IN THE HIGH COURT OF JUSTICE OF PLATEAU STATE OF NIGERIA
HOLDEN AT JOS
BEFORE HIS LORDSHIP: JUSTICE M. I. SIRAJO………JUDGE
ON THURSDAY THE 19TH DAY OF SEPTEMBER, 2013
SUIT No. PLD/J442/07
BETWEEN:
JOHNSON O. ABOBADE…..……………………………………………………..…PLAINTIF
AND
JUDGMENT
By paragraph 11 of the statement of claim filed along with the Writ of Summons on 28th November, 2007, the plaintiff claims against the two defendants jointly and severally, the under mentioned reliefs:-
“i. A declaration that as against the defendants, the plaintiff is entitled to peaceable possession and enjoyment of the property Block 175, Federal Housing Estate, Phase 1, Rantiya, Jos, by virtue of his interest derived from his placement into the property by the owner of the property, the Federal Ministry of Housing, Urban Development and Environment, that is to say, the Federal Government of Nigeria in 1977 and which interest has not been altered or varied by the Federal Ministry of Housing and Urban Development, being the successor in title to the earlier named Ministry.
ii. A declaration that the plaintiff is entitled to the interest and title to the Property in question as against the Defendant by virtue of his subsisting inchoate title vide the allocation made to him by the owners of the property, the Federal Ministry of Housing Urban Development and Environment.
iii. An order of perpetual injunction restraining the defendants from disturbing the peaceful enjoyment of the property by the plaintiff, trespassing or entering into the said property by themselves or their privies or doing any act whatsoever that affects the possession and enjoyment of the property by the plaintiff in any manner whatsoever and the costs of this action.”
The facts pleaded in support of these reliefs are here-below reproduced –
“4i. The allocation, at that time, done by balloting through the Plateau Housing Corporation, acting as Agents to the owner, was published in the Nigeria Standard of Thursday, the 6th day of January, 1977. The said Newspaper, which also contains the name of the plaintiff as Number 175 is hereby pleaded, same will be tendered and founded upon at the hearing of this suit.
ii. The position was further confirmed vide letter from the Federal Ministry of Housing and Urban Development (successor in title) dated 19th day of December, 2006, to the Managing Director/CEO, Plateau Investment and Property Development Company, copied to Chairman Tenants Association Federal Low Cost Housing Estate Phase 1, Rantiya, Miango Road, Jos. The said letter is hereby pleaded, same would be tendered and founded upon at the hearing of this suit.
5i. At the time of the allotment, the winners were expected to pay fixed Rent as a benchmark of the relationship with the owner, the Rent was to be paid through the Agent, Plateau Housing Corporation, the successor in title to whom became, Plateau Investment and Property Development Co. Limited.
ii. The plaintiff diligently paid the relevant rent fixed and at all times, such payments were duly endorsed and acknowledged. All the documents, acknowledgments and receipts relating to the said payments are hereby pleaded. Same would be tendered and founded upon at the hearing of this suit.
6i. It is further averred that, the plaintiff and all other allottees became entitled to right of first option to purchase the said property after 3 years.
ii. The right to first option is still extant and was very recently confirmed by the owner vide the said letter of the 19th day of December, 2006.
7. The plaintiff avers that the owner of the property has not sold the property to the defendants or any other person whatsoever as against the plaintiff.
8i. The defendants, very recently, purported to issue the plaintiff with Notices to Quit and deliver up possession to them.
ii. The owner of the property known to the plaintiff is as averred above.
9i. Further to the above, having regards to the restatement by owner of the right to first option to purchase by the plaintiff, it is pleaded that the interest of the plaintiff to tile is in choate.
ii. The plaintiff is entitled to continue to remain in possession and enjoy same until the title is formalized by the owner or other wise decided by the owner.
10. The defendants have no interest or title whatsoever in the property to displace or seek to displace the plaintiff from the property.”
