NIGERIA UNION OF RAILWAY WORKERS V NIGERIA RAILWAY CORPORATION

NIGERIA UNION OF RAILWAY WORKERS V NIGERIA RAILWAY CORPORATION


IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
ON THE 6TH DAY OF JANUARY, 2016


SUIT NO: NICN/LA/11/2011

CITATION: NIC (2016) 1 LLER 6

CORAM:
Hon. Justice B.A. Adejumo, OFR (President, National Industrial Court of Nigeria)


BETWEEN

1. NIGERIA UNION OF RAILWAY WORKERS

2. SENIOR STAFF ASSOCIATION OF COMMUNICATIONS TRANSPORT AND CORPORATIONS (SSACTAC)

(CLAIMANTS)

AND

1. NIGERIA RAILWAY CORPORATION

2. THE CHAIRMAN, PRESIDENTIAL IMPLEMENTATION COMMITTEE OF THE WHITE PAPER ON THE COMMISSION OF

INQUIRY INTO THE ALIENATION OF FEDERAL GOVERNMENT LANDED PROPERTY

3. THE HONOURABLE ATTORNEY-GENERAL OF THE FEDERATION

RESPONDENTS


REPRESENTATION
1. A. J. OWONIKOKO, (SAN), FOR THE CLAIMANTS, APPEARING WITH I. J. OKECHUKWU AND EMEKA OPARA

2. OLUSEGUN IDOWU, ESQ; FOR THE 1ST DEFENDANT

3. DR. OSCAR NLIAM, ESQ FOR 3RD DEFENDANT

4. NO REPRESENTATION FOR 2ND DEFENDANT

PRONOUNCEMENTS

COURT
Admission of Evidence–On the power of a court to expunge evidence wrongly admitted

I need to reiterate that they were admitted provisionally because of the Claimants’ objection. It is settled that a court has the power to reject admitted evidence or disregard or expunge such evidence at the stage of writing judgment if it comes to the conclusion that the evidence, whether oral or documentary was wrongly admitted. See the case of Nwabuoku v. Onwordi (2006) 5 S.C. (Pt. III) 103 or (2006) LPELR-2082 (SC). READ IN CONTEXT

PRACTICE AND PROCEDURE
Reply on Points of Law–On when it becomes necessary to file a reply on points of law

The purpose of a reply on points of law like a reply brief is to respond to any new point raised by the adverse party, in this case, the Claimants in their final written address. Thus, a reply on point of law is not an opportunity to re-argue the case of the 3rd Defendant as has been done in the instant case. Where a reply on point of law does not address a new point raised in the address of the adverse party, it becomes otiose and the Court can legally discountenance it. See the case of Opene v. NJC & Ors (2011) LPELR – 4795 (CA) as well as the case of Mozie v. Mbamalu (2006) LPELR-1922 (CA), p. 22, paras. A-C, per Tobi, JSC or (2006) 15 NWLR (Pt. 1003) 466. READ IN CONTEXT

JUDGEMENT

By means of a General Form of Complaint dated 14th March, 2011 and filed on 15th March, 2011, the Claimants commenced this action against the Defendants seeking the following reliefs:

1. A DECLARATION that the extant “Approved Guidelines For the sale of Federal Government Property” published on page 20 of the Daily Champion Newspaper of Monday 20th June, 2005 as well as “Generic Guidelines For the Reform of Parastatals” issued by the Bureau of Public Service Reforms in collaboration with the Bureau of Public Enterprises published by the Presidency in March 2006 is binding on the management of Nigerian Railway Corporation and the

IMPLEMENTATION COMMITTEE OF THE WHITE PAPER ON THE COMMISSION OF INQUIRY INTO ALIENATION OF FEDERAL GOVERNMENT LANDED PROPERTY in the disposal of ALL RESIDENTIAL FACILITIES (houses, flats etc) built, acquired or otherwise owned by the Nigerian Railway Corporation being an agency of the Federal Government; and the said properties are not exempted from the application of the Guidelines.

2. A DECLARATION that pursuant to paragraph 12 of the aforesaid Approved Guidelines all members of the Claimant

Union who are legal sitting tenants in the said qualified and affected properties are entitled to right of first refusal (as part of their fringe benefits) to bid for and buy the affected occupied properties before any such affected properties can be validly offered to the public to bid for and purchase.

3. A DECLARATION that any offer made to any third party or non sitting tenant employees of the 1st Defendant who are members of the 1st and 2nd Claimants unions as of the date of the commencement of this suit in respect of the residential houses and flats and other tenanted accommodation which they occupy as part of their fringe benefits, in derogation of the exercise of their rights of first refusal to purchase tenanted apartments as guaranteed by paragraph 12 of the Approved Guidelines for the sale of Federal Government Properties vested in the 1st Defendant in all its stations throughout Nigeria, is illegal and ineffectual.

4. AN ORDER compelling the Defendants to issue and avail the Claimants’ members who are legal sitting tenants in the residential houses and flats and other tenanted accommodation which they occupy as part of their fringe benefits, bidding forms to enable each of them exercise their rights of first refusal to purchase their tenanted apartments as guaranteed by paragraph 12 of the Approved Guidelines for the sale of Federal Government Properties vested in the 1st Defendant in all its stations throughout Nigeria.

5. AN ORDER setting aside any offer made to any third party or non sitting tenant employees of 1st Defendant who are members of the 1st and 2nd Claimants unions as of the date of the commencement of this suit, in respect of the residential houses and flats and other tenanted accommodation which they occupy as part of their fringe benefits, in derogation of the exercise of their rights of first refusal to purchase their tenanted apartments as guaranteed by paragraph 12 of the Approved Guidelines for the sale of Federal Government Properties vested in the 1st Defendant in all its stations throughout Nigeria.

6. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants whether acting by themselves or though their servants, agents and/or privies or whosoever acting on their behalf or authority from offering for bid to purchase, selling or disposing to the public, or ejecting such employees sitting tenants therefrom in pursuit of such sale, all or any of RESIDENTIAL FACILITIES (houses, flats etc) built, acquired or otherwise owned by the Nigeria Railway Corporation being an agency of the Federal Government and which presently are legally occupied by members of the Claimants’ unions in the employment of the 1st Defendant as legal sitting tenants, without first giving each such employee opportunity to exercise right of first refusal to purchase the said property(ies) in accordance with the Approved Guidelines.

7. AND FOR SUCH OTHER or further consequential orders as the Honourable Court may deem fit to make.

In compliance with the Rules of this Court, the Complaint was accompanied with the statement of facts, list of witnesses to be called and list of the documents to be relied upon at the trial as well as accompanying exhibits.

Conditional appearance was entered for the 1st Defendant vide a Memorandum of Conditional Appearance filed on 3rd May, 2011. Further to this, the 1st Defendant filed its statement of defence along with the list of witnesses and list of documents to be relied upon at the trial on 15th November, 2011.

Similarly, the 3rd Defendant entered appearance on protest by virtue of a Memorandum of Appearance filed on 29th April, 2011. It was sometimes in June 2013 that the Law Firm of Kenna Partners took over the defence of the 3rd Defendant. The 3rd Defendant subsequently filed its statement of defence and accompanying processes on 17th June, 2013 pursuant to an order of this Court. The witness statement on oath of the sole witness for the 3rd Defendant, Mrs A. B. Adara deposed to on 12th February, 2014, was deemed properly filed and served by an order of this Court sequel to an application made by its counsel.

It is important to mention the fact that the Claimants reacted to the step taken by the 1st Defendant by filing a reply to the 1st Defendant’s statement of defence which was filed on 30th November, 2011. It suffices to observe that the 2nd Defendant did not enter appearance or file any process.

From the pleadings, the case of the Claimants is that the Federal Government of Nigeria sometime in 2003 introduced and directed all government ministries, agencies, departments and parastatals to implement monetization of fringe benefits for civil and public servants alike. In line with its directive, the Federal Government released Generic Guidelines for the Reform of Parastatals to guide the implementation of its monetization policy. The Government through the Implementation Committee of the White Paper on the Alienation of Federal Government Landed Property also directed parastatals to accord a right of first refusal to their staff members already occupying official government residential houses/quarters before such houses are offered for sale to third parties. The Claimants claim that the 1st Defendant has failed to implement the monetization policy as it relates to its official residential quarters despite the fact that it has not been exempted from the implementation of the directive and/ or policy.

The Defendants confirmed the introduction and implementation of the monetization policy by the Federal Government of

Nigeria. It however argues that the 1st Defendant was exempted from the implementation of the policy as it relates to its official residential quarters. The Defendants made the case that the peculiar operational services offered by the 1st Defendant prompted the Federal Government of Nigeria to exempt it from monetizing the residential quarters occupied by its staffers.

Hearing commenced on 24th January, 2012. The Claimants called their first witness, one Mr. Ralph Okoro who testified as CW1. He was sworn on oath with the Holy Bible and described himself as a public servant living at 23 Federal Road, Railway Compound, Ebute Meta, Lagos. CW1 informed the Court that he is the President General of the 1st Claimant. He stated that the 2nd Claimant is a trade union. He informed the Court that sometime in 2003, the Federal Government introduced monetization policy for all Federal Government ministries, parastatals and extra-ministerial agencies. CW1 testified that the monetization policy did not affect the Nigerian Railway until 1st October, 2005. He further testified that circulars were issued and sent to all government ministries and agencies on the implementation of the policy.

CW1 stated that there was a generic guideline on the full implementation of the policy. He testified that the policy was fully implemented by parastatals but that 1st Defendant only implemented aspects of the monetization policy on official cars and telephone but did not implement the aspect dealing with monetization of official quarters. CW1 stated that the Claimants wrote a letter to the management of the 1st Defendant demanding full implementation of the policy on monetization.

CW1 testified that members of the 1st and 2nd Claimants were not given the right of first refusal to purchase the residential quarters they occupied as legal sitting tenants. CW1 informed the Court that while negotiations were still on-going between members of the Claimants and the 1st Defendant, some members of the Claimants who were about to retire but who were affected by the policy were also being ejected from their official quarters. It was the testimony of CW1 that the Claimants declared a trade dispute with the 1st Defendant on 15/11/2010 due to the fact that the 1st Defendant did not listen to their complaints.

Learned counsel for the 1st Defendant objected to the tendering and admissibility of the photocopy of the monetization policy by the Claimants. The ground of the objection was that the document being a public document was not certified as required by the Evidence Act. After listening to arguments on the objection, the document was admitted in evidence by the Court pursuant to section 12(2)(b) of the National Industrial Act, 2006. The Court agreed with the position of the Claimants that admitting the said document would be in the interest of justice. The photocopy of the monetization policy was therefore admitted and marked as Exhibit A.

Other documents were thereafter tendered by the Claimant and admitted in evidence as Exhibits without any objection. However, the 1st Defendant through its counsel successfully objected to the admissibility of a letter of retirement written by the 1st Defendant and addressed to one Mr. Raimi Rotimi. The ground of the objection was that the Claimant ought to tender the original letter since no foundation was laid on the whereabouts of the said original of the letter. The Court upheld the objection raised by counsel for the 1st Defendant. The document was accordingly marked as Rejected 1.

Learned counsel for the 1st Defendant also objected to the admissibility of the photocopy of the Daily Champion Newspaper publication of Monday, June 20, 2005. The publication is titled Implementation Committee of the White Paper on the Commission of Inquiry into the Alienation of Federal Government Property in Lagos. The ground of the objection was that learned counsel for the Claimants ought to have tendered its original and not photocopy. After listening to arguments from counsel on the objection, the Court upheld the objection by learned counsel for the 1st Defendant. Consequently, it was marked Rejected 2.

Similarly, the objection by learned counsel for the 1st Defendant to the admissibility of the document captioned Committee on the Sale of NPA Landed Assets was upheld by the Court. The ground of the objection was that the said document does not bear the name and signature of its author. The document was marked Rejected 3. CW1 urged the Court to direct the Defendants to give members of the Claimants the 1st option to their official quarters as was done in other parastatals.

