3PLR – ALHAJI RAZAK ADENIYI AYILARA V. FEDERAL MINISTRY OF WORKS

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ALHAJI RAZAK ADENIYI AYILARA

V.

FEDERAL MINISTRY OF WORKS

IN THE COURT OF APPEAL OF NIGERIA

ON THURSDAY, THE 28TH DAY OF MARCH, 2013

CA/J/70/2005

3PLR/2013/12 (SC)

 

 

OTHER CITATIONS

(2013) LPELR-20772(CA)

BEFORE THEIR LORDSHIPS

RAPHAEL CHIKWE AGBO, J.C.A

JUMMAI HANNATU SANKEY, J.C.A

IBRAHIM SHATA BDLIYA, J.C.A

 

BETWEEN

ALHAJI RAZAK ADENIYI AYILARA – Appellant(s)

AND

FEDERAL MINISTRY OF WORKS AND HOUSING – Respondent(s)

 

REPRESENTATION

Mr. M. T. Omatsola with Mrs. B. B. of Oludairo – For Appellant

AND

Mr. G. F. Zi, Assistant Director, Federal Ministry of Justice – For Respondent

 

ORIGINATING STATE/COURT

Plateau State, Jos: Federal High Court (Soba, J-Presiding)

 

MAIN ISSUES

REAL ESTATE/LAND LAW:– Title to property – Government allocation – Whether claim to ownership of property can be reasserted after allocation of the property – Notice of revocation of grant of leasehold on public land – Need for same to be based on overriding public interest – Duty of revoking authority to satisfy the provisions of Section 28 (1) & (2) of the Land Use Act

GOVERNMENT AND ADMINISTRATIVE LAW:- Power of Governor to evoke a right of occupancy for overriding public interest – Section 28 (1) & (2) of the Land Use Act – Onus of proof – How discharged

COMMERCIAL LAW – CONTRACT:- Doctrine of Privity of contract – Rule that only parties to a contract can sue and be sued on the contract, and a stranger to the contract can neither sue nor be sued on the contract even if the contract is made for his benefit and purports to give him the right to sue or make him liable upon it – Person with close ties to party who furnished consideration for contract – Whether exempted

PRACTICE AND PROCEDURE – ACTION:- how facts or depositions in affidavits are to be proved

PRACTICE AND PROCEDURE – EVIDENCE:- Documentary evidence – Where it supports oral /affidavit evidence – Effect

PRACTICE AND PROCEDURE – EVIDENCE:- Burden of proof in civil proceedings – On whom lies – Shifting burden of proof – Standard of proof for an allegation of fraud in civil proceedings – Need to specifically plead any allegation of crime in a civil proceeding and the particulars of such crime – Whether a document not bearing all the signatures of the parties to it is admissible in evidence

PRACTICE AND PROCEDURE – JUDGMENT- settlement -terms of settlement- judgment of the court – consent judgment – whether parties can appeal against a consent judgment- whether parties can re-litigate a matter that has been judicially pronounced upon

 

 

 

 

MAIN JUDGMENT

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”.
13. 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”.
14. That I had taken both legal and physical possession of the property in issue for over 2 years when on the 13th of November, 2001 I was invited by the Zonal Town Planning Officer of the Defendant in Jos and handed two letters Ref. No. LU/C.68/S.22/VOL.1/2 and Ref. No. LU/C.68/S.22/VOL.1/3 both dated 24th of October, 2001 from the Defendants Abuja office requesting me to “yield possession of the property to the Federal Controller of works and Housing in Plateau State.”

 

Copies of the said letters are annexed and marked EXHIBITS “O1” and “O2”.
The gist of the Respondent’s defence is that it never sold the property in dispute at Nos. 21 and 23 Ninth Avenue, Federal Low Cost, Jos, to either Mr. Ayodele or to the Appellant. It also denied employing the services of Messrs P. O. Ebosons & Co Nig. Ltd to sue anyone to court. It was their case that one Mr. O. A. Anibaba simply colluded with P. Ebosons & Co. Nig. Ltd and Mr. Ayodele to wrongfully allocate the property in dispute to Mr. Ayodele. The Respondent contends that this was why it sued Ebosons, Ayodele and Anibaba at the Plateau State High Court as in the Exhibit E to the Appellant’s own affidavit. It is also its position that Mr. A. S. Nnorum, the Zonal Town Planning Officer of the Respondent itself, was a part of the collusion, and relied on Exhibits N & M also to the Appellants’ affidavit. The Respondent contends that it was as a result of the realisation, by its headquarters in Abuja that sales and allocations were wrongly and illegally being carried out, including that involving the properties in dispute, that it wrote Exhibits O1 & O2. It thus urged the lower Court to dismiss the suit.