Even though this suit was filed in November, 2007, the defendants were not served until July, 2008. And between July, 2008 and July, 2010, a period of two years neither of the parties applied for the suit to be set down for hearing. My attention was not drawn to this tardiness by the clerk of Court until now that I am preparing this judgment. On 28th July, 2010, the defendants, with the leave of Court, filed their joint statement of defence and witnesses’ statement on oath. The defendants denied the claim and pleaded inter alia;
“10. The defendants deny paragraph 6i and 6ii, 9i and iv of the claim and further aver that the issue of the plaintiff being entitled to right of first option to purchase the property after 3 years and plaintiff’s interest in the property have been adjudicated upon and determined by the Court in the suit between the plaintiff and the 1st defendant’s predecessor-in-title and the plaintiff is stopped from re-opening or re-litigating on them.
11. The defendants aver that the issue raised in paragraphs 3i, 4i. ii, 5i, ii, 6i and paragraph 11 i and ii had been adjudicated upon between the plaintiff and P.I.P.C. Limited by a Court of competent jurisdiction.
12. The defendants shall raise and rely on the defences of issue estoppel, res judicata and estoppel by judgment as defence to the plaintiff’s claim.
13. In the alternative, the defendants aver that they are not privy to the several issues canvassed by the plaintiff in paragraphs 3 3i, 4i, ii, 5i, ii, 6i, ii and 7 of the claim nor do they have knowledge of same as such facts occurred only between the plaintiff and the Plateau Investment and Property Development Company Limited (P.I.P.C Ltd) and it is the P.I.P.C Ltd who can answer the issues raised.
14. Generally in answer to the plaintiff’s claim, the defendants state as follows:
The plaintiff called two witnesses and tendered five exhibits marked “A”, “B”, “C”, “D” and “D1” in proof of his case. In his written statement on oath which he adopted as his evidence, the plaintiff, Johnson O. Abobade testified that sometimes in 1976, he was allocated house No. 175 on owner occupier arrangement at the Rantiya Federal Low Cost Housing Estate, Phase 1. That the owner of the estate, the Federal Ministry of Housing, Urban Development and Environment appointed Plateau Housing Corporation, now succeeded by Plateau Investment and Property Company Limited (P.I.P.C) as Agent of the estate. PW1 testified that he has been consistently paying rent on the property in dispute since 1977, which is the benchmark of owner/occupier interest. That he is entitled to an option to purchase the property from the owner which entitlement was restated by the owner in a letter dated 19/12/2006. He urged the Court to grant his relief as he does not know the defendants who served him with quit notices to vacate the property in dispute.
Under cross examination, the plaintiff as PW1 stated that he knows Philip Ebhota and some members of the Federal Low Cost Housing Estate Phase 1 Tenants Association and that he is a member of that Association. He knows that the Association, on behalf of the members filed a suit against P.I.P.C Ltd. PW1 stated that one of their reliefs in that suit is that they are entitled to the right of first option of outright purchase of the unit of houses they are occupying. PW1 admitted that the said relief is also one of the reliefs he is seeking in this suit. He said he is aware that on 21/11/2000, the Court of Appeal gave judgment against them in that case but he is not aware that the Court of Appeal said in that judgment that the circular they were relying on was not made for their benefit. He is also aware that they lost their appeal at the Supreme Court. PW1 maintained that the property in dispute has been sold to him by the Federal Government. He admitted that he did not apply to the P.I.P.C to buy property No. 175 which he is occupying even though he was paying rent to P.I.P.C. PW1 concluded his testimony under cross examination thus:
“The Company (i.e. P.I.P.C) said that they have sold my block that is why they stopped collecting rent from me. I have not challenged the right of P.I.P.C to sell my block except now in this suit. P.I.P.C did not tell me that they sold the property to the first defendant…. I have not handed over the property to the alleged buyer because the sale was illegal….. The Federal Ministry of Housing said the house is mine so I don’t need to pay rent anymore.”
