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Bakari V. Ogundipe & Ors (2020)

LAWGLOBAL HUB Lead Judgment Report

OLABODE RHODES-VIVOUR, J.S.C.

The 1st Respondent/ Plaintiff served in the Federal Civil Service for thirty-five years. She ended her career as a Federal Civil Servant as the Director of Library Services of the Supreme Court. She retired on 15 January, 2004 after thirty-five 35 years unblemished service in the Federal Civil Service. While in service in the Supreme Court she was allocated a 3 bedroom duplex at Block D44, Flat 3, Zone F Extension Apo Abuja, as her official quarters. She lived in the property thereafter. On 1 October, 2003, the Federal Government commenced a monetization policy of fringe benefits in the Civil Service. The thrust of this policy among other things was the sale of Federal Government Houses (i.e. residential Houses, etc). By this policy, the 1st Respondent was entitled to be given the right of first refusal since she had been living in the house for over five years. The 1st Respondent was interested in acquiring the house, so she wrote a letter to the Head of Service of the Federation, through the Chief Registrar of the Supreme Court wherein she indicated her interest to purchase the House in line

with the monetization policy which took effect from 1 October, 2003.

The process for purchasing Houses took a different turn when the Federal Government transferred the purchase of Houses to the Respondents’. The Respondents’ proceeded to issue Sales guidelines and requested the 1st Respondent to fill and submit a Form for the expression of interest to purchase the said House, i.e. 3 bedroom duplex at Block D44, Flat 3. The 1st Respondent completed and submitted the Form. By a letter dated 8 August, 2005, the 2nd Respondent rejected the 1st Respondent’s application on the ground that she was not qualified to apply as a career civil servant since she retired on 15 January, 2004. The 1st Respondent protested to the 2nd Respondent. By a letter dated 8 August, 2005, the 2nd respondent invited the 1st Respondent to participate in a public bidding as a member of the general public. She participated, while still contesting the 2nd Respondent’s decision to deny her, her right of first refusal as a career civil servant. While awaiting the results of the public bid, the 1st Respondent travelled to England for urgent medical attention. It was while she was

recuperating in England that the 2nd Respondent announced that the apartment had been won by the 3rd Respondent. On her return to Nigeria, she made enquires as to what happened to her application. She was told at the 2nd Respondent’s office that her Form was misplaced. The 2nd Respondent realized their mistake, and to correct the error, she was given yet another FORM which she filled and submitted with a Bank draft. See Exhibit FAO 12 (1) and (2). She had to vacate the house when she received a quit Notice dated 21 April, 2006. When all efforts by the 1st respondent failed to redress her plight she filed an action in a High Court of the Federal Capital Territory. The appellant and 2nd, 3rd and 4th Respondents were the defendants.

The 1st Respondent as Plaintiff claimed the following reliefs on a Writ of Summons and Statement of Claim filed on 27 April 2006:-

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.
A DECLARATION that the plaintiff has accrued right as a result of her being in active

service when the Monetization Policy began.

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

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.
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.
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.
AN ORDER restraining the 1st, 2nd and 3rd Defendants, their privies, agents, servants, employees, or anybody deriving authority from them from distributing, 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.

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

The Plaintiff filed a 39 paragraph statement of claim, while the 1st and 2nd Defendants filed a joint Statement of defence of 8 paragraph. The 3rd defendant filed a 16 paragraph statement of defence. The 4th Defendant did not file a statement of defence.

The Plaintiff gave evidence on 28 February, 2008 in support of her case and documents marked Exhibits 1-7, 8, 8A, 9, 10, 11, 11A, 12-16, 17 and 17A, 18, 19, 20 and 20A – D, 21 were admitted through her. Her case was closed thereafter on 14 May, 2008. After several adjournments at the instance of counsel for the defendants’ who had difficulty bringing their witnesses to Court. DW1 gave evidence on 29 April, 2009 for the 1st and 2nd Defendants.

Learned counsel for the 1st and 2nd Defendants closed their case after DW1 was cross-examined.

DW2 gave evidence for the 3rd Defendant. – Exhibits 22, 23-27 were admitted through him. Evidence from witnesses ended on 24 June, 2009. Thereafter written addresses were adopted by counsel.

In a considered judgment delivered on 18 November, 2009, the learned trial Judge, Talba J., reasoned as follows:

” ……. I come to the conclusion that the Plaintiff, having retired on 19 January, 2004 four months before the commencement of the sale of Federal Government Houses on 1 April, 2005. 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 for the property the subject matter of this suit. 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.”

And with the above reasoning, the learned trial judge dismissed all the Plaintiff’s claims.

Dissatisfied with the judgment of the trial Court, learned counsel for the Plaintiff/1st Respondent, filed an appeal. It was heard by the Court of Appeal, (Abuja Division). That Court by a majority decision found the line of reasoning of the trial Court faulty and allowed the Appeal.