CW1 was cross-examined by learned counsel for the Defendant on 25th June, 2012. Under cross-examination, CW1 stated that he joined the services of the 3rd Defendant on 2nd June, 1989 as a Clerical Officer but presently a Principal Executive Officer II. He maintained that he has put in 31 years of service and is therefore very familiar with the operations of the 1st Defendant. According to the witness, the 1st Defendant provides transportation services and carries passengers and goods throughout the country. He stated that he did not agree that there are differences in the operations of the 1st Defendant and other parastatals mentioned because he only works for the 1st Defendant.

CW1 agreed that the only aspect of the monetization policy that has not been implemented is the one relating to official quarters. He informed the Court that the 1st Defendant did not give any reason why it has not implemented the monetization of official quarters to members of the 1st and 2nd Claimants. CW1 informed the Court that they have had

several meetings with the management and board of the 1st Defendant on the issue to no avail. According to CW1, members of the Claimants did not agree with the suggestion made by a former Chairman of the Board of the 1st Defendant, Dr. Haliru Bello that he was going to influence the Federal Ministry of Transport [FMT] to look for land in Abuja and the 7 Districts where the 1st Defendant had headquarters. CW1 stated that members of the Claimants requested the Chairman of the Board to allow them to exercise their rights of first refusal as provided for in the policy.

Under cross-examination, CW1 stated that as promised, the Chairman of the Board proceeded to write a letter to FMT requesting for the allocation of land. He stated that the FMT replied stating that allocating such land would be against the monetization policy of the Federal Government.

On the alleged sale or lease of some of the quarters occupied by members of the 1st and 2nd Claimants, CW1 stated that he has no proof that the quarters occupied by members of the Claimants were being sold or leased. He however informed the Court that he knows some of the official quarters of the 1st Defendant that have either been sold or leased when they were still been occupied by members of the Claimants. He specifically stated that in Port Harcourt, Rivers State, quarters 48, 49 and 50 Forces Avenue, Old GRA have been sold or leased even though they were occupied as at the time of such sale or leasehold.

The Claimants called their 2nd witness (CW2), Ifeoma Patricia on 22nd March, 2013. She was on subpoena. CW2 was sworn on oath with the Holy Bible. She described herself as the Company Secretary/Legal Adviser of the 1st Defendant. She stated that she has worked with the 1st Defendant for 29 years and has been its Company Secretary for 19 years.

CW2 stated that she is aware of the monetization policy affecting the salaries, vehicles and residential quarters of civil servants. She also informed the Court that the 1st Defendant has implemented the aspects of the policy on salaries and vehicles. The witness stated that the Board of the 1st Defendant did not approve the implementation of the aspect of the policy relating to official residential quarters occupied by its staffers. CW2 confirmed that the implementation of the monetization policy is governed by circulars. She further stated that she has seen the Approved Guidelines for the Sale of Federal Government Properties in Lagos. A certified copy of the Approved Guidelines on the Sale of Federal Government Properties in Lagos was tendered through CW2 and admitted in evidence as Exhibit G – G3. There was no objection to the admissibility of Exhibit G – G3.

CW2 stated that she lives in an official quarters at Railway Compound Ebute Metta, Lagos, and that it has not been monetized to her as a staff of the 1st Defendant. She further admitted that she has not advised the 1st Defendant on the implementation of the sale of residential quarters to its staff. She stated that at a meeting of the Board of the 1st Defendant, it was resolved that the staff quarters of the 1st Defendant should not be monetized because of the peculiar nature of its operations.

CW2 testified that she is aware that certain government ministries and parastatals are exempted from the monetization policy as it affects residential quarters and that she has sighted the list containing exempted ministries and parastatals. She also stated that she has seen Exhibit B which was issued by FMT and addressed to the Managing Director of the 1st Defendant. She informed the Court that the date on Exhibit B is 10th April, 2006. The witness informed the Court that Board meeting of the 1st Defendant where a decision that residential staff quarters of the 1st Defendant should not be monetized was held after it has received Exhibit B.

CW2 identified Exhibit D and identified the date on the letter to be 1st April, 2011. She stated that she cannot remember the 1st Defendant ever implementing the monetization policy in respect of residential quarters as from the date on Exhibit D.

CW2 was cross-examined on 30th May, 2013 and she informed the Court that she has been the 1st Defendant’s Company Secretary since 1994. She stated that being the Company Secretary, she is also a member of the Board of the 1st Defendant. She admitted that after an extensive discussion of the monetization policy in one of the meetings of the Board, a decision not to approve the monetization/sale of its staff residential quarters was taken. She explained that the decision was based on the peculiar operational nature of the business of the 1st Defendant. She also informed the Court that one of the decision taken at the Board meeting was that its management should purchase land and sell to the affected workers.

CW2 further informed the Court that part of the resolutions taken at the meeting of the Board of the 1st Defendant was that the Board should apply to the Federal Government for a waiver in respect of the policy on monetization of its staff quarters. She admitted that she did not do anything in furtherance of the resolution of the Board on waiver. She however informed the Court that the MD of the 1st Defendant did an application to the Presidency through FMT, which is the supervising ministry. According to her, the 1st Defendant wrote to the Hon. Minister of Transport on the request for a waiver, and that the Hon. Minister replied to the letter.

CW2 confirmed that she saw the approval given to the request for a waiver made by the 1st Defendant from the

correspondence sent to its MD. She informed the Court that the resolution of the Board of the 1st Defendant not to implement the monetization policy as it affects its staff residential quarters was taken before the Claimants commenced this action.

CW2 was discharged at the end of cross-examination.

On the 5th day of June, 2014, the Court directed the 1st Defendant to make sure that its witness, Mrs Antonia B. Adara deposes to a witness statement on oath as required by the Practice Direction 2012. This was done on 11th June, 2014. The 1st Defendant thereafter opened its defence on 20th July, 2014 by calling its sole witness, Mrs Antonia Adara (DW1), who was sworn on oath with the Holy Bible. DW1 stated that she works with the 1st Defendant as Chief Industrial Relations and Welfare Officer. She informed the Court that she has worked with the 1st Defendant for 24 years and knows much about the 1st Defendant. DW1 adopted her witness statement on oath as evidence before the Court. It was tendered and admitted as Exhibit DW1 A – DW1 E.

DW1 also informed the Court that she is a member of the Claimants unions. Two documents: the Minutes of the meeting between the MD of Nigerian Railway Corporation (NRC) and the two in-house unions held on 20th November, 2010 and the minutes of the meeting between the management of NRC and the two in-house unions held on 31/05/2011 were admitted in evidence and marked as Exhibit DW1 F – DW1 P and Exhibit DW1 Q – DW1 W respectively.

It is important to mention the fact that Mrs Antonia Adara also testified as a witness for the 3rd Defendant and was therefore led in evidence by learned counsel for the 3rd Defendant as DW2. The witness equally identified her witness statement on oath deposed to on 12/02/14 and adopted it as her evidence before the Court. It was tendered and admitted in evidence as Exhibit DW2A – DW2E. A copy of the document titled Approved Guidelines for the Sale of Federal Government Property in Lagos dated June 2005 and published in the Daily Champion Newspaper of June 20, 2005 was also admitted in evidence as Exhibit DW2F – DW2G.

However, it is apt for me to mention that an application made by learned counsel for the 3rd Defendant to tender in evidence the bundle of the documents referred to in paragraphs 12, 13, 14 and 21 of Exhibit DW2F – DW2G was strongly objected to by Claimants’ counsel. The Court heard arguments on the propriety or otherwise of admitting these documents. In a considered ruling, the Court decided in favour of admitting the documents at that stage with a caveat that the probative value to be attached to them would be determined when writing the judgment. The Court was of the opinion that admitting a document does not necessarily mean that such document is of considerable evidential value.

Consequently, the following documents were admitted in evidence despite the objection raised by learned counsel for the Claimants:

• Exhibit DW2H, which is a document, dated 6th May, 2009 captioned Decisions/Directives from NRC Board Meeting No. 210 dated 8th April, 2009.

• Exhibit DW2L, which is a document Ref. No. SGF.19/S.47/C.1/Vol. VI/249 dated 20th April, 2012 and signed by Anyim Pius Anyim, GCON, Secretary to the Government of the Federation.

• Exhibit DW2P, which is a document on the letter head paper of FMT, Ref. T. 0062/S. 16/T4A/316 dated 14th May, 2012.

• Exhibit DW2Q which is a document dated 2nd May, 2012 with the caption “RE: Exemption from Implementation of Monetization of Government Quarters as it affected the Nigerian Railway Corporation (NRC).

• Exhibit DW2A1 – DW2A32 which is a document titled “Nigeria Public Service Reform Generic Guidelines for the Reform of Parastatals”.

It is pertinent to observe that DW2 was cross-examined on 2nd December, 2014. Under cross-examination, DW2 admitted that she was not yet occupying her present position of Assistant Director, Administration/Industrial Relations & Welfare as at the time she deposed to her witness statement on oath. She also stated that she was not attending management meetings as at the time she deposed to the said witness statement on oath.

DW2 informed the Court that the policy on monetization was officially communicated to her. She also stated that the general policy of the Federal Government on monetization is not applicable to the 1st Defendant. DW2 admitted that FMT is the supervising ministry of the 1st Defendant. She also affirmed that Exhibit D which was addressed to the MD NRC was written on the letter head of its supervising ministry, that is, FMT.

DW1 admitted that the paragraph of Exhibit D she read out in the Court showed that the monetization policy is applicable to the 1st Defendant but with a caveat to the request made by its MD. She stated that as a parastatal or agency of the Federal Government, any policy made by the Federal Government must be applicable to the agency or parastatal subject to any request made by such agency as to the convenience of implementing the policy. In response to a question, DW1 stated that the 1st Defendant has not implemented the monetization of its staff quarters.

The witness for the 1st and 3rd Defendants was re-examined by counsel for the 3rd Defendant and she stated that the

convenience has to do with the fact that the NRC renders a peculiar transport service to the public.

The defence closed its case at the end of cross-examination and the Court directed the parties to file their final written addresses.

The parties in this case adopted their final written addresses on 12th November, 2015. Learned counsel for the 3rd Defendant adopted final written address as argument of the 3rd Defendant in the matter. He also adopted the reply on points of law as supporting argument and reply in defence of the Suit. On behalf of the 3rd Defendant, counsel urged the Court to dismiss the case on the ground that the Claimants have failed to discharge the burden of proof placed on them by law. Learned counsel submitted that the Claimants are not entitled to the reliefs being sought.

Learned counsel for the 1st Defendant adopted its final written address dated 14/04/15 as argument in defence of the case. The Court was urged to dismiss the case with substantial cost against the Claimants.

The learned Silk who appeared for the Claimants adopted their final written address filed on 22/06/15 and urged the Court to uphold the case of the Claimants. The Court was invited to grant the reliefs sought by the Claimants. It is pertinent to observe that 2nd Defendant in this case was not represented throughout the trial. It is also worthy of note that no final written address was filed by the 2nd Defendant.

At this juncture, I will review the submissions made by the parties in their respective final written addresses.

In its final written address settled by Dr. Fabian I. Ajogwu, SAN, with Dr. Oscar Nliam, Charles Nwabulu, Esq., Uzoezi Umukoro (Miss), and Nimma Jo-Madugu (Miss), two issues were distilled for determination as follows:

1. Whether all the documents relating to the exemption of the 1st Defendant’s staff quarters from the application of the monetization policy including Exhibit DW2 0 – P and Exhibit DW1 O – Q are evidence created and obtained in anticipation of this suit as to be inadmissible or affected as to weight.

2. Whether in the circumstances of this case, the Claimants are entitled to the reliefs sought in this case.

ARGUMENT OF ISSUE NO. 1

Learned counsel for the 3rd Defendant referred to section 83(3) of the Evidence Act 2011 which states that:

“Nothing in this section shall render admissible as evidence any statements made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.” Learned counsel highlighted three points in relation to the provision reproduced above. Firstly, learned counsel contended that the statement to be tendered must not have been made a person interested. Secondly, the statement must not have been made at a time when proceedings are pending or anticipated. Thirdly, for such a statement to be inadmissible, it must involve a dispute which it might tend to establish. In support of this principle of law, counsel referred to the case of Susano Pharm. Co. v. Sol Pharm Ltd (2003) 13 NWLR (Pt. 837), 451, paras. A-F., as well as the case of H.M.S Ltd. v. First Bank (1991) 1 NWLR (Pt. 168), 312, paras. G-H wherein the Supreme Court, per Karibi-Whyte, JSC (of blessed memory) interpreted section 90(3) of the old Evidence Act which is now section 80(3) thus:

“The general principle is that a document made by a third party to a litigation or a person otherwise interested when the proceedings are pending or is anticipated is not admissible. Thus the provision of section 90 (3) of the Evidence Act excludes documents made in anticipation of litigation by a person not personally interested in the results of the litigation.”

