SUIT NO: FCT/HC/CV/925/07 BETWEEN: HON. DR. C.C. OKEKE.. PLAINTIFF AND

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1 IN THE HIGH COURT OF THE FEDEARL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA BEFORE HIS LORDSHIP, HON. JUSTICE A.A.I. BANJOKO-JUDGE DATED DAY OF 2011 SUIT NO: FCT/HC/CV/925/07 BETWEEN: HON. DR. C.C. OKEKE.. PLAINTIFF AND 1. HON. DR. JERRY UGOKWE 2. HON. MIN. OF F.C.T. ABUJA 3. F. C. D. A.....DEFENDANTS 4. F. C. T. A. J. O. ASOLUKA FOR THE PLAINTIFF IKECHUKWU MALEDO FOR THE 1 ST DEFENDANT C. M. MAKOJU FOR THE 2 ND 4 TH DEFENDANTS JUDGMENT By way of a Writ of Summons dated the 1 st day of June 2007 and filed on the same date and a Further Amended Statement of Claim dated and filed on the 28 th day of October 2008, the Plaintiff s claims against the Defendant are as follows:- 1. A declaration that the Plaintiff is the person entitled to the house lying and situate at Zone B, B22 Flat 1, Apo Legislative Quarters Abuja within the jurisdiction of the Honourable Court, by virtue of 1

2 his being the lawful member representing Idemili North/South Federal Constituency at the Federal House. 2. A declaration that the 2 nd to the 4 th Defendants sell (sic) of the said house lying and situate at Zone B, B22 Flat 1, Apo Legislative Quarters Abuja to the 1 st Defendant was in error as a result of false and wrongful misrepresentation by the 1 st Defendant to the 2 nd to 4 th Defendants that he was the rightful member representing Idemili North/South Federal Constituency at the Federal House. 3. An Order of Court nullifying and revoking the sale of the said house at Zone B, B22 Flat 1, Apo Legislative Quarters Abuja by the 2 nd to the 4 th Defendants to 1 st Defendant as 1 st Defendant was not qualify (sic) to purchase same. 4 An Order of Court directing the 2 nd to 4 th Defendants to sell the said house at Zone B, B22 Flat 1, Apo Legislative Quarters Abuja to the Plaintiff who is the rightful member representing Idemili North/South and therefore entitled to the occupation/possession and purchase of the said house. 5. In the alternative, an Order directing the 2 nd to the 4 th Defendants to make available to the Plaintiff another house for his purchase. In response, the 1 st Defendant filed a Memorandum of Conditional Appearance dated and filed on the 9 th day of October 2007, and upon the leave of Court filed his Statement of Defence out of time dated the 7 th day of April 2009 and filed on the 28 th day of April The 2 nd to 4 th Defendants with the leave of Court also filed their Statement of Defence out time dated the 23 rd day of May 2008 On the 4 th day of May 2009, the Plaintiff opened his case with his testimony as P.W.1. He adopted his Statement on Oath and additional witness statement on oath filed on the 28 th day of October 2008, and testified on oath to the effect that he ran for the Federal House of Representative Idemili North and South Federal Constituency of the Anambra State, won the election on the 16 th day of April 2003 and was duly declared the winner by the INEC in

3 His return was cancelled by INEC on the 18 th day of April 2009 and the 1 st Defendant was wrongfully declared winner on 26 th day of April He petitioned the INEC s decision at the Election Petition Tribunal sitting at Awka and Judgment was given in his favour on the 15 th day of day of January He tendered the copy of the judgment which was admitted as Exhibit A. The 1 st Defendant appealed the judgment and the Appeal Court sitting at Enugu on the 5 th day of May 2005 upheld the judgment of the Tribunal and dismissed the appeal thereby confirming the Tribunal nullification of the 1 st Defendant as the winner. The Certified True Copy of the Court Appeal decision was tendered and same was admitted as Exhibit B. P.W.1 stated further that the 1 st Defendant despite the above judgment of the Court still remained in office and further went to the ECOWAS Court and got an Order stopping the INEC and the Speaker of the House of Representatives from swearing him in. And the ECOWAS Court on the 7 th day of October 2005 declined jurisdiction over the matter. The document evidencing the decision of the ECOWAS Court was tendered and same was admitted as Exhibit C. It is his further evidence that the 1 st Defendant was not qualified to buy the subject matter of this suit at the time he bidded for the property because by the time he applied to purchase the property, the Election Tribunal at Awka has already nullified his return. The application letter for expression of interest by the 1 st Defendant dated the 13 th day of April 2005 was tendered and same was admitted as Exhibit D. P.W.1 testified that the 1 st Defendant made payment in respect of the subject matter to the 2 nd to 4 th Defendants after the decision of the Tribunal and the Court of Appeal. The 1 st Defendant as at time he purchased the property had ceased to be a member of the House of Representatives. As a result of the false representation, the 2 nd to 4 th Defendants offered to the 1 st Defendant the property on dispute. The 3

