or procedural right. It is a definite right and a claimant must prove his alleged "vested right" by credible evidence. In other words, a claimant in a case of vested right must prove that he has unquestionable right to the property or privilege claimed. The law, therefore, is that where a claim of vested right is anchored or premised on a wrong footing, the purported vested right automatically collapses and fails. See the cases of Adesanoye v. Adewole (2006) 14 NWLR (Pt.1000) 242 and National Democratic Party (NDP) v. Independent National Electoral Commission (INEC) (2013) 6 NWLR (Pt.1350) 392.

Now the facts, in respect of the appellant's alleged "invested right" to or interest in the disputed house, concisely stated are:

 

(a)     By a letter dated 27th April, 1999 the appellant was allocated the flat in dispute - Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja.

 

(b)     The appellant was in actual possession of the Flat from 1999 until she retired on the 15th day of January, 2004.

 

(c)     Prior to the appellant's retirement on the 15th day of January, 2004, the Federal Government of Nigeria began a Monetization Policy of fringe benefits in the Federal Civil Service with effect from the 1st day of October, 2003.

 

Based on the foregoing facts, the appellant stated in paragraphs 13, 14, 15, 16, 17, 18 and 19 of her statement of claim as follows:
 

''13.   The plaintiff states that part of this policy amongst others was the sale of the Federal Government residential facilities (Houses, flats etc.) built, acquired or otherwise owned by the Federal Government and all its Ministries, Department and Agencies.

 

14.     The plaintiff avers that by the said Monetization Policy, she is entitled to purchase the said apartment even on retirement by being given the 'option of right of first refusal'.
 

15.     The plaintiff avers that based on this policy, she wrote to the Head of Service of the Federation through the Chief Registrar of the Supreme Court to indicate her interest to purchase the said apartment in line with the policy (letter of interest attached and marked as Exhibit FAO 7).
 

16.     The plaintiff avers that due to the late full implementation of the said policy particularly about the sale of the said house, her application could not be fully processed, although she was allowed continued occupation of the said apartment.
 

17.     The plaintiff avers that in-between the commencement date of October 2003 of the policy and the eventual implementation in September 2004 she retired on January 15, 2004

 

18.     The plaintiff avers that on retirement after 35 years of meritorious service to the judiciary and the nation as a whole, her entitlements were calculated and paid in compliance with the Monetization Policy of the Federal Government.
 

19.     The plaintiff avers that she believes that the right of first refusal by the occupant of the Federal Government houses (as guaranteed in the sales guidelines) is part of the benefits that accrued to her, the policy having met her in active service. (Approved guidelines attached and marked as Exhibit FAO 8)."

 

The facts of this case, as clearly can be gathered from the appellant's pleadings, show that the appellant did not conclusively plead any "vested right" to the flat in dispute prior to her retirement on or about the 15th day of January, 2004. The appellant's arguments on "vested right" are, therefore, merely academic and issue 1 cannot be resolved in her favour.

One of the complaints borders on evaluation of evidence by the trial court.

I agree with all the parties to this appeal that it is the primary duty of a trial court to properly evaluate the evidence before it and to make appropriate findings thereon. In its primary task, a trial court must consider issues joined by the parties and it must adequately review the evidence and make proper findings. See Sagay v. Sajere (2006) 6 NWLR (Pt.661) 360 at 370.
It should be noted that in carrying out its adjudicatory duties, a trial court should confine itself to the evidence on matters which have been duly included in the parties' pleadings. See Woluchem v. Gudi (1981) 1 - 5 SC 291; National Investment Co. Ltd v. Thompson Organization (1969) NWLR 99 and Sosanya v. Onadeko (2005) 1 NWLR (Pt.926) 185.

I have read the judgment of the learned trial judge which covers pages 384 to 406 of the record of appeal. A thorough reading of the said judgment reveals clearly that the evaluation carried out by the trial court was rather scanty and not based on the totality of the evidence before the court. The evaluation also appears to have completely ignored evidence on the appellant's claims 1 and 2 of the Monetization Policy of the Federal Government of Nigeria and her alternative claims - numbered as 4, 5, 6, 7 and 8.

The relevant facts on the Monetization policy of the Federal Government of Nigeria, as can be gathered from the appellant's pleadings and evidence can be summarized to be as follows:

(i)      The appellant was a career civil servant who began her career as a Clerical Assistant in 1969 at the University of Ibadan.
 

(ii)     The appellant transferred her service to the Oyo State Judiciary from where she subsequently moved to the Supreme Court of Nigeria as Assistant Director, Library Services in 1994.
 

(iii)    The appellant rose to the position of Director 'Library Services' of the Supreme Court of Nigeria in December, 2003.
 

(iv)    The appellant "eventually retired after 35 years of meritorious, honest and unblemished service to the judiciary and to the nation as a whole in January 2004" - paragraph I of the statement of claim.
 

(v)     Prior to the appellant's retirement on the 15th day of January, 2004, "the Federal Government of Nigeria began a Monetization Policy of fringe benefits in the Federal Civil Service which took effect from October 2003" - paragraph 12 of the appellant's statement of claim.
 

The above facts, be it noted, were not challenged nor denied by the respondents in the trial court. However, as stated earlier, notwithstanding these uncontroverted facts, the trial court failed to evaluate the evidence before it in respect of appellant's claim 1 and 2. The trial court ought to have considered all the appellant's claims. As can be seen from the appellant's claims, reproduced at the beginning of this judgment, prayers 4, 5, 6, 7 and 8 were claimed as the alternative to claims 1, 2 and 3. Assuming, without saying so, that the rights claimed by the appellant are even in conflict or inconsistent with one another, the trial court must still consider all the relief sought. The law is that a party is permitted to rely on several different claims or rights alternatively, even if the rights are in conflict. See Metal Construction (W.A.) Ltd v. Aboderin (1998) 8 NWLR (Pt.563) 538 at 547 where the Supreme Court stated as follows:
 

"It cannot be disputed either party to a suit may, in a proper case include in his pleadings alternative and inconsistent allegations of material facts, as long as he does so separately and distinctly. A plaintiff is thus entitled to plead two or more inconsistent sets of material facts and claim relief in the alternative thereunder. He may also rely on several different rights alternatively, although they be inconsistent."

 

As stated earlier, the trial court did not evaluate the evidence based on all the issues or claims before it. The lower court erroneously confined its evaluation to the issue or claim relating to Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja on the issue of vested right only and, even in doing so, the evaluation did not take into considerations all the facts, circumstances and documentary evidence of the case.

I agree with the appellant's submission that where a trial court had failed in its primary duty in properly evaluating the evidence before it, an appellate court can assume the responsibility or task of properly evaluating the evidence as borne out by the printed record of appeal and the documentary exhibits tendered by the parties and make appropriate findings and arrive at just conclusions, save where such findings can only be based on the credibility of the witnesses who testified in the trial court. This point was loudly pronounced by the Supreme Court, per Adekeye, JSC in Chief Gafaru Arowolo v. Chief Sunday Edun Olowokere & Ors. (2011) 18 NWLR (Pt.1278) 280 at 307 where it was held as follows:

 

"On the issues of findings based on credibility of witnesses, it is not open to the appellate court which did not have the opportunity of observing the witnesses give evidence to make important specific findings based on the credibility of witnesses."
 

See also Odofin v. Ayoola (1984) 11 SC 72 and Sanni v. Ademiluyi (2003) 3 NWLR (Pt.807) 381.