At the close of addresses by both learned Counsel to the Appellant and to the Respondent, the learned trial Judge, reviewed the affidavit evidence and exhibits before him, found in favour of the Respondent inter alia in these terms at page 78 of the Record of Appeal:

“In this case the Defendant has raised the issue of collusion between its staff and O. Ayodele through whom the Plaintiff is claiming to be declared the right owner of the premises in dispute….In this case the consent judgment was induced by fraud. Hence the Defendant deposed in paragraph 9 of their counter affidavit that the Plaintiff and Mr. O. Ayodele misled the Federal Mortgage bank of Nigeria into issuing Exhibit H & I (arrears of repayment (sic) outstanding monies).

In this observe of denial of the above facts deposed by the Defendant by the Plaintiff I hereby disregarded the consent judgment having been obtained by fraud and hereby refuse to grant the order sought in the Originating summons accordingly. Consequently the application is dismissed,”

 

Dissatisfied by the decision of the lower court, the Appellant filed his Notice and Grounds of Appeal on the 1sr July, 2004, wherein he complained on four (4) grounds. The Grounds without their particulars are set out as follows:

 

“Ground One:

The learned trial Judge erred in law when he held that the consent judgment delivered in the suit instituted by the Defendant (Respondent) in this suit in Suit No.PLD/J118/97 was obtained by collusion and fraud.

 

Ground Two:

The learned trial Judge misdirected himself on the facts when he held that because the Respondent did not append his signature to the Sale Agreement there was no sale of the property to the Appellant.

 

Ground Three:

The learned trial Judge erred in law when he failed to hold that the Respondent having led the Appellant to change his position were (sic) stopped from denying same.

 

Ground Four:

The Ruling is against the weight of evidence before the court.”

When the Appeal was called up for hearing on the 10th January 2013, Mrs. Oludairo, learned counsel for the Appellant adopted and relied on the Appellant’s Brief of argument filed on 18-12-09 but deemed filed by an order of Court on 31-03-10, as the Appellant’s arguments in this Appeal. She urged the Court to allow the Appeal, set aside the Judgment of the trial Court and enter Judgment for the Appellant. In like vein, Mr. Zi, learned counsel for the Respondent, adopted and relied on the Respondent’s Brief of argument filed, with the leave of this court sought and obtained, on 29-11-12. He urged the Court to affirm the Judgment of the lower Court and dismiss the Appeal for lacking in merit.
In their respective Briefs of argument, whereas the Appellant distilled three issues from the four Grounds of Appeal, the Respondent distilled one sole issue. Since I find the issues of the Appellant more comprehensive and precise to the issues arising in the Grounds of Appeal, they are adopted as the issues whereby this Appeal will be determined. They are as follows:

1. a) Whether the learned trial Judge was right to have held that the consent Judgment obtained by the Respondent as Defendant in Suit No.PLD/J118/87 was obtained by collusion and fraud in the absence of credible evidence to prove same BEYOND REASONABLE DOUBT.
2. b) Whether the learned trial Judge was right when he held that because the Respondent did not append his signature to the Sale Agreement between the Appellant and O. Ayodele, there was no agreement when Respondent was not a party to same and in view of the existing consent judgment.
3. c) Whether the learned trial Judge was right to have assumed that the Respondent having allocated the said property in question to O. Ayodele by virtue of letter of allocation Ref. No. HC/1426/2BK/PS/JOS dated 5th July, 1985 can later claim ownership over same to warrant their interfering with or determining what happens to the property.

 

In arguing issue one, Mr. Omatsola, learned Counsel for the Appellant submits that, before a court can hold that a transaction is tainted with fraud and collusion, there must be credible evidence to support such an assertion by the party alleging same. He argues that, by virtue of Section 135 of the Evidence Act, anyone who desires a court to give judgment dependant on a set of facts which he asserts must prove that those facts exist. In addition, where there is an allegation of crime in a civil proceeding and same is directly in issue, the standard of proof required is beyond reasonable doubt. Learned Counsel contends that the Respondent neither led any evidence nor tendered any exhibit to show that the consent judgment was obtained by collusion or fraud.
He further submits that the facts as to fraud were not even deposed to in the Respondent’s counter affidavit at pages 40-41 of the Record.

 

Counsel submits that as a result by his findings thereon, the learned trial Judge descended into the arena and also indulged in speculation, which he should not do. In addition, Counsel submits that the consent judgment itself was neither before the lower Court for review nor was it invited to sit on appeal over same. He submits that the purport of the consent judgment, Exhibit G (at page 25 of the Record), was to establish the fact that the Respondent agreed that the Defendants in that suit will acquire title to the property after paying the prescribed cost of the property to it, (the Respondent), through the Federal Mortgage Bank. Counsel argues that the terms of the Consent Judgment were complied with and, afterwards, Mr. Ayodele transferred his title in the property to the Appellant. Counsel argues that the Respondent is therefore estopped from claiming ignorance of the transaction. He relied on a number of authorities to buttress his submissions. Learned Counsel thus urged the court to resolve this issue in favour of the Appellant.

