The 1st Respondent was a Director of Library Services of the Supreme Court of Nigeria. She served in the Federal Civil Service for 35 years, and retired on 15th January, 2004. While in service, she was allocated a three bedroom duplex at Block D44, Flat 3, Zone F Extension, Apo, Abuja, as her official quarters. On 1st October 2003, the Federal Government commenced a monetisation policy of fringe benefits in the Civil Service, for the sale of Federal Government residential houses; by which policy the 1st Respondent was entitled to be accorded the right of first refusal, having lived on the property for over five years. The 1st Respondent indicated her interest in purchasing the house, and wrote to the Head of Service of the Federation through the Chief Registrar of the Supreme Court.
Upon transfer of the purchase of houses to the 2nd and 3rd Respondents, they turned around the process by issuing sales guidelines and requesting the 1st Respondent to fill and submit a Form for expression of interest to purchase the said property. The 1st Respondent completed and submitted the Form; however, by a letter dated 8th August, 2005, the 2nd Respondent rejected her application on the basis that she was not qualified to apply as a career civil servant, having retired on 15th January, 2004. She was invited to participate in a public bidding, as a member of the general public. The 1st Respondent decided to participate in the bidding, while contesting the decision of the 2nd Respondent. After the bidding exercise, the 1st Respondent travelled to England for urgent medical attention and it was while recuperating there, that the 2nd Respondent announced the Appellant as the winner of the bidding exercise. When the 1st Respondent returned to Nigeria, she inquired to know about her application and was informed that her Form was misplaced. The 2nd Respondent thereby, issued her with another Form, which she filled and submitted with a bank draft.
The 1st Respondent received a Quit Notice on 21st April, 2006 and had to vacate the property. She therefore, commenced an action against the Appellant and other Respondents at the High Court of the Federal Capital Territory (FCT) on 27th April, 2006. By the claim, she sought among others, a Declaration that she is a beneficiary of the Monetisation Policy, having been in active service as at the time the policy took effect, and entitled to exercise her right of first refusal in respect of the property. She sought in the alternative, a Declaration that she is entitled to be given a fair consideration in the bidding exercise, having submitted her expression of interest Form and that the non-consideration of her application before awarding the said flat to the Appellant, rendered the public bidding null and void.
The trial court found for the Appellant and upheld the sale by the 2nd and 3rd Respondents on the basis that the 1st Respondent, who retired about four months before the commencement of sale of the houses, was not entitled to exercise the option of first refusal on the property. The appeal to the Court of Appeal was successful, with the appellate court granting the alternative prayer of the 1st Respondent and declaring her the winning Bidder of the property. The Appellant therefore, appealed to the Supreme Court.
Issues for Determination
The following issues were considered by the court in determining the appeal:
1. Whether the Court of Appeal had the jurisdiction to entertain the appeal before it, given the parties and the claim of the 1st Respondent before the High Court of the FCT.
2. Whether the provisions of Public Officers Protection Act
would not render the 1st Respondent’s claim before the trial
court incompetent and in turn, rob the Court of Appeal of
jurisdiction to entertain the appeal and deliver the judgement in favour of the 1st Respondent.
3. Whether the Court of Appeal had the jurisdiction to entertain
the appeal before it, having regard to the incompetent process,
i.e. the Statement of Claim filed before the trial court and
signed by an unknown person for the 1st Respondent’s
4. Whether the Court of Appeal had the jurisdiction in the
circumstance, to grant reliefs that are contrary to the claim
of the 1st Respondent and reliefs not sought in the Statement
5. 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 regard to the pleadings and evidence of parties.
The joint Brief of Argument filed by the 2nd and 3rd Respondents and the issues for determination formulated therein, were struck out by the court for being irregular. The Supreme Court opined that a Respondent, who did not file a Cross-appeal or Respondent’s Notice, cannot attack the judgement of the lower court or pray the appellate court to dismiss the judgement of the lower court.
Arguing the first issue, the Appellant submitted that given the parties and the claim, the High Court of the FCT and the Court of Appeal do not have the jurisdiction to entertain the claim and the appeal therefrom, since the claim primarily challenged the administrative action and decisions of the 2nd and 3rd Respondents in line with Sections 257(1) and 151(1)(p) and (r) of the 1999 Constitution. Counsel argued that the claim should have been filed at the Federal High Court. Responding, counsel for the 1st Respondent opined that the principal parties to the suit are the Appellant and the 2nd & 3rd Respondents, who are not agents of the Federal Government, but agents of the Federal Capital Territory with status of a State. Counsel relied on Section 299 of the 1999 Constitution and the case of Okoyode v FCDA (2006) All FWLR (Pt. 298) 1200, in support of his submission.