Learned counsel for the plaintiff, S. M. Danlami Esq tendered the following certified documents from the Bar.:-
Solomon Anyetek, a Principal Estate Officer and head of Lands and Housing Department of Federal Ministry of Lands, Housing and Urban Development, Jos, testified as PW2. He adopted his written statement which was sworn to on 15/11/2012 and filed the same date as his evidence in this suit. His evidence is that the Federal Low Cost Housing Estate belongs to the Federal Ministry of Lands Housing and Urban Development and that the Plateau Investment and property Company Limited is the Agent of the owner with respect to the Estate. That the owner has not alienated any part of the estate to any-body. That the owner has directed P.I.P.C. in a letter dated 19/12/2006 not to sale any unit of the housing estate. That in purporting to have sold the house occupied by the plaintiff or any other house in the estate, the PIPC has not acted within the authority of the owner. That the owner has not recognized any sale of the property by P.I.P.C. Under cross-examination PW2 said he is aware that dispute concerning the estate in which the plaintiff is the 38th tenant in the list of Tenants Association went to the Court of Appeal and the Supreme Court but did not know if PIPC emerged victorious in the suit.
At the end of the testimony of PW2, the plaintiff closed his case.
The first defendant and one Barrister Joshua Kimpuk, the Manager (Legal) of PIPC Limited testified on behalf of the defendants.
Testifying as DW1, Barrister Joshua Kimpuk stated in his statement on oath that –
“2. That I am the Manager (Legal) of PIPC Ltd.3.
While being cross examined, DW1 testified that the first defendant was allocated the property in dispute upon a successful application. That some of the occupants of the Housing Estate were considered for allocation by a Committee set up by the Management of PIPC but that occupation was not the only determining factor for allocation of the houses. He said he cannot tell the basis why some occupants were allocated the houses while some were not.
In his written statement on oath which he adopted as his evidence, the first defendant, Peter Nidat Laguma testified as DW2 that pursuant to the advertisement by PIPC Limited for the sale of some houses at the Low Cost Housing Estate, Rantya, he applied to purchase one of the houses on 9th June, 2003 and his application was successful. He paid the sum of N250,000.000 to PIPC Ltd as premium and was subsequently given an allocation letter on 30th April, 2007 wherein he was allocated block No. 175. He was introduced to the plaintiff, who was in occupation of the block, as the new owner by officials of PIPC Ltd. The plaintiff gave him access to all the rooms after which he informed the plaintiff of his desire to move into the house. The plaintiff requested for time to enable him get an alternative accommodation. On sensing that the plaintiff is not ready to pack out, DW2 caused a quit notice to be served on him, and on the expiry of that notice, he served the plaintiff with notice of owner’s intention to recover premises. The DW2 further testified thus:-
“9. That the plaintiff still did not vacate the property. It was during the pendency of my notices to the plaintiff that he began to raise the issues of his status as owner occupier.
10. That I went to PIPC Ltd to complain and thereat I was shown the judgment of the High Court, Jos, the judgment of the Court of Appeal, Jos Division, the Judgment of the Supreme Court of Nigeria and the certified record of appeal. I carefully read al the said judgment and the record of appeal. I discovered that the plaintiff was a party in the said suit. He was listed in the writ of summons as plaintiff number 38.
11. That the plaintiff is a member of the association known as Federal Low Cost Housing Estate Phase I, Miango Road, Jos Tenants Associations. The association filed a representative suit against Plateau Investment and Property Development Company Ltd in 1989 and the plaintiff’s name was listed as No. 38 in the writ of summons. The suit no. was PLD/J337/89.
12. That the issues raised in the said suit are among others that the plaintiffs were entitled to purchase the properties (Houses) they occupied as owners-occupiers i.e. right of first option of outright purchase of the property; interpretation of circular dated 9/4/76 from the Federal Ministry of Housing, Urban Development and environment; the scope of authority of the PIPC Ltd over the properties.