From the facts and circumstances of this case, evaluation of the evidence before the trial court would not involve any assessment of the credibility of the witnesses who testified. This is so because the facts are substantially not in dispute and the evidence before the trial court is mainly documentary. Therefore, this court is not in any disadvantageous position, if it decides to undertake an evaluation or appraisal of the evidence tendered before the trial court. In a situation as this, the Supreme Court has held that an appellate court could intervene if the trial court failed in its primary duty. This was the view expressed in many cases, including the case of Mr. Moses Bunge & Anor. v. The Governor of Rivers State & 5 Ors. (2005) 12 NWLR (Pt.995) 573 at 629, per Ogbuagu, JSC where it was stated that:
 

"If a trial court fails to properly evaluate the evidence before it, an appeal court can intervene in order to save the situation. Where the question is the weight and relevance of the documentary evidence placed before an appellate court, the court is in as good a position as the trial court to examine also the entire documentary evidence placed before the trial court, and draw its own inferences and come to its own conclusion."

 

Earlier in this judgment, I reproduced some of paragraphs of the appellant's statement of claim, including paragraph 19 thereof. As a result of the appellant's belief expressed in paragraph 19 of her statement of claim, she obtained, filed and submitted exhibit 8 - a form, expressing her interest to purchase the flat but the 1st and 2nd respondents refused to accept the form from her through a letter dated August 8, 2005 - exhibit 9. In paragraph 3 of exhibit 9, the 1st and 2nd respondents informed the appellant that:

 

"Pursuant to the requirements vis-a-yis (sic) career public servants in legitimate occupation of non-essential FGN houses in Abuja, and your inability to meet said requirement (based on your submitted particulars thereof); we regret to inform you that we cannot accept an Expression of Interest submission from you in respect of the housing unit referenced in your form."
 

As can be seen from paragraph 3 of exhibit 9 reproduced above, the 1st and 2nd respondents did not specify the "requirements" which the appellant was unable to "meet". The question is whether from the evidence adduced before the trial court, the appellant was able to show that she was entitled to "the first right of refusal to purchase" the disputed house as specified by the "Approved Guidelines for the Sale of Federal Government Houses in the Federal Capital Territory to Career Civil Servants''?

 

It is on record that most of the documents admitted by the trial court were tendered by the appellant. At pages 367 - 368 of the record, the learned trial judge indicated that exhibits'1 - 7, 8 & 8A, 9, 10, 11, 11A, 12 - 16, 17 & 17A, 18, 19, 20 & 20A - D" were tendered and admitted "in evidence by consent of counsels" (sic). In his judgment, the learned trial judge stated inter alia (pages 388 - 390) as follows:

 

"The plaintiff tendered the following documents, which were admitted in evidence:
 

(1)     Exhibit 1 University of Ibadan letter of offer temporary appointment.
 

(2)     Exhibit 2 Transfer of service to Supreme Court.
 

(3)     Exhibit 3 FJSC notification of promotion to Deputy Director, Library Services on GL. 16.

 

(4)     Exhibit 4 FJSC notification of promotion to Director, Library Services on GL. 17.

 

(5)     Exhibit 5 MFCT letter of allocation of residential accommodation.
 

(6)     Exhibit 6 notice of acceptance of statutory retirement from service dated 19/1/2004.

 

(7)     Exhibit 7 a letter to the Head of Service of the Federal by Chief Registrar, Supreme Court.

 

(8)     Exhibit 8 FCTA form for expression of interest to purchase a Federal Government of Nigeria housing unit in Abuja FCT for career public servants only dated 2/5/2005. Exhibit 8A is a Standard Trust Bank pay slip in the sum of N10,000.00.
 

(9)     Exhibit 9 dated August 8, 2005 is a letter written to the plaintiff by the 1st and 2nd defendant wherein the plaintiff was advised to participate in the public bidding, having rejected her expression of interest on the ground that she is not qualified to apply as a career civil servant.

 

(10)   Exhibit 10 dated 29th October 2000 written to the plaintiff by the 1st and 2nd defendants expressing regret for not accepting the expression of interest due to the approved specific guidelines governing the sale process.

 

(11)   Exhibits 11 & 11A is Apo analysis showing names, address and bid amount. The plaintiff being No. 19 on the list with bid amount of N8,800,000.00.
 

(12)   Exhibit 12 is a comprehensive auction result for Nyanya, Apo and other Districts with the name of the 3rd defendant on serial No. 19 and a bid price of N10,000,000.00

 

(13)   Exhibit 13 is also a list with the name of the plaintiff No.58 with a bid price of N8,800,000.00.

 

(14)   Exhibit 14 is a letter written to the plaintiff by the 1st and 2nd defendant requesting her to indicate her interest in writing on a first option of refusal dated 4/10/2004.

 

(15)   Exhibit 15 is an application form to purchase Federal Government housing unit in Abuja FCT dated 18/6/2005 and signed by the plaintiff.
 

(16)   Exhibit 16 is a photocopy of 1st Bank cheque and Trans-International Bank Plc cheque in the sum of 880,000.00 and N130,000.00 respectively payable to Adhoc Committee on Sale of Government housing,

 

(17)   Exhibit 17 is a letter dated December 6, 2005 written to the plaintiff by the 1st and 3rd defendants stating that the bid submitted on the property which was opened on November 14, 2005 is null and void since the property having received bid in the first auction of September 30, 2005 was not advertised as available for purchase,

 

(18)   Exhibit 18 is the Federal Government of Nigeria official gazette on approved guidelines for sale of Federal Government housing to career civil servants and to the general public and political office holders.
 

(19)   Exhibit 19 is a copy of Federal Government Nigeria FCTA application form to purchase Federal Government housing unit in Abuja FCT dated 18/6/2005 signed by the plaintiff.
 

(20)   Exhibit 20 and 20A are letter written by the plaintiff to Chief O. O. Obasanjo GLFR (sic) President, Federal Republic of Nigeria. And Exhibit 20A is the plaintiff's letter to Major General A. Mohammed Chief of Staff to the President."

 

As stated earlier, the evidence in this case is substantially documentary.
The importance of documentary evidence cannot be over-emphasized as documentary evidence can easily be used as a hanger to resolve an issue on which the parties have tendered conflicting evidence. The Supreme Court emphasized this point when it held in Bunge v. Governor of Rivers State (2006) 12 NWLR (Pt.995) 573 at 629 as follows:

 

"The importance of documentary evidence is that it could be used to resolve issue which there is conflicting evidence. It would be used as a hanger from which to test the veracity of oral testimonies."

 

In the concluding part of his judgment, the learned trial judge stated as follows:
 

"All their evidence was narrowed to documentary evidences (sic) before the court tendered in court. And on the strength of the documentary evidences (sic) before the court I come to the conclusion that the plaintiff, having retired on 19th (sic) January 2004 for four months before the commencement of the sale of Federal Government Houses on 1st April 2005. (sic) The plaintiff was not entitled to exercise the option of first refusal on the property the subject matter of this suit. Hence she ceases to be a serving career public servant.

 

In the same vein as at the time the plaintiff bided (sic) for the property the subject matter of this suit (sic) The property was bided and won by the 3rd defendant who thereafter proceeded to make full payments. Therefore the sale of the said property by the 1st and 2nd defendants to the 3rd defendant is valid and subsisting.
 

The case for the plaintiff fails and it is accordingly dismissed."
 

From the documentary evidence before the trial court, was the learned trial judge right in his reasoning and conclusion reproduced above? The answer can only be proffered from an evaluation of the documentary evidence before the court, bearing in mind that there are two contestants to the flat in dispute. The two contestants are the appellant and the 3rd respondent, both claiming to have bid for the property as members of the general public.