The Appellant’s main prayers in the lower Court were refused. However her alternative claims were granted as follows:

It is hereby declared that the Plaintiff/Applicant 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.
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.
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.
The Plaintiff/Appellant is hereby declared or designated as the winning Bidder of Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja.

The Plaintiff/Appellant is hereby ordered to pay the bid amount N10, 100, 000.00 (Ten Million, One Hundred Thousand Naira) and other legal charges in respect of the said Flat within 90 days from today.This appeal is against that judgment. Briefs were filed and exchanged by counsel.

An amended Appellants brief was filed by E. Jegede SAN on 8 November, 2017 but deemed duly filed and served on 26 June 2018. A. Awomolo SAN filed the 1st Respondents brief on 28 June, 2018

P.E. Ediale Esq., filed a joint brief for the 2nd and 3rd Respondents on 13 November, 2019.

The 4th Respondent did not file a brief.

Learned counsel for the Appellant, E. Jegede SAN formulated seven issues for determination:

Whether the Court of Appeal had jurisdiction to entertain the appeal before it given the parties and the claim of Plaintiff/1st Respondent before the High Court of Federal Capital Territory?

2. Whether the provisions of Public Officers Protection Act will not render the Plaintiff/1st Respondents claim before the High Court of Federal Capital Territory incompetent and in turn rob the Court of Appeal of jurisdiction to entertain the appeal and deliver judgment in favour of Plaintiff/1st Respondent?

Whether the Court of Appeal had jurisdiction to entertain the appeal before it having regard to the incompetent originating process, i.e. the statement of claim filed before the Trial Court and signed by an unknown person for Plaintiffs counsel?

Whether the Court of Appeal had the jurisdiction in the circumstance to grant reliefs that are contrary to the claim of Plaintiff/1st Respondent and/or reliefs not sought in the statement of claim.
Whether the conclusion and decision of the lower Court of Appeal that Plaintiff/1st Respondent bid is the only public bid and that the bid of the Appellant was a sham is not contrary to the Plaintiff/1st Respondent pleadings before the Court?
Whether having regard to the pleading of the parties, the learned justices of the Court of Appeal did not wrongly raise the issue of proof and the burden of proof as it relates to the bid of the Appellant?
Whether the Court of Appeal was not wrong in giving judgment for the Plaintiff/1st Respondent after a reopening, and reappraisal of the evidence?

On his part, learned counsel for the 1st Respondent, A. Awomolo SAN formulated five issues for determination.

Whether the Court of Appeal, had jurisdiction to entertain the Appeal of the 1st Respondent, based on the claims of the 1st Respondent at the High Court of the Federal Capital Territory, one of the parties (The Minister, Federal Capital Territory) and the Hon. Attorney General of the Federation being Federal Government.
Whether the Appeal heard and determined by the Court of Appeal, was statute barred vis a vis the provision of Section 2A of the Public Officers Protection Act LFN 2004.
Whether the Statement of claims allegedly signed on behalf of Chief Adeboyega Awomolo SAN, a legal practitioner duly called to the bar and also a Senior Advocate of Nigeria with his name, boldly inscribed on it denied the Court of Appeal jurisdiction to adjudicate over the Appeal, same having NOT been raised and determined by the lower Court.
Whether the Court of Appeal was right in law in declaring the 1st Respondent the winning bid based on the evaluated facts and evidence before it and the claims of the 1st Respondent on the record before the trial Court.

Whether having regard to the pleadings and evidence of parties, the learned Justices of the Court of Appeal were right to consider the issue of proof and burden of proof with regards to the pleadings and evidence of the parties.Learned counsel for the 2nd and 3rd Respondents P.E. Ediale Esq., filed a brief, but I shall not reproduce issues formulated by him for reasons I shall disclose very soon in this judgment.

I earlier said that the 4th Respondent did not file a brief.

At the hearing of the Appeal on 16 December, 2019 the Appellant was absent and unrepresented.

His brief was taken as adopted.

D. Anieh Esq., now appeared for the 2nd and 3rd Respondents. He conceded that his brief was irregular.

Learned counsel for the 3rd Respondent, now E. Fatogun Esq., adopted the 1st Respondent’s brief filed on 28 June, 2018. He urged the Court to strike out the joint brief of the 2nd and 3rd Respondents since the argument in the brief does not support the judgment of the trial Court. He further urged the Court to Appeal.

A Respondent’s role in an Appeal is to defend the judgment on Appeal, and not attack it.

On the other hand, it is duty of the Appellant to attack the judgment. After all he filed the Appeal because he believes it is wrong. If a Respondent is not satisfied with the judgment on Appeal he should file a Cross Appeal or Respondents Notice. See New Nig Bank PLC v Egun (2001) 7 NWLR (Pt. 711) p.1 and Ibe v Onuorah (1999) 14 NWLR (Pt. 638) p. 340.