Relying further on the case of H.M.S. Ltd (supra) at Pp. 312-313, paras. H-A; C-D, learned counsel submitted that the apex Court defined the nature of disqualifying interest that ‘a person interested’ must have as follows:

“The interest disqualifying a person as a ‘person interested’ under section 90 (3) of the Evidence Act is a personal interest and not merely interest in an official capacity. Thus, where the maker is purely official or as a servant, without a direct interest of a personal nature, the document is thereby excluded… Before there will exist a disqualifying interest, or

a person will be regarded as “a person interested” there must exist a real likelihood of bias. Hence, where an official makes a document in the course of discharging a ministerial duty which does not involve any personal opinion, the question of bias will not be in issue. Such document will be admissible under section 90 (3) of the Evidence Act.” Learned counsel further referred to the exposition of the subject in the same case of H.M.S Ltd. (supra) at Pp. 307 – 308, paras. F-A; 313, paras. A-B, where the Court stated that:

“A person is held not to be an interested person under section 90 (3) of the Evidence Act when he has no temptation to depart from the truth on one side or the other: i.e, a person not swayed by personal interest but one who is completely detached, judicial, impartial and independent,,,the nature of the disqualifying interest will depend upon the nature of the duty undertaken by the servant. Where from the nature of the duty he can be relied upon to speak the truth, and that will not be adversely affected thereby, the document has always been admitted in evidence. This is because the rationale of the provision is that he must be “a person who has no temptation to depart from the truth on one side or the other – person not swayed by personal interest but completely detached, judicial, impartial, independent.”

Similarly cited and relied upon by counsel for the 3rd Defendant is the case of U. T. C. Plc v. Lawal (2014) 5 NWLR (Pt. 1400) 221 at 241-242, where it was held that a person interested is one who has personal or pecuniary or other material interest in the result of the proceedings; whose interest is affected by the result of the proceedings, and therefore would have a temptation to pervert the truth to serve his personal or private ends. It is not merely official interest or as a servant or employee without a direct interest of a personal nature.

Based on the submission of learned counsel, what makes a statement or document inadmissible during the pendency or in anticipation of a suit is where the maker is personally interested. It was argued that Exhibit DW1 O – P, Exhibit DW1 O – Q and other documents that are relevant to the issue in contention originated from the 1st Defendant, the Federal Government of Nigeria and the Minister of Transport. It was further submitted that the documents were issued after a careful examination of all the issues and the request for exemption from the monetization policy made by the 1st Defendant. The argument was made by counsel that the documents were issued by these agencies in their official capacity while performing their official duties as custodians of the country’s economy.

It was emphasized that the Federal Minister of Transport and the Secretary to the Government of the Federation in Exhibits DW2 R – S and DW2 L – N, respectively explained the rationale behind the exemption granted to the 1st Defendant. That the exemption was premised on the need for proper running of the operations of the 1st Defendant especially in view of intention to overhaul the rail system in the country coupled with need for every staff to attend to duty at any and every hour as might be dictated by operational needs. And that Chapter 9 of Exhibit F acknowledges that the peculiar nature of the operations of the 1st Defendant may require its staff to reside within the vicinity of their workplace. According to learned counsel, it is not logically convincing to argue that the Federal Government or the Minister of Transport have personal interest in the implementation of the monetization policy as it relates to the residential quarters of the 1st Defendant or even in the outcome of this case. That the Federal Government approved the request for exemption after exhaustively and objectively examining it and realizing that it was in the best interest of the public to approve same. The attention of the Court was drawn to the fact that the Claimants have failed to adduce any evidence to show that either the Federal Government or the Minister of Transport have any personal interest to gain. That the Claimants have not led evidence to show likelihood of bias on the part of the Federal Government or the Minister of Transport as both of them were public officials carrying out their official duties.

Learned counsel for the 3rd Defendant posited that the refusal of this Court in its previous ruling referred to by the Claimants to allow the 1st Defendant to bring in these documents was because of the procedure it adopted; It was noted that the 1st Defendant sought to amend its defence and also introduced the documents in issue which the Court rejected. Thus, counsel submitted that there is a difference between the application made by the 1st Defendant and the procedure adopted by the 3rd Defendant. It was submitted that the refusal of the earlier application made by the 1st Defendant was not based on admissibility under section 90 (3) but that the application, if allowed, would prejudice the Claimants.

It was submitted for the 3rd Defendant that the documents in contention were not obtained during the pendency of this case or in anticipation of litigation as canvassed by the Claimants. Thus, the processing of exemption for the 1st Defendant it was argued, commenced before this case was instituted. That the application for exemption was made in 2009 while this suit was filed in 2011. The Court was urged to take cognizance of the testimony of CW2, the 1st Defendant’s Secretary, who testified that she attended a meeting of the Board of the 1st Defendant as a member where it was resolved that the 1st Defendant should seek a waiver or exemption from the monetization of residential quarters. It was pointed out that CW2 testified that the resolution of the Board not to implement the monetization policy as it relates to the staff quarters of the 1st Defendant was taken before the Claimants commenced this action.

For the 3rd Defendant, it was posited that the letters conveying the exemption is not caught up by section 83(3) of the Evidence Act 2011. Counsel maintained that even if the exemption was made during the pendency of this case (which is not the case), the persons and institutions involved in obtaining the exemption had “no temptation to depart from the truth” and were “not swayed by personal interest, but completely detached, judicial, impartial, independent.” On this principle of law, counsel referred once more to H.M.S Ltd. v First Bank Plc (supra) p. 313, paras. A – B.

It was argued that the Court can rightly admit and rely on these documents because the process for obtaining them commenced on April 8, 2009; that is, two years before this action was instituted. ARGUMENT OF ISSUE NO. 2

Whether in the circumstances of this case, the Claimants are entitled to the reliefs sought in this case.

It was argued for the 3rd Defendants that the Claimants are not entitled to any of the reliefs sought. Consequently, counsel for the 3rd Defendant addressed each head of the reliefs as follows:

That contrary to relief 1 the documents relied upon by the Claimants are not binding on the defendants and the

properties at the 1st Defendant’s quarters are exempted from the application of the monetization policy.

Learned counsel submitted that the Black’s Law Dictionary, 7th Edition, and the Chambers English Dictionary respectively define the word “exempt” to mean “free or release from a duty or liability to which others are held and “to free, or grant immunity; not liable.” Learned counsel further relied on the case of Iniama v. Akpabio (2008) 17 NWLR (Pt.

110) 154, paras. D – E, where the Court held that the word “exclude” as a verb literally means to prevent somebody from entering somewhere or being involved in something; to keep somebody out.

Also relied upon by counsel for the 3rd Defendant is the case of Peter v David (1999) 5 NWLR (Pt. 603) 497, paras. F – G, where the Court held that an exclusion clause is one which prohibits or nullifies the operation of a particular provision or statute. An exclusion clause must be clear and specific as to what it excludes, prohibits, or nullifies. It was further submitted that an exemption clause in a document simply exempts some persons from its application and usually made to accommodate the interests of certain parties.

It was submitted that Exhibits A, B, and G-G3 were issued by the Federal Government of Nigeria [FGN] to apply to all government ministries, departments, agencies and parastatals. That Exhibit B introduced the guidelines for the monetization of all fringe benefits of the staff in the public service while Exhibit G-G3 provided for the sale of the residential facilities owned by ministries, agencies and parastatals. It was further submitted that Exhibit G-G3 created an avenue for the exclusion of certain properties from its application.

Specific reference was made to paragraph 16 (v) of Exhibit G-G3 which states that:

“For special, diplomatic or statutory reasons, the following properties shall be exempted from sale i)………………………………..

ii)…………………………………

iii)………………………………..

iv) Properties excluded from sale by Government directives.”

Learned counsel submitted that in year 2009 and year 2012 the 1st Defendant applied for an exemption from the monetization of its residential quarters. The reason being that doing so would jeopardize its operations. That the exemption was granted on 2nd May, 2012 based on the rationale put forward by the 1st Defendant. Learned counsel submitted that this much was confirmed by CW2 (Ifeoma Patricia Onyeabor) who testified that the monetization policy had been implemented in respect of salaries and vehicles. That CW2 testified that the Board of the 1st Defendant at its meeting decided not to monetize its staff residential quarters but to purchase land and sell to the affected staff.

Furthermore, counsel submitted that the FGN that introduced the monetization policy by Guidelines also has the power to exempt some ministries and agencies such as the 1st Defendant from its application. It was argued that the exemption granted to the 1st Defendant is in the character of a government directive and operates to prevent it from monetizing its staff residential quarters. The Court was urged to hold and resolve that the exemption was legally granted by FGN. It was therefore submitted that the Claimants’ case that the monetization policy as it relates to the monetization of the staff quarters of the 1st Defendant cannot stand.

In view of the foregoing submissions, the Court was called upon to refuse relief 1 sought by the Claimants.

Learned counsel for the 3rd Defendant submitted that the CTC of the Minutes of Meeting of 1st Defendant’s Board evidencing the decision of the Board to seek exemption from the monetization of its staff residential quarters could not be tendered along with the other documents because it was obtained from the authority with proper custody after the 3rd Defendant had finished tendering the documents. That the CTC of the said Minutes of meeting were forwarded to the Claimants and other Defendants on 20th October, 2014. Learned counsel submitted that the Claimants were therefore not taken by surprise because the case did not come up until 2nd December, 2014; that is, more than 40 days after the CTC of the Minutes were sent to the Defendants. It was further submitted that the CTC of the Minutes should have been admitted.

That contrary to reliefs 2, 3 and 4, the Claimants’ members are not entitled to right of first refusal of 1st Defendant’s properties occupied by them.

It was submitted for the 3rd Defendant that rights are conferred by contract, legislation or custom and that a right does not accrue merely from the existence of a relationship. The argument was made that the right of first refusal was conferred on the 1st Claimant by paragraph 12 of he Approved Guidelines subject to the condition that property in question has not been excluded from sale by FGN. It was submitted that there is no obligation on the 1st Defendant to provide the Claimants with any bidding or applications forms because the properties in question had been exempted from sale.

Counsel argued that the principal claim of the Claimants is that FGN’s monetization policy as it relates to residential facilities applies to the 1st Defendant and that every other relief flows from this. It was submitted that the application of

the monetization of the residential quarters has been excluded and that the right of first refusal does not arise owing to the exemption. Learned counsel referred to the principle that once the principal claim fails, all other ancillary claims must fail as well.

Learned counsel cited the case of Atie v. Kabelmetal (Nig) Limited (2008) 10 NWLR (Pt. 1195) p. 414, paras. E – H, per Tabai, J.S.C., as authority for the proposition that the Claimants do not have a right of first refusal because it is ancillary to the principal claim that the 1st Defendant has not been legally exempted from the application of the monetization policy as it relates to its residential quarters.

Learned counsel agreed that although the conditions of service for the 1st Defendant’s senior and junior staff entitle them to occupy staff quarters as of right during service. He however, submitted that the said conditions of service do not confer on them the right to purchase such occupied quarters which had been exempted from the application of the Approved Guidelines.

Learned counsel submitted that contrary to reliefs 5 and 6 the Claimants are not entitled to an order of the Court setting aside any offer made to any third party or non-sitting tenant employees or a perpetual injunction restraining the Defendants from offering for bid to purchase, selling or disposing to the public, or ejecting such employees.