The appellant's first application form - exhibit 8 was completed and signed by the appellant on '2/5/05" and the stamp acknowledging receipt thereof by the committee responsible for the sale of Federal Government Houses in the FCT was dated and signed on "23/05/05". Prior to the 2nd day of May, 2005, when the appellant filled and signed exhibit 8, the 1st and 2nd respondents wrote exhibit 14 to the appellant. Exhibit 14 is a letter with Ref. No.FCDA/ADM/GS/S.38 dated "04/10/04' and it is hereunder fully reproduced:
 

"Deaconess (Mrs.) F. A. Ogundipe

Block D44, Flat 3

Apo 'D' Extension

 

EXPRESSION OF INTENTION TO BUY GOVERNMENT RESIDENTIAL LANDED PROPERTY

As part of the current Monetization Policy, the Federal Government has put in place necessary machinery to sell its residential landed properties in the FCT to interested buyers. Consequently, I am directed to request you on a first option of refusal to indicate in writing whether you are interested in buying the residence you are currently occupying.

2.  You are to support your intention with the following documents:
 

                (i)      Letter of allocation

 (ii)     Intended form of purchase, Mortgage, Bank loan, direct purchase, etc.

 3.  Your response should reach the undersigned not later that 30th December,              2004.

(Sgd)
J. A. Maimagani

Ag. Director, Admin. & Supplies

For: Mr. Minister, FCT"

 

There is nothing on record showing that the appellant responded or reacted to the request of the 1st and 2nd respondents as contained in exhibit 14. In other words, the appellant did not "indicate in writing whether" she was "interested in buying the residence" she was then occupying 'not later than 30th December, 2004."

It should, be noted the "Approved Guidelines for the Sale of Federal Government Houses in the Federal Capital Territory to Career Civil Servants became effective from the 2nd day of April, 2005. Having failed to express or indicate any intention or interest in buying the flat in dispute as demanded by the 1st and 2nd respondents in Exhibit 14, the appellant proceeded to fill and submit exhibit 8 on 23/05/2005. Upon receipt of Exhibit 8, the 1st and 2nd respondents 'magnanimously' advised the appellant, in exhibit 9, "to please bid for this or any available property (as a member of the general public, without the benefit of first right of refusal), via an open Auction System in due course.'' According to the appellant, she complied with the advice of the 1st and 2nd respondents contained in their letter of August 8, 2005 (exhibit 9) by filling and submitting exhibit 15 dated 18/06/2005. This is in apparent compliance with Public Notice No. 2 dealing with "Approved Guidelines for the sale of Federal Government Houses in the Federal Capital Territory to the General Public and Political Offices Holders'. (Underlining mine).

In exhibit 15, the bid amount offered by the appellant is N10.1 million and the down payment amount indicated is N1.01 million. The 1st and 2nd respondents pleaded in paragraph 7(c) of their joint statement of defence that:
 

"The 1st and 2nd defendants shall contend at the hearing of this suit that the plaintiff did not accompany her bid with any bid bond by way of bank draft until November, 2005 and after the Flat in dispute had been won by 3rd defendant's bid in September, 2005."

I have examined exhibit 16 - a photocopy of First Bank cheque and Trans-International Bank Plc cheque in the sum of N880,000.00 and N130,000.00 respectively payable to the Adhoc Committee on Sale of Government Housing. The date on the First Bank cheque is not legible but that on the Trans-International Bank Plc cheque is clearly, "11th Nov 2005".
In paragraph 8(b) of their joint statement of defence, the 1st and 2nd respondents averred thus:
 

"(b)    The 1st and 2nd defendants shall contend at the hearing of this suit that the plaintiffs bid was void on the grounds namely:
 

(i)      That as at the time the plaintiff bided for the house to the knowledge of the plaintiff there had been a valid and subsisting sale of the house to the 3rd defendant.
 

(ii)     That the bid bond of the plaintiff of N1,010,000.00 was not in accordance with paragraph 9 of the Public Notice No.2 that required 10% bid bond of the bid value."

 

Earlier in paragraphs 7(a) and 7(c) of their joint statement of defence, the 1st and 2nd respondents averred as follows:

 

"7(a) That if the plaintiffs name was posted on the internet as having won a bid it was in error as the house had been won in September 2006 (sic) well before the alleged bid of the plaintiff was submitted in November, 2005.

 

(c)     The 1st and 2nd defendants shall contend at the hearing of this suit that the plaintiff did not accompany her bid with any bond by way of bank draft until November 2005 and after the Flat is dispute had been won by 3rd defendant's bid in September 2005."

 

It seems to me that at all times material to the appellant's bid, the 1st and 2nd respondents had responded to her, even as at the 29th, day of October 2005, that the flat in dispute was still available for purchase and the appellant was accordingly given "the option of bidding for the same." See exhibit 10 in which it was so represented to me appellant. Exhibit 10 has not been disputed by the respondents and it is hereby fully reproduced:

 

"29th October, 2005

OGUNDIPE FELICIA A.

BK D44 FT 3 ZONE D EXT. APO

08033155841
 

Dear Sir,

 

RE: EXPRESSION OF INTEREST TO PURCHASE A
FEDERAL GOVERNMENT HOUSING UNIT (HU) IN ABUJA

 

I write with respect to your expression of interest to purchase a Federal Government Housing Unit in Abuja.

 

2.       As you are no doubt aware, the Federal Executive Council (FEC), in mandating the Federal Capital Territory Administration (FCTA) to implement the sale of its non-essential housing units in Abuja, approved specific Guidelines to govern the Sale process.

 

3.       Pursuant to this stipulation, we regret to inform you that we cannot accept an Expression of Interest submission from you in respect to the house in which you expressed interest.
 

4.       However, you have been given the option of bidding for the same property or any other available property of your choice (without the benefit of first right of refusal) via an open Auction System which is ongoing.

 

Information about this process and a list of the houses available for public bidding could be sourced from the FCT website: www. fct.gov .ng

Please, do not hesitate to contact us through our hotline 67022300, 67022400, 67022500 in the event that any additional information is required.

 

Thank you,

(SGD)
Abdu Mukhtar

For Chairman

Adhoc Committee on Sale of FG Houses"

 

The 3rd respondent tendered in evidence exhibits 22, 23, 24, 25,26 and 27 to prove the respondents' allegation that the flat was 'duly' sold to the 3rd respondent. I have carefully examined these exhibits.

 

In exhibit 23, the 1st and 2nd respondents appear to acknowledge the 'bid' allegedly submitted by the 3rd respondent and which 'bid' was allegedly 'opened on September 30, 2005." It is rather very curious that the 'bid' allegedly submitted by the 3rd respondent was not put in evidence by any of the respondents. This court cannot speculate on whether or not the 3rd respondent actually submitted any bid. The court, in the absence of such 'bid' cannot also speculate on the date the 'bid' was filled or submitted by the 3rd respondent to the 1st and 2nd respondents. The law is settled that a court of law cannot speculate on anything. See Ejezie v. Anuwu (2008) 12 NWLR (Pt.1101) 446.
 

In any case, the 3rd respondent did not plead nor prove the date she bid for the disputed flat. In fact she merely pleaded obliquely in paragraph 12 of her statement of defence as follows:

 

"12.   The 3rd defendant avers that she bided for the House No. D44 Flats (sic) 3 Zone D Extension Apo and won and was designated the winning bidder via a letter dated 13th December, 2005 and the said letter is hereby pleaded and shall be relied upon at the trial.

 

The 1st and 2nd respondents, as stated earlier, claimed in their statement of defence that the appellant did not comply with the provisions of paragraph 9 of Public Notice No. 2. That notice is contained in the Federal Republic of Nigeria Official Gazette No. 82 Vol. 92 and paragraph 9 thereof provides as follows:
 

"9.     All houses occupied by political office holders will be sold in open auction whereby all Nigerian citizens shall be given equal opportunity. A simple Auction System by way of competitive bidding shall be employed. All bids must be submitted with a bid bond by way of bank draft from a first class bank, equal to ten percent of bid value. All bids without a bid bond stand disqualified. The highest bidder shall be automatically declared the preferred bidder, along with the second highest bidder as the reserve bidder; with the bid bond being retained and treated as non-refundable 10 percent deposit. All other bid bonds shall be returned to unsuccessful bidder(s)."