It must be noted, though that a Cross Appeal and a Respondents Notice cannot co-exist.

When this Appeal was heard on 16 December, 2019, learned counsel for the 2nd and 3rd Respondents, D. Ameh informed the Court that his brief was irregular. He did not say how his brief was irregular. Rather than defend the judgment of the Court of Appeal, the 2nd and 3rd Respondents filed a joint brief attacking the judgment.

In their conclusion they pray this Court to set aside the judgment of the Court of Appeal and in its place restore the judgment of the trial Court dismissing the claims of the 1st Respondent.

Their role is fundamentally wrong. Their prayer ought to be for this Court to dismiss the Appeal. Since the 2nd and 3rd Respondents abandoned their role as Respondents’, their joint brief would not be considered. It is hereby struck out.

I have examined issues formulated by counsel for the appellant and the first Respondent and I am satisfied that the following issues shall be considered in this Appeal. The Appellant’s issues 1, 2 and 3, since they are on jurisdiction. The Appellant’s issue 4 and the 1st Respondent’s issue 5 which goes to the root of the action.

ISSUE 1

Whether the Court of Appeal had jurisdiction to entertain the Appeal before it given the parties and the claim of the Plaintiff/1st Respondent before the High Court of the Federal Capital Territory?

Learned counsel for the Appellant observed that given the parties and the claim, the High Court of the Federal Capital Territory and the Court of Appeal are without jurisdiction to entertain the claim/Appeal since the Plaintiff’s claim primarily and principally challenged the Administrative action and decisions of the 2nd and 3rd Respondents. Reference was made to Sections 257 (1) and 251 (1)(p) and (r) of the Constitution.

He submitted that the Statement of claim reveals the entitlement of the Plaintiff as a beneficiary of the monetization policy, her accrued rights and how the 2nd and 3rd Respondents by their actions and decisions denied the Plaintiff those rights by excluding her from enjoying her right of first refusal and from the bidding process.

He further submitted that since the claim of the Plaintiff constitutes a challenge to the Administrative and Executive decisions of the 2nd and 3rd Respondents with respect to the Administrative guidelines published by the Federal Government of Nigeria on the subject of monetization policy then it is to Federal High Court and not the High Court of the Federal Capital Territory that has jurisdiction to determine the Plaintiff’s claim. Reliance was placed on:

Kakih v PDP (2014) 15 NWLR (Pt. 1430) p. 374.

PDP v Sylva (2012) 13 NWLR (Pt. 1316) p. 85.

Concluding, he urged this Court to hold that only the Federal High Court is vested with jurisdiction to adjudicate on the Plaintiff’s claim.

Responding, learned counsel for the 1st Respondent observed that the principal parties in this suit are the Appellant and the 2nd and 3rd Respondents.

He submitted that the 2nd and 3rd Respondents whose actions are being challenged are not agents of the Federal Government, but agents of the Federal Capital Territory which has the status of a State.

Reliance was placed on Section 299 of the Constitution.

Okoyode v FCDA (2006) ALL FWLR (Pt.298) p. 1200.

He observed that the monetization policy was of the Federal Government but implemented by the Federal Capital Territory Administration which is not an agent of the Federal Government, contending that it is not an act or decision of the Federal Government or its agencies. Concluding he observed that none of the claims sought were against the Federal Government or its agencies but against the Appellant (a private citizen) and agencies of the Federal Capital Territory Administration and the Minister.

He urged this Court to hold that the claims of the Plaintiff can only be heard in a State High Court which in this case is the Federal Capital Territory High Court.

It is very important to decide the status of Abuja and whether the 2nd and 3rd Respondents are Agencies of the Federal Government of Nigeria.

A decision would lay to rest once and for all time proper Court to hear the Plaintiff’s claim Section 299 of the Constitution states that:

The provisions of this Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation; and accordingly-

(a) all the Legislative powers, the executive powers and the judicial powers vested in the House of Assembly, the Governor of a State and in the Courts of a State shall respectively, vest in the National Assembly, the President of the Federation and in the Courts which by virtue of the foregoing provisions are Courts established for the Federal Capital Territory, Abuja;

(b) all the powers referred to in paragraph (a) of this Section shall be exercised in accordance with the provisions of this Constitution; and

(c) the provisions of this Constitution pertaining to the matters aforesaid shall be read with such modifications and adaptations as may be reasonably necessary to bring them into conformity with the provisions of this Section.

By virtue of the provisions of Section 299 of the Constitution, it is so clear that Abuja,

the Federal Capital of Nigeria has the status of a State. It is as if it is one of the States of the Federation.

An Agency is an executive or regulatory body of a state, such as state Offices, Departments, Divisions, Bureaus, Boards and Commissions.

The 2nd Respondent, i.e. the Minister of the Federal Capital Territory, though a Minister of the Federal Government occupies a similar position of Governor of a State, since Abuja is classified as a State by Section 299 of the Constitution. The 2nd Respondent is thus the Chief Executive of the Federal Capital Abuja.