13. That the Court of Appeal did not hold that the circular in issue was only a guideline; that the plaintiff were not parties to it; that the plaintiff cannot sue or enforce it even if it was made for their benefits. The Court also held that the circular gave the PIPC Limited the discretion to consider whether the plaintiffs are suitable to be given option of outright purchase; the plaintiffs did not prove that the estate belong to the Federal Government.
14. That the issues being canvassed by the plaintiff in this suit namely his interest in the property as an owner-occupier and ownership of the Low Cost housing estate, Rantya, Jos were the same issues the plaintiff as co-plaintiff canvassed in the said suit. In fact, the Court of Appeal, Jos Division and the Supreme Court gave a well considered judgment on the issues.
15. That to the best of my knowledge, the judgment of the Court of appeal clearly settled all the issues now canvassed and further hold the plaintiff not to be a tenant.
16. That having bought the property form P.I.P.C. Ltd who was the landlord of the plaintiff in this suit I enjoy a privity of estate and have and exercise all the same rights and power vested and exercisable by PIPC Ltd the benefit of the judgments of the Court of appeal and the Supreme Court and accruable to me as the successor-in-title of PIPC Ltd.
17. That when I bought the property, I had no notice of any subsisting encumbrance on it, I have started exercising my right as a landlord by determining the plaintiff’s tenant (sic) through the quit notices.
18. That the issues which the plaintiff raises in his statement of claim especially in paragraphs 3i,4i, ii,6i, ii,8ii and 9i are the same issues which were raised and by the plaintiff and his association as plaintiffs against PIPC Ltd in the suit No. PLD/J/33/88 and which the appellate courts have property dealt with and put to rest.
19. That to the best of my understanding, the issues have become res judicata. The plaintiff cannot reopen them again in this suit and invite the Court to adjudicate on them again. In fact, by the judgment of the Court of Appeal and Supreme Court which I earlier talked of, I believe the defences of issue estoppel, and estoppel by judgment are to my advantage in this suit to defeat the claim of the plaintiff.
20. That I know the Federal Ministry of Housing, Urban Development and Environment did not on 9/4/76 write any circular with the No. H3.2/140 rather the circular written on 9/4/76 by the said ministry bears the number HS.2/14 this circular and has been interpreted by the Court of appeal as I said earlier and did not give the plaintiff a right to sue or enforce it as he is a stranger to the document. I can identify this circular by the name Federal Ministry of Housing, Urban Development and Environment.
21. That I have desires of using the property in issues for my personal accommodation. Since 2007 till date the plaintiff has refused to pay to me rent and even when I determined his tenancy he has not paid me any mesne profit and continue to detain the property (sic) a similar property within the estate now goes for N180,000.00 per annum as rent. This translate to N15,000.00 per month.
22. That I paid this amount as rent for my present block which I occupy at the estate and I signed a tenancy agreement when I paid. I can identify this agreement through my name.
23. That I urge the court to enter judgment in my favour and dismiss the plaintiff’s suit.”
The first defendant counter-claimed possession of the property in dispute and mesne profit of N15,000.00 per month from the date of the expiry of the quit notice until possession is delivered.
DW2 tendered the allocation letter dated 30/04/2007, Certified True Copy of the payment receipt dated 23/08/2005, Police Extract dated 21/03/2013 and an affidavit. These documents were admitted in evidence and marked as exhibits “E”, “F”, “G” and “H” respectively. Under cross-examination DW2 said he doesn’t know for how long the plaintiff has been living in block 175 neither does he know that the property belonged to the Federal Government. On being asked about paragraphs 16 and 19 of his witness statement, DW2 said:-
“The witness statement is my words. What I mean by paragraph 16 of my statement on oath is that as the rightful owner of the premises I need to enjoy it fully. What I mean by paragraph 19 is that the case has already been determined by the Court of Appeal and the Supreme Court.”