 

It seems to me, from the first sentence of paragraph 9 of Public Notice No. 2, that the paragraph governs house occupied by political office holders" and not the house or flat in dispute which was occupied by a career public servant. In any case, the purported 'winner' of the house in dispute, the 3rd respondent has not proved that she ever bid for the house as required by paragraph 9 of Public Notice No. 2. Apart from failing to prove that she ever bid for the flat, there is no evidence that any purported 'bid' by the 3rd respondent was accompanied "by a bid bond by way of bank draft...equal to ten percent of bid value" regarded as "nonrefundable 10 percent deposit."

The 1st and 2nd respondents claimed that the 3rd respondent's bid for the disputed flat was N10,000,000.00 (Ten million Naira) and that it was the winning bid. I have examined the receipts tendered by the 3rd respondent as exhibits 24, 25, 25 and 27. Exhibit 24 is a receipt dated 29/10/2005 for the sum of N1000,000.00; exhibit 25 is dated 28/11/2005 and it is for the sum of N2,000,000.00; Exhibit 26 is dated 12/01/2006 and it is for the sum of N2,000,000.00 and finally Exhibit 27 dated 09/02/06 is for the sum of N5,000,000.00. The total amount of money indicated in all the receipts (Exhibits 24, 25, 26 and 27) is N10,000,000.00 which is the total price a allegedly offered by the 3rd respondent. The payment in Exhibit 24 indicated as non-refundable deposit was paid on 29/10/2005 - about one month after the 3rd respondent's bid was allegedly opened on the 30th day of September, 2005. It is clear, therefore, that the non-refundable deposit allegedly paid by the 3rd respondent did not accompany the 3rd respondent's alleged bid. As stated earlier, the 3rd respondent's 'bid' and its date have not been proved in this case.

The law is quite settled that a civil case is decided on the preponderance of evidence. Therefore, before a trial court gives its verdict in any civil case, as the instant case, the court is expected to weigh the evidence of the contending parties on an imaginary scale of justice with a view to determining to which side of the 'scale' the pendulum would tilt and this determination is not dependent on the number of witnesses called to testified. See Chief D. B. Ajibulu v. Major General D. O. Ajayi (Rtd.) (2014) 2 NWLR (Pt. 1392) 483 at 502 where the Supreme Court, per Ogunbiyi, JSC stated that:
 

"The law is well established, that under our adversarial system of jurisprudence, civil cases are decided on preponderance of evidence. See Mogaji v. Odofin (1978) 3-4 SC 91. In summary, before the trial court accept or rejects the evidence of either side it is expected of the judge to construct an imaginary scale of justice whereupon he is expected to weigh the evidence of both sides for purpose of determining to which side the pendulum will tilt; the determination which is not dependent upon number of witnesses called."

From the available facts of this case, the only public bid for the purchase of the flat in dispute was the one submitted by the appellant and, in the absence of any other higher legal bid for the said flat, there was no basis for the purported sale of the flat to the 3rd respondent whose 'bid' clearly appears to be a sham. The appellant's bid was even higher and earlier than the 3rd respondent's sham bid and the appellant's bid ought to have been designated by the 1st, 2nd and 4th respondents as the winning bid and the appellant designated "as the Winning Bidder." The appellant, before, proved her case on the balance of probabilities.
From all that I have stated in this judgment, it is clear that the learned trial judge failed to adequately evaluate the evidence tendered by the parties and he failed to arrive at the right conclusions based on the evidence before him. The trial court failed to do substantial justice in this case. The second issue for determination is therefore resolved in favour of the appellant.

The result is that this appeal has merit and it is hereby allowed. However, in view of what has been said about exhibit 14, wherein the appellant was given an opportunity to express her interest in the flat not "later than 30th December, 2004" and which opportunity was not utilized by the appellant, his 3rd claim cannot be granted. Her 2nd relief is also vague and it will not be granted. I also am of the view that the appellant's first principal relief will yield no practical benefit to her. The appellant's main prayers in the lower [court] are hereby refused. However, her alternative claims are hereby granted as follows:

 

1.       It is hereby declared that the plaintiff/appellant was entitled to be given fair consideration in the bidding exercise in respect of Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja.
 

2.       It is hereby further declared that the purported sale of Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja to the 3rd defendant/respondent is null and void.

 

3.       An order is hereby granted restraining the 1st, 2nd and 3rd defendants, whether by themselves or by their privies, agents, servants, employees or anybody deriving authority from them from disturbing, ejecting, evicting, dispossessing, quitting, forcefully removing, harassing and or intimidating the plaintiff from peaceful enjoyment of the said property.

 

4.       The plaintiff/appellant is hereby declared or designated as the Winning Bidder of Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja.

 

5.       The plaintiff/appellant is hereby ordered to pay the bid amount of N10,100,000.00) (Ten million, one hundred thousand Naira) and other legal charges in respect of the said fiat within 90 days from today.
 

There is, however, no order for costs.

 

 

ABUBAKAR DATTI YAHAYA, J.C.A.:

 

I have read before now, the judgment of my learned brother Adumein JCA just delivered and I agree with his reasoning and conclusions.
 

It was the 1st and 2nd respondents who gave the appellant an option via letter dated 29th of October 2005 (exhibits 10), to "bid for this or any available property (as a member of the general public, without the benefit of first right of refusal) via an open Auction System in due course". She accepted this advice and bid for the property in question, on the 18th of June, 2005.
 

The 1st and 2nd respondents did not accept her bid, saying that it was not accompanied by any bid bond by way of bank draft, until November, 2005, and that by then, the house in question had already been won in a bid, by the "3rd defendant", in September 2005.

However, the particulars of the bid of the 3rd defendant have not been furnished and it is not possible for this court to conclusively hold that the said "3rd defendant" had indeed made a bid as required, had won, and had thus been sold the house. It is therefore not possible to see how such bid can defeat the bid of the appellant whose bid particulars have been supplied.
 

For this and the fuller reasons that have been well articulated in the lead judgment, I too find the appeal meritorious and I allow it. I abide by the Orders made therein.

JOSEPH TINE TUR, J.C.A.:

 

I have read an advance copy of the judgment delivered by my learned brother, Moore A. A. Adumein, JCA but I beg to dissent. I shall proffer reasons.
 

The appellant began her career as an Assistant Clerical Officer in 1969 at the University of Ibadan and later moved to the Oyo State Judiciary. The appellant thereafter proceeded to the Supreme Court of Nigeria from where she retired on 15th January, 2004 as Director, Library Services. Before retirement the Federal Government of Nigeria had in place the Monetization Policy of paying certain fringe benefits to Federal Civil Servants in her employment with effect from 1st October, 2003. The appellant's last abode or residence was Block D44, Flat 3, Zone D Extension, Apo Legislative Quarters. The appellants grievances with the respondents is that though she had retired from Public Service, by virtue of the Monetization Policy of the Federal Government, she was entitled to purchase the apartment by being given the option of "right of first refusal" by virtue of the "Approved Guidelines for the Sale of Federal Government Houses in the Federal Capital Territory to Career Public Servants" which came into effect on 1st April, 2005 popularly called "Public Notice No.1" of 1st April, 2005. The 1st and 2nd respondent's case is that having retired from Public Service on 15th January, 2004 the appellant could not bid for the house as a career public servant but could do so or bid for any other property of her choice under the "Approved Guidelines for the Sale of Federal Government Houses in the Federal Capital Territory to the General Public and Political Office Holders," known as Public Notice No.2 of 1st April, 2005.
 

It will appear from the pleadings, oral and documentary evidence that the appellant bidded for other properties while contesting the sale of the house now in dispute. In the process of this controversy the 1st and 2nd respondents sold the property at a public auction to the 3rd respondent as the highest bidder on 30th day of September, 2005. Aggrieved the appellant instituted this action at the High Court of the Federal Capital Territory, Abuja on 27th April, 2006 claiming the following reliefs against the respondents:

 

"1.     A DECLARATION that the plaintiff is a beneficiary of the Monetization Policy of the Federal Government of Nigeria, having been in active service as at the time the policy took effect.