 

Under issue two, learned Counsel submits that the issue before the lower Court for adjudication was the purported attempt by the Respondent to revoke the Appellant’s title to the property in issue via Exhibits O1 and O2 (at page 34 of the Record). He referred to Exhibit N (at page 33 of the Record) wherein the Respondent acknowledged the change in the ownership of the property to the Appellant. It is thus Counsel’s contention that the Sale Agreement, Exhibit A, between Mr. Ayodele and the Appellant will only be relevant if the said Mr. Ayodele had denied selling the property to the Appellant, and this was not the case. Learned Counsel therefore submits that the learned trial Judge misdirected himself when he placed so much emphasis on the Exhibit A, as if it was the main issue for determination before him.

 

Mr. Omatsola further submits that, by the finding of the lower Court at pages 79 – 80 of the Record where he invoked the legal maxim, nemo dat quod non habet, it was apparent that the learned trial Judge failed to properly appreciate the purport of Exhibit N – the Change of ownership of the property, and the Exhibit G, the earlier Consent Judgment of the Plateau State High Court. It is further submitted by Counsel that, since by virtue of Exhibit B, the property had been allocated to Mr. Ayodele since 1985, the Respondent could not still be the owner of the property in issue. Counsel relied on Makwe V Nwukor (2001) 7 SCNJ 87 @ 96 where it was held that as a general rule, a contract affects only the parties thereto and cannot be enforced by or against a person who is not a party to it. What this also means is that only the parties to a contract can sue or be sued on the contract, and generally, a stranger to a contract can neither sue or be sued on the contract even if the contract is made for his benefit and purports to give him the right to make him liable upon it.

 

Learned Counsel further submits that, based on the Consent Judgment, Exhibit G, the Appellant paid all that was to be paid and thereafter, the Zonal Town Planning Officer of the Respondent, issued Exhibit N confirming the change in ownership of the property. Reference is made to Exhibits H, I, J & K respectively. Counsel again urged the Court to resolve this issue in favour of the Appellant.

 

Finally, in respect of issue three, learned Counsel submits that the law is trite that documents speak for themselves. He relies on UBN Ltd v Ozigi (1994) 3 NWLR (Pt.333) 385 @ 400. Counsel refers to the letter of allocation of 6th July, 1985, by which the Respondent allocated the property to Mr. Ayodele. As a result of this, the latter became the owner of the property for 99 years, as title in the property had been passed to him. Counsel submits that, since title resided in Mr. Ayodele, who could then deal with the property as he pleased provided he did not breach the terms of the allocation indicated in the letter, the Respondent had no legal justification to subsequently lay claim to the property. Counsel argues that, in the absence of any such breach, the letter of allocation is prima facie evidence of title residing in Mr. Ayodele, who therefore has a legal right to deal with the property as he deems fit without interference. Counsel contends that this is what he (Ayodele) did by transferring title to the Appellant. Counsel submits that Exhibit N, issued by the Zonal Officer of the Respondent, (page 33 of the Record), is further confirmation in writing that the Respondent consented to the sale of the property by Mr. Ayodele to the Appellant. Hinging on Exhibit N, the Respondent proceeded to expend a substantial amount of money in renovating the property wherein he has since resided with his family. Learned Counsel therefore urged the Court to find that the holding of the learned trial Judge at page 79 of the Record that, based on the principle of nemo dat quod non habet, the property now belongs to the Respondent, as an error in law and to dismiss same. He finally urged the Court to also resolve this issue in favour of the Appellant.

 

Learned Counsel thus urged the Court to set aside the Judgment of the lower Court in its entirety and grant the order sought by the Appellant in the suit before the lower Court.

Mr. Zi, learned Counsel for the Respondent, in responding to the issues raised by this Appeal, submits that the learned trial Judge was right to hold that the Respondent still owned the property in dispute since the purported Sale Agreement was not dated and signed by all the parties thereto, except the purchaser, and was thus incompetent. Counsel submits that for a contract of sale of land to be valid, there must be a written agreement/memorandum signed by all the parties to the transaction. He contends that the said agreement is inchoate (tentative, inconclusive), having not been duly executed. Counsel went further to contend that the agreement is both unenforceable and illegal and the trial Court acted rightly in refusing to enforce, same even where illegality had not been pleaded. Learned Counsel further submits that, by its counter affidavit before the lower Court, the Respondent had deposed to the fact that there was collusion between its staff members and Mr. Ayodele. He argues that since this deposition was not denied, the trial Court was right to believe that the Consent Judgment was obtained by fraud.

