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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS DATE: JULY 9, 2015 SUIT NO: NICN/LA/81/2013 BETWEEN 1. Mr. Olayinka Fagboore - Claimants 2. Mr. Amanosi Yakubu AND 1. Oando Plc 2. Ms Osasu Ezekiel - Defendants REPRESENTATION Dr. Fred Okeke for the Claimant. A. Olaleru with M.A. Ade-Adeniji for the 1st Defendant. U.M. Chukwulobe for the 2nd Defendant. JUDGMENT The Claimants in this case approached this Court on 21/2/13 via a General Form of Complaint accompanying same with a statement of facts and all requisite frontloaded processes claiming the following reliefs - 1 A declaration that Flat D Block 3D and Flat C Block D respectively are property of the Claimants on Owner – occupier having paid over the sum determined by the Federal Government as cost price on the houses. 2. A refund of the excess money forfeited by the Claimants as house allowances and rents paid to the 1st defendant. 3. Perpetual injunction restraining the defendants or any one claiming or acting for the 1st defendant from interfering with the quiet enjoyment or ownership of the houses by the claimants. 4. Alternatively that the Claimants are the rightful persons for sale of the houses on owner/occupier at the price to be determined by the court as is equitable. Upon service of the processes filed, the Defendants entered appearance and filed their defence together with all requisite frontloaded processes. The trial of this case commenced on 20/10/14 when the Claimants opened their case and called one Yakubu Amanosi as CW1. CW1 adopted his written witness deposition dated 21/2/13 as his evidence in chief and tendered 17 documents as exhibits. Documents 14 and 15 were marked Tendered and Rejected and the remaining admitted and marked as appropriate. The case for the Claimants as revealed from their pleadings is that they are owners of the houses they occupy; the houses were allocated to them by the 1st Defendant while in its employment on owner-occupier Housing Scheme 1977 or thereafter of the Federal Military Government of Nigeria; that the 1st Defendant was collecting rent from the Claimants and even forfeited their housing allowances so that at the time of their disengagement from the 1st Defendant employment they had paid N2.4 Million to the 1st Defendant each which the 1st Defendant admits; that the 1st Defendant over the years was not inclined to transfer the houses to the Claimants and others on owner/occupier so that the Residents had to agitate for the implementation of the Housing Scheme having paid the cost of the houses; that their complaint to the Federal Government prompted a reaction from the then Honourable Minister of Works directing the defaulting Companies to immediately implement the scheme; that moreover, the 1st Defendant’s allottees filed a Suit No. ID/221/2007 to compel the 1st Defendant to transfer the houses to them on owner/occupier and that the suit is in a representative capacity on behalf of the residents of Unipetrol now Oando. It was also the case for the Claimants that in 2005, the Federal Ministry of Housing and Urban Development had to convene a meeting of all stake holders in Satellite Town and it was agreed that the houses be transferred to the workers on owner/occupier; that yet, the 1st Defendant rather chose to offer the houses on exorbitant price(s) although the case against then is still pending in Court but the Claimants refused to accept or reject the offer in the circumstances; that the 1st Defendant denies the case of the Claimants and contends that they acquired all that parcel of land by a Deed of Lease dated 10th August, 1990 between the Federal Government and the 1st Defendant; that it built the houses which it allocated to its staffs on a tenancy basis and therefore reserves the right to deal with the property as it pleases; that the 1st Defendant upon entreaties from the Federal Government and other companies that attended the stakeholders meeting convened by the Ministry of Housing and Urban development decided to sell the houses to the Claimants at the offered price and when they did not accept the offer they sold it to another staff on a bid. Under cross examination, CW1 stated that offer was made for him to purchase the property; that he did not accept the offer; that he signed and accepted the terms as contained in Exh C6; that he was not the 1st person to occupy the property; that he was not present at the meeting of 22/9/05; that only the Executive members attended the meeting; that he is not aware of organizations that were not selling to their staff; that he disengaged from 1st Defendant in 2004; that he handed over 1st Defendant’s property in his