4 letter of offer to the 1 st Defendant dated the 5 th day of October was tendered and same was admitted as Exhibit E. The evidence of payments by the 1 st Defendant to the 2 nd to 4 th Defendants through the Standard Trust Bank Manager s cheque was tendered and same were admitted as Exhibits F1 F3. P.W.1 stated further that the Court of Appeal Judgment was on the 5 th day of May The 1 st Defendant made the first payment on the 7 th day of October 2005 and the second payment on the 21 st day of February He testified that the 1 st Defendant misrepresented himself as the winner of the election and since the Court of Appeal affirmed the decision of the Tribunal nullifying the 1 st Defendant as the winner and declared the Plaintiff as the winner, he still assumed office as a member the Houses of Representatives and still expressed his interest to purchase the property in this suit. P.W.1 stated further that the Gazette came out many months after the Court of Appeal had nullified the 1 st Defendant s return. He tendered the Gazette and same was admitted as Exhibit G. Finally he urged the Court to nullify the sale of the property in question to the 1 st Defendant and Order that same should be sold to him. Under cross-examination, P.W.1 stated that he is a Medical Doctor by training. He confirmed his evidence in chief to the extent that he was sworn in on the 16 th day of March 2006 and that Exhibit A predates the conclusion of the Court of Appeal judgment. He stated that the 1 st Defendant was in the house as an illegal occupier of the house. P.W.1 stated that after the Court of Appeal judgment, he applied to the Federal Capital Development Authority to purchase the property in dispute but was refused on the basis that the property was reserved for the current occupant of the property. He stated further that he did not contest the matter at the ECOWAS Court though he applied to be joined but was not joined. It is evidence that he was paid money but could not say whether the money was for accommodation or not and 4

5 denied the knowledge of whether the monthly salary was deducted but believed that the Government must be paying for his rentage. It is his evidence that he has already won his case at the Court of Appeal before the offer and acceptance of the property. Reference was made to Exhibit D, which is the letter of offer and acceptance, to show that it pre-dated the date he won the case at the Tribunal. He reiterated the fact that he was not allowed to bid for the property by the Minister, and was not given the letter of allocation by the National Assembly. Under the re-examination, he clarified the fact that he was not allowed to occupy the property because before he was sworn in, the 1 st Defendant was the occupant and refused to vacate. With the testimony of P.W.1, the Plaintiff closed his case. On the 14 th day of June 2010, the 2 nd to 4 th Defendants opened their case with the evidence of Mr. Ahmed Ismaila as D.W.1 who adopted his statement on oath and testified to the effect that he is the Principal State Counsel in the office of the 2 nd Defendant but seconded to the Ad-hoc Committee on the sale of the Federal Government Houses Federal Capital Territory, Abuja. He stated that sometime in 2005, the Federal Government of Nigeria set up an Ad-hoc Committee to dispose off its non-essential Government Houses in view of its policy on monetization. The Federal Government of Nigeria published a guideline for the sale exercise which was gazetted as No. 82, Vol. 92 of 15 th day of August 2005,and which specified the manner or expression of interest and conduct of the sale generally. The career civil/public servants and the general public were invited to express their interest, exercise the option of refusal or match a bid accordingly. He stated further that the Federal Government Houses were sold in accordance with the guidelines and further granted sitting tenants the first right of refusal. The said right is neither transferable, assignable 5

6 nor alienable in any way or form. The 1 st Defendant who was the sitting tenant at the time of the sale exercise was given a letter of offer in accordance with the approved gazette and the transaction between him and the Ad-hoc Committee was executed. The letter of offer dated the 5 th day of October 2005 was tendered and was admitted as Exhibit H. D.W.1 denied having had any transaction with the Plaintiff and the existence of the Plaintiff s record with them. He testified that the Plaintiff had never expressed an interest in any other house. He urged the Court to dismiss the plaintiff s claim. Under cross-examination, D.W.1 affirmed his testimony in the examination in chief to the extent that the 1 st Defendant expressed intention to purchase the property through his expression of interest form. He was shown Exhibit A and agreed with plaintiff s counsel that as at the time of the filling of expression of interest, the 1 st Defendant electoral return was annulled. He further confirmed the fact that as at the time of the expression of interest, the 1 st Defendant accepted the bid on the 6 th day of October 2005 and represented himself as a Legislator as shown in Exhibit D. D.W.1 further stated that they were never informed by the 1 st Defendant that his election has been nullified and affirmed by the Court of Appeal. D.W.1 further testified that the property was also advertised but was offered to the 1 st Defendant. He stated further that had the 1 st Defendant informed them about his annulment, they would not have sold the house to him. Under re-examination, he denied having the documents in his possession before the sale. He stated that neither the Plaintiff nor the 1 st Defendant would have been entitled to the property because the Plaintiff was not in occupation and the house was not allocated to Idemili North/South but to individual legislator. Even if the house was not allocated to the 1 st Defendant, it would not have been sold to the Plaintiff. With the testimony of D.W.1, the 2 nd to 4 th Defendants closed their case. 6

7 On the 8 th day of November 2010, the 1 st Defendant opened his defence with the evidence of DW1, Mr. John Anitie Sunday, Assistant Chief Library Officer attached to the National Library of Nigeria and who is in charge of Subpoena and Certification. D.W.1 appeared on a subpoena issued out by the Court, tendered the Certified True Copy of the Leadership Newspaper of the 17 th day of April 2005 and same was admitted as Exhibit I. The 1 st Defendant, Ambassador Jerry Sonny Ugokwe also adopted his witness statement on oath and gave evidence as D.W.2 to the effect that his is an Architect by profession. He stated that he occupied the property in dispute since 1999 and he and the Plaintiff contested for the primary election of the Peoples Democratic Party in He won the election into the Federal House of Representatives in 2003 for the Idemili North/South Federal Constituency and was duly returned by the Independent National Electoral Commission as the winner of the election. He also served as a member from 1999 to The Certified True Copy of the return Certificate was tendered and same was admitted as Exhibit J. He confirmed the evidence of the Plaintiff s witness to the extent that he was not given fair hearing at the Election Petition Tribunal sitting at Awka, Anambra State and at the Court of Appeal Enugu challenging his nomination by the Peoples Democratic Party and the subsequent election. He was aggrieved by the decision of the duo Courts and filed a suit at the Community Court of Justice of the ECOWAS complaining of a breach of his fundamental human right to fair hearing. He tendered the summons filed at ECOWAS Court in evidence as same was admitted as Exhibit K. It is D.W.2 evidence that the subject matter of this suit was reallocated to him in 2003 following his re-election as a member of the National Assembly. He stated that on the 13 th day of April 2005, he filled out an application form to purchase the property in dispute through Exhibit D and was subsequently given the letter of allocation by the 2 nd to 4 th Defendants. The allocation letter was tendered and same was admitted as Exhibit L. 7