 

Furthermore, Counsel submits that, pursuant to Section 28 of the Land Use Act, Cap L5, Laws of the Federation of Nigeria, 2004, the Respondent can revoke an allocation of land for overriding public interest. He therefore contends that title to the property in issue reverted to the Respondent, same having been revoked by it.

 

Learned Counsel therefore again urged the Court to affirm the Judgment of the lower Court on the ground that there is no valid contract between the parties to this Appeal in respect of the property in issue. He urged the Court to dismiss the Appeal.

 

In considering the first issue which is whether the lower Court was right to have held that the Consent Judgment between the Respondent and the Appellant’s predecessor in title, Mr. Ayodele & two others, was obtained by fraud, it is important to set out, in the Respondent’s words, the allegation as contained in its Counter affidavit for clarity of argument. The relevant paragraphs state as follows:

“10.   That Mr. O. A. Anibaba who was a one-time Zonal Town Planning Officer of the defendant just colluded with P.O. Ebosons & Co. Ltd and Mr. O. Ayodele to wrongfully allocate the property in dispute to O. Ayodele.

11. That as a result of paragraph 10 above the defendant sued P. Ebosons & Co, Ltd, O. Ayodele and O.A. Anibaba, see Exhibit E and the particulars of claim therein annexed by the plaintiff.
12. That Mr. A. S. Nnorum who too was a Zonal Town Planning Officer with the defendant was also part of the collution (sic) mentioned in paragraph 10 above. See Exhibits ‘M’ and ‘N’ annexed by the plaintiff.
13. That when our headquarters in Abuja realised that sales and allocations of the Miango Low cost Housing Estates were wrongly or illegally done including the one in dispute in this case, it wrote Exhibits O1 and O2.
14. That the defendant shall rely on all the Exhibits annexed to this Originating Summons by the plaintiff.”

 

The law is trite that when cases are tried upon affidavit evidence, the facts or depositions in such affidavits have to be proved like averments in pleadings. See UBN Plc v. Astra Builders (W.A.) Ltd (2010) 2 SCNJ 84; & Ezechukwu v. Onwuka (2001) FWLR (Pt.50) 1713.

 

Equally, there is always a duty placed on the person asserting to establish his allegations in line with the provisions of Section 135 of the Evidence Act. The burden of proof does not shift from him until he has proved his assertion. Thereafter, the burden shifts to the opposing party to rebut the assertion. See Eya v. Olopade (2011) 5 SCNJ 98; Goodwill & Trust Investment Ltd V Witt & Bush Ltd (2011) 3 SCNJ 241. In the instant case, the Appellant having laid claim to the property in dispute and laid before the trial Court an avalanche of documentary evidence to prove his claim, the defendant, while not essentially denying the facts of the Appellant’s claim as to his acquisition of the property, raised a defence of collusion and fraud. The Respondent is therefore bound by law to prove such an allegation/assertion.

 

See Section 138 of the Evidence Act.

 

However, it is equally the law that before a party can legally rely on fraud as a defence, the fact of fraud must not only be pleaded, but particulars thereof must be provided in the pleadings. I have set out the averments of the Respondent in its Counter affidavit above and it is very clear that the particulars of the alleged fraud are conspicuous by their absence and have plainly not been deposed to in the counter affidavit. Under the Nigerian Law of Evidence, any allegation of fraud must be proved beyond reasonable doubt. Section 138(1) of the Evidence Act, 2004 states:

“If the commission of a crime by a party to any proceedings is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.”

 

Thus, any allegation of crime in a civil proceeding must be pleaded and the particulars of such crime must be expressly pleaded as well. In this case, the nature and extent of the fraud must be properly pleaded and affidavit evidence must be sufficiently adduced to establish it to the satisfaction of the court. See Babatunde V Bank of the North (2011) 12 SCNJ 444. If the evidence before the court does not sufficiently expose the fraud, the court will be left to rely on mere conjecture or speculation, which, in my view, is what the lower Court did in this case. The Respondent failed to substantiate its allegation that the sale of Mr. Ayodele’s property to the Appellant was tainted with fraud such as to affect the validity of the sale. There is no basis for the finding of the trial Court as there was nothing to show that either the Sale Agreement or the Consent Judgment of the Plateau State High Court was tainted by fraud or that it was illegal.