custody; that he held on to the property because he was not paid his entitlement; that he is not paying any rent on the property; that he is not aware that a similar property goes for N500,000 per annum and that he is not aware of what a similar property goes for in Satellite town. According to the witness, he is not Olayinka Fagboore; he is not occupying Flat D3D; that the said Flat belongs to Olayinka Fagboore; that he has business regarding Flat D3D; that 1st Claimant did not inform him that he was offered the said property but rejected it; that he was not a party in any suit though aware of a matter at the High Court against the 1st Defendant; that he does not know the position of the case at the Federal High Court; that 1st Claimant was not the 1st Occupant of the property and that he was not a staff of 1st Defendant in 1994. The Defendants opened their case on 21/10/14. They called as their witness one Aloiye Aigbonoga as DW1. DW1 adopted his witness statement on oath dated 2/7/14 as his evidence in chief and tendered 8 documents as exhibits. The documents were admitted without objection and marked as Exh. AA1 - Exh. AA8. The case for the defence is simply that the Claimants were its former employee to whom it allocated the property subject of this action; that the allocation was not on owner-occupier basis but rather on tenancy basis. Under cross examination, DW1 stated that he does not know when the Satellite Town Housing Scheme was conceived; that the scheme was not conceived to facilitate home ownership for Nigerian workers; that 1st Defendant has not been in possession of the land since 1978; that he could not recall when 1st Defendant built the housing estate; that the houses were not built before the lease was granted; that he does not know why Exh. AA4 was made operative in 1/1/86; that Exh. AA4 applies to the land allocated to the 1st Defendant by the Federal Government in Satellite Town, Lagos; that there has always been a clamour for the transfer of the house on owner-occupier basis; that he is not aware that 1st Defendant was indicted by the Ministry of Housing for not complying with Federal Government directive regarding the Satellite Town land; that he knew that the residents of the Estate sued the 1st Defendant in relation to the Estate and that it is not proper for anybody to do anything lis pendis. Witness added that he finished paying in 2011 for the property; that he started paying in 2008 when the offer was made to him; that he did not pay rent to the Federal Government before 1990; that 1st Defendant was collecting rents from the Claimants; that bid by 1st Defendant was widely published; that the bid publication is not exhibited before the Court and that he did not know when Nike Olaniyan finished paying for her property. At the conclusion of trial, learned Counsel on either side were directed to file their final written addresses for adoption. The final written address of the 1st Defendant was dated 3/11/14 and filed on 6/11/14. In it learned Counsel set down a lone issue for determination as follows - Whether in the circumstances of this case the Claimants have proved their case against the 1st Defendant and therefore entitled to the reliefs sought in this case. Before then, learned Counsel had raised 2 preliminary points for the attention of the Court. Firstly, learned Counsel had argued that failure of the Claimants to file a Reply to the 1st Defendant's amended statement of defence dated 16/6/14 amounts to admission of the facts contained in same. Citing section 123 of the Evidence Act, 2011, Ononaru v. Akubue (2009)15 NWLR (Pt. 1165) 539 Counsel submitted that facts admitted or deemed admitted need no further proof. According to learned Counsel the position of the law under the rule of pleadings in this regard is that all facts contained in paragraphs 6-18, 20, 22-34 of the 1st Defendant's Amended Statement of Defence dated 16/2/14 are deemed to have been admitted by the Claimants and the 1st Defendant need not prove them. The second preliminary point raised by the 1st Defendant is that the Claimant has no legal standing to commence and give evidence in this action. According to Counsel, Exh. C17 which gave rise to this suit was addressed to the 1st Claimant and not the 2nd Claimant who testified and gave evidence and that each of the Claimants enjoyed separate tenancy in respect of the property they occupied; that 2nd Claimant was not served a Notice to Tenant of Owner's Intention to Apply to Recover Possession and that the 2nd Claimant has no legal standing to commence this action consequent upon which his name ought to be struck out citing Borishade v. NBN Limited (2007)1 NWLR (Pt. 1015) 217. Learned