 

2.       A DECLARATION that the plaintiff has an accrued right as a result of her being in active service when the Monetization Policy began.
 

3.       AN ORDER directing the 1st and 2nd Defendants to give the plaintiff the opportunity to exercise her right of first refusal in respect of Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja.
IN THE ALTERNATIVE:

 

4.       A DECLARATION that the plaintiff was entitled to be given fair consideration in the bidding exercise carried out by the 1st and 2nd Defendants in September and November, 2005, the plaintiff having submitted the expression of interest form in respect of Flat 3, Block D44, Zone D Extension, Apo  Legislative Quarters, Abuja for the said bidding exercise.
 

5.       A DECLARATION that the non-consideration of the plaintiff in the said public bidding before awarding the said flat to the 3rd Defendant is null and void.

 

6.       A DECLARATION that the purported sale of Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja to the 3rd Defendant is null and void.

 

7.       AN ORDER restraining the 1st, 2nd and 3rd Defendants, their privies, agents, servants, employees or anybody deriving authority from them from disturbing, ejecting, evicting, dispossessing, quitting, forcefully removing, harassing and or intimidating the plaintiff from peaceful enjoyment of the said property until she so exercises her right.
 

8.       And for such further order or other orders as the plaintiff may be entitled to under the law and Constitution."

 

Pleadings having been filed and exchanged, hearing proceeded. The parties testified and put in documentary exhibits. At the close of hearing each learned Counsel addressed the Court before the learned trial Judge - A. M. Talba, J., dismissed the appellant's claims on 18th day of November, 2009 holding that the appellant was not entitled to any of the reliefs sought in the Court below either in respect of Public Notice No.1 or 2.

 

A Notice of Appeal was filed by the appellant against the judgment on 18th February, 2010 followed by the appellant's brief of argument on 8th April, 2011 with a deeming order made on 18th March, 2013. The 1st and 2nd respondents filed a Joint Brief of Argument on 20th January, 2014 which was deemed properly filed and served on the other parties on 21st January, 2014. The 3rd respondent's brief, filed on 15th May, 2012 was deemed properly filed and served on other Counsel on 18th March, 2013. The 4th respondent filed brief on 27th March, 2013. When the appeal came up for hearing on 21st January, 2014 Counsel adopted their respective briefs of argument. While the learned silk representing the appellant urged that the appeal should be allowed and judgment entered for the appellant, learned Counsel representing the respondents urged that the appeal should be dismissed. The issues for determination and the arguments proffered in support have been admirably set out in the lead judgment such that I need not reproduce them in this dissenting judgment. In the determination of this appeal I shall consider the real issues in controversy as set out at paragraph 3.00 to 3.02 page 5 of the 3rd respondent's brief of argument to wit:

 

"1.     Whether the learned trial Judge was right when he held that the plaintiff/appellant is not entitled to a right of first refusal in respect of Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja in the sale of non-essential Federal Government of Nigeria (Residential) houses exercise and/or the subsequent bidding exercise carried out by the 1st and 2nd Defendants/Respondents which returned the 3rd Defendant/Respondent as the winner of same?

 

2.       Whether the learned trial Judge property appraised or evaluated the evidence before him?"

 

Positive answers to the above issues will dispose this appeal. Having adopted the arguments in respect of the issues formulated by Counsel, I shall proceed to the resolution of the issues in controversy.

 

The commencement date of the Monetization Policy of the Federal Government of Nigeria was 1st October, 2003. The appellant retired from Public Service on 15th January, 2004. It follows that the appellant was entitled to the principal declaration that she is a beneficiary of the Monetization Policy of the Federal Government of Nigeria. However, the question to be asked and answered is: Since by 1st day of April, 2005 when the "Approved Guidelines for the Sale of Federal Government Houses in the Federal Capital Territory to Career Public Servants" Public Notice No.1 came into effect the appellant was no longer in service having retired on the 15th January, 2004, can the appellant claim any vested right in Flat 3 Block D44, Zone "D" Extension, Apo, Legislative Quarters, Abuja on the basis of the Monetization Policy in respect of the said flat in question? I do not think so.

To "approve" is to give formal sanction to, confirm authoritatively or to adopt the thing in question or in discourse. Under normal circumstances, it is the time the approval in the Public Notice No.1 and 2 came into effect, namely, 1st April, 2005 that the vested rights of the appellant, if she had not retired, would have come into operation. To "vest" is "To cloth with legal right". See Osborn's Concise Law Dictionary, 9th edition, page 399. A vested right or interest is "An interest for which the right to its enjoyment, either present or future, is not subject to the happening of a condition precedent" See Black's Law Dictionary, 9th edition, page 886.

A "policy" is a "set of ideas or a plan of what to do in particular situations that has been agreed officially by a group of people, a business organization, a government or a political party." See Cambridge Advanced Learned Dictionary, 2003 edition, page 958. In legal parlance, it is "The general principles by which a government is guided in its management of public affairs." See Blacks Law Dictionary (supra) page 1276.
 

The interpretation, implementation or execution of the "Approved Guidelines For the Sale of Federal Government Houses in the FCT to Career Public Servants" contained in Gazette No.1 must be in accordance with the declared intention of the Federal Government as the policy maker on the sale of Federal Government houses. The appellant could not by any stretch of construction or interpretation of the Gazette come within the class of persons known as "Career Public Servants" as at April, 2005 having retired from Public Service since 1st January, 2004. I hold that Public Notice No. 1 of 1st April, 2005 did not apply to the appellant.

 

Then comes Public Notice No.2 of 1st April, 2005 titled "Approved Guidelines for the Sale of Federal Government Houses in the FCT to the General Public and Political Office Holders."

It is settled law that the title of a statute or a document such as a gazette or public notice, etc, is an important part of the Act or document and may be referred to for the purpose of ascertaining the intention of its general or specific purpose and of throwing light on its construction or interpretation. See Fenton vs. J. Thorley & Co., Ltd. (1903) A.C. 443; Fielding vs. Morley Corporation (1899) 1 Ch. 1 at pages 3-4. Public Notice No. 2 of 1st April, 2005 was published as a gazette of the Federal Government of Nigeria Cap.F6, Laws of the Federal Republic of Nigeria, 2004.

A gazette is an official publication of the Federal Government of Nigeria or a State in which the official acts of the government e.g. appointments, notices and other legal matters are reported.

The intention of the Federal Government is to be garnered from Public Notice No. 2 of 1st April, 2005 as published into the gazette Section 54 of the Evidence Act, 2011 reads as follows:

 

"When the Court has to form an opinion as to the existence of any fact of a public nature, any statement of it, made in a recital contained in any enactment or in any proclamation or speech of the President in opening the National Assembly, or in any proclamation or speech or in any statement made in a Government or public notice appearing in the Federal Gazette or in a State notice or a State public notice appearing in a State Gazette or the Government Gazette of any other country is admissible. Certificates of Specified Government Officers."

 

Paragraph 3 of the Public Notice No.2 of 1st April, 2005 reads as follows:
 

3.       The guidelines issued hereunder are applicable to the sale of houses to general public and ALL political office holders-appointed or elected - within the express or implied meaning and intention of the Constitution of the Federal Republic of Nigeria, 1999."
 

Other relevant paragraphs of Public Notice No.2 of 1st April, 2005 in relation to this discourse are as follows:

 

"6.     The Houses will he sold on "as is, where is" basis at the evaluated price with the current occupants having the first right of refusal to purchase within thirty days of offer. The said right to purchase is neither transferable, assignable nor alienable in any way or form.
 