With the leave of Court granted on 4/07/2013 pursuant to a motion on notice dated and filed on 28/06/13, the defendants, counsel filed his final written address out of time. Earlier on, the plaintiff’s counsel has filed the plaintiff’s final address on 24/06/2013.
Learned counsel for the defendants, Martins Ezeudu Esq; identified and formulated a single issue for determination;
“Whether the 1st defendant is entitled to block 175, Federal Housing Estate Phase I, Rantya, Jos having purchased the said block 175 from PIPC.”
It is submitted that the 1st defendant is entitled to the possession of the property in dispute same having been allocated to him by PIPC after he had paid for it. Learned counsel submitted that the issues submitted for determination by the plaintiff are res judicata same having been determined by the Court of Appeal and the Supreme Court in a case involving the plaintiff and other members of the Rantya Low Cost Tenants Association against Plateau Investment and Property Development Company Limited. Mr. Ezeudu contended that the import of the circular in paragraph 3(i) of the statement of claim has been adjudicated upon between the plaintiff and PIPC, the predecessor in title of the first defendant and as such has become res judicata. Learned counsel urged the Court to hold that the plaintiff has not shown any title to the property that supercedes exhibits “E” and “F” tendered by the first defendant and to proceed to dismiss the plaintiff’s claim and enter judgment for the first defendant as per his counter-claim.
In his final written address filed on behalf of the plaintiff, S. M. Danlami Esq; did not formulate any issue for determination. Learned counsel submitted that the plaintiff’s occupation of the property since 1977 on owner-occupier basis has created an equitable interest in the property in favour of the plaintiff who has been consistent in the payment of rent over the property.
It is submitted that “the position of the law is that the equitable interest already acquired by the plaintiff cannot be disturbed by the defendants even on the platter of a purported legal interest subsequently acquired, particularly since the said equitable interest is coupled with possession.” On this submission, the Court was referred to the authority of Gege vs. Nende (2006) 10 NWLR (Pt. 988) 256.
Mr. Danlami referred to the evidence of PW2 to the effect that the property in dispute belongs to the Federal Government and no part of the entire estate was sold to any person(s) including the defendants, and then submitted that having not been challenged, the piece of evidence is deemed admitted. He urged the Court to grant the reliefs claimed by the plaintiff.
On the fist defendant’s counter-claim for possession and mesne profit learned counsel for the plaintiff submitted that the legal requirements for services of notices have not been complied with thereby rendering the claim for possession incompetent for want of jurisdiction on the part of the Court. He cited in support of this submission, the case of Ayinke Stores Ltd vs. Adebogun (2008) 10 NWLR (Pt. 1096) 612.
Similarly, Mr. Danlami contended that the claim for mesne profit has not been substantiated by evidence. He urged the Court to dismiss the counter-claim for incompetence and to grant the plaintiff’s claim.
In resolving the issues that had arisen for determination in this suit, I will approach them from the point of view of the reliefs sought. I will weigh the totality of the evidence before the Court against the reliefs sought and then determine if the reliefs are grantable or not. I will do the same with the reliefs sought in the counter-claim should the need arise. However, before going into the evidence led by the plaintiff, I consider it pertinent to deal with a preliminary issue – the issue of estoppel raised by the defendants. This is so because if that issue succeeds, the entire suit would be determined thereon.