8 D.W.2 identified Exhibits G, E, F1 F3, which are the gazette, the letter of offer and the payments made, to justify his occupation of the property. He testified that he had completed the application form before the Ruling of the Court of Appeal dismissing his appeal against the Judgment of the Election Petition Tribunal. D.W.2 also confirmed the evidence of the 2 nd to 4 th Defendants witness to the extent that after his application to purchase the house, the house was duly advertised by the 2 nd to 4 th Defendants for bidding by the general public in accordance with the guidelines. Bid for the sale was conducted and the winning bid N11, 000, He stated that at the time of the bidding, the Plaintiff had not been sworn in as a member of the Federal House of Representatives. Following the outcome of the bid exercise, the house was offered to him to exercise the right of first refusal having met all the requirements stipulated by the guidelines. D.W.2 testified further that on the 7 th day of October 2005 in acceptance of the offer made to him, he paid the 10% of the highest bid in respect of the house by means of the Standard Trust Bank, bank drafts dated the 7 th day of October 2005 and 21 st day of February 2006 for the sum of N1, 100, and N1, 650, respectively which was made payable to the 3 rd Defendant. He subsequently completed the payment for the house by forwarding to the 3 rd Defendant a bankdraft for the sum of N8, 250, The letter forwarding the payment was tendered and admitted as Exhibit M. DW2 further stated that the house was allocated to his as a member of the National Assembly and not to the Idemili North/South Constituency of the Federal House Representatives. Further, the allocation of houses to members of the National Assembly was not on the basis of the constituency represented by a member. Finally, he urged the Court to dismiss the Plaintiff s claim. Under cross-examination, he re- stated his evidence in chief to the extent that Exhibit J, the certified true copy of the return certificate, 8

9 was the basis upon which the property was allocated to him. He stated further that he applied to purchase the house like any other Nigerian through an advertorial to the general public and the house was sold to him. He stated that he bought the house according to the gazette and denied misrepresentation to the 2 nd and 3 rd Defendants. There was no re-examination and with the testimony of D.W.2, the 1 st Defendant closed his case. On the 20 th day of January 2011, leave of Court was granted to the 2 nd to 4 th Defendants to file their Final Written Address and same was duly filed and served on the 19 th day of January 2011 on the Plaintiff and the 1 st Defendant respectively. The Plaintiff in response to the 2 nd to 4 th Defendants Final Written Address filed his Final Written Address on the 9 th day of February 2011 and served on the 2 nd to 4 th Defendants on the 10 th day of February Leave of Court was also granted to the 1 st Defendant to file his Final Written Address on the 21 st day of February 2011 and same was duly filed on the 21 st February 2011 and served on the Plaintiff on the 20 th day of February 2011 and the Plaintiff filed his Final Written Address in relation to the 1 st Defendant on the 18 th day of February 2011 and served on the 1 st Defendant on the 21 st day of February The Final Written Addresses of the parties were duly argued and adopted on the 13 th day of April The Plaintiff s Counsel in his Written Address set out the brief facts of the case, the Exhibits tendered and the relevant facts, and formulated four (4) issues in the first Written Address as well as five (5) issues in second written address. The 1 st 4 th issues are the same in the two Addresses whilst he added a 5 th issue. These issues are as follows:- 1. Whether by the provisions of Section 287 (2) and (3) of the Constitution of the Federal Republic of Nigeria 1999 are the Defendants entitled to obey and enforce the decision of the 9

10 Election Petition Tribunal sitting in Awka Anambra State in Election Petition No. EPT/AN/NA/6/2003 and the Court of Appeal decision in Appeal No. CA/E/EPT/2/2005, and if answer is in the affirmative, what is the legal effect and consequence of the Judgments on the parties as it relates to the property subject matter of this action. 2. Whether by virtue of the Judgment of the Election Petition Tribunal No. EPT/AN/NA/2003 and the Court of Appeal decision in Appeal No. CA/E/EPT/2/2005 is the sale of the property subject matter of this action to the 1 st Defendant by the 2 nd to 4 th Defendants void and of no effect. 3. Whether from the pleadings and evidence has the Plaintiff established that the sale of the property, subject matter of the action to the 1 st Defendant by the 2 nd to 4 th Defendants was as a result of mis-representation by the 1 st Defendant that he is an Honourable Member of the House of Representatives. 4. Whether from the pleadings and evidence, has the Plaintiff shown that he is entitled to the reliefs sought. 5. Whether the 1 st Defendant has offered any defence in law justifying his continued stay in office as an Honourable Member contrary to Section 138 (1) of the Electoral Act 2002, Section 246 (3) of the Constitution of the Federal Republic Nigeria The 1 st Defendant in his Written Address also re-stated the facts of the matter and set out the facts not in dispute. He formulated three (3) issues for determination namely:- 1. Whether the 2 nd to 4 th Defendants were rights in selling the house known as Block B22, Flat 1, National Assembly Quarters, Apo Abuja subject matter of this suit to the 1 st Defendant. 2. Whether the Plaintiff was entitled to the right of first refusal in the sale of the house known as Block B22, Flat 1, National Assembly Quarters, Apo Abuja subject matter of this suit. 10