7.       Strict compliance with development control standards must be adhered to by all purchasers; no additional structures will be allowed without written approval of the Development Control Department of the FCDA.
 

8.       Sale of houses will be advertised, and OPEN TO ALL NIGERIAN CITIZENS AND INCORPORATED ASSOCIATIONS and application fees of N10,000.00 (Ten thousand Naira only) must accompany each Free application form, payable at designated banks. The banks will remit all proceeds to a dedicated account in the name of the Federal Government of Nigeria with the Central Bank of Nigeria.

 

9.       All houses occupied by political office holders will be sold in Open Auction whereby all Nigerian citizens shall be given equal opportunity. A simple Auction System by way of competitive bidding shall be employed. All bids must be submitted with a bid bond by way of bank draft from a first class bank equal to ten percent of bid value. All bids without a bid bond stand disqualified. The highest bidder shall be automatically declared the winner, along with the second highest bidder as the reserve bidder, with the bid bond being retained and treated as non-refundable 10 percent deposit. All other bid bonds shall be returned to unsuccessful bidder(s).

 

10.     The highest bid price will then be offered to the political office holder in occupation to exercise the right of first refusal by effecting 10 percent non-refundable deposit within fourteen days. If the political office holder fails to exercise the right of first refusal, the preferred bidder will be allowed to complete the transaction as envisaged.

 

x x x
 

13.     All political office holders must complete Application Forms with receipt of proof of payment of N10,000 in favour of the Federal Capital Territory Administration, along with the following:

 

* Letter of appointment into public office or certificate of election.
* Letter of allocation of quarters by an Appropriate Authority, and
* 4 No. high resolution colour Passport Photographs.

 

14.     All other bidders that are not political office holders must complete Application Forms with receipt of proof of payment of N10,000 in favour of the Federal Capital Territory Administration, along with the following:
 

* Tax Clearance Certificate for last three years.
* Certificate of Incorporation, Memorandum and Articles of Association for Companies, and

* 4 No. high resolution Passport Photographs for individual applicants."
 

Having retired from the public service as at 15th January, 2004 the appellant could not have come within the term "the current occupant(s)" of Flat 3 Block D44, Apo Legislative Quarters, Abuja as at 8th August, 2005 as envisaged by paragraph 6 of Public No.2 of 1st April, 2005 hence the 2nd respondent advised her to participate in the bidding of the flat in dispute as a member of the general public. This is because having retired from the Federal Public Service, the appellant is deemed to have vacated and given up possession of the flat in question to the Federal Government. The appellant could however bid as a member of the general public under paragraph, 3 and 14 as "All other bidders..." Public Notice No.2 of 1st April, 2005. Furthermore, under Public Notice No.2 the appellant has to show that the flat had been advertised, and was open to all Nigerian citizens and Incorporated Associations under paragraph 8 of the said Public Notice. Thirdly, the appellant had to establish whether she participated at the auction sale and she was the highest bidder. The appellants statement of claim runs as follows:

 

"22.   The plaintiff avers that she was in active service as at 14 October, 2003, when the policy took effect, which makes her a beneficiary, and that she only retired from active service in January 15, 2004 (see letter of retirement).
 

23.     The plaintiff avers that on her retirement, in January, 2004, all her benefits were calculated in compliance with the monetization policy.
 

24.     The plaintiff avers that it will be discriminatory and unfair to deny her the right of first refusal to the apartment.

 

25.     The plaintiff avers that she was advised by the 2nd Defendant via a letter dated August 8th, 2005, to participate in the public bidding as a member of the general public, while still contesting the 2nd Defendant's decision to exclude her from the benefit of first right of refusal as a career civil servant she nonetheless complied.
 

26.     The plaintiff avers that she applied to bid as a member of the public through the 2nd defendant's application form. (Copy attached and marked Exhibit "FAO 11").

 

27.     The plaintiff avers that she had to subsequently travel out of the country for medical treatment.

 

28.     The plaintiff avers that while still recuperating in England, she learnt that the apartment in question has been won by 3rd defendant as alone bidder.

 

29.     The plaintiff avers that on getting back to the country, she made enquiries at the office of the 2nd Defendant as to what happened to her application.
 

30.     The plaintiff avers that it was at the 2nd Defendant's office that she was told that her form was misplaced.

 

31.     The plaintiff avers that when the 2nd Defendant realized their mistake, she was given another form which she filed and submitted with a Bank draft. (Copy attached and marked Exhibit "FAO 12(1) and (2)".

 

1st and 2nd Defendants Statement of Defence pleads the following facts:
"1. The 1st and 2nd Defendants admits paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 17, 18, 21, 23, 25, 26, 27, 28, 34, 37, 38 of the statement of claim.
2. The 1st and 2nd Defendants deny paragraphs 2, 11, 14, 15, 16, 19, 20, 22, 24, 29, 30, 31, 32, 39 and 40 of the Statement of Claim and put the plaintiff to the strictest proof thereof .

 

3(a)   In further answer to paragraph 3 of the Statement of Claim the 1st and 2nd to defendants State that there was an Adhoc Committee for the Sale of Federal Government Houses in the Federal Capital Territory set up by the Federal Government of Nigeria to effect the sale of Federal Government Houses in the Federal Capital Territory Ministers Block, Area 11, Garki Abuja.

 

(b)     The 1st and 2nd defendants state that all acts of the defendants as alleged in the statement of claim (but not conceded) were carried out as agents of the Federal Government of Nigeria.

 

4.       In further answer to paragraph 11 of the statement of claim the 1st and 2nd defendants state that the plaintiff had yielded up possession on knowing that the 3rd defendant had been declared successful bidder and had paid for the house,

 

5.       The further answer to paragraphs 14, 15, 16, 19, 20, 22 and 24 of the statement of claim the 1st and 2nd defendants state as follows:
 

(i)      That the sale of Federal Government Houses in the Federal Capital Territory, Abuja inclusive of Flat 3 Block D14 Apo Legislative Quarters Abuja i.e. the house in dispute was and is still regulated by the Federal Government of Nigeria Official Gazette No.82 Volume 92 of 1st April, 2005 and known and called Approval Guidelines for the sale of Federal Government Houses in the Federal Capital Territory to Career Public Servant Public Notice No.1 and Approved Guidelines for the sale of Federal Government Houses in the Federal Capital Territory to the General Public, Political Office Holders Public Notice No.2 and at the trial the 1st and 2nd Defendants shall found on and rely upon the aforesaid Gazette dated 21/4/2005.

 

(ii)     The 1st and 2nd defendants avers that as at 1/4/02 when Gazette No.82 of 2005 became effective the plaintiff was no longer in Public Service of the Federation as he had retired from the service of the Supreme Court of Nigeria.
 

(iii)    That the plaintiff is bound by the provision of Public Notice No.2 and not Public Notice No.1 of Gazette No.82 of 2005 as the plaintiff was no longer in service on 1/4/2005.
 

6.       The 1st and 2nd defendant in further answer to paragraph 24, 29, 30 and 31 of the statement of claim state that the plaintiff' s form was not misplaced as alleged but same was submitted well after a winning bid was received from the 3rd defendant on 30/9/2005 which information was communicated to the plaintiff vide a letter dated 6/14/2005 and signed by Abdul Mukhtar and headed RE: PURCHASE OF HOUSE, BLOCK D44, FLAT 3 ZONE D EXTENSION, APO LEGISLATIVE QUARTERS, ABUJA. At the trial of this suit the 1st and 2nd defendants will found on and rely upon Abdul Mukhtar's aforesaid letter of 6/12/2005.
 

7(a)   In further answer to paragraphs 32 of the statement of claim the 1st and 2nd defendants states that if plaintiffs name was posted on the internet as having won a bid it was in error as the house had been won in September, 2005 well before the alleged bid of the plaintiff which was submitted in November, 2005.
 