The Federal Capital Development Authority i.e. the 3rd Respondent is established by Section 3 of the Federal Capital Territory Act. It is a Governmental Agency of the Federal Territory, Abuja.

It is the actions of the 2nd and 3rd Respondents that are challenged. They are both agents of the Federal Capital Territory, Abuja, which has the status of a State. They are not agencies of the Federal Government of Nigeria.

JURISDICTION

It is well settled that it is the claim of the Plaintiff that determines the jurisdiction of the trial Court.

See Emeka v Okadigbo & 4 Ors (2012) 7 SC (Pt. 1) p.1, PDP v Sylva & 2 ors (2012) 4-5 SC p.36 In N.E.P.A. v Edegbero (2002) 18 NWLR (Pt. 798) p. 79, it has been held in decisions of this Court that by virtue of Section 251 (1) of the Constitution, once one of the parties is the Federal Government or any of its agencies, only the Federal High Court has jurisdiction to determine the suit. That is to say the Federal High Court has exclusive jurisdiction to entertain matters specified in Section 251 (1) (a) – (s) of the Constitution.

Indeed in Kakih v PDP (2014) 15 NWLR (Pt.1430) p.374, in support of N.E.P.A. v Edegbero supra. I said that:

“The claim of the party and the reliefs must be within Section 251 (1) of the Constitution before the Federal High Court can have jurisdiction. Furthermore, where an agency of Federal Government is a party, the principal reliefs must be directed against the Federal Government or any of its agencies before a Federal High Court can have jurisdiction.”

Now, the High Court of the Federal Capital Territory has jurisdiction to entertain suits when:

(a) Suits in which agencies of the Federal Government are not parties.

(b) Suits in which agents of the Federal Government are parties and agencies of the Federal Capital Territory. See Okoyode v FCDA (2006) ALL FWLR (Pt.198) p.1200.

The claim of the Plaintiff is all about land, and whether the monetization policy of the Federal Government implemented by the Federal Capital Territory Authority, was properly implemented. The monetization policy was implemented by the Federal Capital Territory Authority, which is not an agent of the Federal Government. The claim of the Plaintiff which is against the Appellant and the 2nd and 3rd Respondents is not within any of the causes of action, or claims in Section 251 (1) (a) – (s) of the Constitution.

Furthermore none of the claims sought is against the Federal Government or any of its agencies. The 1st Respondent/Plaintiff’s claim can only be heard in a State High Court, and in this case, the Federal Capital Territory High Court. That Court had jurisdiction to hear and determine the 1st Respondent/ Plaintiffs claims.

In view of the fact that the 2nd and 3rd Respondents are agencies of the Federal Capital Territory, which is a State, by virtue of the

provisions of Section 299 of the Constitution, the High Court of Federal Capital Territory has jurisdiction to hear the 1st Respondent’s/Plaintiff’s claim, and the Court of Appeal has jurisdiction to entertain the Appeal.

ISSUE 2

Whether the provisions of the Public Officers Protection Act will not render the Plaintiff/1st Respondent’s claim before the High Court of Federal Capital Territory incompetent and in turn rob the Court of Appeal of jurisdiction to entertain the appeal and deliver judgment in favour of Plaintiff/1st Respondent.

Learned counsel for the Appellant observed that the Plaintiff’s action challenged the administrative and executive decisions of the 2nd and 3rd Respondents, both public institutions and Offices, contending that the Plaintiff’s cause of action occurred on September/November 2005, when the Plaintiff was excluded from the bidding exercise under the monetization policy of the 2nd and 3rd Respondents, submitting that the action was instituted on 27 April, 2006, contrary to Section 2(a) of the Public Officers Protection Act which stipulates that action against public officers must be brought within three months after the act

complained of. Relying on Egbe v Adefarasin (1987) 1 NWLR (Pt. 47) p. 1 and Ibrahim v Lawal (2015) 17 NWLR (Pt. 1489) p. 490.

He urged this Court to resolve this issue in favour of the Appellant.

Learned counsel for the 1st Respondent observed that what the Court considers is the core issue in the claim contending that the core or primary issue is in respect of land/property built on land and sale of the property thereof. Reliance was placed on Osun State Government v Dalami Nig Ltd (2007) ALL FWLR (Pt. 365) p. 438. He submitted that claims for recovery of land, breaches of contract, claims for work and labour done are excluded from the ambit of the provisions of Section 2 (a) of the Public Officers (Protection) Act 2004.

He referred to Salako v L.E.D.B. & Anor 20 NLR p. 169; NPA v Construzioni Generali F.C.S. & Anor (1974-1975) 9 NSCC p.622.

He urged this Court to hold that the suit was not statute barred.

It is without dispute that this in an action for recovery of land/House occupied by the 1st Respondent from which she was thrown out. She wants her house back and for her house to be given to her in

accordance with the monetization policy.