11 3. Whether the 2 nd to 4 th Defendants are under any obligation to sell the house to the Plaintiff. The 2 nd to 4 th Defendants in their Written Address also gave the account of the facts of the case and the fact not in issue. They further formulated three (3) issues for determination namely:- 1. Whether the Plaintiff in this suit has discharged the onus of proof required by law to entitled him to the disputed property and the judgment of this Honorable Court 2. Whether the conduct of the 2 nd to 4 th Defendants is justified and/or empowered by law with respect to the sale of the property in dispute to the 1 st Defendant. 3. Whether the Plaintiff is entitled to the reliefs sought from this Honourable Court. Upon a thorough and calm view of the issues raised by all the Counsel across the divide, it is necessary to formulate the following issues namely:- 1. Whether by the provisions of Section 287 (2) and (3) of the Constitution of the Federal Republic Nigeria 1999, the Defendants are entitled to obey and enforce the decision of the Election Petition Tribunal sitting in Awka Anambra State in Election Petition No. EPT/AN/NA/6/2003 and the Court of Appeal decision in Appeal No. CA/E/EPT/2/ Whether from the pleadings and evidence, the Plaintiff has established that the sale of the property, subject matter of the action to the 1 st Defendant by the 2 nd to 4 th Defendants was as a result of mis-representation. 3. Whether the Plaintiff was entitled to the right of first refusal in the sale of the house, the subject matter of the action. 4. Whether the 2 nd to 4 th Defendants were right in selling the house known as Block B22, Flat 1, National Assembly Quarters, Apo 11

12 Abuja subject matter of this suit to the 1 st Defendant On the first issue, Counsel to the Plaintiff stated that the Constitution of any country is supreme and it is by it that the validity of any law, rules or enactments for the governance of any part of the country will be tested and all the powers, be the legislative or judicial must ultimately be traced to or predicated on the Constitution for the determination of their validity. He relied on the cases of TANKO VS. STATE (2009) 4 NWLR (PART 1131) PAGE PAGE 45 PARAGRAPHS C F; KWARA VS. INNOCENT (2009) 1 NWLR PART 1121 PAGE PARAGRAPHS B C and SECTION 1 (1) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC NIGERIA Learned Counsel reproduced the provision of Section 287 (2) and (3) of the Constitution of the Federal Republic Nigeria 1999 and submitted that a Judgment given by a competent Court of record in the exercise of its original jurisdiction remains binding on all concerned until set aside. He referred to the cases AMAECHI VS. INEC (2008) 7 NWLR (PART 1080) PAGE PARAGRAPH 366 PARAGRAPHS D G and AGBOGUNLERI VS. DEPO (2008) 3 NWLR (PART 1073) PAGE PAGE 246 PARAGRAPH H. Learned Counsel restated the evidence of the Plaintiff s witness at the trial and submitted that the Plaintiff has shown by credible evidence that he was the rightful person that represented the Idemili North/South Federal Constituency at the House of Representatives. He further referred to Exhibit A and B and the case of the KOPEK CONST. LTD VS. EKESOLA (2010) 3 NWLR PART 1183 PAGE PAGE 663 PARAGRAPHS C D. It is the submission of the Learned Counsel that the denial of paragraphs 1, 2, 3, 7, 8, 10, 14, of the statement of claim was an insufficient denial of the said pleadings which amounted to admission in law. He relied on the case of KOTUN VS. OLASEWERE (2010) 1 NWLR PART 1175, PART PAGE 439 PARAGRAPHS D E. He further referred to Exhibit A particularly paragraph 5. 12

13 Learned Counsel further queried the position of the 1 st Defendant at the House of Representatives and submitted that the 1 st Defendant cannot be allowed to benefit from the result of the election and his own wrong. He relied on the cases of ADAMS VS. UMAR (2009) 5 NWLR (PART 1133) PAGE PAGE 134 PARAGRAPHS E F; CIVIL DESIGN CONST. NIG. LTD VS. SCOA NIG. LTD (2007) 6 NWLR PART 1030 PAGE 300. Learned Counsel to the Plaintiff further submitted that it is deducible from the facts of this case that by virtue of Exhibit A, the 1 st Defendant s election has been nullified and was not qualified to express his interest or bid for the property as evidence in Exhibit A. By the time Exhibit G, the Federal Government Official Gazette on sale of Federal Government Non-Essential Residential Houses was published on 5 th August 2005, the 1 st Defendant s election had been annulled by the Tribunal which was affirmed by the Court of Appeal through Exhibit B dated the 5 th day of May He stated that the 1 st Defendant was not eligible to be offered the property and was not rightfully and lawfully supposed to make payments in respect of the property on the premise that his election had been annulled by the Court of Appeal. He referred to the case of ONYEKWELU VS. INEC (2009) 6 NWLR (PART 1136) PAGE PAGE 33 PARAGRAPH D and SECTIONS 1 (1), 246 (3), 285 (1) and 287 (2) (3) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC NIGERIA Learned Counsel submitted that Exhibit A and B are Judgments of competence Courts by virtue of Section 285 (1) and Section 287 (2) of the Constitution of the Federal Republic Nigeria All the parties concerned are not only bound to obey them, but also authorities charged with the responsibilities to enforce them are obliged to enforce them unless declared a nullity or set aside on appeal by Court of competent jurisdiction. He submitted further that the 1 st Defendant is bound by Exhibits A and B and the 2 nd to 4 th Defendants are 13

