DEACONESS (MRS) FELICIA ARIWOLA OGUNDIPE v THE MINISTER OF FEDERAL CAPITAL TERRITORY & Others (CA/A/64/2011) [2014] NGCA 51 (27 March 2014)

 

MAIN JUDGMENT

MOORE A. A. ADUMEIN, J.C.A. (Delivering the Leading Judgment):

The appellant was the plaintiff in Suit No.FCT/HC/CV/7361/2004 which was heard and determined by Hon. Justice A. M. Talba of the High Court of the Federal Capital Territory, Abuja.

The claims of the appellant, as endorsed in both the writ of summons and her statement of claim are hereunder reproduced:

 

"1.     A Declaration that the plaintiff is a beneficiary of the Monetization Policy of the Federal Government of Nigeria, having been in active service as at the time the policy took effect.

 

2.       A Declaration that the plaintiff has an accrued right as a result of her being in active service when the Monetization Policy began.
 

3.       An Order directing the 1st and 2nd defendants to give the plaintiff the opportunity to exercise her right of first refusal in respect of Flat 3 Block D44, Zone D Extension Apo Legislative Quarters, Abuja.
 

IN THE ALTERNATIVE

 

4.       A Declaration that the plaintiff was entitled to be given fair consideration in the bidding exercise carried out by the 1st and 2nd defendants in September and November 2005, the plaintiff having submitted the expression of interest form in respect of Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja for the said bidding exercise.

                     

5.       A Declaration that the non-consideration of the plaintiff in the said public bidding before awarding the said flat to the 3rd defendant is null and void.

 

6.       A Declaration that the purported sale of Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja to the 3rd defendant is null and void.

 

7.       An Order restraining the 1st, 2nd and 3rd defendants, their privies, agents, servants, employees or anybody deriving authority from them from disturbing, ejecting, evicting, dispossessing quitting, forcefully removing, harassing and or intimidating the plaintiff from peaceful enjoyment of the said property until she so exercises her right.

 

8.       And for such further order or other orders as the plaintiff may be entitled to under the Law and Constitution."

 

The suit was defended by the 1st, 2nd and 3rd respondents who were the 1st, 2nd and 3rd defendants, respectively, in the court below. The 1st and 2nd respondents filed a joint statement of defence, which spans pages 245-249 of the record. The 3rd respondent's statement of defence covers pages 262-279 of the record. After hearing the parties, the learned trial judge in a reserved judgment (pages 384-406 of the record) delivered on 18/11/2009 dismissed the appellant's claims. Being dissatisfied with the decision of the learned trial judge, the appellant filed a notice of appeal containing the following three grounds:
 

"1. GROUND ONE

 

The trial judge erred in law when it misconstrued and misapplied the principle of vested interest to the facts of the case before it.
 

PARTICULARS OF ERROR

 

(i)      The enjoyment of the right of first refusal by the occupier of the property the subject matter of the suit was not subject to what the court describe as "being a serving career public servant".
 

(ii)     It was unanimously agreed that the commencement of the Monetization Policy by the virtue of which the plaintiff was entitled to the option of first refusal was in 1st October, 2003.
 

2. GROUND TWO

 

The learned trial judge erred in law when he held that the vested right of the plaintiff was subject to her being a "serving career public servant".
 

PARTICULARS OF ERROR IN LAW

 

(i)      The Monetization Policy did not subject the enjoyment of the policy benefits to being a "serving" career civil servant.
 

(ii)     The word "serving" was an invention of both the defendants and that of the court."

 

3. GROUND THREE

 

The learned trial judge erred in law when [it] failed to consider the evidence of the plaintiff to the effect that the house in issue was actually offered to her in compliance with Monetization Policy even after her retirement and the court thereby came to wrong conclusion which led to miscarriage of justice.

 

PARTICULARS OF ERROR IN LAW

 

(i)      Exhibit 14 which is before the court made it clear that the property in issue was offered to the plaintiff even after her retirement under the Monetization Policy;

 

(ii)     The trial court did not consider this documentary evidence and hence its arrival at wrong conclusion;

 

(iii)    The trial court failed to also consider the evidence of the plaintiff which was not controverted that the property the subject matter of the suit was also offered to the plaintiff after the purported claim of its being sold earlier."

 

In accordance with the rules of this court, the parties filed and exchanged briefs of arguments. In her brief filed on 08/04/2011 and deemed properly filed on 18/03/2013, the appellant identified two issues as arising for determination. The issues are:

 

"1.     Whether the learned trial judge was not wrong in the interpretation and construction of the principle of vested right (Grounds 1 & 2).