In both their pleading and evidence before the Court, the defendants have contended that all the issues raised by the plaintiff in this suit were earlier raised by him and his co-plaintiffs in suit No. PLD/J337/89 between Members of the Federal Low Cost Housing Estate Phase I, Miango Road, Jos, Tenants Association and Plateau Investment and Property Development Company Ltd. That both the Court of Appeal in appeal NO. CA/J/151/99 and the Supreme Court in Appeal No. SC/302/2000 have resolved the said issues in favour of PIPC Ltd, the predecessor in title to the first defendant. The defendants argued that being one of the appellants (listed as No. 38), the plaintiff cannot re-litigate the issues that were already resolved by the Supreme Court against him and his co-appellants. There is incontrovertible evidence on the printed record which shows that the first defendant bought and paid for Block 175 at the Federal Low Cost Housing Estate Phase I, Miango Road, Jos, from Plateau Investment and Property Development Company Ltd. It is not in doubt that one Philip Ebhota and Others filed and prosecuted a suit up to the Supreme Court on behalf of the Federal Low Cost Housing Estate Phase I, Miango Road, Jos, Tenants Association against PIPDC Ltd. It is also not in doubt that the plaintiff was the 38th tenant on the list of the members of the Tenants Association on whose behalf Philip Ebhota and Others filed and fought the suit and the appeals. Indeed, in both his pleading and evidence before the Court the plaintiff did not deny this fact. To be able to determine whether this defence of estoppel holds any water I need to place side by side the issues decided in that suit and the issues presented for determination in the instant suit. The case of the plaintiff is that as an allottee of the property since 1977, he is entitled to the right of first option to buy the property as stated in exhibits “A” and “D”. The Court of Appeal and the Supreme Court have made a finding and a decision on similar document in the case of Ebhota vs. PIPC Ltd (2005) 15 NWLR (Pt. 948) 266. In that case one of the issues considered was the effect of exhibit 2, a document which stated inter alia;
“3. The Federal Executive Council has decided that 15% of all houses built in Phase 1 should be allocated to civil servants for use as Government Quarters. All houses (other than those used as Government Quarters) will be let on tenancy basis for a period of three years after which all tenants considered suitable will be given option of outright purchase of such houses.”
That document is titled “Guidelines on the allocation of the Housing Units constructed under Phase I of the Federal Government Housing Scheme”. It is a letter from the Permanent Secretary, Federal Ministry of Housing, Urban Development and Environment dated 9th April, 1976 and addressed to Permanent Secretaries, State Ministries of Works and Housing as well as Secretaries to State Military Governments. In construing that document, the Supreme Court held that only parties to a contract can maintain an action there-under. Not being parties to exhibit 2, the Supreme Court held that the appellants, Philip Ebhota and Members of the Tenants Association cannot maintain an action on exhibit 2 even if it was made for their benefit. Edozie JSC said at page 289:-
“In my humble view, the above excerpt of part of paragraph 3 of exhibit 2 is merely a policy statement or guideline, non implementation of which does not entitled the appellants to a legal redress against the respondent. It did not create contractual relationship between the parties to this appeal …..
As the appellants entered into no contractual relationship with anybody by virtue of exhibit 2, their contention for option to outright purchase of the housing units is not well founded.”
Exhibit “B” before me in the instant case is the same with exhibit 2 which was considered by the Supreme Court supra. Exhibit “A” on the other hand is another letter from the Office of the Permanent Secretary, Federal Ministry of Works and Housing addressed to the Managing Director and Chief Executive, Federal Housing authority. Sub-paragraph (ii) of paragraph 1 of that letter dated 27th September, 1999, reads:-
“FHA should ensure that the allottees, are given the first option to buy the houses in line with the judgment delivered by the Jos High Court.”
The judgment in question has been set aside by the Court of Appeal and the Supreme Court leading to the judgment just quoted above. Exhibit “B” having been predicated on a judgment that has no legal consequence is therefore of no moment here. Let me emphasize here that the plaintiffs/appellants in that case includes the plaintiff in the instant case. The defendant/respondent in that case is the predecessor in title to the first defendant, the first defendant having been derived his title from PIPC Ltd.
On the basis of the facts before me could it be said that issue estoppel had arisen in this case? The Supreme Court has in a plethora of authorities laid down the rule that for issue estoppel to operate in any given case, three conditions must be fulfilled or satisfied, i.e.,
“1) that the same question or issue was decided in earlier proceedings;
Issue estoppel is an impediment which bars a person from re-litigating an issue which has been isolated and raised in a particular proceeding and has been finally determined in that proceedings.