14 empowered in law to enforce the judgments by obeying them. He relied on the case of ROSSEK VS. ACB LTD (1993) 3 NWLR PART 312 PAGE PAGE 471. Referred to with approval in the case of the OSAKWE VS. INEC (2005) 13 NWLR (PART 943) PAGE PAGE 474 PARAGRAPHS E F PAGE 449 RATIO 5. Counsel pointed out that the condition precedent for the allocation and occupation of the property subject matter of this suit is one s lawful membership of the Federal House of Representatives. He stated that by virtue of Section 138 of the Electoral Act 2002, the membership of the 1 st Defendant at the Federal Houses cease with the decision of the Court of Appeal. He relied on the case of MADUAKO VS. ONYEJIOCHA (2009) 5 NWLR PART 1134 PAGE 259 where the Court interpreted Section 149 (1) of Electoral Act (2006) which is on all fours with Section 138 of the Electoral Act, Finally, Counsel submitted that the sale of the property subject matter of this suit to the 1 st Defendant by the 2 nd to 4 th Defendants is a nullity and is of no legal consequence. He relied on the cases of ALBISHIR VS. INEC (2009) PART 1130 PAGE PAGE 11 PARAGRAPHS C A and OBOT VS. ETIM (2008) 12 NWLR PART 1102 PAGE PAGE 779 PARAGRAPHS E A. The Defendants did not make any submission in this issue. It is clear from the facts and evidence before the Court that the Plaintiff and the 1 st Defendant contested the 2003 election on the platform of the Peoples Democratic Party for the Idemili North/South Federal Constituency in the Federal House of Representatives. The Plaintiff won and was declared the winner. Subsequently his election was cancelled and the 1 st Defendant was declared and returned as the winner. The election of the 1 st Defendant was later challenged by the Plaintiff at the Election Petition Tribunal sitting in Awka and the return of the 1 st Defendant was annulled by the Tribunal. The decision of the Tribunal was appealed to the Court of Appeal sitting in Enugu 14

15 and the Court of Appeal affirmed the decision of the Election Petition Tribunal. The above facts were evidenced by Exhibit A and B which are the Certified True Copy of the Election Petition Tribunal held at Awka dated the 15 th day of January 2005 and a Certified True Copy of the Ruling of the Court of Appeal dated the 15 th day of May 2005 respectively. The relevant question under this issue is whether the defendants are bound by the above Judgment and Ruling, particularly in relation to the subject matter of this case. The Judgment of the Election Petition Tribunal at page 128 declared that the Plaintiff was validly elected/returned as the winner of the election into the Idemili North/South Federal Constituency. This decision was affirmed by the Court of Appeal at page 5 of the Ruling dismissing the appeal of the 1 st Defendant. It is important to note that a Judgment given by a competent Court of record in the exercise of its original jurisdiction remains binding on all concerned and command obedience until set aside. Reliance is placed on the case of AGBOGUNLERI VS. DEPO (2008) 3 NWLR (PART 1074) PAGE 246 PARAGRAPHS H. See also Sections 287 (2) and (3) of the Constitution of the Federal Republic Nigeria However, it is also important to note that the above Judgment and the Ruling of the Tribunal and Court of Appeal did not specifically make reference to any property. The defendants were certainly bound by the final decision of the Court of Appeal but whether it was their prerogative to enforce the decision is another matter. The issues dealt with in that appeal border on different rights as that sought for in this case and the 2 nd to 4 th defendants can certainly take cognizance, but they have no duty to enforce the broader objective of the Ruling, which is to install the Plaintiff as the elected representative. The defendants would have had no excuse if the plaintiff had been, in compliance with the said judgment, sworn in as the true representative in the House of Assembly. 15

16 The second and third issue will be considered together and the Court will determine whether from the pleading and evidence before the Court the Plaintiff has established that the sale of the property to the 1 st Defendant was as a result of misrepresentation, and whether the plaintiff was entitled to the right of 1 st refusal. Counsel to the Plaintiff in arguing this issue adopted his earlier submissions on the first issue above. He defined misrepresentation and referred to the Oxford Advance Learner s Dictionary New 7 th page 939. He submitted that the information given by the 1 st Defendant in Exhibits D and E to the 2 nd to 4 th Defendants was not true. The 1 st Defendant had said that he is a member of the House of Representatives knowing fully well that his election to the House had been annulled by the Tribunal as shown in Exhibit A. The 1 st Defendant bidded for the property as a political office holder and was offered same and he accepted the offer when in actual fact he was not. Furthermore, as at the time the 1 st Defendant accepted the offer, the Court of Appeal had affirmed the decision of the Tribunal. Counsel referred to Exhibits B and E. Learned Counsel submitted further that the 1 st Defendant was not fit to purchase the property as a political office holder by virtue of Exhibit B, Section 246 (3) of the Constitution of the Federal Republic Nigeria 1999 and Section 138 of the Electoral Act The 1 st Defendant further made payments after he had ceased to be a member of House of Representatives. He referred to Exhibits F1, F2 and F3 and submitted that the 1 st Defendant under cross-examination admitted the fact that he would not have been offered the property if the 2 nd to 4 th Defendants have had the knowledge of Exhibits A and B. Finally, Counsel submitted that the legal effect of this misrepresentation is that the sale to the 1 st Defendant by the 2 nd to 4 th Defendants is void and of no effect. No submission was made by the 1 st, 2 nd to 4 th Defendants. 16