It is now settled that Section 2 of the Public Officers (Protection) Act does not apply to cases of recovery of land. See Salako v LEDB 20 NLR p.169. The submission of learned counsel for the 1st Respondent was therefore well taken. This suit is not statute barred, since Section 2 of the Public Officers (Protection) Act does not apply to it.

ISSUE 3

Whether the Court of Appeal had jurisdiction to entertain the appeal before it having regard to the incompetent Originating process, i.e. the Statement of Claim filed before the Trial Court and signed by an unknown person for Plaintiff’s counsel?

Learned counsel for the Appellant submitted that the Court of Appeal had no jurisdiction to hear the appeal because the Originating process which was signed for Chief A.S. Awomolo SAN by an unknown person is invalid and incompetent, contending that for an Originating process to be valid, it must be signed by a legal Practitioner. Reliance was placed on Adeneye v Yaro (2013) NWLR (Pt. 1342) p. 625; Okafor v Nweke (2007) 10 NWLR (Pt. 1043) p.521; FBN v Maiwada (2013) 5 NWLR (Pt. 1348) p. 44

Concluding, he submitted that since the Statement of claim was signed for A. Awomolo SAN by an unknown person, it is invalid and incurably so.

He urged this Court to resolve this issue against the 1st Respondent.

Responding, learned counsel for the 1st Respondent observed that the jurisdiction of the Court is activated by the Originating process, i.e. the Writ of Summons and not the Statement of Claim. Reference was made to Order 4 Rule 1, 2 and 3 of the High Court of Federal Capital Territory (Civil Procedure) Rules, 2004 contending that the Statement of claim was based on a validly made Writ. off Summons in accordance with the Rules of Court.

Concluding his submissions, he observed that the Appellant having filed a defence on the pleading being complained about, led evidence on same, filed written address and obtained judgment, having defended the said judgment in the Court of Appeal and these issues were not raised, it is too late to complain as he has waived his right. Reliance was placed on Korum Ltd v International Trust Bank PLC (2010) LPELR – 4408

He argued that no serious attention should be

accorded the submissions of learned counsel for the Appellant, and that this Court should proceed to do substantial justice.

It is important I set out the facts on this issue. The 1st Respondent, as Plaintiff had at the trial Court filed a Statement of claim on 27 April, 2006 signed by someone, but it cannot be said who signed the process.

The Appellant did not raise any objection on this defect at the trial Court nor at the Court of Appeal but raised it as an issue of jurisdiction at the Supreme Court for the first time.

The Appellant participated in the proceedings and evidence from the statement of claim was called after the Statement of defence joining issues with the defective Statement of claim. The trial Court gave judgment upon the evidence and even at the Court of Appeal no issue was made of the alleged defective Statement of Claim.

In SLB Consortium Ltd v NNPC (2011) 4 SC (Pt.1) p.86, I explained how processes filed in Court are to be signed. I said:

First, the signature of counsel, which may be any contraption.

Secondly, the name of counsel clearly written.

Thirdly, who counsel represents.

Fourthly, name and address of legal Firm.

It is clear from the facts above that the Statement of Claim was signed, but there was no name of counsel. So the process is irregular.

If the trial judge raised this issue Suo Motu and called on counsel to address him on it, the suit would have been struck out. This would also be the outcome, if learned counsel for the defendant raised objection.

Why was the suit not struck out?

In A.G. Kwara State & Anor v Saka Adeyemo & Ors (2016) 7 SC (Pt.II) p. 149.

I said that:

Jurisdiction is a question of law.

There are two types of jurisdiction.

Jurisdiction as a matter of procedural law.
Jurisdiction as a matter of substantive law. A litigant may waive the former.

Again in Appeal No: SC.175/2005 Heritage Bank Ltd v Bentworth Finance (Nigeria) Ltd decided by this Court on 23 February, 2018 Eko J.S.C. explained the distinction between substantive jurisdiction and procedural jurisdiction.

The law is very well settled that counsel may waive a defect in procedure which is procedural law.

What is waiver and what are the

consequences when counsel waives his right?

Waiver is the intentional and voluntary abandonment of a right. It is either express or implied from conduct. Where a party has waived his right to insist that the correct procedure must be followed, he cannot later on appeal, resile and complain of what he has waived. Put in another way, a right that has been waived is lost. The reasoning being that once the other party acts upon the waiver, the party waiving the right can no longer go back on the waiver and act as if it was never waived. See Ariori & Ors v Elemo & Ors (1983) 14 NSCC P.1; Chief John Eze v Dr. C.I. Okechukwu & 7 Ors (2002) 14 SCM p.105

After the Writ of Summons and Statement of Claim filed by the 1st Respondent/ Plaintiff were served on the Appellant, he did not raise any objection to the defect in the Statement of Claim at the trial Court instead, he filed a Statement of defence and participated in trial and judgment was delivered in his favour. Not objecting to the signature on the Statement of claim amounts to a waiver. It is only when objection is made at the earliest opportunity can it be said that the right

was not waived. I shall give special consideration to these cases relied on by learned counsel for the Appellant.