 

The assertion of the Respondent in paragraphs 10 – 13 of its Counter affidavit that the its own Zonal Town Planning Officer, Mr. Anibaba, and another Zonal Town Planning Officer, Mr. A.S. Nnorom, both at different times, colluded with the Appellant’s predecessor-in-title, Mr. Ayodel and one Messrs P. O. Ebosons to wrongfully allocate the property in dispute to Mr. Ayodele and to issue Exhibits M & N, remain mere assertions without substance. Exhibit M is a series of two letters/quit notices written to the erstwhile tenants on the property in dispute to vacate the property, while Exhibit N is a letter written on the letter-head of the Respondent to the Appellant confirming his ownership of the property. Given the significance and magnitude of this letter to the resolution of this issue, it is hereunder reproduced:

“2nd July, 1999

ALH. RAZAQ ADENIYI AYILARA

6 DILIMI STREET, JOS.

CHANGE OF OWNERSHIP IN RESPECT OF LANDED PROPERty SITUATE AT HOUSE 21 & 23 ON 9TH AVENUE FEDERAL LOW COST HOUSING ESTATE MIANGO ROAD, JOS

We wish to notify you of the final legal transfer of the above property allocated by this ministry vide allocation paper Ref. No.HC/14/36/2BK/PS/JOS of 6th July, 1985 to MR. O. AYODELE OF 13 DOGON KARFE, JOS, now transferred legally to ALH. RAZAQ ADENIYI AYILARA OF 6 DILIMI STREET, JOS PLATEAU STATE.
Please be further informed that all necessary legal documents regarding the transfer of the above property have been duly documented at the Ministry’s Land Use and ALLOCATION COMMITTEES OFFICE at Abuja.

You will finally be informed when the Ministry Headquarters commences the issuance of the CERTIFICATE OF OCCUPANCY.

(Signed)
A. S. Nnorom

Resident Zonal Town Planning Officer

For: Federal Controller of Works and Housing

Plateau State.”

 

Indeed, this letter was written sometime after the Respondent itself, having earlier instituted an action against Ebosons, Ayodele and its own member of staff/Zonal Town Planning Officer, Anibaba, at the Plateau State High Court, settled the matter and filed Terms of Consent Judgment before the Court. In the Writ of Summons and Statement of claim before that Court filed on the 14th March, 1997, (Exhibit E to the Appellant’s affidavit), the Respondent had sought the following reliefs inter alia:

“(b)    An order setting aside the purported sale of 2 bedroom flats at Nos. 21 & 23 9th Avenue, Federal Low Cost hoses (sic) by the 3rd defendant to the (sic) defendant.

(d)     An order granting immediate possession to the Plaintiff;”

 

Thereafter, by a letter dated 31st July, 1998, (Exhibit F), the Respondent, through its Federal Controller of Works and Housing, wrote a letter instructing its solicitors to withdraw the suit from the State High Court. Being crucial to these proceedings, and since the document also speaks for itself, its contents are reproduced hereunder:

“31st July, 1998

The Attorney General and Honourable Commissioner for Justice,

Ministry of Justice,

Jos.
ATTENTION:- DIRECTOR, CIVIL LITIGATION
SUBMISSION OF APPROVAL FOR SALES OF FEDERAL LOW COST HOUSES, JOS.

I am directed to submit herewith a photocopy of approval for sales of some categories of the Federal Low Cost Houses, Miango Road, Jos. With this new development, there will be no need to continue with the two cases listed hereunder which are pending at the various High Courts in Jos, Viz:-

1. i) Federal Ministry of Works and Housing Vs P. Eboson & Co ltd etc
2. ii) Felix Owuche & 15 others

Consequently, these cases should be withdrawn for settlement out of court.
As our legal representative, you will be involved in the settlement processes as will be communicated to you from time to time. submitted for your information and necessary action please.

Thanks for your usual co-operation.

(Signed)
A. I. Obaike,

Senior Administrative Officer,

For: Federal Controller of Works and Housing,

Plateau State.

 

Evidently acting upon this letter of instruction, the Respondent’s (then Plaintiff’s) Counsel, in conjunction with the then defendants’ Counsel, filed “Terms of Consent Judgment” before the Plateau State High Court in that suit. The consent Judgment of the Court is Exhibit G to the Appellant’s affidavit and it states as follows:

“The parties have agreed on the following terms of settlement.

1. The Defendants will pay the prescribed cost of the property as may be determined by the Plaintiff by certified bank draft to the Federal Ministry of Works and Housing through the Federal Mortgage Bank.
   Dated this 5th November, 1998.”

 

The terms of this Consent Judgment were signed by both the Respondent’s Solicitors from the Ministry of Justice, Jos, and its Director of Administration, Mr. A. I. Obaike.

 

Both the Exhibit F and the Exhibit G have not been disowned by the Respondent nor their signatories/authors denounced. Thus, given the tenor and tone of these documents emanating from the Respondent itself through its principal officers, the Respondent has woefully failed to show, much less to prove, that the Consent Judgment was obtained by collusion and fraud.