17 It is important to note that the property was allocated to the 1 st Defendant through a letter dated the 15 th day of July 2003 as a residential accommodation to Honourable members as evidenced in Exhibit L. The allocation was as a result of the fact that the 1 st Defendant was member of the House of Representatives representing Idemili North/South Federal Constituency of the Federal Republic of Nigeria. He was issued a Certificate of Return to the House of Representative Election dated the 21 st day of April As a matter of fact, the 1 st defendant had been in occupation of the house in issue since 1999, when he represented his constituency at the House of Assembly. In 2003, the house was re-allocated to him following his reelection as a member of the House of Assembly. On the 15 th day of January 2005, the 1 st Defendant s election was annulled by the Election Petition Tribunal sitting in Awka and the Plaintiff was declared the winner of the election. The Judgment of the Tribunal was appealed to the Court of Appeal sitting at Enugu and the Court of Appeal affirmed the decision of the Tribunal. See Exhibits A & B and paragraphs 11, 13, 14 and 16 of the Further Amended Statement of Claim and paragraphs 17 and 20 of the Statement of Defence of the 1 st Defendant. It is also in evidence that the 1 st defendant had further appealed to the Ecowas Court who eventually declined jurisdiction in the appeal on the 7 th day of October On the 17 th day of April 2005 the Federal Capital Territory Authority through Leadership Newspaper publicized the Public Notice No. 1 & 2, approved guidelines for the sale of the Federal Government Houses in the Federal Capital Territory to the general public and political office holders as evidenced in Exhibit I. In fulfillment of the conditions of sale as stipulated in the Leadership Newspaper, the Public Notice No. 1 & 2 and the Federal Government of Nigeria Official Gazette, the 1 st Defendant expressed his interest to purchase the property, exercising his first right of refusal as a current 17

18 occupant. To this end, he filled out the application form to purchase Federal Government Houses Unit (HU) in Abuja on the 13 th of April A careful look at the information contained in the expression of interest form show that the 1 st Defendant filled in his occupation under the employment column of the form, as member of the House of Representatives National Assembly, Abuja. Curiously, by this time, he knew that his election as a member of the House of Representatives was annulled by the Tribunal on the 15 th day of January 2005 with the Plaintiff declared winner. However, he challenged that decision, so he was in apparent denial of the plain reality. Despite the decision of the Election Petition Tribunal, the 1 st Defendant still claimed to be a member of the House of the Representatives, thereby technically misrepresenting himself to the 2 nd to 4 th Defendants as a member of the House of Representatives. This misrepresentation was further perpetrated by him as seen in Exhibits E and G, which is the letter of offer to match winning bid, wherein he accepted the same offer as a Legislator on the 6 th day of October On this date, the 6 th of October 2005, he now knew that the Court of Appeal had dismissed his appeal. At this time, the decision of the ECOWAS Court to assume jurisdiction in the matter had not been reached. It was to come a day later. It is relevant to note S143 (1) and (2) of the Electoral Act which stipulated that a candidate returned as elected shall, not notwithstanding the decision of the election tribunal or the Court, remain in office pending the determination of the appeal. At this time the plaintiff had not yet been sworn into office. Even though, the 1 st Defendant was hiding under the provision of Section 143 (1) and (2) of the Electoral Act 2010, this notwithstanding cannot avail him of misrepresentation when he accepted the offer as a Legislator in the letter of offer. KARIBI WHYTE JSC in the case of AFEGBAI VS. A.G. EDO STATE (2001) 7 S.C. (PART II) 1 held that a 18

19 representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and infact. However, in determining whether or not there has been a misrepresentation at all, the knowledge, belief or state of mind of the misrepresentator is immaterial, save in cases where the representation relates to the representator s state of mind; but his state of mind is clearly relevant for the purpose of considering whether the misrepresentation was fraudulent or otherwise. Here, the question is, whether the sale of the property by the 2 nd to 4 th Defendants to the 1 st Defendant was void as a result of the misrepresentation. At this stage, the privity of contract has to be considered here between the 1 st Defendant and 2 nd 4 th Defendants and the Plaintiff. The sale of the property was purely contractual and was between the 1 st defendant and the 2 nd to 4 th defendants only. This contract was concluded in accordance with the approval guidelines. It is clear that the Plaintiff is not a party to this contract and only parties to a contract can maintain an action under the principle of privity of contract and for any misrepresentation suffered under the contract. It is for the party who was misrepresented to cry wolf and claim that the contract was frustrated and is not the place of the plaintiff, who at this point, is an outsider to the contract. In any event, the plaintiff did state that after the decision of the Court of Appeal, he applied to the FCDA to purchase the same property but was refused. There was no evidence led by the plaintiff to show this application, and the evidence of the 2 nd -4 th defendants that they had no records of the plaintiff was not contradicted. Their counsels submission was that had they known, they would not have sold the property to the 1 st defendant. If the plaintiff s submission that he informed them is to be believed, that he applied to the FCDA after the decision of the Court of Appeal, then logically he must have intimated them of his victory and the fact that it was he, who had the right to purchase the property. The 19

20 FCDA still went on with the sale regardless by continuing the sale transaction making it clear that they were not concerned with any judgment or with politics, and focused on the party involved, as their primary concern was that he be a sitting tenant. So the question of whether or not there was a misrepresentation has been resolved by the fact that the 2 nd -4 th defendants must be taken to know the true situation, but still decided to offer the property to the 1 st defendant regardless. They cannot be compelled to sell their property to anyone they had no interest in selling to. Reliance is made to the cases of DUNLOP VS. EELFRIDGE (1915) A.C. 847; BASINGO MOTORS LTD VS. WOERMANN LINE & ANOR (2007) LPELR S.C. 24/03. An action for misrepresentation therefore, cannot be maintained by the Plaintiff. The Court cannot hold that the sale was void. On the issue of whether the Plaintiff was entitled to the right of first refusal in the sale of the house, and whether he is entitled to the reliefs sought, Counsel to the Plaintiff submitted that where evidence of one witness is cogent, credible and convincing, a trial Court is entitled to act on it in favour of the party that calls him. He referred to the case of KOPEK CONST. LTD VS. EKISOLA (2010) 3 NWLR PART 1182 PAGE P.P PARAGRAPHS F A. Counsel submitted further that the Plaintiff has shown a credible and convincing evidence that he was the rightful and lawful person that represented Idemili North/South Federal Constituency at the House of Representatives. He stated that the 1 st Defendant s tenure and stay at the House of Representatives and the property was unlawful since the decision of the Court of Appeal on the 5 th day of May 2005, and the Plaintiff s interest rested in the House of Representatives and the property subject matter of this action. Counsel stated that failure of the Plaintiff to commence his duties at the National Assembly from 5 th day of May 2005 to 16 th day of March 2006 was not of his own making but rather it was the flagrant abuse 20