 

2.       Whether the rights of the appellant was not violated and breached when her uncontroverted and direct evidence were not considered by the learned trial judge? (Ground 3)."
 

The 1st and 2nd respondents filed a joint respondents' brief on 20/01/2014 but was deemed filed on 21/01/2014. In their joint respondents' brief, the 1st and 2nd respondents formulated the following 2 issues for determination.
 

"1.     Whether the learned trial judge was not wrong in the interpretation and construction of the principle of vested right.
 

2.       Whether the right of the appellant was not violated and breach when her uncontroverted and direct evidence were not considered by the learned trial judge."

 

The 3rd respondent's brief was filed on 15/05/2012 and deemed properly filed on 18/03/2013. The 3rd respondent framed the following questions for determination:
 

1.       Whether the learned trial judge was right when he held that the plaintiff/appellant is not entitled to right of first refusal in respect of Flat 3 Block D44, Zone D Extension, Apo Legislative Quarters, Abuja, in the sale of non-essential Federal Government of Nigeria (Residential) houses exercise and/or the subsequent bidding exercise carried out by the 1st and 2nd defendants/respondents which returned the 3rd defendants/respondent as the winner of same.?
 

2.       Whether the learned trial judge properly appraised or evaluated the evidence before him?"

 

The two issues framed by the 4th respondent in his brief filed on 27/03/2013 are as follows:

 

(i)      Whether the learned trial judge correctly interpreted the principle of vested right as it relates to the subject matter.
 

(ii)     Whether the trial judge heard the matter on the merit, properly evaluated evidence before the court and dismissed the matter,"
 

Apart from the way they are couched, the issues formulated by the contending parties are substantially the same. In this judgment, I adopt the issues as couched or framed by the 4th respondent as the issues that arise for determination in this appeal.

ISSUE 1

 

Whether the learned trial judge correctly interpreted the principle of vested right as it relates to the subject matter.

 

The appellant argued that "vested right" had been judicially defined as accrued rights arising from law, policy, custom, etc. It was also submitted that it is not the law that an accrued or vested right could be divested or terminated by a subsequent act such as law, policy or custom. She stated that "this is based on the fact that any law or policy which seeks to take away an accrued right of a citizen must be strictly interpreted and more so where the taking away of such accrued right will adversely affect a party," The appellant proceeded to state as follows:
 

"It is our submission that upon the commencement of the monetization policy in October 1st, 2003 while the appellant was in service has vested a defined right on her to take full and not partial benefits from all the rights arising therefrom. Even though it was a mutual point of agreement that the appellant retired from service in January 15, 2004, while the "Approved Sites guidelines for Federal Government Houses Gazette No. 7 came into operation in April, 2004"

 

Relying on the case of Wilson v. A. G. Bendel State (1985) 1 NWLR (Pt.4) 575 at 589 the appellant argued that it would have been "more lenient" and "more reasonable" for the lower court to have interpreted the Gazette No. 1 on the Guidelines on the Sale of Federal Government Houses in favour of the appellant. The appellant contended, in other words, that "the Gazette should have been harmoniously interpreted with the Monetization Policy commencement date of 1st October, 2003."

 

The appellant relied on the case of Ojo v. Government of Oyo State (1989) 1 NWLR (Pt. 95) 1 at 12 to show that courts "guard vested right jealously" and submitted that Gazette No. 1 did not take away her accrued rights as vested by the Monetization Policy which commenced on the 1st day of October,2003 "even though the Gazette was dated April, 2004'. The appellant argued that "a statute is said to be retroactive when it takes away by clear and unambiguous words or impairs any vested right acquired under the existing law, creates a new obligation or imposes a new duty or attaches a new disability in respect to transaction or considerations already past and closed" and, in support of this argument, reliance was placed on the case of Afolabi v. Gov. Of Oyo State (1985) 2 NWLR (Pt.9) 734.

 

It was also contended that by Exhibit 14, the appellant had acquired a vested right and that the appellant's position was strengthened by the equitable maxim "equity takes that which ought to be done as done". Referring to the case of Oyeyemi v. Commissioner for Local Government (1992) 2 NWLR (Pt. 226) 661 at 684 - 685 it was argued that courts have a duty to protect vested rights.
 