It was submitted for the 3rd Defendant that the residential quarters in question were never at any time sold to anybody at all, and that there is no plan to sell the quarters. The Court was invited to note that not every Federal Government agency or ministry implemented the policy on monetization of fringe benefits including sale of houses to the occupiers. Learned counsel also noted that members of the claimants in occupation of these quarters are not at the risk of ejection from the facilities as alleged. Learned counsel stated that the Claimants did not provide any evidence showing that they are about to be ejected or that the quarters are being sold. It was submitted that the Court cannot make an order setting aside any purported sale of any houses because no such sale took place. In this regards, learned counsel relied on the case of PPA V. INEC & Anor (2012) 12 NWLR (Pt. 1317) 215 S.C., where the Supreme Court held that the Court will not grant a relief that is of no use to the applicant. Also cited was the case of Chief Victor Umeh & Anor v. Professor Maurice Iwu & 30 Ors (2007) 6 NWLR (Pt. 1030) 416.

It was submitted that the 1st Defendant does not have the plan to sell the staff residential quarters or eject members of the Claimants union therefrom. In view of this fact, it was submitted that the relief of a perpetual injunction restraining the Defendants from offering for bid to purchase, selling or disposing to the public, or ejecting such employees cannot be granted. The point was made that there has never been any real likelihood of such sales or ejection. On this point, learned counsel cited the case of Anyanwu v. Uzowuaka (2009) 13 NWLR (Pt. 1159) 445 at 489-490, paras. H-B. In this case, the Court of Appeal held that perpetual injunction is based on a final determination of the rights of parties and intended to prevent permanent infringement of those rights. It is intended to obviate the necessity of initiating action in respect of every such infringement.

Also cited is the case of Amos v. Okpara (2006) 8 NWLR (Pt. 983) 642 at 655, paras. E-F, where the Court of Appeal held that an order of perpetual injunction should not be granted to preserve a proposal that may be or may not be but rather a settled state of facts. Learned counsel posited that the position of FGN is that it would be against public interest to sell government residential quarters that are close to government agencies to staff because when they retire, they will remain in the houses while new employees will be forced to look for accommodation in distant places.

Learned counsel argued that the Claimants have not discharged the burden of proof placed upon them. The Claimants, it was argued, bear the burden of proving that their claims are valid and true; and that their reliefs should be granted. In this respect, learned counsel posited that he who asserts must prove what he claims. In support of this principle, counsel referred to the cases of Achor v. Adejoh (2010) 6 NWLR (Pt. 1191) p. 577, paras. E-H; Otanma v Youdubagha (2006) 2 NWLR (Pt. 964) 337 and Onisaodu v. Elewuju (2006) 13 NWLR (Pt. 998) 517.

Furthermore, it was submitted that the burden of proof is on the party who substantially asserts the affirmative of an issue and who would fail if no evidence were adduced. The point was made that this burden is fixed and does not shift. For the 3rd Defendant, it was submitted that where a party, whether plaintiff or defendant has failed to discharge the evidential burden against him, the decision must be against him. Learned counsel cited the case of Ogboru v. Uduaghan (2011) 2 NWLR (Pt. 1232) p. 546 in support of this principle of law.

Also cited by learned counsel for the 3rd Defendant is the case of Ejiniyi v. Adio (1993) 7 NWLR (Pt. 305) 320 at 330, where the Court held thus:

A man cannot be expected to prove a negative assertion. The Latin saying sums up the matters as follows: “Ei incumesit probation, qui decit, non qui negat, cum per natura in factum negates probitio nullas sit” Meaning –“the proof lies upon him who affirms, not upon him who denies since by the nature of things he who denies a fact cannot produce any proof”. The burden of proof ultimately lies with the Claimant who seeks declaratory reliefs, it was submitted. On this point,

learned counsel cited the case of Ayanru V. Mandilas Ltd (2007) 10 NWLR (Pt. 1043) 478, paras. C-D. It was contended for the 3rd Defendant that the Claimant must succeed on the strength of his own case and not on the weakness (if any), of the Defendant’s defence. In support of this proposition, learned counsel referred to the case of Uwaifo v. Uwaifo (2005) 3 NWLR (Pt. 913) Pp. 507-508 where the Court held that the plaintiff can only succeed on the strength of his case and not on the weakness of the defence unless he finds in the evidence of the defence facts which strengthen his own case.

Learned counsel for the 3rd Defendant submitted that the Claimants have failed to prove that the monetization policy as it relates to sale of houses applies to the 1st Defendant and that it has failed to implement same. Furthermore, that the Claimants have failed to prove that the exemption or waiver granted to the 1st Defendant is illegal or invalid or unlawfully obtained. It was similarly submitted that the Claimants have not been able to prove that the 1st Defendant unlawfully retrenched its staff and sold the staff quarters to third parties who are not its staff.

It was submitted for the 3rd Defendant that it has successfully established by evidence that the 1st Defendant lawfully obtained exemption from the application of the policy on monetization as it relates to sale of its staff quarters. And that the 3rd Defendant provided evidence showing that the Claimants frustrated efforts to provide them with alternative accommodation or to have the matter settled alternatively.

A strand of the defence of the 3rd Defendant is that the Claimants have not shown that they are legal entities that can sue and be sued. It was further submitted that the Claimants have not shown that they have the authority to sue on behalf of their members.

The Court was urged to hold that the Claimants have failed to provide cogent evidence in proof of their claims as required by law. In other words, that the Claimants have failed to prove their case.

I will now turn to the final written address of the 1st Defendant dated 14th day of April, 2015 and settled by A. A.

Adedeji, Esq., and O. A. Idowu, Esq. the 1st Defendant formulated two issues for determination as follows:

1. Whether in view of the facts, circumstances and totality of the evidence led, the Claimants are entitled to the reliefs set out in their General Form of Complaint filed on the 15th day of March, 2011, particularly reliefs 2, 3 and 5.

2. Whether the Claimants’ claim, particularly reliefs 1, 4 and 6 as set out in the General Form of Complaint are grantable by this Honourable Court in view of Exhibit DW2 0-P.

ARGUMENT OF ISSUE NO. 1

It was submitted for the 1st Defendant that the reliefs sought by the Claimants, particularly reliefs 2, 3 and 5 are premised on two wrong assumptions or allegations. Firstly, that the Claimants alleged without adducing evidence that the 1st Defendant was retiring its employees without paying their fringe benefits. Secondly, that the Claimants wrongly alleged without any shred evidence that the 1st Defendant was selling its occupied and non-occupied staff quarters to persons who are not its employees. Learned counsel reiterated the principle that an averment in pleadings does not translate into evidence and must therefore be established by evidence unless the opposing party has admitted the same. In support of this assertion, learned counsel cited the following cases. It was argued that the failure of the Claimants to lead evidence in proof of the allegations made in their pleadings means that the pleadings had been abandoned. The following cases were cited:

– Akinfosile v. Ijose (1960) S.C.N.L.R. 4;

– Obinlami Brick and Stone Ltd v. A.C.B. Ltd (1992) 3 NWLR (Pt. 229) 260; and – Anyah v. A.N.N. Ltd (1992) 6 NWLR (Pt. 24)

Also referred to is the case of Vanderpuye v. Gbadebo (1998) 3 NWLR (Pt. 541) 271 at 279. The Supreme Court, per Belgore J.S.C., held thus:

“The purport of pleadings is to let the adversary know the case he is to meet. As pleadings state clearly facts upon which a party relies for his case, he is bound to present before the court evidence in support of those facts only and nothing more. However, where a party departs from facts pleaded by him and offers evidence on matters not pleaded, that evidence will go to no issue and must be disregarded by the trial court if it had inadvertently received such evidence. This is because cases must only be determined only on legally received evidence. Woluchem & Ors v. Gudi & Ors (1981) 5 S.C. 291 at 319, 320; George & Ors v. Dominion Flour Mills Ltd. (1963) 1 All N.L.R. 71, 771; (1963) S.C.N.R. 117; Emegokwe v. Okadigbo (1973) 4 S.C. 113; British India Insurance Co. Ltd. v. Thawardes (1978) 3 S.C. 143”. Learned counsel further referred to the case of Chief L. Oyelakin Balogun v. Alhaji Busari Amubikanhun (1985) 3 NWLR (Pt. 11) 27. It was submitted for the 1st Defendant that the Claimants merely pleaded that the 1st Defendant offered its staff quarters for sale to third parties but adduced no evidence in support. That having failed to provide any evidence to establish the allegation, the Claimants are deemed to have accepted the traverse in the pleadings of the 1st Defendant. See the case of Basheer v Same (1992) 4 NWLR (Pt. 236) 401; Woluchem v Gudi (supra) cited by the 1st Defendant’s

counsel.

It was posited that the pleaded but unsubstantiated allegations that the 1st Defendant has illegally sold its staff quarters to third parties; and that their members are facing threats of ejection are mere speculations to which the Court should not accord any regard. On this point, counsel cited the case of Odumeru v. Adenuga (2000) 12 NWLR (Pt. 682) 466. In this respect, the Court was urged to strike out the claim of the Claimants, particularly, reliefs 2, 3 and 5. ARGUMENT OF ISSUE NO. 2

On behalf of the 1st Defendant, it was submitted that arising from the state of pleadings and evidence before the Court, it is glaring that the monetization policy except with respect to the sale of its staff quarters was fully implemented by the 1st Defendant. And that the reason why it did not implement the monetization policy on sale of its staff quarters was because it would have implications for its operations which is of peculiar nature.

Learned counsel for the 1st Defendant referred to the testimony of CW2 (subpoenaed by the Claimants), and submitted that her evidence shows: that the Board of the 1st Defendant resolved not to implement the monetization of its staff quarters; that the rationale behind this resolution was that it would adversely impact on the operations of the 1st Defendant; that the resolution of the Board was passed before the Claimants commenced this action; that in furtherance of the resolution of the Board, the MD of the 1st Defendant wrote a letter to the Minister of Transport asking for waiver from the implementation of the policy of monetization of its staff quarters.

It was submitted on behalf of the 1st Defendant that its two previous attempt to bring in the letters dated 20/04/12; 02/05/12 and 14/05/12 conveying the exemption granted to the 1st Defendant were refused by the Court. That the Court refused the introduction of these documents on the ground that they were made during the pendency of this suit. Learned counsel submitted that the same documents were later admitted in evidence through DW1 (Mrs Antonia Adara), who testified for the 1st and 3rd Defendants. In the estimation of counsel, the refusal of the Court to allow the 1st Defendant to introduce these documents at an amendment stage means that the 1st Defendant was shut out and thereby denied fair hearing. It was contended that where an amendment is necessitated by events which occurred after the action was filed in court and where the events are discovered to have materially affected the claim of the plaintiff, it is proper to allow such an amendment to incorporate the subsequent events. On this point, counsel cited the case of Adaka v. Ikot Abasi T.R.C. (1991) 6 NWLR (Pt. 198) 481.

It was argued for the 1st Defendant that the refusal to allow the amendment of its statement of defence to bring in the letters in question breached its constitutional right to fair hearing. The right to fair hearing, according to counsel, is not just about been present in court, but covers the right to be heard at every material stage of the proceedings. In support of this principle, learned counsel cited the case of Ekunma v. Silver Eagle Shipping Agencies PH Ltd. (1987) 4 NWLR (Pt. 65) 472 at 486, per Nnaemeka Agu, JCA (as he then was), expressed the principle thus:

“The rule of audi alteram partem postulates that the court or other Tribunal must hear both sides at every material stage of the proceedings before handing down a decision on that stage. It is a rule of fairness. A court cannot be fair unless it considers both sides of the case as may be presented by both sides.”

Also cited is the Supreme Court case of Otapo & Ors v. Sunmonu & Ors (1987) 2 NWLR (Pt. 58) 587 at 605, per

Obaseki, JSC, held that:

“A hearing can only be fair when all parties in the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused a hearing or not given opportunity to be heard, the hearing cannot qualify as fair hearing….. Without

fair hearing, the principles of natural justice are abandoned….”

In view of the principles espoused above, it was submitted that the constitutional right of the 1st Defendant has been breached as a result of it refusal to allow the amendment intended to introduce the letters pertaining to the exemption granted to the 1st Defendant.