 

The settled principle of law is that where the commission of a crime is directly in issue in any proceeding, whether civil or criminal, as in this case, collusion and fraud, the alleged crime must be proved beyond reasonable doubt. See Section 138 (1) & (2) of the Evidence Act, Cap E14 Laws of the Federation of Nigeria, 2004 & Eya v. Olopade (2011) 5 SCNJ 98; Anyanwu V Uzowuaka (2009) 7 SCNJ 29. Since it is the Respondent in this case who asserts the commission of fraud, it has the burden of proving, by adducing sufficient evidence to establish same, which it failed to do. The Respondent, by not advancing any evidence by way of affidavit evidence or documentary evidence, is deemed to have abandoned its averments in respect of that assertion.

 

When documentary evidence supports oral /affidavit evidence, such specie of evidence, as the case may be, becomes more credible. Documentary evidence serves as a hanger from which to assess oral evidence, and in these proceedings, the affidavit evidence. At the risk of being repetitive but for the sake of emphasis, I wish to reiterate that the law is since trite that where a party avers in its pleadings, or as in this case, deposes in its affidavit, that a subsisting judgment of a court of competent jurisdiction was obtained by fraud, to succeed, it must first plead and provide the particulars of the fraud in its pleadings or affidavit. This must be established at trial and the standard of proof is beyond reasonable doubt. See Eya v. Olopade (supra). I have already reproduced the relevant averments in the affidavit wherein fraud was alleged and it is very clear that the particulars of the alleged fraud have not been deposed to. I therefore find that the learned trial Judge of the Federal High Court Jos, was patently in error when he found that the Consent Judgment was obtained by fraud, same having not been proved beyond reasonable doubt. Issue one is resolved in favour of the Appellant.

 

In respect of the second issue, the Respondent has tried to make a mountain out of a molehill concerning Exhibit B, the Sale Agreement between the parties. While such a document may not be inadmissible in evidence, nevertheless, being a document not bearing all the signatures of the parties to same, it should ordinarily attract little or no weight. See Jinadu V Esurombi-Aro (2009) 4 SCNJ 39. However, the Respondent has, in my view, deliberately overlooked and tried to minimise the overwhelming affidavit and documentary evidence against it in support of the Appellant’s case. There was ample documentary evidence to buttress the averments of the Appellant that Mr. Ayodele did sell the property in issue to the Appellant and this sale was acknowledged and confirmed by the Respondent in its letter to its solicitors, Exhibit F, the Terms of Consent Judgment, Exhibit G, and the Change of ownership, Exhibit N, all reproduced above.

 

Besides which, the Respondent, who is seeking to complain that not all the parties to the initial Sale Agreement between the Appellant and Mr. Ayodele, signed the agreement, was a stranger to that agreement. The doctrine of privity of contract portrays that, as a general rule, a contract affects the parties thereto and cannot be enforced by or against a person who is not a party to it. In other words, only parties to a contract can sue and be sued on the contract, and a stranger to the contract can neither sue nor be sued on the contract even if the contract is made for his benefit and purports to give him the right to sue or make him liable upon it. Moreover, the fact that a person, who is a stranger to the consideration of the contract, stands in such a near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration, does not entitle him to sue or be sued upon the contract. See Basinco Motors Ltd v. Woermann Line (2009) 6 SCNJ 222; K.S.O. Allied Products Ltd V Kofo Trading Co. Ltd (1996) 3 NWLR (Pt.436) 244; Alfortrin Ltd v. A.Y. (1996) 9 NWLR (Pt.475) 634. The foregoing doctrine admits of exceptions which are however not applicable to this case. There is no dispute as to the fact that there was a Consent Judgment entered by the Plateau State High Court in 1998 to which the Respondent was a party, along with Mr. Ayodele and one other person. Consent judgments are not like the regular judgments of the court entered after a trial conducted by the court either summarily or upon a full trial. It is not dependent upon the exchange of pleadings or calling of evidence and /or address of counsel. It is simply based on the agreement between the parties to the litigation, which agreement they consider binding on themselves and those who claim through them. Amicable resolution of disputes by the parties is called settlement. When the terms of such settlements are reduced into writing, it is then called ‘terms of settlement’. When the terms of settlement are filed, they are called and made the judgment of the court. It then crystallises into ‘consent judgment. When consent judgment is given, none of the parties has the right of appeal, except with the leave of the court. Hence, a consent judgment is a contract between the parties whereby rights are created between them in substitution for the order of consideration of the abandonment of the claim or claims pending before the court. This is intended to put a stop to litigation between the parties just as a judgment which results from the decision of a court. See Star Paper Mill Ltd v. Adetunji (2009) 7 SCNJ 77; Race Auto Supply Company Ltd V Akibu (2006) 6 SCNJ 98; Otunba Ojora V Agip Oil Plc (2005) 4 NWLR (Pt. 916) 515.