The issue of whether the plaintiff herein and other tenants are entitled to the option of outright purchase of the Federal Housing Estate Phase I, Miango Road, Jos was aptly decided by the Supreme Court in Appeal No. SC/302/2000 – Ebhota & Ors vs. PIPC Limited (2005) 15 NWLR (Pt. 945) 266. That judgment, delivered on 15th July, 2005 is a final judgment. The plaintiff is one of the appellants in that judgment while the first defendant herein is a privy of the respondent in that judgment having derived his title to block 175 from the respondent (PIPC Ltd).
All the conditions for the application of issue estoppel in this suit have been satisfied, and I so hold. The plaintiff is barred by operation of law from relying on exhibits “A” and “B” to ground a claim that he is entitled to the right of first option to buy block 175 by virtue of the allotment made to him in 1977, as that issue had been put to rest against him and his co-appellants by the Supreme Court in an earlier case.
With exhibits “A” and “B” and the issue of right of first option to purchase the property in question out of the way, the next question is whether there are other distinct issue(s) that call for determination in this suit. A look at exhibits “C”, “D” and “D1”, all tendered by the plaintiff, will reveal that all of them are correspondences between Government Ministries, Departments and Agencies in which the plaintiff is not a party. As held by the Supreme Court in Ebhota vs. PIPC Ltd (supra) even if these correspondences are made for the benefit of the plaintiff he cannot anchor an action on them as he is not a party to them. All the said exhibits are therefore of no use to the plaintiff as the decision on exhibits “A” and “B” has invariably affected the other exhibits tendered by him. In the circumstances of my findings above, I hold that the defence of issue estoppel has succeeded thereby defeating the plaintiff’s claim.
Assuming, however, that I am wrong in my judicial postulation supra, I will now consider the merit of the plaintiff’s case. The plaintiff seeks for declarations that (i) he is entitled to peaceable possession and enjoyment of property Block 175 by virtue of his interest derived from his placement into the property by the owner, the Federal Ministry of Housing, Urban Development and Environment.
(ii) that he is entitled to the interest and title to the property in question.
The plaintiff also seeks for perpetual injunction against the defendants.
How the plaintiff was put into possession of the property is not in evidence. The plaintiff pleaded that the owner put him into possession yet failed to tender any document in proof of that fact. The plaintiff admitted that he was paying rent to PIPC and even pleaded the payment receipts. None was tendered. The plaintiff pleaded Nigeria Standard Newspaper of 6th January, 1977 in which he claimed he was allotted property Block 175. He failed to tender the Newspaper. The plaintiff did not produce and tender the tenancy agreement either between him and the Federal Ministry of Housing and Environment or any Agency for that matter. The plaintiff has neither shown that he is in legal occupation of the property nor has he shown that he even offered to buy the property. How the plaintiff asked for declaration of title over property that does not belong to him, even by his own showing, beats my imagination. The plaintiff has woefully failed to lead evidence in proof of any of the reliefs claimed by him. Having failed to proof how he legally came to occupy block 175, the plaintiff is not entitled to the declaration that he is entitled to enjoy peaceable possession of the property. The first two reliefs having failed, the third relief consequently collapses with them. On the whole, the plaintiffs claim is without merit and is hereby dismissed.
The first defendant counter claimed for possession of the property, i.e.; Block 175, Federal Low Cost Housing Estate, Rantya as well as mesne profit in the sum of N15,000.00 per month from the date of expiration of quit notice until possession is delivered. The first defendant/counter-claimant testified that sometimes in the year 2003, PIPC advertised for the sale of some houses at the Low Cost Housing Estate Rantya Jos and on 9th June, 2003 he applied to purchase one of the houses. Subsequently, the PIPC asked him to pay the sum of N250,000.00 as premium, which he paid.
