Alhaji Razak Adeniyi Ayilara V. Federal Ministry Of Works (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment)

This is an Appeal against the Ruling of Soba, J. of the Federal High Court sitting in Jos delivered on 30th June, 2004. The Appellant herein, who was the Plaintiff at the trial Court, filed an action via an Originating Summons on the 12th April, 2002, for the determination of certain questions which shall be highlighted later in the body of this Judgment. If the questions are answered in the affirmative, the Appellant sought the following relief from the trial Court:

1. An order of PERPETUAL INJUNCTION restraining the defendant whether by itself, its servants, workmen, agents, privies and/or representatives from ejecting or attempting to eject the Plaintiff or otherwise tamper with his legal right to title and peaceful possession of the premises at House Nos. 21 and 23, Ninth Avenue, Federal Low Cost Housing Estate, Miango Road, Jos.”

To prove his claim, the Appellant deposed to a 23 paragraph affidavit to which he annexed twenty (20) Exhibits, marked A – O2.

The gist of the Appellant’s case is that the property in question, being Houses Nos. 21 & 23 Ninth Avenue, Federal Low Cost Housing Estate, Miango Road, Jos, was allocated by the Respondent, the Federal Ministry of Works & Housing, to one Mr. O. Ayodele through a letter of allocation dated 5th July, 1985, Exhibit B to the affidavit. The Respondent itself had, in 1994, even written to the tenants in occupation of the premises accusing the said tenants of occupying the premises illegally and directing them to vacate same. This letter, which ex facie is signed by the Zonal Town Planning Officer of the Respondent, is Exhibit D to the affidavit.

Thereafter, Mr. Ayodele had instructed Messrs. P.O. Ebosons & Co. Nig. Ltd., who managed the property on his behalf, to evict the tenants then in occupation. By the Judgment of the Senior District Court delivered on 13th March, 1995, (Exhibit C), the tenants were ordered to vacate the premises and surrender same to the agent, Ebosons & Co. Pursuant to this Judgment, a Writ of possession was executed on 30th March, 1995 and the tenants were evicted from the premises. The Appellant claimed to have subsequently purchased the said property from Mr. Ayodele sometime in 1995 and the Exhibit A, a Sale Agreement, is offered in proof of this transaction. In the meantime, however the very next day after their eviction in execution of the Writ of possession, the tenants moved back into the premises and then filed a motion to set aside the Judgment of the Senior District Court. This application was eventually argued and dismissed on 13th March, 1997.

Thereafter, the Respondent, Federal Ministry of Works & Housing, filed an action at the High Court of Justice, Jos on 14th March, 1997, against, P. Ebosons & Co., Mr. Ayodele and one Mr. O. A. Anibaba, seeking, inter alia, a declaration that the purported sale of the property in question without the authority and consent of the Respondent was void. The Writ of Summons and Statement of claim in that regard is Exhibit E to the Appellant’s affidavit. While this suit was pending, the Respondent again, by a letter dated 31st July, 1998, (Exhibit F), instructed its Counsel, the Attorney-General of Plateau State, to withdraw the said action so same can be settled out of court.

Pursuant to this letter, the parties to the suit drew up and filed ‘Terms of Consent Judgment” dated 5th November, 1998, Exhibit G to the affidavit. Thereafter, the Federal Mortgage Bank invited Mr. Ayodele, through the Appellant, (who had since bought the property from Mr. Ayodele in 1995), to clear the arrears of repayment standing against the property. The Appellant accepted to do so and thus did pay the outstanding sums into Mr. Ayodele’s account with the Bank. The letters of offer and acceptance, as well as the Bank Tellers evidencing payment are Exhibits H, I & J. By Exhibit K, the Bank wrote to the Appellant acknowledging the payments and stating that the account had been cleared.

In the meantime, the tenants, who were still in occupation, wrote a petition to the Respondent, which the Respondent promptly dismissed and, in addition, ordered them to vacate the premises in April, 1999. These letters are Exhibits L & M to the affidavit. Thereafter, the tenants moved out of the property in May, 1999, and the Appellant was given possession. In July, 1999, by a letter, (Exhibit N), the Respondent formally informed the Appellant that the final leg of the transfer of the property had been concluded in his favour and same had been documented in the Respondent’s office in Abuja. As a result and based on this, the Appellant commenced renovation works on the property and expended money in excess of N350,000.00 thereon.