(b)     The 1st and 2nd defendants state that the plaintiff was aware of the winning bid of the defendant for as at 31/10/2005 (well before 11/11/2005 when plaintiff's 2nd draft of N130,000.00 Trans International Bank Plc draft was drawn up) the President of the Federal Republic of Nigeria wherein the plaintiff acknowledge the sale of Flat 3, Block D44 , Zone D Apo Quarters to the 3rd Defendant at a consideration of the sum of N10,000,000.00 (Ten Million Naira) only at the trial of this suit the 1st and 2nd defendants shall rely on the plaintiffs aforesaid letter dated 31st October, 2005 and headed RE: REQUEST TO BE ALLOWED To PAY GOVERNMENT EVALUATION PRICE FOR MY QUARTERS.
 

(c)     The 1st and 2nd defendants shall contend at the hearing of this suit that the plaintiff did not accompany her bid with any bid bond by way of bank draft until November, 2005 and after the Flat in dispute had been won by 3rd Defendant's bid in September, 2005.

 

8(a)   In further answer to paragraphs 33, 36 and 39 of the statement of claim the 1st and 2nd defendants state that as at all times material to this suit that the plaintiff was not entitled to any right of first purchase as she was not a public officer having retired as at 1st April, 2005 when Public Notice Number 1 of Federal Government Gazette No.82 of 2005 became effective and that plaintiff was only entitled to bid under public Notice No.2 of Gazette No.82 of 1st April, 2005.

 

(b)     The 1st and 2nd defendants shall contend at the heading of this suit that the plaintiffs bid was void on the grounds, namely:
 

(i)      That as at the time the plaintiff bided for the house to the knowledge of the plaintiff there had been a valid and subsisting sale of the house to the 3rd defendant.
 

(ii)     That the bid bond of the plaintiff of N1,010,000.00 was not in accordance with paragraph 9 of Public Notice No.2 that required 10% bid bond of the bid value.
 

AND the 1st and 2nd defendant state that the plaintiff is not entitled to all or any of the reliefs sought and that same be dismissed as same is vexatious and an abuse of process of Court."

Paragraphs 1-16 of the 3rd Defendants Statement of Defence pleaded the following facts:

 

"1.     The 3rd defendant deny paragraph 1 of the statement of claim and avers that the plaintiff was no longer in service at the material time of the bidding.
 

2.       The 3rd defendant admits paragraphs 2, 3, 4, 5, 12 and 13 of the statement of claim.

 

3.       The 3rd defendant in reaction to paragraph 4 avers that she is the winner of the Block D44 Flat 3 Zone D Extension at Apo Legislative Quarters and same is a statement of facts and is true and not "purported' as allege by the plaintiff.

 

4.       The 3rd defendant avers that paragraphs 6, 7, 8, 9, 10 and 11 of the statement of claim are the imagination and only the exclusive knowledge of the plaintiff.

 

5.       The 3rd defendant deny paragraphs 14, 15, 16 and 17 of the statement of claim and avers that the application of the plaintiff for the House in issue was turn down and same rejected by the 1st and 2nd defendants.

 

6.       In answer to paragraphs 17 and 18 of the statement of claim the 3rd defendant avers that no retired Civil Servant is entitled to the right of first refusal as far as are Policy on Monetization is concern.
 

7.       In answer to paragraph 19 of the statement of claim the 3rd defendant state that upon retirement from service, the plaintiff is only entitled to her retirement benefits which the House is not part of it and such benefits was already given b the plaintiff as contained in her statement of claim.

 

8.       In answer to paragraphs 20, 21, 22, 23 and 24 of the statement of claim, the 3rd defendant avers that the plaintiff is not qualify to the right of first refusal and hence the 1st and 2nd defendants wrote her and same is not discriminating in any respect whatsoever as the plaintiff is no longer a Civil Servant while there are other numerous Civil Servant without Houses or given the right of first refusal.

 

9.       In further answer to the said paragraphs, the 3rd defendant avers that after the time of right of first refusal expired, the public were invited and that was when the 3rd defendant applied and became the winner/bidder and was allocated the House No. D44 Flat 3 Gudu - Apo Legislative Quarters-Abuja.

 

10.     The 3rd defendant avers that paragraphs 25, 26 and 27 of the statement of claim shows that the plaintiff wave her right of first refusal (if any at all) and join the public bidding which she lost woefully and the 3rd defendant won successfully the House in issue and same was allocated to the 3rd defendant.

 

11.     In answer to paragraphs 28, 29, 30 and 31 of the statement of claim, the 3rd defendant avers that having participated in the public bidding and lost, the plaintiff has no cause of action as she lacks the requisite locus standi to institute this case of the 1st instance because she has no offer to buy the House neither did the plaintiff paid a dine to the 1st and 2nd defendants.
 

12.     The 3rd defendant avers that she bidded for the House No. D44 Flat 3, Zone D Extension, Apo Legislative Quarters, Abuja and won and was designated the winning bidder via a letter dated 13th December, 2005 and the said letter is hereby pleaded and shall he relied upon at the trial.
 

13.     The 3rd defendant avers that she bidded along with others but won as the highest bidder which the 2nd defendant confirmed this to her via letter dated November 1, 2005 and the said letter is hereby pleaded and shall be founded upon at the trial.
 

14.     The 3rd defendant avers that after the letter of offer was made available to her by the 2nd Defendant she went ahead and made payments installmentally as follows:

 

(a) N1,000,000.00    -    on 2nd/Oct./2005
(b) N2,000,000.00    -    on 28th/Nov./2005
(c) N2,000,000.00    -    on 12th/Jan./2006
(d) N5,000,000.00    -    on 9th/Feb./2006
 

All these receipts evidencing these payments are hereby pleaded and shall be relied upon at the trial.

 

15.     The 3rd defendant avers that the plaintiff who was then in occupation was given quit notice to give up the physical possession of the House and same letter was copied to the 3rd Defendant as the winning bidder. The said quit notice dated 21st April, 2006 is hereby pleaded and shall be relied upon at the trial. The plaintiff is hereby given notice to produce the original at the trial.
 

16.     The 3rd defendant avers that all the reliefs sought by the plaintiff are speculative, unmeritorious and amount to abuse of process and ought to be dismissed with substantial cost against the plaintiff."

 

There is no pleading nor evidence that the appellant was a political office holder in occupation of Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja at the time of her bidding.

 

My humble view is that paragraphs 3, 6, 9 and 14 of Public Notice No.2 of 1st April, 2005 are to be construed independently of paragraphs 3 and 13 of the same public Notice. If that is so, it can be seen that the terms and conditions of sale of Federal Government Houses to political Office Holders are not the same as a sale to "All other bidders that are not political office holders" under paragraphs 3, 6, 9 and 14 of the same Notice. A clear distinction is made between bids by "Career Public Servants" (Public Notice No.1 of 1st April, 2005), the "general public" as against ''Political Office Holders" in paragraphs 3, 6 and 13 of Public Notice No.2 of 1st April, 2005. As the appellant was neither a "current occupant" nor "political office holder" of the flat but became a member of the "general public" at the time of bidding and neither was it shown that the flat was "occupied by a political office holder" (paragraph 9 of Public Notice No.2 of 1st April, 2005) or that she bidded was at an open auction conducted by the 1st and 2nd respondents, upon the flat being advertised for sale in accordance with paragraphs 8 and 14 of Public Notice No.2 of 1st April, 2005, the appellant cannot lay claim to Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja.

 

The 1st and 2nd respondents pleaded that the flat was sold at a public auction on 30th September, 2005 where the 3rd respondent was the highest bidder. The appellant did not adduce contradictory evidence that the flat was never advertised for sale in various media nor that public auction did not take place on September 30, 2005 as claimed in Exhibit "17" of December, 2005. To accede to the appellant's claims is to act in violation of the clearly stated intention of the Federal Government in Public Notice No.2 of 1st April, 2005. The conditions precedent, stipulated in public Notice No.2 of 1st April, 2005 had not been fulfilled by the appellant hence she was not entitled to her claims.
 