In Adeneye v Yaro (2013) NWLR (Pt. 1342) p. 625, the Notice of Appeal was signed by an unnamed person. The Court raised the issue suo motu and invited counsel to address it on the competence of the appeal.

In Okafor v Nweke (2007) 10 NWLR (Pt. 1043) p.521, a motion on Notice signed by J.H.C. Okolo, SAN & Co for extension of time within which to apply for leave to cross appeal etc. was filed in the Supreme Court. The Notice of Appeal was also signed by J.H.C. Okolo SAN & Co. Counsel for the 1st – 3rd Respondents raised the issue of competence of the Appellants motion.

In F.B.N. PLC v Maiwada (2013) 5 NWLR (Pt. 1348) p.44, Appellants appealed to Court of Appeal by Notice of Appeal dated 30 May, 2000, signed by David M. Maido & Co.

Respondents raised Preliminary Objection challenging the competence of the appeal on the ground that the Notice of Appeal was neither signed by the Appellants’ nor by a legal practitioner acting on their behalf. The Court of Appeal upheld the Preliminary

Objection and struck out the Notice of Appeal.

In these cases, counsel on the other side quickly complained about the incompetence of the Originating process. He did not waive his right to object. The process was struck out accordingly. I do not see in what way these cases could assist learned counsel for the Appellant on the point under consideration.

The appellant accepted the statement of claim as if it was very much in order. He participated in the proceedings, filed a statement of defence and called evidence. Judgment of the trial Court was given, dismissing the 1st Respondent’s claim. The Appellant was happy. He did not complain. The 1st Respondent/Plaintiff filed an appeal. On Appeal, the Appellant defended the judgment and never made the defective Statement of Claim an issue.

When the Appellant lost in the Court of Appeal he appealed to the Supreme Court, and made the issue of the competence of the Statement of Claim an issue for the first time. It is clear he waived his right to object to the defective process. The right of the Appellant to object to the defective statement of claim is a waivable right, being procedural jurisdiction. A private right.

It would be most inequitable and unjust to the 1st Respondent/Plaintiff for the Appellant after waiving his right to complain about the Plaintiff’s incompetent process, to be allowed to complain on Appeal. Waiver is inferred or implied after examining the conduct of the Appellant.

No Court would allow the Appellant to renege from his acquiescence.

This issue is resolved against the Appellant.

ISSUE 4

Whether the Court of Appeal has the jurisdiction in the circumstances to grant reliefs that are contrary to the claim of Plaintiff/1st Respondent and/or reliefs not sought in the Statement of Claim.

Learned counsel for the Appellant observed that the Plaintiff/1st Respondent never sought relief that she was the highest bidder, or that she should be declared the highest bidder, or that she be ….. respect of the Flat. He argued that notwithstanding the above, the Court of Appeal actually declared the Plaintiff/1st Respondent as the “winner bidder” and proceeded to order her to pay N10,100,000 (Ten Million, One Hundred Thousand Naira), when no such claim was sought before the trial Court.

He submitted that the Court may grant less but not more than is claimed by the litigant. Reliance was placed on:

Ekpenyong v Nyong (1975) 9 NSCC p.28

Okoya v Santilli (1994) 4 NWLR (Pt. 338) p.256.

Concluding, he observed that the Court of Appeal granted unsolicited and unclaimed reliefs to wit:

“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.

The Plaintiff/Appellant is hereby ordered to pay the bid amount of N10,100,000 (Ten Million, One hundred Thousand Naira) and other legal charges in respect of the said Flat within 90 days from today.

He urged this Court to resolve this issue in favour of the Appellant.

Learned for the Plaintiff/1st Respondent submitted that the Orders granted were consequential Orders flowing from the reliefs sought. Reliance was placed on:

Inakoju v Adeleke 2007 4 NWLR (Pt. 1025) p. 427.

Reg Trustees of Apostolic Church v Olowoleni (1990) 6 NWLR (Pt. 158) p. 514.

Further submitting that it was a lawful consequential order which flowed and emanated from the facts of the Appeal.

He urged this Court to resolve this issue against the Appellant.

The 1st Respondent as Plaintiff’s claim was for:

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

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.
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.

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.
AN ORDER restraining the 1st, 2nd and 3rd Defendants, their privies, agents, servants, employees, or anybody deriving authority from them from distributing, 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.
And for such further order or other orders as the plaintiff may be entitled to under the law and constitution.

The Court of Appeal granted the Plaintiff/1st Respondent’s claim as follows:

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.

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.