Counsel thus argued that once that is done, Claimants' pleadings are left without evidence to prove it and that pleadings do not constitute or amount to evidence, citing Abubakar v. Joseph (2008)13 NWLR (Pt. 1104) 307 at 357. Learned Counsel urged the Court to dismiss the Claimants' suit. Arguing the lone issue, learned Counsel submitted that there is no averment in the Claimants' statement of facts that states any particular or exact amount fixed by the Federal Government for the property which form the subject of this suit and that neither is there any averments stating the exact amount of money paid by the Claimants to the 1st Defendant as cost price for the property. Counsel further added that there is no evidence of receipts or Bank tellers to prove that any amount was paid by the Claimants as cost price of the property in issue. Citing Nika Fishing Co. Limited v. Lavina Corporation (2008)16 NWLR (Pt. 1114) 509 Counsel submitted that finding of facts cannot be made from paragraphs of pleadings as pleadings cannot take the place of evidence in a contested matter. Thus according learned Counsel, having failed to adduce evidence in support of their case that a cost price was fixed by the Federal Government for the sale of Flat D in Bloch D3 and Flat D1C Oando Housing Estate, Satellite Town, Lagos from the 1st Defendant to them or that they paid to the 1st Defendant any monies in respect of the purchase of the property, Relief i must fail and he urged the Court to so hold. Respecting Relief ii which is for the refund of excess money forfeited as house allowances and rents paid to the 1st Defendant, learned Counsel submitted that failure of the Claimants to tender any accounts, documents, receipts, details or acknowledgment of receipt of such allowances or rents from them to the 1st Defendant is a fatal error of the part of the Claimants. According to Counsel, it is not the duty of the Court to fish for evidence in support of a party's case and neither should a Court be left to speculate, citing Adekeye JCA (as he then was) in ABC Plc v. NTS Limited (2007)1 NWLR (Pt. 1016) 596 at 636. Learned Counsel thus urged the Court to refuse Relief ii as well. On a claim for perpetual injunction learned Counsel submitted that the law is trite that in a claim for injunction, the Court must consider whether there exists a legal right in favour of the party seeking the order of injunction, relying on Adeyemi Works Construction (Nigeria) Limited v. Evangelist Isaac Omolehin (2004)6 NWLR (Pt. 870) 650 at 664. Counsel submitted that there is no averment before the Court either that the Claimants are the owners or have legal right over the property in question. Counsel urged the Court to refuse the claim for injunction. On the final relief sought, learned Court submitted that the relief must be refused as there is no evidence before the Court that the Claimants and the 1st Defendant entered into an agreement to the effect that this Court would determine an equitable price for the property which form the subject of this suit. Counsel urged the Court to dismiss all the claims of the Claimants with substantial cost in favour of the 1st Defendants. The final written address of the 2nd Defendant was filed on 19/12/14. In it learned Counsel also set down a lone issue for determination as follows - Whether the Plaintiffs have successfully proved their case by placing sufficient materials and facts before this Honourable Court to sustain the claims contained therein. I read and understood the argument put forward by the learned Counsel to the 2nd Defendant. The crux of the argument is on the burden of proof required of the Claimants and is more of a replication of the argument as contained in the final written address of the 1st Defendant. Bottom line is that learned Counsel urged the Court to dismiss the suit of the Claimants on the ground that the Claimants have not discharged the burden of proof required of them. It serves no useful purpose for me to reproduce the said final written address here and I therefore elect not to. Claimants' final written address was dated 27/1/15 and filed on 29/1/15. Learned Counsel set down the following 3 issues for determination - 1. Whether the houses are Owner/Occupier and whether the Claimants can claim thereat. 2. Whether or not the Claimants are entitled to their claims. 