Exhibit "14" of 4th October, 2004 addressed by the 1st and 2nd respondents to the appellant reads as follows:

"Federal Capital Development Authority,

Abuja, Nigeria,

Department of Administration and Supplies.

4th October, 2004.

Ref: FCDA/ADM/GS/S.38

Deaconess (Mrs.) F. A. Ogundipe,

Block D44, Flat 3,

Apo "D" Extension.

EXPRESSION OF INTENTION TO BUY GOVERNMENT
RESIDENTIAL LANDED PROPERTY

 

As part of the current Monetization policy, the Federal Government has put in place necessary machinery to sell its residential landed properties in the FCT to interested buyers. Consequently, I am directed to request you on a first option of refusal to indicate in writing whether you are interested in buying the residence you are currently occupying.

 

2.       You are to support your intention with the following documents:-
 

(i)      Letter of allocation

 

(ii)     Intended form of purchase, Mortgage, Bank, load, direct purchase, etc.

 

3.       Your response should reach the undersigned not later than 30th December, 2004

 

(Sgd.)
J. A. Maimagani

Ag. Director, Admin. & Supplies

For: Mr. Minister, FCT."

 

An expression of intention to buy the said property in dispute per se does not constitute an offer or acceptance resulting into a valid or enforceable contract without the fulfillment of all the conditions precedent stipulated in the Public Notice No.2 of 1st April, 2005. Thus in Exhibit "10" the 1st and 2nd respondents made their intention clear.

 

Exhibit "10" of 29th October, 2005 reads as follows:

"Federal Capital Territory Administration,

Office of the Minister,

FCDA Secretariat, Kapital Road, Area 11,

P.M.B. 24, Garki,

Abuja, Nigeria.

29th October, 2005

Ogundipe Felicia,

Block D44, Flat, Zone D Extension, Apo,

08033155841.

Dear Sir.

RE: EXPRESSION OF INTEREST TO PURCHASE A
FEDERAL GOVERNMENT HOUSING UNIT (HU) IN ABUJA

 

I write with respect to your expression of interest to purchase a Federal Government housing unit in Abuja.

 

2.       As you are no doubt aware, the Federal Executive Council (FEC), in mandating the Federal Capital Territory Administration (FCTA) to implement the sale of its non-essential housing units in Abuja, approved Specific Guideline to govern the Sale process.
 

3.       Pursuant to this stipulation, we regret to inform you that we cannot accept an expression of interest submission from you in respect to the house in which you expressed interest.
 

4.       However, you have been given the option of bidding for the same property or any other available property of your choice (without the benefit of first right of refusal) via an open Auction System which is on-going.

 

Information about this process and a list of the houses available for public bidding could be sourced from the FCT website: www. fct.gov. ng

 

Please, do not hesitate to contact us through our hotline 67022300, 67022400, 67022500 in the event that any additional information is required.

Thank you.

(sgd.)
Abdu Mukhtar,

For Chairman

Adhoc Committee on Sale of FG Houses."

 

By the contents of Exhibit "10" the appellant had the task of showing that the flat in dispute is listed as one of the Federal Government Houses on Federal Capital Territory's website for open auction and made available for public bidding. There is no such evidence from the appellant.

 

The further effect of Exhibit "10" is that the expression of interest by the appellant was to enable her bid for the flat in question on the grounds she was a Career Public Servant. This was rejected by the 1st and 2nd respondents because the 1st and 2nd respondents found she had already retired from Public Service. She was then given the option of bidding for the flat or any other available property of her choice as a member of the general public without the benefit of first right of refusal via an open Auction System which was an on-going exercise. A "bid" is "A buyer's offer to pay a specific price for something that may or may not be for sale". See Black's Law Dictionary, 9th edition, page 183.

 

In Mokelu vs. Federal Commissioner for Works and Housing (1976) 1 NMLR 329 at 333, Madarikan, JSC held at page 333 that:
 

"May" is an enabling or permissive word. In that sense, it imposes or gives a discretionary or enabling power. But where the object of the power is to effectuate a legal right "may" has been construed as compulsory or as imposing an obligatory duty.

 

The principle to be drawn from decided cases on the construction of the word "may', appears to be quite clear. The word "may" gives a power, and the important question is in what causes, where a judge has a power given by the "may", it becomes his duty to exercise it. When a statute confers a power or authority on a judge to act in a certain case, it is imperative on him to exercise the power or authority when the case arises and its exercise is duly called for. (See MacDougall vs. Patterson (1851) 139 E.R. 673)."

 

There is no harm in the 1st and 2nd respondents asking or advising the appellant to bid for the very flat or any other property of her choice which may or may not be for sale. The bid merely constituted an offer from the appellant to purchase either the flat in dispute or any other property of her choice the 1st and 2nd respondents might eventually advertise for sale at an open auction to members of the general public, political office holders or incorporated associations to bid. If it was intended to sell the flat in dispute, the 1st and 2nd respondents pleaded that the property had to be advertised in compliance with paragraph 8 of Public Notice No.2 of 1st April, 2005. The acceptance of the appellant as the highest bidder, is what would have consummated the offer into an enforceable contract. Even if the appellant was the highest bidder but did not comply with the other conditions set out in paragraphs 9 and 14 of Public Notice No.2 of 1st April, 2005, it cannot be argued that a legally enforceable contract had come into effect to be enforced by the appellant in a Court of law and equity.

The mandate of the sale of Federal Government houses is thrust on the Federal Capital Territory Administration, Abuja (FCTA). The implementation of the Federal Government Public Notice No.1 or 2 of 1st April, 2005 vests in that Authority. Where the authority has taken a decision on a controversy involving the sale of Federal Government Houses in one way or the other, there is the presumption that such an official act had been done in a manner substantially regular; it is further presumed that formal requisites for its validity were complied with; that the common course of business had been followed in that particular case. See Sections 167(c) and 168(1) of the Evidence Act, 2011.

The executive intention and implementation expressed in Public Notices No.1 and 2 of 1st April, 2005 should be left to the Authority to determine. Their decisions, except there is a manifest miscarriage of justice, should not be usurped by a Court of law and equity. Besides, the reliefs sought by the appellant are declaratory in nature. In Ibeneweke & Ors. vs. Egbuna & Anor. Privy Council Judgments 1841-1973 by Olisa Chukwura, SAN 1980 edition, page 941, Viscount Radcliffe held at page 945 that:
 

"...The general theme of judicial observations has been to the effect that declarations are not lightly to be granted. The power should be exercised "sparingly,' with "great care and jealousy", with "extreme caution," with "the utmost caution." These are indeed Counsels of moderation, even though as Lord Dunedin once observed, such expressions afford little guidance for particular cases. Nevertheless, anxious warnings of this character appear to their Lordships to be not so much enunciations of legal principle as administrative cautions issued by eminent and prudent judges to their, possibly more reckless, successors. After all, it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with proper sense of responsibility and a full realization that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration. "In my opinion," said Lord Sterndale M. R. in Hanson vs. Radcliffe U.D.C. (1922) 2 Ch. 490 of p.507; 38 T.L.R. 667, C.A. "under Order 25, rule 5, the power of the Court to make a declaration, where it is a question of defining the rights of two parties, is almost unlimited; I might say only limited by its own discretion. The discretion should, of course, be exercised judicially, but it seems to me that the discretion is very wide."

 

I am of the firm view that the dismissal of the appellant's claims by the learned trial Judge is supported by the weight of evidence, oral and documentary.

I dismiss this appeal and uphold the judgment of the learned trial Judge. I award N50, 000.00 costs to each of the respondents.