In finally urging the court to resolve this issue in her favour, the appellant submitted that the lower court misconstrued the law when it held in its judgment as follows:

 

"The plaintiff in this case therefore does not have a vested interest of the said flat 3 hence the right to the enjoyment of her interest is subject to condition precedent, which is being a serving career public servant. The right of the plaintiff to exercise the first right of refusal option was divested by the fact of her retirement from public service on the 19th January 2004, four months prior to the commencement of sale of Federal Government Houses"

 

In their joint response, the 1st and 2nd respondents argued that the exercise and enjoyment of the Federal Government Monetization Policy in respect of the Sale of Federal Government Houses was by Exhibit 18 subject to certain conditions and that "the appellant did not lead any evidence to show that she had met those conditions." On the meaning of "vested interest', the 1st and 2nd respondents referred to the case of Eleran v. Aderonpe (2008) 11 NWLR (Pt.1097) 50. The 1st and 2nd respondents further submitted that "the appellant had no vested interest in the house in dispute as the right hinged on the Monetization Policy of the Federal Government was hinged conditions evident on exhibit 18 which became effective on 1st April, 2005 - a date when the appellant was no longer in service."

 

On the effect of a Gazette, the 1st and 2nd respondents referred to the Supreme Court decision in Ogbunyiya v. Okudo (1979) 3 LRN 318; (1979) All NLR 105.
 

The 1st and 2nd respondents urged the court to resolve this issue in their favour.
 

In addition to the joint arguments of the 1st and 2nd respondents, the 3rd respondent submitted as follows:

 

"In any case, their (sic) of vested right is hinged on the doctrine of common law as such cannot override exhibit 18 which is statutory. The law is settled that where a subject matter is regulated by a statute, the principles of common law on the subject have by implication been suspended from regulating the subject. See M.C.S (NIC) LTD/GTE vs. ADEOKIN RECORDS (2007) ALL FWLR (Pt.391) C.A. @ 1637, PARS. C - D."

 

The 3rd respondent also contended that exhibit 18 is not retrospective.
The 4th respondent referred to the definition of "vested right' in Black's Law Dictionary with Pronunciations (Sixth Edition) and argued that the term "does not mean that the provision of a statute should be construed retrospectively or right that is accrued."

It was further contended by the 4th respondent that since the Approval Sales Guidelines came into operation in April 2004, the trial court rightly interpreted the law by holding that the appellant had no vested interest because she retired 4 (four) months before the commencement of the sale of Federal Government Houses.

ISSUE 2
 

Whether the trial judge heard the matter on the merit, properly evaluated evidence before the court and dismissed the matter.
 

The appellant submitted that the trial court reached its conclusion that she had no "vested right of the said flat 3" without considering her overwhelming evidence which is that:

 

"(i)     She had lived in the property over seven years before she was illegally and forcefully removed from the property while the suit the monetization policy met her in service;
 

(ii)     That all her entitlement were calculated in accordance with monetization policy;

 

(iii)    That before her retirement she had commenced the process of purchasing the house in question;

 

(iv)    The learned trial judge was also told that even upon her retirement the respondents wrote to her and requested that she should exercise her right of refusal over the property through exhibit 14."

 

Relying on the case of Onyeachimba v. State (1998) 8 NWLR (Pt. 563) 587, the appellant submitted that the trial court had a duty to evaluate the evidence before it. The appellant argued that the lower court failed in its duty of evaluating the evidence before it and that this court would be justified to consider and review the appellant's evidence. In support of this leg of her argument, the appellant referred the court to the cases of S.D.P.C. (Nig.) Ltd v. Ekwems (2009) 4 NWLR (Pt.1131) 236 and Garuba v. Yahaya (2007) 3 NWLR (Pt.1021) 396.

 

The appellant opined that "the failure to evaluate a party's evidence would lead to denial of fair hearing." Referring to the case of Adigun v. A.G., Oyo state (1987) 1 NWLR (pt. 53) 678, the appellant argued that a denial of fair hearing would result in the trial to be set aside.
The appellant urged the court to resolve this issue in her favour, to set aside the judgment of the trial court and to grant all her claims.
 

The 1st and 2nd respondents jointly disagreed with the appellant's submissions. They argued that the trial court considered and evaluated "in full" the evidence adduced by the appellant. They contended that all the material facts "weighted against the appellants". The 1st and 2nd respondents urged the court to resolve this issue against the appellant and to affirm the decision of the lower court.
On her part, the 3rd respondent submitted that "the learned trial judge had properly appraised, evaluated and assessed the evidence adduced before him thereby justifying his findings... "The 3rd respondent contended that where a trial court had unquestionably evaluated the evidence and had dispassionately appraised the facts, it would not be the business of an appellate to substitute its views for those of the trial court. On this point, the appellant cited and relied on the case of Hamza v. Kure (2010) All FWLR (Pt.539) 1070 at 1090, paras. B - C.