It was submitted for the 1st Defendant that based on Exhibit DWO-P, the Court cannot grant the reliefs, particularly, reliefs 2, 4 and 6 sought by the Claimants. Reiterating the point earlier made by the 3rd Defendant, learned counsel submitted that the issue of monetization of its staff quarters was discussed severally by the Board of the 1st Defendant before the decision not to implement the sale of its staff quarters was taken. Learned counsel repeated submissions already made by counsel for the 3rd Defendant. He submitted that the letters conveying FGN’s approval for exemption of the 1st Defendant from the implementation of the monetization policy did not come until the Claimants have commenced this action. It was submitted that reliefs 2, 3 and 6 sought by the Claimants can no longer be granted in view of the exemption already granted the 1st Defendant.

It was submitted for the 1st Defendant that the long standing General Rules guiding the operations of the 1st Defendant would be eroded if the Court grants the reliefs sought by the Claimants against the spirit and intent of the letters of exemption from the implementation of the monetization policy. For the 1st Defendant, it was submitted that granting the

reliefs sought by the Claimants would be against public interest in view of Exhibit DW2 O – P. Learned counsel urged the Court to give prime consideration to the interest of the public as against the selfish interest of the Claimants herein. Learned counsel submitted that the exemption of the 1st Defendant from the implementation of the monetization policy as it relates to its staff quarters was in the interest of the general public. In support of this proposition, learned counsel cited and relied on the case of Macaulay v. R.Z.B. of Australia (1999) 4 NWLR (Pt. 600) 599 as well as the case of Union Bank of Nigeria Plc v. Okoror (2002) 10 NWLR (Pt. 774)

In view of the submissions, arguments and reasons already canvassed above, learned counsel for the 1st Defendant urged the Court to resolve the two issues it formulated in its favour.

I will now proceed with the review of the submissions made by the Claimants in their final written address dated 22nd June, 2015 and settled by A. J. Owonikoko, SAN, I. J. Okechukwu, Esq., and Emeka Opara, Esq. In the said final written address, a preliminary issue was formulated thus:

“Whether Exhibits DW2H – DW2K; DW2L – DW2N; DW2P; DW2Q and DW2R – DW2S ought not be expunged from the records of this Honourable Court or if retained whether they ought to be accorded any weight at all?

In addressing this preliminary issue, counsel submitted that the argument of learned counsel for the 3rd Defendant that the above exhibits tendered by DW1 under protest by the Claimants and provisionally admitted are not caught by section 83 (3) of the Evidence Act 2011 is misconceived and erroneous. It was his contention that all the exhibits with the exception of Exhibit DW2H-DW2K are caught up by the section of the Evidence Act under reference.

It was submitted for the Claimants that the 3rd Defendant was represented by counsel (as per the record of the Court) when the 1st Defendant filed and argued the motion by which it sought to amend its statement of defence to plead and introduce freshly produced documents to wit: Exhibits DW2L – DW2N dated 20th April, 2012; Exhibit DW2P dated 14th May, 2012; DW2Q dated 2nd May, 2012 and DW2R – DW2S dated 7th February, 2012. Learned counsel further submitted that the 3rd Defendant chose to remain silent and did not file any response when the parties argued the said motion on notice. That the Court in a considered ruling refused to allow the 1st Defendant to amend its statement of defence to plead and introduce the documents on the ground that they were procured during the pendency of this suit. Therefore, learned counsel submitted that by its conduct, the 3rd Defendant has accepted to be bound by the decision of the Court on the question whether the exhibits could be introduced in this action.

According to the learned counsel for the Claimant, the 3rd Defendant was spurred to file its statement of defence after the Court had refused the 1st Defendant’s motion for amendment and introduction of the exhibits. The Claimants pointed out that it objected to the admissibility of the exhibits when the 3rd Defendant sought to tender them on 1st July, 2014. He repeated the grounds of his objection to the admissibility of the exhibits. It suffices to state here that these grounds of objection form part of the records of this Court and it is not expedient to reproduce same.

It was submitted for the Claimants that the cases of H. M. S. Ltd v. First Bank Plc (supra) and U. T. C. (Nig) Plc v. Lawal (supra) heavily relied upon by the 1st and 3rd Defendants are distinguishable and inapplicable to the instant case. Learned Counsel for the Claimants agreed that the two important phrases that stand out in section 83(3) are “person interested” and “when proceedings are pending or anticipated.” It was further submitted that the disqualifying interest is a personal and not interest in an official capacity. The Claimants agreed with the Defendants that the rationale of the provision is that the person must be “a person who has no temptation to depart from the truth on one side or the other – a person not swayed by personal interest, but completely detached, judicial, impartial, independent.”

The factors listed as distinguishing the two cases relied upon by the 1st and 3rd Defendants from the present case are that:

1. The procuring authority was not a party to the suit to make it personally interested in its outcome;

2. In the document made pende lite, in the two cases, there was no deliberate and glaring attempt to subvert the litigation process on the face of the document as the case in the present case;

3. In the other cases, there was no deliberate and unabashed attempt by the procuring authority to secretly steal a match from the other party by instituting an abusive action before another court on the same documents in order to get a favourable decision; and

4. There was no earlier ruling in the same case holding that the documents were inadmissible thereby constituting issue estoppel.

Learned counsel submitted that the Federal Government of Nigeria who purportedly produced the documents is a party through the 3rd Defendant, and even by extension, through the 1st and 2nd Defendants who are agencies of FGN. On the point that FGN is a party through the 3rd Defendant as the Chief Law Officer of the country, learned counsel referred to the case of A.G. Rivers State v. A.G Akwa Ibom State (2011) 8 NWLR (Pt. 1248) 31 at 216, paras. C-E.. It was therefore argued that as a party, FGN has an interest in the outcome of this case.

On the second distinguishing factor, learned counsel submitted that there was a deliberate attempt to subvert on-going litigation or foist a situation of complete hopelessness on the Court. It was posited that the request for exemption was made by the 1st Defendant to the Presidency on 7th February, 2012 and not in 2009 as claimed by the Defendants. Ii was further submitted that the objective of making the request for exemption as could be gleaned from Exhibit DW2R – DW2S represents a clear distinguishing feature between this case and the two cases relied upon by the 1st and 3rd Defendants.

+++++++++++++According to the counsel for the Claimants, there is nothing official, detached, independent, judicial or impartial about the request for the exemption but an obvious invitation to overreach this suit. On this point, counsel cited the case of Adeogun v. Fashogbon (2008) 17 NWLR (Pt. 1115) 149 at 173. Learned counsel submitted that the interest of the 1st and 3rd Defendants is not official but that their interest by their precipitate act was to overreach the Claimants’ case even when they are parties to the same case. It was submitted for the Claimants that Exhibit DW2R-DW2S was made by a person interested in this suit (1st Defendant) during the pendency of this suit in order to overreach and put the Claimants’ case out of gear. In support of this proposition counsel cited the cases of Salako v. Williams (1998) 11 NWLR (Pt. 574) 505 at 515, paras. C-E and Jomani v. Ungoro, NULGE, Edo Branch (2012) 27 N.L.L.R. (Pt. 77) 307 NIC at 330, paras. A-C.

Relying on the case of Salako v. Williams (supra), learned counsel for the Claimants submitted that section 83(3) of the Evidence Act 2011 would still operate to exclude any document made not only during the pendency of such litigation, but also one whose process of preparation started long before the litigation, but which was signed during its pendency. Also cited is the case of Oghahon v. The Reg. Trustees of Christ’s Chosen Church of God (2002) 1 NWLR (Pt. 749) 675 where the Court of Appeal held that a certificate of occupancy whose processing may have begun before the commencement of litigation but signed during the pendency of litigation is inadmissible under section 83(3) of the Evidence Act 2011.

Learned counsel submitted that Exhibit DW2R-DW2S was made in February 2012 after the Claimants had initiated this case in 2011. It was contended by learned counsel that the subsequent Exhibits, that is Exhibits DW2Q; DW2L – DW2N and DW2P were all made subsequent to Exhibit DW2R – DW2S, and are liable to be expunged from the record of the Court. This according to the Claimants is because these exhibits were made after the commencement of this suit and not admissible under section 83 (3) of the Evidence Act 2011. In support of this principle of law, learned counsel relied on the case of Amaechi & Ors v. NNPC Pension Fund Ltd (2013) 35 N.L.L.R. (Pt. 104) 288 NIC at 353, paras. F-H.

Learned counsel argued that the third disqualifying interest which weighs in favour of expunging the exhibits is the surreptitious attempt by the 1st and 3rd Defendants to get a favourable court decision on the exhibits at the Federal High Court. Learned counsel stated that at the proceedings of 12th November, 2013, the Claimants’ counsel informed the Court that the 3rd Defendant surreptitiously sued the 1st Defendant in Suit No. FHC/L/CS/884/2013 and formulated a number of questions for determination before Hon. Justice Yunusa of that Court. That the Claimants got wind of the suit and asked their counsel to apply that the case be struck out being an abuse of court process. Learned counsel submitted that the Federal High Court thereafter struck out the case on the ground that it was an abuse of court process.

In view of the above facts, the Claimants posited that the 1st and 3rd Defendants should not be allowed to profit from a generous interpretation of section 83(3) of the Evidence Act as was the case in he cases of H.M.S. Ltd. v. First Bank Plc (supra) and U.T.C. (Nig.) Plc v. Lawal (supra) because they have by their conduct revealed above shown that their interest is more than official or independent. It was further submitted that the Court of Appeal has applied this reasoning in cases where it found that even though the documents were produced in the course of performing official duties, the so called officials or experts were clearly persons of interest in the light of the circumstances of those cases. In this respect, counsel referred to the case of Disu Olomo v. Sunday Ape (2013) LPELR 22327 (CA), Pp. 19-22.

Learned counsel urged the Court to adopt the reasoning of the Court of Appeal in the case of Disu Olomo v Sunday Ape (supra).and decline to admit the said exhibits in evidence.

It was submitted by counsel that the Defendants are bound by the doctrine of issue estoppel arising from the earlier ruling of the Court that the exhibits cannot be admitted in evidence because they were made during the pendency of this case. It was argued that the exhibits having been rejected by the Court stand rejected throughout the proceedings until the ruling rejecting them has been set aside on appeal. On this point, learned counsel cited the case of Nwolisah v. Nwabufoh (2004) 9 NWLR (Pt. 879) 507 at 523 – 524, paras. F-B.

Learned counsel submitted that Exhibits DW2H-DW2K dated 6th May, 2009; DW2L-DW2N dated 20th April, 2012; DW2P dated 14th May, 2012; DW2Q dated 2nd May, 2012 and DW2R-DW2S cannot be admitted because they are not certified public documents as required by section 104 and 106 of the Evidence Act 2011. It was argued that the attempt

by the 3rd Defendant to invoke section 12(2)(b) of the National Industrial Court Act 2006 [NICA 2006] to support their admissibility must fail. It was further submitted that if the provision is given its literal meaning, it would mean that the Court is bound by the Evidence Act but may only depart from it where the interest of justice so dictates. That a party inviting the Court to depart from the Evidence Act must earn it by placing sufficient material before the Court. And that the Court must then come to a decision judicially and judiciously.

In the opinion of learned counsel, the circumstances that would warrant a departure from the application of the Evidence Act must not be such that is within the control of the applicant. Referring to the instant case, it was argued that a party who has custody of a document that ought to be certified but fails to do so must not be allowed to take advantage of section 12(2)(b) NICA 2006. Arguing the case of the Claimants, their counsel submitted that the Court should not invoke section 12(2)(b) NICA 2006 to admit the uncertified public documents because the 3rd Defendant has not given the reasons why they were not certified as required by the Evidence Act. It was posited that the exercise of discretion to depart from applying the provision of the Evidence Act by invoking section 12(2)(b) NICA 2006 is one that must be exercised judicially and judiciously and on the basis of sufficient materials placed before it. In support of this proposition, learned counsel cited the case of Aboseldehyde Lab. Plc v. U.M.B. Ltd. (2013) 13 NWLR (Pt. 1370) 91 at 126, paras. E-F. The Court was urged to expunge the exhibits as they offend the provisions of the Evidence Act 2011 because the Defendants have failed to place sufficient materials before the Court upon which it can exercise its discretion. ISSUE ESTOPPEL

Issue estoppel according to learned counsel operates to preclude a party from asserting the contrary of any precise point or issue which have been distinctly put in issue and determined with certainty. Relying on the case of Unity Bank Plc v. Olatunji (2013) 15 NWLR (Pt. 1378) 503 at 551-552, paras F-B, learned counsel listed the conditions for the applicability of issue estoppel as follows:

i. That the parties or their privies are the same in both the previous and present proceedings;

ii. That the issue or issues in dispute is or are the same;

iii. That the decision relied upon to support the plea is valid, subsisting and final; and

iv. That the court that gave the decision relied upon is a court of competent jurisdiction.