21 and disregard to the Rule of law by INEC. He referred to the dictum of OGUNWUMIJU J.C.A. in the case of ONYEKWELI VS. INCE (2008) 14 NWLR PART 1107 PAGE PARAGRAPHS D A to the effect that the Court should not tolerate the blatant disregard of the Judgments of competent Courts as shown in Exhibits A and B, the Constitution and the Electoral Act 2002 and by the 1 st Defendant in his refusal to vacate office ten (10) months after the Court of Appeal s decision. Counsel submitted that the Plaintiff was the rightful person to occupy and purchase the subject matter of this suit. Counsel to the 1 st Defendant on this issue referred to the gazette and newspaper article in Exhibits G and I and stated that it is evident that the 1 st Defendant met the requirement to be entitled to the right of first refusal and he duly exercised that right when he was offered to purchase the property by the 2 nd to 4 th Defendants. Further, at the time of the commencement of the sale exercise the Defendant was in lawful occupation and was a member of the House of Representatives. Counsel reiterated the evidence of DW2 in chief to the effect that the property was first allocated to the 1 st Defendant in 1999 and reallocated to him in 2003 following his victory at the elections. Counsel submitted that the piece of evidence was unchallenged and uncontroverted. Though the 1 st Defendant s election was upturned after the process of sale had commenced through Exhibit D, the 1 st Defendant s expression of interest was dated 13 th day of April Counsel referred to Section 138 (1) and (2) of the Electoral Act 2002, Cap E6, LFN 2004 and submitted that it is on the authority of the provisions that the 1 st Defendant submitted the expression of interest form to the 2 nd to 4 th Defendants as a legitimate member of the Federal House of Representatives. He stated that by the time the decision of the Court of Appeal striking out the 1 st Defendant s appeal was delivered, the process of sale of the house was already in full swing and could not be reversed more so as there was no competing interest against that of the 1 st Defendant. The Plaintiff was not allocated the property, he did not submit the application to buy the 21

22 house to the 3 rd Defendant as stipulated by the guidelines. Counsel submitted that the 1 st Defendant had an unfettered right to be offered the right to match the winning bid. Learned Counsel argued that the Plaintiff is misconceived as to the publication of the guideline and when it came into force. He stated that the Official Gazette Exhibit G was published on 15 th day of August 2005 but was promulgated by the Federal Government on the 1 st day of April 2005 as evidenced on page 487 of the Gazette. He submitted that the sale exercise commenced in April 2005 when the 1 st Defendant was still a bona fide member of the House of Representatives and entitled to every right and privilege accruing to the office. He submitted that the Plaintiff had never applied for the property either as a Nigerian Citizen or otherwise. Counsel pointed out that it is clear from the guidelines that only career civil servants and public office holders in occupation as of the date of commencement of the exercise are entitled to be offered a right of first refusal. He referred to Exhibit G and submitted that it is clear that the 1 st Defendant was eminently qualified to apply to purchase the house as a political office holder while the Plaintiff was not entitled to a right of first refusal or other privileges attached to a political office holder under the guidelines. The Plaintiff admitted the above submission to the effect that he did not meet the requirements on paragraph 13 of the guidelines and he did not satisfied the foundation of the sale exercise. He relied on the cases of IRONBAR VS. FEDERAL MORTGAGE FLNANKE (2009) 15 NWLR (PART 1165) 506, , H A; MADUABUM VS. NWOSU (2010) 13 NWLR (PART 1212) 623, PARAGRAPHS E F. It is his further argument that the Plaintiff was sworn in as a member of the House of Representatives on 16 th day of March 2006 while Exhibit E, the letter of offer to 1 st Defendant to match winning bid was made on 5 th day of October 2005 and the payment started on the 7 th day of October 2005 through Exhibit F1. Counsel submitted further 22

23 that the housing unit in the National Assembly Quarters were allocated not to the constituencies they represented but to individual political office holders. Counsel stated further that the Plaintiff was paid his allocation allowances by the National Assembly after his inauguration and as at the time of inauguration, the monetization policy was already in place and the Legislators Quarters had already been sold to the office holders in occupation who elected to buy. He submitted that the Plaintiff s accommodation was monetized by the National Assembly and he was not entitled to be allocated a housing unit. The information was unfavourable to the Plaintiff but was later elicited from him during cross-examination. Counsel referred to Section 149 (d) of the Evidence Act and the case of CHINEKWE VS. CHINEKWE (2010) 12 NWLR (PART 1208) 226, , PARAGRAPHS G C. Learned Counsel contended that the argument of the Plaintiff that he was prevented by the 1 st Defendant from applying for the house was ridiculous as there is no evidence before the Court to show. Finally on this issue, Counsel urged the Court to hold this issue in their favour. The 2 nd to 4 th Defendants Counsel on their part submitted that the Plaintiff was not entitled to purchase the property as he had failed to adduce evidence as required by Sections of the Evidence Act which placed the burden of proof on the Plaintiff on a preponderance of evidence. Counsel restated the evidence of their witness during the trial. He referred to paragraph 28 of the 1 st Defendant s Statement of Defence, 4 (1), 5 and 6 of the 2 nd to 4 th Defendants Statement of Defence and Exhibit L and urged the Court to take judicial notice of the approved gazette of August 15 th 2005 by virtue Section 74 of the Evidence Act. He further referred to Exhibits D and G; paragraph 4 (c, d, f, g) of the 2 nd to 4 th Defendants Statement of Defence and 7, 8 and 9 of the 2 nd to 4 th Defendants witness statement on oath. Counsel submitted that the 23