In urging the court to resolve issue 2 against the appellant, the 3rd respondent stated as follows:

 

"The learned trial judge who had the exclusive opportunity of seeing and hearing the witnesses testifying and who had first hand appraisal of documents before him, properly matched his findings with evidence and tied each to credible evidence having weighed the evidence of both parties on an imaginary scale and rightly found that the preponderance of credible evidence weighs more in favour of the respondents See OSASONA v. AJAYI (2010) ALL FWLR PT.549, C. A. 1065 AT 1075. PARAS E-H."
 

In his submissions, the 4th respondent referred to the case of Agbabiaka v. Saibu (1998) 7 SCNJ 305 at 318 and argued that evaluation of evidence and ascription value thereto is the primary duty of a trial court. It was contended by the 4tn respondent that where a trial court properly evaluated the evidence before it, an appellate court would not interfere. The case of Nkebisi v. State (2010) 5 NWLR (Pt. 1188) 471 at 492 was cited and relied upon by the 4th respondent.

The 4th respondent submitted that in this case, the learned trial judge properly evaluated the evidence and "applied the imaginary scale in appraising the evidence" and that this issue should be resolved against the appellant in favour of the respondents.

 

RESOLUTION OF ISSUES

 

The two issues that call for determination are closely intertwined and they shall be resolved simultaneously.

 

The appellant's complaints, as summarized earlier, are two-fold.
 

The parties, as set out earlier in this judgment, have proferred arguments on the principle of "vested right" and legal authorities have been cited to this court. The term "vested right" is defined in Black's Law Dictionary, Deluxe Ninth Edition, page 1438 as:

 

"A right that so completely and definitely belongs to a person that it cannot be impaired or taken away without the person's consent."
 

In their views, the learned authority authors of Bouvier Law Dictionary at pages 1159 - 1160 have explained vested right as follows:

 

"In law, vesting is the creation of some right, estate, claim, or other legal or equitable interest that from that moment is settled and established; it is not dependent upon a condition to be satisfied or an event to occur for the party in whom it is vested to enforce it."

 

In the case of Alhaji Sobalaje Eleran & 2 Ors. v. Dr. Atiku Aderonpe (2008) 11 NWLR (Pt.1097) 50 at 81 this court per Sankey,JCA quoted with approval the definition of "vested interest" in Black's Law Dictionary, Seventh Edition as:
 

"An interest the right to enjoyment of which, either present or future, is not subject to the happening of a condition precedent."

 

From the definition of "vested right" as set out in the Law Dictionaries and the decision of the court referred to above, it is clear that for a right to be said to be vested in a party or claimant, it must be proved that the right is complete and definite, that the right belongs to the claimant or party; that the right cannot be tempered with or impaired or taken away from the claimant without his consent. A vested right is, therefore, not a technical or procedural right. It is a definite right and a claimant must prove his alleged "vested right" by credible evidence. In other words, a claimant in a case of vested right must prove that he has unquestionable right to the property or privilege claimed. The law, therefore, is that where a claim of vested right is anchored or premised on a wrong footing, the purported vested right automatically collapses and fails. See the cases of Adesanoye v. Adewole (2006) 14 NWLR (Pt.1000) 242 and National Democratic Party (NDP) v. Independent National Electoral Commission (INEC) (2013) 6 NWLR (Pt.1350) 392.

Now the facts, in respect of the appellant's alleged "invested right" to or interest in the disputed house, concisely stated are:

 

(a)     By a letter dated 27th April, 1999 the appellant was allocated the flat in dispute - Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja.

 

(b)     The appellant was in actual possession of the Flat from 1999 until she retired on the 15th day of January, 2004.

 

(c)     Prior to the appellant's retirement on the 15th day of January, 2004, the Federal Government of Nigeria began a Monetization Policy of fringe benefits in the Federal Civil Service with effect from the 1st day of October, 2003.

 

Based on the foregoing facts, the appellant stated in paragraphs 13, 14, 15, 16, 17, 18 and 19 of her statement of claim as follows:
 

''13.   The plaintiff states that part of this policy amongst others was the sale of the Federal Government residential facilities (Houses, flats etc.) built, acquired or otherwise owned by the Federal Government and all its Ministries, Department and Agencies.

 

14.     The plaintiff avers that by the said Monetization Policy, she is entitled to purchase the said apartment even on retirement by being given the 'option of right of first refusal'.
 

15.     The plaintiff avers that based on this policy, she wrote to the Head of Service of the Federation through the Chief Registrar of the Supreme Court to indicate her interest to purchase the said apartment in line with the policy (letter of interest attached and marked as Exhibit FAO 7).
 

16.     The plaintiff avers that due to the late full implementation of the said policy particularly about the sale of the said house, her application could not be fully processed, although she was allowed continued occupation of the said apartment.
 