Learned counsel submitted that once the above conditions are fulfilled, it does not matter that the decision was given in an interlocutory proceeding. On this point, learned counsel cited the case of N.D.I.C. v. Okeke (2011) 6 NWLR (Pt. 124) 445 at 457, paras. A-D.

Applying the above principles to the present case, it was submitted that the parties in this case have remained the same. When the rulings of 2/11/2012 and 3/10/2013 were delivered rejecting the introduction of Exhibits DW2R-DW2S; DW2Q; DW2L-DW2N and DW2P by the 1st Defendant. It was further submitted that at both instances, the issue in dispute has remained that of waiver/exemption sought to be introduced by the Defendants and that the decision of this Court rejecting the introduction of these exhibits made during the pendency of this case, remains valid, subsisting and final. The Court is invited to note that it is a Court of competent jurisdiction.

Learned counsel submitted that 1st Defendant first attempted to amend its statement of defence in order to plead the defence of waiver/exemption by introducing letters dated 2/5/2012 (now Exhibit DW2Q) and 14/5/2012 (now Exhibit DW2P) was firmly rejected by the Court in its ruling. Learned counsel referred to the said ruling delivered on 2/1/2012 reported in SSACTAC & Anor v. NRC & Ors (supra). Also cited is the case of Adetutu v. Aderonhunmu (1984) 1 SCNLR 515.

Also, that the 1st Defendant a year after the ruling referred to above brought another application dated 21/6/2013 by which it again sought to re-introduce the same defence of waiver and the same documents on waiver/exemption earlier rejected vide another application dated 21/6/2013. It was submitted that the Court again declined again dismissed the latest application. It was submitted for the Claimants that it is unfair for the 1st Defendant to turn around in its final written address to allege that it was denied fair hearing bearing in mind that the applications were heard and determined on merit. It was further submitted for the Claimants that the 1st Defendant who is now alleging that its right to fair hearing was breached did not appeal against any of these ruling. That the reason why the 1st Defendant is alleging breach of its right to fair hearing is to develop a ground of appeal in case the judgment of the Court does not go in its favour.

In order to show that it is futile for the 1st Defendant to start alleging denial of fair hearing in its final address, learned counsel for the Claimants cited the case of Lagos Sheraton Hotel & Towers v. H.P.S.S.S.A (2014) 14 NWLR (Pt. 1426 45 at 71, paras. A-D. In this case, the Court of Appeal was faced with a similar situation where a party suddenly alleged that he was denied fair hearing and admonished as follows:

“The word ‘fair hearing’ is not a magic wand to be waved at every given opportunity to perhaps confuse or agitate the

courts. This was the stance taken by the Supreme Court in the case of Sabiru Adebayo v. A.G. Ogun State (2008) 7

NWLR (Pt. 1085) 201 at 222, paras.. H-C wherein Niki Tobi JSC proffered the following admonition:

“The fair hearing provision in the constitution is the machinery or locomotive of justice not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the courts to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing… Let litigants who have nothing useful to advocate in favour of their cases leave fair hearing constitutional provision alone because it is not available to them just for the asking.”

Learned counsel for the Claimants reiterated that the 3rd Defendant is bound by the rulings of this Court refusing the introduction of these exhibits. In the estimation of learned counsel, it is unprofessional for counsel for the 3rd Defendant to re-argue issues already pronounced upon by a court of competent jurisdiction. Counsel referred to the case of Jomani (supra) at 326, para. F.

Also cited in support of its position is the case of Aero Contractors Co. of Nigeria Ltd. v. Naape & Ors (2014) 42

N.N.L.R. (Pt. 133) 664 NIC at 703, paras. C-D, where per Kanyip stated thus:

“It is surprising that counsel to the defendants is again raising the issues as the present issue 1. This attempt to smuggle and re-litigate the issue is unprofessional and so I will not even indulge the defendants with reiterating their arguments on it, not to talk of expressing another opinion on it.”

Issue estoppel according to the Claimants binds both the parties as well as the Court. The Court, it was argued, that the Court cannot overrule itself by upholding the admission of Exhibits DW2R DW2S; DW2Q; DW2L-DW2N and DW2P which it had previously refused. It was contended that the Claimants have satisfied the conditions for the successful plea of the doctrine of issue estoppel.

Learned counsel argued that a document that is inadmissible in law remains invalid and cannot form the basis of any decision. Such evidence cannot be validly admitted even where there is no objection to its admissibility, or even where the parties consented to its admission. Cited was the case of Olukade v. Alade (1976) 2 SC 183.

In the same vein, it was submitted that where a court has wrongly admitted inadmissible evidence, the same court has the power and jurisdiction to expunge it at the judgment stage. It was submitted that where there is no evidence in support of the defence, it cannot be sustained and must ipso facto fail. In support of this principle of law counsel cited the case of Zenith Bank Plc v. Erereuwem (2012) 4 NWLR (Pt. 1290) 207 at 234, para. C.

Learned counsel for the Claimants urged the Court to uphold their objection and expunge Exhibits DW2R-DW2S; DW2Q; DW2L-DW2N and DW2P ansd render them unusable.

The sole issues distilled for determination by the Claimants is as follows:

“Whether the Claimants have proved their case as to be entitled to the reliefs sought in this suit? ARGUMENT OF THE SOLE ISSUE

It was submitted for the Claimants that the 1st and 3rd Defendants heavily relied on the admission and evidential value of Exhibits DW2H-DW2K; DW2L-DW2N; DW2P; DW2Q; and DW2R-DW2S. Learned counsel submitted that these Exhibits were neither pleaded nor tendered by the 1st Defendant. It was argued that evidence elicited by a party during examination in chief or during cross-examination but which is not pleaded by the party goes to no issue. In other words, a party cannot rely on or use such evidence unless it incorporates such evidence by amendment. On this point, he cited the case of Olora v. Adegbite (2013) 1 NWLR (Pt. 1334) 40 at 60, paras. F-G. Arising from this principle, it was submitted for the Claimants that the submissions and arguments made by the 1st Defendant on the potency, use and application of these exhibits go to no issue. The Court was urged to discountenance the submissions made by the 1st Defendant in respect of the potency, use and application of the exhibits.

Learned counsel for the Claimants proceeded to address the following points which according to him arose from the defence of the 3rd Defendant.

On the point made by the 3rd Defendant that the 1st Defendant has been exempted from the application of Exhibits A, B and G-G3.

It was submitted for the Claimants that they have advanced arguments and reasons on why Exhibits DW2H-DW2K; DW2L-DW2N; DW2P; DW2Q; and DW2R-DW2S should be expunged from the records of the Court or why the exhibits should not be given any evidential weight at all. It was argued that the assertion made by the 1st and 3rd Defendants that the process for seeking exemption commenced in 2009 when the board of the 1st Defendant passed a resolution directing it to seek exemption is not true. It was submitted that Exhibit DW2R-DW2S dated 7th February 2012 shows that the 1st approach by the 1st Defendant was made in year 2012 noting that this case was commenced on 15th March, 2011.

Learned counsel submitted that Exhibit DW2H-DW2K merely contains a decision of the 1st Defendant to obtain approval

from FMT to build housing estates for the members of the Claimants instead of monetizing its staff quarters. Consequently, it was submitted that nothing in Exhibit DW2H-DW2K shows that the 1st Defendant resolved to seek exemption from FGN. It was further argued that by virtue of S. 12 of the Nigerian Railway Corporation Act, the Board of the 1st Defendant cannot lawfully override policy directive given by FGN or FMT.

It was submitted for the Claimants that the 1st Defendant’s request to the Minister of Transport for the allocation of land to build housing estates for members of the Claimants in line with the resolution of its Board was turned down by the latter as shown in Exhibit D (dated 1st April, 2011). This was after the Claimants have commenced this action. In view of this fact, learned counsel submitted that Exhibits D, DW2H-DW2K and DW2R-DW2S are conclusive proof that the process for obtaining exemption from the monetization policy begun in 2012 after this action had been commenced. It was submitted that any claim that the process started before the commencement of this action cannot be true. This according to learned counsel is because oral evidence cannot be admitted to contradict or alter documentary evidence as documentary evidence is the hanger on which the veracity of oral evidence is tested. In support of this principle of law, learned counsel cited the case of Ilodibe v. AFRIBANK Plc (2013) 38 N.L.L.R. (Pt. 117) 190 at 226, paras. G-H.

Claimants’ Response to the Allegation that they failed to take advantage of the 1st Defendant’s offer to purchase alternative accommodation for them.

Learned counsel urged the Court to ignore the submission of the 3rd Defendant that the Claimants’ case should fail because they failed to take advantage of the offer made by the 1st Defendant to provide them with alternative accommodation. It was submitted for the Claimants that the 3rd Defendant did not plead this fact. Also, it was submitted that the Claimant did not lead evidence to show that they were offered such alternative accommodation but that they refused. Learned counsel pointed out that Exhibit D shows that the proposal for the allocation of land for alternative accommodation made by the 1st Defendant was rejected by the Minister of Transport. That in rejecting the request, the Minister stated that it would be against the monetization policy to procure such alternative accommodation.

It was submitted for the Claimants that the point of dispute has been narrowed down to whether or not the 1st Defendant is exempted from the application of the monetization policy as it relates to its staff quarters. It was submitted that the parties agree on the following facts:

– that that monetization policy was introduced by the Federal Government;

– that in pursuance of the implementation of this policy, guidelines were issued and released as shown in Exhibits B and G-G3 or DW2T1-DW2T11 and DW2F-DW2G;

– that the policy applied to the 1st Defendant and that the cover letter to Exhibit B bears a direct instruction from the supervising Ministry of the 1st Defendant directing the implementation of the policy without delay.;

– that the 1st Defendant among other parastatals were directed at paragraph 7 of Exhibit B to implement the monetization of fringe benefits which include residential quarters for its staff.

It was submitted for the Claimants that the 1st Defendant at paragraphs 6, 7 and 8 of its statement of defence admitted that it has implemented some aspects of the monetization policy except as it relates to its staff quarters. That this state of affairs was confirmed by the 3rd Defendant in paragraphs 22 and 26 of its statement of defence wherein it admitted partial implementation of the policy.

Learned counsel also pointed out that CW2 and DW1 both admitted that some aspects of the monetization policy relating to salaries, vehicles and telephones have been implemented. Learned counsel submitted that two reasons have been given on why the 1st Defendant has failed or is still reluctant to implement the monetization of its staff quarters. These reasons according to learned counsel are:

a. that the 1st Defendant Board passed a resolution that it will not implement the aspect of the policy relating to its staff quarters; and

b. that the 1st Defendant has been exempted by the Federal Government of Nigeria from implementing the monetization of its staff quarters.

By way of response to the 2nd reason, learned counsel submitted that sufficient reason has been given to convince the Court that the exhibits relied upon to establish the exemption are not admissible evidence and should be expunged from the records of the Court.

On the first reason for the non-implementation of the policy, learned counsel for the Claimants submitted that the Board of the 1st Defendant is duty bound to comply with all directives of the Federal Government through the Federal Ministry of Transport. In this regards, section 12 of the Nigerian Railway Corporation Act Cap. N129, LFN 2004 was relied upon. It was submitted that the Minister of Transport by virtue of Exhibit directed the 1st Defendant to implement the monetization policy. The Minister of Transport while rejecting the request for allocation of lands for alternative accommodation for the Claimants also affirmed this position. See Exhibit D dated 1st April, 2011. It was therefore

submitted that the Board has no power to pass a resolution directing the 1st Defendant not to implement the policy as it relates to the monetization of its staff quarters.