The Plaintiff/Appellant is hereby declared or designated as the winning Bidder of Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja.
The Plaintiff/Appellant is hereby ordered to pay the bid amount N10,100,000.00 (Ten Million, One Hundred Thousand Naira) and other legal charges in respect of the said Flat within 90 days from today.

When a party as in this case, the Plaintiff/1st Respondent made claims the in alternative, she is saying that she wants either of her reliefs. So any of the claims granted suffices for the purpose of satisfying her claim. When a Court grants the main claim, the alternative claim would no longer be considered. When the main claim fails, the alternative claim must be considered, and if found proved the Court should

grant it as the Court of Appeal did in this Appeal.

A Court has no jurisdiction to grant a relief not claimed or more than the claimant can prove, but can grant less than is claimed. See Ogunyade v Oshunkeye (2007) 7 SCNJ p. 170; Ezeonwu v Onyechi (1996) 2 SCNJ P…; AG. Cross River State v AG of the Federation (2005) ALL NLR p. 44.

A Court on the other hand has jurisdiction to give consequential orders where necessary. See Usiobaifo & Anor v Usiobaifo & Anor(2005) 1 SCM p. 193; Akinbobola v Plisson Fisko Nig Ltd & 2 Ors (1991) 1 NWLR (Pt. 67) p.286.

A consequential order is an order which gives effect to the judgment. It must flow from the judgment.

After the Court of Appeal examined relevant exhibits to wit: Exhibits 24, 25, 26 and 27, the Court found that the 3rd Respondent/Appellant failed to prove that she ever bid for the Flat and that there was no evidence that no bid by the Appellant was accompanied by a bid bond by way of bank draft equal to 10% of bid value regarded as non-refundable 10% deposit.

This is what the Court of Appeal had to say:

“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 t0 have been designated by the 1st, 2nd and 4th Respondents as the winning bid and the appellant designated as the Winning Bidder.”

It follows naturally that the order by the Court of Appeal that the 1st Respondent/Plaintiff pay the bid amount and other legal charges arises from the fact that the 1st Respondent/ Plaintiff won the bid. The natural sequence is for her to pay up. Hence the order by the Court of Appeal, the consequential order is correct.

ISSUE 5

Whether having regards to the pleading of the parties, the learned Justices’ of the Court of Appeal did not wrongly raise the issue of proof and the burden of proof as it relates to the bid of the Appellant?

Learned counsel for the Appellant submitted that the case of the

Plaintiff/1st Respondent was that she was denied the right of first refusal as a staff and was also denied a right to participate in the bidding exercise. He observed that the conclusion reached by the Court of Appeal that the Appellant did not prove that she ever bid for the house as required by Public Notice No. 2 and that the bid was not accompanied by a bid bond will not find comfort with the case of the Plaintiff/1st Respondent since it was not pleaded.

He submitted that the Court of Appeal was wrong to conclude that the Plaintiff/1st Respondent’s bid was the only Public bid and that the Appellant’s bid was a sham. In further submissions, he submitted that the burden of proof lies on he who asserts and in this case, it is on the Plaintiff/1st Respondent and not on the Appellant. Reliance was placed on Sections 131 (1) and (2) and 132 of the Evidence Act. See Bello v Eweka (1981) 12 NSCC p. 48; Umeojiako v Ezenamuo (1990) 1 NWLR (Pt. 126) p. 253.

He urged this Court to resolve this issue against the Plaintiff/1st Respondent.

Learned counsel for the Plaintiff/1st Respondent argued that with the uncontroverted and admitted evidence

in support of the Statement of Claim, the burden of proof had been discharged. He observed that as at 8 August, 2005 when the Plaintiff/1st Respondent was invited to apply for the House, the house was still available for sale and had not been bidded for or sold. Reference was made to Exhibit 15, dated 8 August, 2005.

He submitted that Exhibit 23 shows that the 2nd and 3rd Respondents acknowledged the bid allegedly submitted by the Plaintiff/1st Respondent, but that the Appellant never tendered any evidence that she actually submitted a bid. He submitted that the burden of proof had shifted to the Appellant to prove that she actually bidded for the house in September 2005.

He submitted that the only evidence of bid for the property was the bid tendered by the 1st Respondent.

He submitted that the bid documents were deliberately kept away because the Appellant never bidded.

Reliance was placed on Section149 (d) of the Evidence Act and George v State (2009) 1 NWLR (Pt. 1122) p.345.

He urged this Court to hold that the Court properly held that the burden of proof has shifted and the Appellant never discharged the burden of

proof, and resolve this, and all the issues in favour of the Plaintiff/1st Respondent.

The question for determination is who had the winning bid for the house. Was it the Appellant or the Plaintiff/1st Respondent? It is well settled that if pleadings are to be of any use, the parties must be held to be bound by them.