 

As held by the Supreme Court in Woluchem V Wokama (1974) 3 SC 153 and reiterated in the recent case of Tayar V Busari (2011) 1 SCNJ 1:
“a. The Rule is that on action may be settled by consent during the trial, usually such settlement is a compromise and in order to have a binding effect on the parties, it is imperative that it should have the blessing of the court, Settlement between parties may be described as a contract whereby new rights are created between them in substitution for, and in consideration of, the abandonment of the claim or claims pending before the court, When the court moves and takes action as agreed upon by the parties, it becomes a consent judgment.”

Once a dispute or matter has been finally and judicially pronounced upon or determined by a court of competent jurisdiction neither the parties thereto nor their privies can subsequently be allowed to re-litigate the matter because a judicial determination, properly handed down, is conclusive until reversed by an appellate court. The veracity of that decision is not open to challenge nor can it be contradicted. This doctrine is grounded in public policy which stipulates that there must be an end to litigation as captured in the latin maxim “interest republicae at sit finis litium.”

 

It is consequently my finding that the Respondent in this case did not have a leg to stand on and was clutching desperately at straws in its attempt to deprive the Appellant of his property for reasons that are not immediately obvious. The tragedy is that the learned trial Court fell into error when it allowed itself to be distracted by peripheral and tangential issues which had no place in the suit before the lower Court and thus relied on the legal maxim nemo dat quod non habet to find in favour of the Respondent. Mr. Ayodele, based on the ample affidavit evidence placed before the trial Court had a good title to pass, did pass the title, and same was confirmed by both the Respondent in it document of Change of Ownership and the Consent Judgment of the Plateau State High Court from which there has been no appeal. By purporting to indict the Consent Judgment, the lower Court assumed the position of an appellate court sitting over the decision of a court of coordinate jurisdiction. This was palpably wrong! I therefore resolve this issue also in favour of the Appellant.

Finally, with regard to the third issue, the trial Court evaluated the affidavit and documentary evidence led by both the Appellant and the Respondent and made its findings which l have reproduced above. Having allocated the property to Mr. Ayodele in 1985, can the Respondent under any circumstance, (short of re-purchasing the property from Ayodele), again claim ownership of same in the way and manner it purported to do in the proceedings before the lower Court? The Exhibit B, which is the letter of allocation of the property issued by the Respondent to Mr. O. Ayodele, titled “Federal Government Housing Programme: Letter of Allocation of sale of house in Plateau State”, states inter alia as follows:

“I am directed to communicate to you this Ministry’s intent to grant you a leasehold interest for 99 years in its house at Fed. Low Cost Estate subject to your payment of a sum of N2,000.00 as deposit out of a total of N24,000.00 which is the cost of the Unit (excluding service charges by the Federal Mortgage Bank of Nigeria).

2. The housing unit is located at No: Street: 9th Avenue Plots 21 & 23
   And it comprises a two bedroom unit”

 

Thereafter, the Respondent set out terms and conditions of the leasehold/allocation, which conditions were not alleged to have been breached by Mr. Ayodele. Instead, there is evident compliance with the conditions of the assignment, especially with regard to paragraph 3 (ii) & (iv) of the allocation in respect of: (1) full payment of the purchase price of the housing unit through the Federal Mortgage Bank, and (2) the consent given by the Respondent to Mr. Ayodele to assign/transfer the housing unit to the Appellant via the Change of Ownership, Exhibit N to the Appellant’s affidavit at the lower Court. Therefore, the Respondent, having passed title in the property to Mr. Ayodele via Exhibit B reproduced above, could not, by any stretch of the imagination, be again considered the owner of the property, even if the Sale agreement, (Exhibit A), between Mr. Ayodele and the Appellant was defective in any way. The learned trial Judge therefore fell into grave error when, following upon the heels of its finding that the Sale Agreement was incompetent, found as follows at page 77 of the Record:

“In this regard, a general rule based on the principle of nemo dat quod non habet applies that is only the owner of goods in this case property, or a person acting with the authority or consent of the owner can give a good title to the buyer. Applying this principle in this case before me I found the Defendant is the owner of all the buildings and structures lying and situate of No. 21 & 23, 9th avenue Federal Low Cost Estate, Miango Road, Jos.”

 

The best that could have happened, (in the absence of further evidence), was that the property would revert from the Appellant to Mr. Ayodele who sold same to him, and not to the Respondent, who allocated/assigned same initially to Ayodele. However, there was abundant and profuse evidence that the sale of the property by Ayodele to the Appellant had been carried out to the satisfaction of the Respondent to the extent that, even though it had initially filed an action before the Plateau State High Court essentially contesting the allocation to Ayodele, it agreed to a Consent Judgment confirming the allocation and further, in respect of the sale between Ayodele and the Appellant, issued a change of ownership of the property in that regard. The Respondent is not allowed to impugn the integrity of documents emanating from it. It cannot also approbate and reprobate at will before different Courts, i.e. today it has adopts one stance before the Plateau State High Court, and tomorrow it adopts a different stance that is totally differing to its earlier position. Its position must be consistent, thus suggesting veracity, authenticity, sincerity of purpose, candour and reliability. I therefore also resolve this issue in favour of the Appellant.