On the second issue, the Appellant argued that the action challenged the administrative and executive decisions of the 2nd and 3rd Respondents, both public institutions. He posited that the cause of action occurred in September/November, 2005 when the 1st Respondent was excluded from the bidding exercise; but the action was not instituted until 27th April, 2006 contrary to the provisions of Section 2(a) of the Public Officers Protection Act (POPA), which stipulates that actions against public officers must be brought within three months after the act complained of. Counsel for the 1st Respondent on his part, invited the court to consider the core issue of contention in the suit, which relates to land/property built on land. He submitted that claims for recovery of land, are excluded from the ambit of Section 2(a) of POPA.
Regarding the third issue, the Appellant argued that the originating process (Statement of Claim), which was signed for Chief A.S. Awomolo, SAN by an unknown person was invalid and incurably so, as originating processes must be signed by a legal practitioner. In response to the submission, counsel for the 1st Respondent posited that the jurisdiction of court is activated by the originating process, which is the Writ of Summons and not the Statement of Claim – Order 4 Rule 1, 2 and 3 of the High Court of the FCT (Civil Procedure) Rules, 2004. He contended that the Statement of Claim was based on a validly issued Writ of Summons, in accordance with the Rules of Court.
Arguing the fourth issue, counsel submitted for the Appellant that a court may grant less, but not more than is claimed by the litigant. He argued that the Court of Appeal granted unsolicited reliefs by declaring the 1st Respondent as the winning bidder of the property in dispute, and directing her to pay the bid amount of N10,100,000.00 and other legal charges. The 1st Respondent responded that the reliefs granted by the lower court were consequential, flowing from the reliefs sought.
With regard to the fifth issue, parties argued on the burden of proof and on whom the onus lies to prove.
Court’s Judgement and Rationale
On the first issue, the Supreme Court held that by virtue of Section 299 of the 1999 Constitution, Abuja, the Federal Capital of Nigeria, has the status of a State. It is one of the States of the Federation. The Minister of the Federal Capital Territory, though a Minister of the Federal Government, occupies a similar position of Governor of a State. The Federal Capital Development Authority (FCDA) is established by Section 3 of the Federal Capital Territory Act; it is a Governmental Agency of the FCT, Abuja. Though the Federal High Court has exclusive jurisdiction to determine matters where one of the parties is the Federal Government or its agency as specified in Section 251(1)(a)-(s) of the 1999 Constitution, the High Court of the FCT is the court vested with jurisdiction in suits where the agents of the Federal Government and agencies of the FCT are parties. The claim in this instance relates to land and the question about implementation of the monetisation policy of the Federal Government by the FCDA. Thus, the High Court of the FCT has jurisdiction to determine the suit.
Deciding the second issue, the Apex Court held that, the action relates to recovery of land/house occupied by the 1st Respondent, from which she was thrown out. The law is settled that Section 2 of POPA does not apply to cases of recovery of land – SALAKO v LEDB (1953) 20 NLR 169.
On the issue of competence of the originating process, the Supreme Court observed that the 1st Respondent filed a Statement of Claim which was signed by an unknown person. However, the Appellant did not object to this defect at the trial court and the Court of Appeal, but raised it as an issue of jurisdiction at the Supreme Court for the first time. The law is that counsel may waive a defect in procedural law, and a right that has been waived is lost. Once the other party acts upon the waiver, the party waiving the right cannot go back on the waiver – CHIEF JOHN EZE v DR. C.I. OKECHUKWU & 7 ORS (2002) 14 SCM 105. The Appellant having waived her right to object to the defective process which touches on procedural jurisdiction, it would be most inequitable and unjust to the 1st Respondent to allow the complaint on appeal.
With regard to the submissions on issue four, the court held that a court does not have jurisdiction to grant a relief not claimed, or more than the Claimant can prove. However, a court has jurisdiction to give consequential Orders where necessary. The Court of Appeal examined the evidence on record and found that the only public bid for purchase of the flat was one submitted by the 1st Respondent, as her bid was the highest and accompanied by a bid bond by way of bank draft equal to 10% of the bid value regarded as non-refundable 10% deposit. It follows that the consequential order of the Court of Appeal, which flowed from the alternative prayer of the 1st Respondent, was correct.
Resolving the issue about who had the winning bid for the house, the Apex Court held that parties are bound by their pleadings, and the burden is on the Plaintiff to prove his assertions vide Section 131 of the Evidence Act. The 1st Respondent herein, pleaded and proved that she bidded for the house; thus, the burden shifted to the Appellant to disprove her assertion. On her part, the Appellant did not establish that she submitted any bid for the disputed flat, and the Court of Appeal was right not to have speculated on this point.
Appellant was not represented by counsel.
E. Fatogun with L.I. Ekweremadu for the 1st Respondent.
D. Anieh with U.J. Enweazu for the 2nd and 3rd Respondents.
4th Respondent was not represented by counsel.
Reported by Optimum Publishers Limited, Publishers of Nigerian Monthly Law Reports (NMLR)