The burden is on the Plaintiff to prove his assertions vide Section 131 of the Evidence Act. When the Plaintiff/1st Respondent proves that she bidded for the property and had the higher bid, the burden shifts to the Appellant to prove the contrary that her bid was better. See Section 132 (supra). Akande v Adisa & Anor (2012) 5 SC (Pt. 1) p.; Apena & Anor v Aileru & Anor (2014) 6-7 SC (Pt. III) p. 58; Mbanefo v Molokwu & 6 Ors (2014) 12 SC (Pt. II) p. 137; Aminu & Ors v Hassan & 2 Ors (2014) 1 SC (Pt. 1) p. 1.

The Plaintiff/1st Respondent submitted a bid. See Paragraph 31(d) of the statement of claim. The 2nd and 3rd Respondents in their joint brief averred in paragraph 8(b)(ii) as follows:

“8(b)(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.”

Whether the Plaintiff/1st Respondent’s bid was valid is not the issue. The issue is whether she submitted a bid and the 2nd and 3rd Respondents who received bids concede to the fact that she bidded for the house. The fact that the Plaintiff/1st Respondent bidded for the house is pleaded.

Exhibit 15 dated 15 August, 2005 written by the 2nd and 3rd Respondents to the Plaintiff/1st Respondent reads in part:

”3. Pursuant to the requirements vis-ä vis career public servants in legitimate occupation of non essential FGN houses in Abuja and your inability to meet said requirements (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.

“4. You are accordingly invited 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.”

The Court of Appeal evaluated evidence and examined exhibits,

particularly Exhibits 22, 23, 24, 25, 26 and 27 and had this to say:

“…. 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 ….

It is rather very curious that the bid allegedly submitted by the 3rd Respondent was not put in evidence by any of the Respondents.

The Court of Appeal quite rightly in my view refused to speculate on whether or not the 3rd Respondent (i.e. the Appellant) submitted any bid. I am also satisfied that she neither proved that she bidded for the disputed Flat.

In arriving at the conclusion that the 3rd Respondent’s bid and its date have not been proved, the Court of Appeal reasoned as follows:

” …. 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, 26 and 27. Exhibits 24 is a receipt dated 29/10/05 for the sum of N2,000,000.00; Exhibit 26 is dated 12/1/06 and it

is for the sum of N2,000,000.00 and finally Exhibit 27 dated 9/2/06 is for the sum 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 allegedly offered by the 3rd Respondent.

The payment is Exhibits 24 indicated as non-refundable deposit was paid on 29/10/05 about one month after the 3rd Respondent’s bid was allegedly opened on 30 September, 2005 ……”

The Court then concluded:-

“It is clear therefore, that the non refundable deposit allegedly paid by the 3rd Respondent did not accompany the 3rd Respondent alleged bid. As stated earlier, the 3rd Respondent bid and its date has not been proved in this case …..”

From the available facts …… the only public bid for the purchase of the Flat in dispute was the one submitted by the Appellant (i.e. the Plaintiff/1st Respondent) 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.

In the majority judgment delivered by the Court of Appeal, a thorough evaluation

of evidence was done. The conclusion after that exercise was that the only public bid for the purchase of the Flat in dispute was the one submitted by the Plaintiff/1st Respondent and so the sale of the Flat to the 3rd Respondent was wrong, cannot be justified. Accordingly, the final orders made by the Court of Appeal are correct.

Finally I must observe that the Plaintiff/1st Respondent retired from the Civil Service on 15 January, 2004. On 1 November, 2005, while she was still in service, the Federal Government commenced a monetization policy of fringe benefits for civil servants. The policy included the sale of Federal Government houses to those who occupied them, if they so desired. The Plaintiff/1st Respondent signified her intention to purchase the house. The Respondents refused claiming that she was no longer qualified since she had retired from Service. After a while, the Respondents changed their stance and invited the Plaintiff/1st Respondent to bid for the house or any available property (see Exhibit 15 dated 8/8/2005).

The Plaintiff/ 1st Respondent bid was received before the Appellants bid and it was for a higher sum. On the other hand

the Appellant’s bid had serious flaws. It was declared a sham by the Court of Appeal, and I agree with that finding.

I find no merit in this Appeal, it is hereby dismissed. For the avoidance of doubt, I hereby reproduce the declarations and orders of the Court of Appeal which is affirmed by this Court:

It is hereby declared that the purported sale of Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja to the Appellant is null and void.
The Plaintiff/1st Respondent is hereby declared or designated as the Winning Bidder of Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja.
The 2nd and 3rd Respondent are hereby ordered to restore possession of Flat 3 Block D44, Zone D Extension, Apo Legislative Quarters Abuja to the Plaintiff/1st Respondent and ensure that she is not harassed or intimidated and she enjoys peaceful enjoyment of the said property.
The Plaintiff/1st Respondent 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 Flat within 90 days from today.

No order on costs.

SC.514/2015

Bakari V. Ogundipe & Ors (2020) LLJR-SC

Bakari V. Ogundipe & Ors (2020)

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