3. Whether the Court can determine the price of the house(s) in the circumstances it is not owner/occupier. Before arguing the issues set down for determination, learned Counsel responded to the preliminary points raised by the Counsel to the 1st Defendant. In doing so, learned Counsel submitted that filing of a reply to a statement of defence is not absolute and mandatory; that a reply is only necessary where the issues or facts raised in the defence is not covered in the statement of claim of the Claimant and that where the issues raised in the statement of defence are already covered in the statement of point, a reply is otiose, citing Unity Bank Plc v. Bouari (2008)All FWLR (Pt. 41) 1825. On this note Counsel submitted that the first preliminary point is misplaced and unmeritorious. Respecting the second preliminary issue, learned Counsel submitted that the fact that the determination of the owner-occupier status affects both Claimants entitles them to sue and that the Claimants have a common interest resulting from a common transaction and so can sue, citing Ukpong & Anor. v. Commissioner of Finance & Economic Development & Anor. (2007)1 MJSC 18 at 40. Counsel urged the Court to discountenance the preliminary issues raised as lacking in merit. Arguing issue 1, learned Counsel submitted that the Claimants pleaded and led evidence to the effect that in 1978 or thereabout the Federal Government allocated the parcels of land in satellite Town to companies employing 500 workers and above to build houses to facilitate home ownership for Nigerian workers and that the Claimants' claim to owner-occupier basis was confirmed and admitted by the 1st Defendant by virtue of Exh. C11. Counsel argued further that the Claimants pleaded and led evidence that the Federal Government contributed 47% of every house in the estate and after building 1000 bungalows of 2, 3 and 4 bedrooms at the cost range of =N=12,000, =N=16,500 and =N=21,000 respectively demanded that employers of labour beneficiaries of the land allocation building shall be related in design and cost to the government own housing scheme with which they shall be integrated. According to learned Counsel the Claimants having furnished the required consideration fall within the exceptions of the doctrine of privity of contract so that they can sue/claim as alleged although the project was between the Federal Governent and the 1st Defendant for the benefit of the Claimants. Counsel urged the Court to hold that the Claimants can claim under the owner-occupier scheme on the fact of the applicable law and the payment of the stipulated price which make them partakers in the scheme. On whether or not the Claimants are entitled to their claims, Counsel submitted that the Claimants have discharged the burden on them by pleadings and evidence. Counsel stated that Claimants led evidence on how the houses were allocated to them on owner-occupier basis as staff of the 1st Defendant; that the evidence led by the Claimants are not only admissible and relevant but uncontradicted and not discredited and hence the Court can legally rely on it citing NBC v. Alfijir Mining Nigeria Limited (1993)4 NWLR (Pt. 287) 346. Respecting the claim for perpetual injunction, Counsel submitted that should the Claimant be adjudged to be owner of the houses they occupy then a injunctive order will follow. Referring to Ezebilo v. Chinwuba (1977)7 NWLR (Pt. 511) 108 at 109 Counsel stated that an order of injunction is granted upon the exercise of discretionary power of the Judge in his equitable jurisdiction, the discretionary power must be exercised judicially or judiciously on the basis of the facts placed before the Court. Counsel submitted that the legal rights of the Claimants are threatened seriously as well as the res. He urged the Court, on the basis of Claimants' pleadings and evidence led, to grant the injunctive relief sought. Counsel cited All States Trust Bank Plc v. Nsofor (2004)All FWLR 1719 & Oye v. Gov. of Oyo State (1993)7 NWLR (Pt. 306) 473. On issue 3 whether the Court can determine the price of the house(s) in the circumstance if it is held not to be on owner-occupier, Counsel responded in the affirmative. Leaned Counsel argued that the power of the Court to do so is not only legal but equitable submitting, on the authority of Anakwenze v. Aneke & Ors. (1985)1 NWLR (Pt. 86) 58, that nothing should be intended to be out of the jurisdiction of a superior Court but that which specifically appears to be and that in the circumstances of this case the Court can determine the price. Counsel urged the Court on the premises canvassed by the Claimants to hold that they have proved their case to be entitled to the reliefs sought. I have read all the processes filed by learned Counsel on either side including the final written addresses filed. I reviewed and evaluated all exhibits tendered and admitted in this case. In addition I listened to and watched the demeanor of the witnesses called during trial. having done all this, I find 2 main issues as both germane and critical for the just determination of this case as follows - 1. Whether the Claimants were allocated the property the subject of this suit on owner- occupier basis. 