24 conduct of the 2 nd to 4 th Defendant with respect to the sale was in accordance with the approved gazette. These facts were not challenged by the Plaintiff and therefore no further proof of such facts is required. He relied on the cases of ONWUKA VS. EDIOALA (1989) 1 NWLR (PART 96) 182; ABUJA VS. IGP (1999) 10 NWLR (PART 524) PAGE 321 PARAGRAPHS 4 6 and PASCUTTO VS. ADECENTRO NIG LTD (1997) 1 NWLR (PART 529) PAGE 467. Learned Counsel supported the submission of the 1 st Defendant s Counsel to the effect that the Plaintiff is not entitled to purchase the house in dispute ab initio. He reiterated the fact that the Plaintiff admitted in his evidence that he did not apply nor the allocation was given to him and therefore he is bound by his pleadings. He relied on the dictum of OPUTA JSC in the case of EHIMARE VS. ENUOHONYON (1985) 1 NWLR PART 2186 C D. Counsel stated that the sale was conducted in accordance with the approved guidelines and by virtue of the statutory power vested on the Honourable Minister of Federal Capital Territory, the Chairman of the Ad-hoc Committee, and was not made in error. Finally Counsel urged the Court to dismiss the Plaintiff s claim. It is important to note that the sale of Federal Government Houses in the Federal Capital Territory Abuja is governed by the Federal Republic of Nigerian Official Gazette which contains the approved guidelines for the sale to career civil servants, general public and political office holders. There are conditions for the sale as contained in the official gazette amongst which stipulates that the houses will be sold on as is, where is basis at the evaluated price with the current occupants having the first right of refusal to purchase within thirty (30) days of offer. The said right to purchase is neither transferable, assignable nor alienable in any way or form. It further states that the highest bid price will then be offered to the political office holder in occupation to exercise the right of first refusal by effecting ten (10) 24

25 percent non-refundable deposit within fourteen (14) days. If the political office holder fails to exercise the right of first refusal, the preferred bidder will be allowed to complete the transaction as envisaged. It is clear from the facts and evidence before the Court that the Plaintiff was not in occupation of the house as at the time of the process of the sale and there is no evidence to show that the house was allocated to him. There was also no evidence to show that the house in question was allocated from the National Assembly to any member elected to act for Idemili North and South Federal Constituency. The plaintiff even agreed that the houses were allocated to individual members. The plaintiff could not say during crossexamination whether the money given to him as salary included accommodation allowances or whether the government was paying for his rentage and thereby deducting from his salary. This denial of knowledge is not good enough. It has not shed light on what actually happened and did not show whether he suffered a double jeopardy of having his salary deducted for rent whilst still paying rent or whether his salary in fact incorporated his rent. It is not enough to believe that the government was paying for his rentage. He must simply know. The plaintiff had no letter of allocation from the National Assembly so what exactly did he adduce to show that he would have been allocated any house or precisely, this particular house, the subject matter of this litigation. The right to be assigned a house was not established ab initio. Then the right to be assigned this particular house was certainly not shown. What then is the foundation of this claim? The right to purchase surely, is based on the right to reside there in the first place. It is clear that the plaintiff did not express any interest on record, did not bid publicly for the house, was not given a letter of offer and so, it is difficult to ascribe any rights to him unfortunately. It was the 1 st Defendant that was in occupation of the house having secured the allocation through Exhibit L the letter of allocation of 25

26 residential accommodation dated the 15 th day of July Based on the above facts and evidence, the Plaintiff was not entitled to the right of first refusal as he was not sworn in yet as a political office holder. On the issue of whether the 2 nd to 4 th Defendants were right in the sale of the house to the 1 st Defendant, it is clear that he was the current occupant of the subject matter at the time of the sale and he expressed interest to purchase the house on the 13 th day of April The 2 nd to 4 th Defendants through the Ad-hoc Committee on sale of the Federal Government Houses invited the 1 st Defendant to make a winner bid in respect of the property which he did and following the outcome of the bid, he was offered the letter of offer to match winning bid which is Exhibit E dated the 5 th October He accepted the offer made to him on the 6 th day of October 2005 and paid the 10% of the purchase price in respect of the property in the sum of N1,100, as evidenced in Exhibit F1 the Standard Trust Bank draft and other payments which were further shown in Exhibits F1 F3 and M. Without much ado, the 1 st Defendant fulfilled all the requirements as stipulated by the official guidelines and as these facts were not controverted by the Plaintiff, they need no more proof. Reliance is placed on HILLARY PARMS LTD VS. M/V MAHTRA (2007) 6 S.C. PART II 85. The 2 nd to 4 th Defendants sold the house to the 1 st Defendant in accordance with the approved gazette guidelines. The sale had nothing to do with the election trial between the Plaintiff and the 1 st Defendant. Therefore, the Court is satisfied that the 2 nd to 4 th Defendants were right in the sale of the house the subject matter of this action to the 1 st Defendant. The Plaintiff had slept on his right to make a complaint either to the 2 nd to 4 th Defendant or even to the Clerk of the House of Assembly strongly emphasizing his right to purchase the house in dispute when he was declared winner by the Election Petition Tribunal and the 26