17.     The plaintiff avers that in-between the commencement date of October 2003 of the policy and the eventual implementation in September 2004 she retired on January 15, 2004

 

18.     The plaintiff avers that on retirement after 35 years of meritorious service to the judiciary and the nation as a whole, her entitlements were calculated and paid in compliance with the Monetization Policy of the Federal Government.
 

19.     The plaintiff avers that she believes that the right of first refusal by the occupant of the Federal Government houses (as guaranteed in the sales guidelines) is part of the benefits that accrued to her, the policy having met her in active service. (Approved guidelines attached and marked as Exhibit FAO 8)."

 

The facts of this case, as clearly can be gathered from the appellant's pleadings, show that the appellant did not conclusively plead any "vested right" to the flat in dispute prior to her retirement on or about the 15th day of January, 2004. The appellant's arguments on "vested right" are, therefore, merely academic and issue 1 cannot be resolved in her favour.

One of the complaints borders on evaluation of evidence by the trial court.

I agree with all the parties to this appeal that it is the primary duty of a trial court to properly evaluate the evidence before it and to make appropriate findings thereon. In its primary task, a trial court must consider issues joined by the parties and it must adequately review the evidence and make proper findings. See Sagay v. Sajere (2006) 6 NWLR (Pt.661) 360 at 370.
It should be noted that in carrying out its adjudicatory duties, a trial court should confine itself to the evidence on matters which have been duly included in the parties' pleadings. See Woluchem v. Gudi (1981) 1 - 5 SC 291; National Investment Co. Ltd v. Thompson Organization (1969) NWLR 99 and Sosanya v. Onadeko (2005) 1 NWLR (Pt.926) 185.

I have read the judgment of the learned trial judge which covers pages 384 to 406 of the record of appeal. A thorough reading of the said judgment reveals clearly that the evaluation carried out by the trial court was rather scanty and not based on the totality of the evidence before the court. The evaluation also appears to have completely ignored evidence on the appellant's claims 1 and 2 of the Monetization Policy of the Federal Government of Nigeria and her alternative claims - numbered as 4, 5, 6, 7 and 8.

The relevant facts on the Monetization policy of the Federal Government of Nigeria, as can be gathered from the appellant's pleadings and evidence can be summarized to be as follows:

(i)      The appellant was a career civil servant who began her career as a Clerical Assistant in 1969 at the University of Ibadan.
 

(ii)     The appellant transferred her service to the Oyo State Judiciary from where she subsequently moved to the Supreme Court of Nigeria as Assistant Director, Library Services in 1994.
 

(iii)    The appellant rose to the position of Director 'Library Services' of the Supreme Court of Nigeria in December, 2003.
 

(iv)    The appellant "eventually retired after 35 years of meritorious, honest and unblemished service to the judiciary and to the nation as a whole in January 2004" - paragraph I of the statement of claim.
 

(v)     Prior to the appellant's retirement on the 15th day of January, 2004, "the Federal Government of Nigeria began a Monetization Policy of fringe benefits in the Federal Civil Service which took effect from October 2003" - paragraph 12 of the appellant's statement of claim.
 

The above facts, be it noted, were not challenged nor denied by the respondents in the trial court. However, as stated earlier, notwithstanding these uncontroverted facts, the trial court failed to evaluate the evidence before it in respect of appellant's claim 1 and 2. The trial court ought to have considered all the appellant's claims. As can be seen from the appellant's claims, reproduced at the beginning of this judgment, prayers 4, 5, 6, 7 and 8 were claimed as the alternative to claims 1, 2 and 3. Assuming, without saying so, that the rights claimed by the appellant are even in conflict or inconsistent with one another, the trial court must still consider all the relief sought. The law is that a party is permitted to rely on several different claims or rights alternatively, even if the rights are in conflict. See Metal Construction (W.A.) Ltd v. Aboderin (1998) 8 NWLR (Pt.563) 538 at 547 where the Supreme Court stated as follows:
 

"It cannot be disputed either party to a suit may, in a proper case include in his pleadings alternative and inconsistent allegations of material facts, as long as he does so separately and distinctly. A plaintiff is thus entitled to plead two or more inconsistent sets of material facts and claim relief in the alternative thereunder. He may also rely on several different rights alternatively, although they be inconsistent."

 

As stated earlier, the trial court did not evaluate the evidence based on all the issues or claims before it. The lower court erroneously confined its evaluation to the issue or claim relating to Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja on the issue of vested right only and, even in doing so, the evaluation did not take into considerations all the facts, circumstances and documentary evidence of the case.

I agree with the appellant's submission that where a trial court had failed in its primary duty in properly evaluating the evidence before it, an