2. Whether the Claimants have proved their case to be entitled to all or some of the reliefs sought. The Claimants in this case contend that they were allocated the property the subject of this suit on owner-occupier basis. The 1st Defendant contends otherwise. The law is trite that he who asserts has the burden of proving the assertion; that it is not sufficient to make assertion but that assertions must be backed up by credible and cogent evidence. This proposition finds statutory and case-law expression in Section 123, Evidence Act 2011 & Mrs. Oluwaseun Agboola v. United bank for Africa Plc & Ors (2011) LPELR-9353(SC). I examined all the exhibits tendered by the Claimants. Of the exhibits, Exh. C5 and Exh. C6 are very instructive. Both exhibits were dated 23/5/02. Both were signed by one Emafo Ebiaho, Procurement & Services Manager of the 1st Defendant. Both exhibits have the same content safe that while Exh. C5 was addressed to 1st Claimant, Exh. C6 was addressed to 2nd Claimant. Finally, while Exh. C5 was in respect of Flat D3D, Exh. C6 was in respect of Flat D1C. Each of the exhibits, on the letter headed paper of Unipetrol Nigeria Plc, has the following contents - ''ALLOCATION OF FLAT D3D IN SATELLITE TOWN HOUSING ESTATE Following your application for accommodation in the Satellite Town Housing Estate, we are pleased to inform you that you have been allocated D3D, a three bedroom flat in the company housing estate, effective from April 1, 2001, at the current rate of =N=80,000.00 (Eighty Thousand Naira) per annum. The offer is subject to the following terms and conditions. 1. You are to comply with the attached tenancy agreement. 2. Electricity bills and rent allowances are deductible at source from effective date of occupation. 3. The list of equipment supplied with the flat (see attached) are meant for use therein and shall not be removed for maintenance/servicing and or repairs without prior consent in writing to the Administrative Services Officer responsible for the running of the estate. 4. You are to sign the duplicate of this letter signifying your acceptance of the terms of offer and return same to the undersigned. I wish you a happy stay at the estate''. This exhibit was tendered by the Claimants. It emanated from the 1st Defendant to the Claimants. There is no other document tendered which countermands the content of that exhibit. The content of that exhibit is clear and unambiguous to the effect that the Flat allocated was not on the basis of owner-occupier. By Clause 1 of the exhibit it is apparent that the relationship which it created was one of Landlord and Tenant this is in addition to the fact that paragraph 1 of the exhibit put the annual rent of the property as =N=80,000.00. The consequences of this finding is that the property allocated to the Claimants by Exhibits C5 and C6 were not allocated on the basis of owner-occupier but rather on tenancy basis. I so find and hold. Issue 2 is whether the Claimants have proved their case to be entitled to all or some of the reliefs sought. The basis or the foundation of the Claimants' claims is that the property the subject of this action was allocated to them on owner-occupier basis. In issue 1 above, this Court has found and held that the said property were allocated NOT on owner-occupier basis. Having so found and held, the strong room of the case of the Claimants has collapse. The argument of owner-occupier was the pillar that held the Claimants case together. Unfortunately, that pillar has turned out to be a very weak and unreliable one. Hence it has collapsed. That being the case, considering whether or not the Claimants have proved their case is an exercise in futility or at best an academic exercise. Adjudication is the sole duty of the Court. It is not for the Court to make case for a party. It is not for the Court to fish round for evidence in proof of a party's case. Rather it is for the Court to decide cases presented before it on the basis of credible evidence adduced by litigants, see ABC Plc v. NTS Nigeria Limited (2007)1 NWLR (Pt. 1016) 596 at 626. I hold that the Claimants have not discharged the burden of proof to be entitled to any of the reliefs sought before this Court. Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, all the reliefs sought by the Claimants are refused and dismissed same not having been proved by credible, cogent and admissible evidence. Judgment is entered accordingly. I make no order as to cost. ____________________ Hon. Justice J. D. Peters Presiding Judge