However, after having taken physical possession of the property for over two years, the Respondent who two letters, Exhibits O1 & O2, both dated 24th October, 2001, requested the Appellant to yield possession of the property to the Federal the Controller of Works & Housing in Plateau State. It is as a result of this turn-around that the Appellant then filed his suit at the lower Court against the Respondent seeking an answer to the following questions:

1. Whether the Defendant having granted one O. AYODELE title to the premises in issue by virtue of Letter of Allocation Ref. No.HC/1426/2BK/PS/JOS dated 6th July, 1985 can now deny that such title ever existed or can prevent him from transferring title to the property to any person of his choice.
2. Whether the Defendant having instituted an action in the High Court of Justice, Jos in Suit No. PLD/J118/97 against the said O. Ayodele and two others and conceding to a consent judgment in favour of the said Defendants in that suit, it is not estopped from turning round to repossess the premises in issue.
3. Whether the Plaintiff, having acquired title to the premises in issue and having, in compliance with the terms of the Consent Judgment, liquidated the arrears of repayment outstanding with the Federal Mortgage Bank of Nigeria does not have legal title to same and can now be dispossessed of the premises in issue.
4. Whether the uninterrupted and unchallenged acts of possession by the said O. Ayodele over a period of ten years (including the eviction of tenants there from) from the time the premises were allocated to him up to the time he transferred title to the Plaintiff herein are not enough to construe that he had legal rights and interests that can be assigned or transferred which he did.
5. Whether the Defendant having written a letter Ref. No.FMWH/URD/PL/36/VOL.II/17 dated the 2nd July, 1999 to the plaintiff herein stating that the final leg transfer of the premises in issue has been concluded in his favour can now take back title and interfere with the peaceful enjoyment and ownership of the premises by the plaintiff.
6. Whether having regard to all the facts contained herein, the letters Ref. No. LU/C.68/S.22/VOL.1/2 and LU/C.68/S.22/VOL.1/3 both dated 24th October, 2001 written by the Defendant and addressed to the Plaintiff herein are not null and void and of no effect whatsoever.

In responding to the claim, the Respondent filed a Memorandum of appearance and a counter affidavit denying the claim and disputing the facts deposed to in the Appellant’s affidavit. (See pages 37 – 39 of the Record). It however admitted paragraphs 1, 3, 10, 11, 12, 15 & 20 thereof, which admitted averments are as follows:

1. That I am the Plaintiff in this suit by virtue of which I am conversant with the facts of deposed to hereto.
2. That the property aforementioned was allocated to the said Mr. Ayodele by the Defendant via a Letter of Allocation Ref. No.HC/14/36/2BR/PS/JOS dated 6th July, 1985.
3. That on the 14th day of March, 1997, the Defendant filed an action in the High Court of Justice, Jos, against the agent aforesaid, Mr. O Ayodele and one O. A. Anibaba seeking among other things “a declaration that the purported sale of 2 Bedroom flats at Nos 21 and 23, 9th Avenue, Federal Low Cost Houses, Miango Road without the authority and consent of the plaintiff is null and void”.

A copy of the summons and statement of claim in Suit No. PLD/J118/97 is annexed hereto and marked EXHIBIT “E”.

11. That while the above action was pending, the Defendant, by Letter dated 31st of July 1998, instructed its counsel, the Attorney General of Plateau State to withdraw the action from the court so same can be settled out of court.

A copy of the letter signed by the Senior Administrative Officer of the Defendant is annexed hereto and marked EXHIBIT “F”.

12. That pursuant to Exhibit “F” above, the parties to the said action drew up and filed Terms of Consent Judgment dated 5th of November, 1998.

A copy of the Terms of Consent Judgment is annexed hereto and marked EXHIBIT “G”.

15. That while this was going on, the said tenants were still occupying the houses and even wrote a petition to the defendant which the defendant dismissed by letter Ref. No.WX41946/S.16/VOL.1/102 of 22nd of April, 1999.

A copy of the letter is annexed hereto and marked EXHIBIT “L”.