It was further submitted for the Claimants that FGN released Exhibit G-G3 or DW2F-DW2G which are the Approved Guidelines for the Sale of Federal Government in Lagos to guide the implementation of the policy. Learned counsel submitted that DW2 during the proceedings of 22nd March, 2013 confirmed that she was aware of the guidelines as published. It was further submitted that the 3rd Defendant acknowledged the existence of the guidelines which was tendered by DW1 and admitted as Exhibit DW2F-DW2G.

Learned counsel submitted that Clause 1 of Exhibit G-G3 or Exhibit DW2F-DW2G clearly states that the guidelines are applicable to all government ministries, agencies and departments including the 1st Defendant. It was contended for the Claimants that the Defendants through DW1 accepted that the guidelines published in Exhibit G-G3 or DW2F-DW2G are binding on them.

Learned counsel posited that statutory bodies such as the 1st Defendant owned or controlled by the Federal Government are agencies of the Government within the contemplation of the Constitution of the Federal Republic of Nigeria as amended. In support of this principle, counsel cited the case of Agbule v. WR & PP. Co. Ltd. (2013) 6 NWLR (Pt. 1350) 318 SC 352.

It was submitted for the Claimants that Clauses 12 – 15 of Exhibit G-G3 vest in legal sitting tenants of the 1st Defendant the right of first refusal in respect of staff quarters occupied by them. It was further submitted that the right of first refusal which is not negotiable or assignable must be exercise by the legal sitting tenant occupying staff residential quarters. That the legal sitting tenant is required to complete an Application Form for that purpose.

According to learned counsel for the Claimants, Clause 16 of Exhibit G-G3 or Exhibit DW2F-DW2G specifies the categories of properties that are exempted from sale under the monetization policy which does not include the staff quarters of the 1st Defendant. It was argued for the Claimants that in the proceedings of 22nd March, 2013 and 2nd December, 2014, CW2 and DW1 respectively confirmed under cross-examination that the 1st Defendant did not implement the policy as it relates to the monetization of its staff quarters.

The Claimants maintained that the 3rd Defendant at paragraph 4. 32 agrees that Clause 12 of Exhibit G-G3 confers a right of first refusal on the Claimants but does not agree that this right subsists. It is the case of the Claimants that the rights conferred on them by the approved guidelines accrued since 2005-2006 when the guidelines were issued for implementation. They insisted that the Defendants have denied them these rights till date as confirmed by CW2 and DW1.

On the definition of a right, learned counsel referred to the Black’s Law Dictionary (7th Edition) at page 1322 as well as the Supreme Court case of Afolayan v. Ogunrinde (1990) 1 NWLR (Pt. 127) 369 at 391, paras. E-F., and submitted that it is erroneous for the Defendants to argue that the Claimants cannot insist on the enforcement of the rights conferred on them under the Approved guidelines (as per Exhibit G-G3).

Learned counsel submitted that the Claimants can validly enforce the right of first refusal conferred on them by virtue of the guidelines published in Exhibit G-G3. It was submitted that the Claimants are entitled to the right of first refusal in respect of the residential quarters of the 1st Defendant that they occupy. The Court was urged to take cognizance of the fact that the said quarters have not been specifically exempted under the Approved Guidelines. Learned counsel argued that where a document or statute mention specific things, those things not mentioned cannot be included. The case of Mkpa v. Mkpa (2010) 14 NWLR (Pt. 1214) 612 at 645, paras. F-G., was cited in support of this proposition.

On the strength of the above arguments, learned counsel submitted that the Claimants have sufficiently proved that they are entitled to the reliefs set out in the General Form of Complaint. On the Power of the Court to Grant Declaratory and Injunctive Reliefs

The Claimants submitted that the Court by virtue of section 254D(1) of the Constitution of the Federal Republic of Nigeria as amended [1999 Constitution as amended] can exercise the powers of a High Court. It was further submitted that the powers of a High Court include the power to grant declaratory and injunctive reliefs. See the case of Omomeji v. Kolawole (2008) 14 NWLR (Pt. 1106) 180 at 199-100, paras. G-G. Counsel also referred to section 16(1) NICA 2006.

Another argument made by the Claimants is that this Court being a superior Court has inherent jurisdiction to grant declaratory and injunctive reliefs. Relying on the case of A.G. Cross River State v. A.G. Federation (2012) 16 NWLR (Pt. 1327) 479, paras. B-C., learned counsel argued that in order to be entitled to a grant of declaratory reliefs, a person must show the existence of a legal right, which is subsisting or in the future, and that the right is being contested. In this wise, it was submitted that the Claimants relying on Exhibits A, B and G-G3 have established that they are entitled to a right of first refusal to purchase the staff quarters they occupy. It was also submitted that the Defendants have not denied that the Claimants are entitled to this right.

Learned counsel agreed that in an action triable by pleadings, a declaration of right will not be made on admission. It was however submitted that by the combined effect of Exhibits A, B and G-G3, the Claimants have established that they are entitled to the right of first refusal as claimed. Furthermore, it was submitted for the Claimants that they have through Exhibit G-G3 proved that the 1st Defendant is under a duty to make Application Forms available to them for the exercise of that right.

On the relief of perpetual injunction, it was submitted for the Claimants that where a person’s legal right has been invaded and there is a continual invasion or threat of continuance of such invasion, and the legal rights of the person has been determined in a final judgment, the successful party is entitled to a perpetual injunction. In support of this principle of law, learned counsel cited the case of Goldmark (Nig) Ltd. v. Ibafon Co. lTD. V. (2012) 10 NWLR (Pt. 1308)

291 at 352, paras. B-D. in that case, the Supreme Court held thus:

“The grant of the relief of perpetual injunction is a consequential order which should naturally flow from the declaratory order sought and granted by court. The essence of granting a perpetual injunction on a final determination of the rights of the parties is to prevent permanently the infringement of those rights and to obviate the necessity of bringing multiplicity of suits in respect of every repeated infringement.”

Reliefs 4, 5 and 6 according to the Claimants flow consequentially from the declaratory sought. It was therefore submitted that once the Court holds that the Claimants have proved their case, there will be no legal impediment to the grant of the ancillary orders sought by the Claimants. Learned counsel for the Claimants urged the Court to hold that the Claimants have proved their case on the preponderance of evidence, and grant the reliefs sought.

It is now time for me to consider the reply on points of law to the Claimants. Final written address filed by the 3rd Defendant. The reply on points of law is dated 30th June, 2015. The 3rd Defendant again formulated the following two issues for determination:

1. Whether Exhibits DW2H – DW2K, DW2L – DW2N; DW2P; DW2Q and DW2R-DW2S ought to remain in the records of this Honourable Court and be accorded weight in this case.

2. Whether in the circumstances of this case, the Claimants have established their case as to be entitled to the reliefs sought in this suit.

There is need for me to observe at this juncture that learned counsel for the 3rd Defendant would appear to have a misconception of the purpose of a reply on points of law. The purpose of a reply on points of law like a reply brief is to respond to any new point raised by the adverse party, in this case, the Claimants in their final written address. Thus, a reply on point of law is not an opportunity to re-argue the case of the 3rd Defendant as has been done in the instant case. Where a reply on point of law does not address a new point raised in the address of the adverse party, it becomes otiose and the Court can legally discountenance it. See the case of Opene v. NJC & Ors (2011) LPELR – 4795 (CA) as well as the case of Mozie v. Mbamalu (2006) LPELR-1922 (CA), p. 22, paras. A-C, per Tobi, JSC or (2006) 15 NWLR (Pt. 1003) 466(back to top?)

Flowing from the above observation, I will not bother myself reviewing the submissions made by learned counsel for the 3rd Defendant in respect of issue number one formulated in its reply on points of law. In fact, the two issues distilled for determination are not significantly different from the two issues formulated for determination in its final written address dated 21st January, 2015. Like I have said, I will not indulge this obvious misuse or misapplication of the procedure of the Court. Having said that, let me now pay attention to the reaction of the 3rd Defendant to the application of the doctrine of issue estoppel as raised and addressed by the Claimants.

It was submitted on behalf of the 3rd Defendant that the Claimants have misinterpreted the decision of the court in the case of Unity Bank Plc v. Olatunji (2013) 15 NWLR (Pt. 1378) 503 at 551, paras. F-B., cited and relied upon by the Claimants. The 3rd Defendant submitted that the case of Unity Bank Plc can be distinguished from the present case. Learned counsel submitted that although the parties in the interlocutory proceedings are the same with the parties in the present case, but that the interlocutory decision given by the courts was made against the 1st Defendant and not the 3rd Defendant. The 3rd Defendant reasoned that the interlocutory decision was made against the 1st Defendant who sought to introduce the exhibits.

Learned counsel submitted that the Court refused the application of the 1st Defendant to amend its statement of defence and introduce the exhibits but subsequently admitted the exhibits when the 3rd Defendant persuaded the Court about their relevancy. According to learned counsel for the 3rd Defendant, the ruling of the Court by which it admitted the documents is subsisting and binding on all the parties. Hence, the 3rd Defendant submitted that it is not precluded from tendering the documents by reason of issue estoppel as posited by the Claimants.

It was further submitted for the 3rd Defendant that the ruling of the Federal High Court referred to by the Claimants was not delivered on the merit in respect of the admissibility or otherwise of the exhibits. But that the ruling was on whether

the Federal High Court could adjudicate on the matter while it was pending before this Court. Thus, counsel submitted that Suit No. FHC/L/CS/884/2013 cannot give rise to issue estoppel. Learned counsel posited that the case was merely struck out while the issues raised were never determined by the Court. In support of its case, learned counsel relied on the case of Jimoh v. Aleshinloye (2014) 15 NWLR (Pt. 1430) 315, paras. D-G.

The Court was urged to hold that issue estoppel does not apply in the instant case to preclude the 3rd Defendant from tendering the documents in contention.

At this juncture, it is apt for me to proceed to a determination of the issues submitted to the Court by the parties. I will start with issue number one distilled by the 3rd Defendant. The issue is couched in the following manner:

Whether all the documents relating to the exemption of the 1st Defendant’s staff quarters from the application of the monetization policy including Exhibits DW2O-P and DW1O-Q are evidence created and obtained in anticipation of this suit as to be inadmissible or affected as to weight.

I have no doubt that the above issue is very similar or akin to the preliminary issue distilled and argued by the Claimants in their final written address.

What the 3rd Defendant wants the Court to believe and accept is that all the documents relating to the issue of exemption granted to the 1st Defendant from the application of the monetization policy as it relates to its staff quarters are admissible. As a reminder, in the course of trial, the 3rd Defendant through its sole witness, DW1 had attempted to tender some documents in evidence through DW2. But there was objection to the admissibility of these documents from the Claimant’s counsel. After listening to arguments for and against the admissibility of the documents, they were provisionally admitted and marked as exhibits. While admitting the documents, the Court was of the candid opinion that they would be expunged from the records of the Court at the judgment statge if found to have been wrongly admitted.

These were: Exhibit DW2L –DW2N dated 20th April, 2012; Exhibit DW2P dated 14th May, 2012; Exhibit DW2Q dated 2nd May, 2012 and Exhibit DW2R-DW2S dated 7th February, 2012. It is trite that a court has the power to expunge evidence discovered to have been wrongly admitted.

The gist of the 3rd Defendant’s submission is that the Exhibits referred to above are not caught up by section 83(£3) of the Evidence Act 2011. This provision has been reproduced in an earlier portion of this judgment. Hence, I will dispense with the necessity of having to quote again. However, the purport of the provision is that documents made during the pendency of the case or in anticipation of the case by a person who is personally interested are inadmissible.

Relying on the cases of H.M.S Ltd v. First Bank Plc (supra) and U.T.C. (Nig) Plc v. Lawal (supra), learned counsel for the 3rd Defendant argued in favour of the admissibility of the exhibits. Learned counsel for the 3rd Defendant posited that the documents were made by the Federal Government of Nigeria who has no personal interest in the case or its outcome. In other words, the makers of these documents are made by government officials acting in their official capacities and have no temptation to depart from the truth on one side or the other. The 3rd Defendant submitted that there is nothing personal about the interest of the makers of the documents but that their interest was purely official and that they acted judicially, impartially, independently and after objective consideration of all the issues involved regarding the request for exemption by the 1st Defendant through its supervising Ministry; that is, the Federal Ministry of Transport.