On 30th April, 2007 PIPC gave him a letter in which he was allocated Block 175. He was taken and shown the property by the official of PIPC Ltd. He was also introduced to the plaintiff who was occupying the house. The letter from Plateau Investment and Property Development Company Limited dated 30/04/2007 in which the first defendant was allocated Block 175 in Rantya Low Cost Estate was tendered and admitted as exhibit “E” while the Certified True Copy of the receipt evidencing payment of N250,000.00 by the first defendant to PIPC Ltd dated 25th August, 2005 is exhibit “F”. DW1, Barrister Joshua Kimpuk , the Manager (Legal) of PIPC Ltd confirmed these pieces of evidence. On the other hand, there is no scintilla of evidence on the part of the plaintiff/defendant to the counter-claim to show that he even applied to purchase the property in question when it was advertised for sale. On the basis of the evidence before me, I am satisfied that the first defendant/counter-claimant has duly purchased the property, Block 175, Federal Low Cost Housing Estate Phase I, Rantya, Jos from the PIPC Ltd, Jos. Having so held, I will now consider whether or not the first defendant is entitled to possession and mesne profit. The counter-claimant pleaded and testified that when he realized that the plaintiff was not ready to vacate the property and deliver up possession to him he caused a quit notice to be served on the plaintiff from the Court after which notice of owner’s intention to apply to recover possession was also served on the plaintiff. None of these notices was produced and tendered in evidence in proof of the pleading and the viva voce evidence reduced into written form. The counter-claimant also pleaded that he is entitled to mesne profit in the sum of N15,000.00 per month from the expiration of the quit notice.
He testified at paragraphs 21 and 22 of his statement on oath that a similar property in the estate attracts an annual rent of N180,000.00 which translates to N15,000.00 per month. He testified further that he paid such an amount as rent on similar property he occupies in the estate vide a tenancy agreement which he signed. He did not produce and tender in evidence the tenancy agreement which he relied on even though it forms part of the list of documents filed by the first defendant/counter-claimant. Learned counsel for the plaintiff, S. M. Danlami Esq submitted with respect to the claim for possession by the counter claimant thus:
“…the entire witness who testified inclusive of the first defendant did not tender the necessary notices to quit and notice of owner’s intention to apply to recover possession. The circumstances of their purported service was not mentioned or known to anyone. In fact, no mention was even made of the person who allegedly served the notices.”
I agree entirely with learned counsel on this submission as the notices were not produced and tendered in evidence. That is not the end of the matter though. At paragraph 2.0.1 of his written evidence, the plaintiff testified as follows:-
“I do not know the defendants, but individually,
they issued me with quit notices for possession
and indeed they are seeking to remove me from
possession of the house, purporting to be the owners.”
Under cross-examination by D. I. Oguadinma Esq, the plaintiff as PW1 testified that he was sued by the first defendant at the Senior District Court Abattoir after he was served with notices to quit.
These pieces of evidence given in-chief and under cross-examination knocks the bottom off the above quoted submission by learned counsel for the plaintiff. The law is well settled that facts admitted need no proof from the party asserting them. See Taiwo vs. Adegboro (2011) 5 SCNJ 125; Shasi vs. Smith (2009) 12 SCNJ 210. Having admitted that he was served with the requisite notices by the first defendant, the plaintiff cannot now resile from this admitted fact. I therefore hold that the first defendant/counter-claimant is entitled to possession of Block 175 Federal Low cost Housing Estate Phase I, Rantya, Jos, and I so order.
In the absence of evidence in proof of the amount of mesne profit claimed by the counter-claimant, that arm of the claim is deemed abandoned and is hereby dismissed.
That is the judgment of the Court.
Justice M. I. Sirajo
Judge
19/09/2013
Appearances:-
N. B. Salama with B. M. Gonung (Miss) for the plaintiff.
Martins Ezendu for the defendants.