 

Finally, learned Counsel for the Respondent in its Brief of argument has contended that the Respondent, by its letters, Exhibits O1 and O2, revoked the allocation of the property for overriding public interest. This is not an issue that arose from the decision of the lower Court, neither did it form part of the Grounds of Appeal nor did the Respondent seek the leave of this Court to raise it as a fresh issue. Nonetheless, the Appellant’s Counsel chose to simply ignore same by not responding to the argument via a Reply Brief. I therefore find the issue incompetent and of no moment to this Appeal.

 

Nonetheless, as a penultimate Court, I will briefly address it, should I be subsequently overruled. Can it in actual fact be said that the Respondent, properly in law, revoked the property allocated to the Appellant, in the face of the depositions of the Appellant buttressed by the avalanche of documentary evidence exhibited? No doubt by virtue of the provision of Section 28 (1) of the Land Use Act, 1978, the Governor of a State has the power to revoke a right of occupancy for overriding public interest. However, in the instant case, no evidence at all was adduced to show evidence of such revocation of the title over the property in dispute, nor was there any evidence before the lower Court tending to show that all the conditions precedent to such revocation was met. For instance, no notice of revocation, properly so-called, was sent to the Appellant, and there is no evidence whatsoever showing that the revocation was done for overriding public interest. Thus, the Respondent cannot be said to have satisfied the provisions of Section 28 (1) & (2) of the Land Use Act, which states as follows:

Section “28:

(1)     It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest”.

 

Section 28 (2) defines what “overriding public interest” means. Section 28 (4) & (5)      also go on to provide thus:

“(4)   The Governor shall revoke a right of occupancy in the event of the issue of a notice by or on behalf of the President if such notice declares such land to be required by the Government for public purposes.

(6)     The revocation of a right of occupancy shall be signified under the hand of a public officer duly authorised in that behalf by the Governor and notice thereof shall be given to the holder.”

 

The Respondent, who were the allocating authority, failed to comply with the provisions of Section 28 (1), (2), (4) & (5) of the Land Use Act which enjoin that revocation of land by the Government must be for nothing other than for the overriding public interest, the property must be required for public purposes, and the notice of revocation must be served in accordance with the provisions of the Act. See:- The Administrator/Executors of the Estate of General Sani Abacha (Deceased) V Samuel David Eke-Spiff (2009) 2 SCNJ 119. In the circumstances, and without much ado, I find this issue absolutely lacking in substance as same amounts to nothing but the efforts at survival by a drowning man. As aforesaid, the issue of revocation for overriding public interest never arose in the proceedings before the lower Court, neither was it addressed in the Judgment of the lower Court nor was it raised as a ground of appeal by the Appellant. The Respondent did not file a cross-appeal nor did he seek leave to raise it as a fresh issue before this Court. Thus, the issue being incompetent, arguments thereon are therefore fully discountenanced.

 

In the result, having resolved all three issues in favour of the Appellant, I find the Appeal pregnant with merit. It succeeds and is allowed. The Ruling of the Federal High Court, Jos, delivered on 30th June, 2004, is hereby set aside. In its place, I hereby enter Judgment for the Appellant in terms of his claim in his Originating Summons as follows:

 

An order of PERPETUAL INJUNCTION is hereby made restraining the Respondent 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.
The Appellant is awarded cost of this action assessed at N50,000.00 against the Respondent.

 

This is the Judgment of the Court.

 

 

RAPHAEL CHIKWE AGBO, J.C.A.:

I have read before now the lead judgment written by Sankey, JCA and I agree with her that there is merit in the appeal and it should be allowed. There was clearly consent judgment before the trial court which none of the parties thereto had moved any court of competent jurisdiction to avoid. It did not lie with the trial court in the instant case to interfere with that judgment. The Respondent had not approached that court asking it to avoid the consent judgment. The judgment of the trial court was not well thought-out and it is hereby avoided. I abide by all consequential orders contained in the lead judgment.

 

 

IBRAHIM SHATA BDLIYA, J.C.A.:

I have had the privilege of reading in draft the judgment just delivered by my learned brother, SANKEY, J.C.A. His Lordship has had dealt with the issues raised in the appeal appropriately. I entirely agree with the lucid reasons and conclusions contained therein. I adopt them as mine. I have nothing useful to add. The appeal succeeds. I endorse all the consequential orders made by my learned brother, SANKEY J.C.A. in the lead judgment.