On the other hand, the Claimants urged the Court to expunge the aforementioned exhibits from its record. The objection to the admissibility or retention of the exhibits is premised on a number of grounds. First, it was argued that the two cases of H.M.S Ltd v. First Bank Plc (supra) and U.T.C. (Nig) Plc v. Lawal (supra) relied upon by the 3rd Defendant are distinguishable from the instant case for a number of reasons.

Firstly, it was pointed out that in the two cases relied upon; the procuring authority was not a party to the case unlike the present case. it was argued that the maker of the exhibits, that is, FGN, is a party in this case through the 3rd Defendant. The 3rd Defendant is the Attorney-General of the Federation. It was submitted for the Claimants that being a party to the case, it is interested in the case and its outcome.

Secondly, that in the two cases relied upon by the 3rd Defendant, there was no deliberate attempt to subvert or overreach on-going litigation. However, the Claimants through their counsel argued that in the present case, the objective of requesting for exemption and its approval was to overreach the Claimants who were already in court. In other words, the intention of requesting for the waiver/exemption was to put the case of the Claimants out of gear. In this respect, the Claimants relied on some portions of Exhibits DW2R-DW2S. It was contended that judging by the content of these Exhibits, the makers of the documents could not be said to have acted judicially, independently or impartially. Put differently, the Claimants want the Court to believe that the makers of these documents made during the pendency of this case could not be trusted to speak the truth in the circumstances, but that they departed from the truth in favour of the 1st Defendant. It was therefore the case of the Claimants that the makers of the exhibits provisionally admitted has personal interest in the case judging by the motive of the request for exemption as evidenced in Exhibit DW2R-DW2S. Counsel cited the case of Adeogun v. Fashogbon (supra); Salako v. Williams (supra) and Disu Olomo v. Sunday Ape (supra).

Learned counsel also pointed out that in the two cases, there was no earlier ruling refusing the exhibits. It was therefore argued that in the instant case, the Court had in two considered rulings precluded the 1st Defendant from amending its defence to introduce the same documents. It was argued that the rulings of the court are still subsisting.

Another point of objection made by the Claimants against the Defendant is that the 3rd Defendant is precluded from tendering the documents in the first instance by the doctrine of issue estoppel. It was submitted that the 3rd Defendant was represented by counsel when the motions of the 1st Defendant seeking to introduce the same provisionally admitted exhibits were argued by the parties and refused by the Court. Thus, the Claimants submitted that the 3rd Defendant who though was represented but chose to do nothing while the motions were argued and rulings delivered remains bound by the decisions of the Court on the interlocutory applications. Counsel referred to the case of SSACTAC & Anor v. NRC & Ors (supra).

Relying on the case of Nwolisah v. Nwabufoh (supra), and Unity Bank Plc (supra) it was argued that the Claimants have met the conditions warranting the application of the doctrine of estoppel in this case.

It was argued that unlike the two cases relied upon by the 3rd Defendant, the Defendants in this case have attempted to steal a match from the Claimants. It was pointed out that the 3rd Defendant had during the pendency of this suit surreptitiously sued the 1st Defendant at the Federal High Court in Suit No. FHC/L/CS/884/2013 with a view to getting judicial approval to validate the Exhibits. That the Claimants got wound of the case and objected to its continuance whereupon it was struck out.

In all, the Claimants urged the Court to expunge the exhibits because they were made during the pendency of this suit by persons personally interested with the aim of defeating or frustrating this case. It was alleged that they remain inadmissible by virtue of section 83(3) of the Evidence Act 2011.

However, counsel for the 3rd Defendant argued against the application of the doctrine in the instant case. It was pointed out that the decision of the Court (as per the rulings on interlocutory applications) were made against the 1st Defendant who sought to introduce the documents. Hence, learned counsel argued that the parties in the interlocutory proceedings under reference are not the same as the present case as the rulings of the Court only bind the 1st Defendant.

It was also submitted for the 3rd Defendant that Suit No. FHC/L/CS/884/2013 cannot give rise to issue estoppel as argued by the Claimants. According to the 3rd Defendant, the case was not decided on its merit but struck out without deciding the issues submitted for determination.

I have carefully considered the arguments proffered for and against admissibility of Exhibits DW2L –DW2N dated 20th April, 2012; Exhibit DW2P dated 14th May, 2012; Exhibit DW2Q dated 2nd May, 2012 and Exhibits DW2R-DW2S dated 7th February, 2012 by counsel in this case. I need to reiterate that they were admitted provisionally because of the Claimants’ objection. It is settled that a court has the power to reject admitted evidence or disregard or expunge such evidence at the stage of writing judgment if it comes to the conclusion that the evidence, whether oral or documentary was wrongly admitted. See the case of Nwabuoku v. Onwordi (2006) 5 S.C. (Pt. III) 103 or (2006) LPELR-2082 (SC).(back to top?)

The first point that I need to make very clearly is that the parties have not disputed the fact that the exhibits were made after the commencement of this case on the 15th day of March, 2011. I am mindful of the point made by the 3rd Defendant that the processing of the approval for exemption had started in 2009. Having agreed that they were made during the pendency of this suit, section 83(3) of the Evidence Act becomes contextually relevant in determining their admissibility.

I am persuaded that there is strong merit in the arguments canvassed by the Claimants against the admissibility of the exhibits in question. Let me quickly voice agreement that the cases of H.M.S Ltd v. First Bank Plc (supra) and U.T.C. (Nig) Plc v. Lawal (supra) are not applicable in the instance case on the basis of all or some of the points of distinction identified by learned counsel for the Claimants.

It is actually true that the Federal Government is a party in this case through the 3rd Defendant. See the case of A.G. Rivers State v. A.G. Akwa Ibom State (supra). As a party in the suit, I am of the candid view that it cannot be rightly said that the Federal Government as the maker of the exhibits in issue through its agencies has no personal interest in the case and its outcome. It will be absurd to come to an alternative conclusion.

I am completely satisfied that the objective of the request for exemption made by the 1st Defendant through the Minister of Transport was to overreach the Claimants’ action. The author of Exhibits DW2R-DW2S was very expressive and forthcoming on the fact that the exemption if granted, would pull the rug off the feet of the Claimants who were already in court at the time. Hear him in the penultimate paragraph;

“Sir, your expedite response (sic) will be appreciated in order to conclude the on-going litigation between the two in-house unions and NRC management as the next sitting of the case will be coming up on the 8th of March, 201.” Clearly, the above quoted paragraph is the foundation upon which the request for exemption was built and granted. It is certainly a dubious foundation erected on sands. If the foundation be destroyed, what can the righteous do? Nothing, I suppose. It is evidently clear that judging by the paragraph I have just reproduced, it cannot be said that the 1st Defendant, and the Federal Government of Nigeria (represented in this suit by the 3rd Defendant) have acted judicially, impartially and independently. There is obvious manifestation of the intention in favour of the 1st Defendant in applying and accepting the request to exempt the 1st Defendant from implementing the monetization policy as it relates to its staff quarters. It is immaterial that the processing of the request for approval was made before the commencement of this suit as urged by the 3rd Defendant. What is important is that they were made during the pendency of this case. In any case, there is no evidence to support the view that the request for exemption had been made before the Claimants instituted this action. What preceded this action is the resolution of the Board of the 1st Defendant not to monetize its staff quarters passed on 8th April, 2009.

The interest of the 3rd Defendant who approved the request for waiver/exemption is congruous with that of the 1st Defendant herein who applied for the exemption in the first instance. The interest of FGN and the 1st Defendant through its supervising ministry is not official in the circumstances of this case. This is my considered finding and opinion. See the case of Adeogun v. Fasogbon (supra)

This Court cannot fold its arms and allow the Defendants to arm-twist it. Come to think of it, the fact that these same exhibits have been rejected in two previous rulings of this Court is not contested by any of the parties herein. I wonder why the 3rd Defendant ever thought that this Court will now allow documents which it had earlier rejected on the basis of sound reasoning to be admitted under a different guise to overreach an action that is pending before it. I advise them to perish the thought. I reject the notion that the 3rd Defendant was not a party to the interlocutory proceedings whereby the 1st Defendant sough to introduce the same exhibits by amendment. That view is not supported by the records of this Court. The 3rd Defendant was all through represented by counsel. It is not the fault of anyone, not the least, the Court, that it chose to sit on the fence and do nothing when the interlocutory applications were heard and decided. It was and remains a party and duly bound by the rulings of this Court wherein the Court refused the applications to introduce the exhibits. I therefore agree with the Claimants that the 3rd Defendant is precluded by the doctrine of issue estoppel from tendering these documents in evidence.

It is important to mention the fact that the 1st Defendant is precluded from addressing this issue by reason of the application of issue estoppel. Also, the 1st Defendant did not plead exemption. The documents were also not pleaded by the 1st Defendant.

For the foregoing reasons, I am of the candid view that and hereby holds that Exhibits DW2L –DW2N dated 20th April, 2012; Exhibit DW2P dated 14th May, 2012; Exhibit DW2Q dated 2nd May, 2012 and Exhibit DW2R-DW2S dated 7th February, 2012 were made during the pendency of this suit by persons personally interested in its outcome. I therefore hold that they are inadmissible by virtue of section 83(3) of the Evidence Act 2011. I hereby expunge them from the records of the court as evidence wrongly admitted. See the Supreme Court case of Nwabuoku v. Onwordi (supra). I hereby resolve issue number one formulated by the 3rd defendant against it. This conclusion effectively determines the preliminary issue raised by the Claimants.

I now turn to issue number two distilled by learned counsel for the 3rd Defendant. It enquires whether in the circumstances of this case, the Claimants are entitled to the reliefs sought.

I must observe that this issue is similar to the two issues the 1st Defendant has submitted for determination by the Court. It is also very similar, and in fact the same in substance with the lone issue submitted for determination by the Claimants.

It is clear from the state of pleadings and the evidence before the Court that the parties agreed that the Federal Government of Nigerian introduced the monetization policy [hereinafter referred to as Policy] sometime in 2003-2004. That sequel to the introduction of the policy, the Government released guidelines for its implementation. It is also agreed that the policy was to be implemented by all ministries, agencies, parastatals, departments and agencies of the Federal Government of Nigeria except those expressly exempted by the Government.

The parties are also unanimous on the fact that the 1st Defendant has implemented aspects of the policy on salaries, vehicles and telephones. It is also not in contention that the 1st Defendant has not implemented aspect of the Policy relating to its staff quarters. However, the parties are sharply divided on the legality or otherwise of the refusal of the 1st Defendant to implement this aspect of the Policy.

The case of the Claimants is that the refusal of the 1st defendant to implement the aspect of the Policy relating to its staff quarters is not justifiable. It is their case that being an agency of the Federal Government, it is bound to monetize its staff quarters to their members on the basis of the guidelines on the sale of landed properties owned or controlled by the Federal government. It is also argued that although certain agencies, departments or parastatals of government are exempted from the monetization of staff residential quarters, but that the 1st Defendant is not one of such agencies exempted. The claimants argued that by virtue of the guidelines, their members regarded as legal sitting tenants are entitled to the right of first refusal in respect of the staff quarters they are occupying. It is alleged that the 1st Defendant has denied their members this right by its refusal to provide them with Application forms to be completed for that purpose as required.

It was argued for the Claimants that the 1st Defendant as an agency of FGN is bound to comply with directives given to it by the Government through FMT. CW1 and CW2 testified for the Claimants. CW2 testified that as the Secretary of the 1st Defendant, she was aware of the Policy and that government agencies, ministries and departments were required to monetize fringe benefits including staff residential quarters they owned. She also admitted that the Policy was conveyed to the 1st Defendant. She admitted that the 1st Defendant was not one of the agencies exempted from implementing the policy under Clause

In prove of their case that their members are entitled to the right of first refusal in respect of the staff quarters they occupy, the Claimants through CW1 tendered Exhibits A, B, C, D. While Exhibit G-G3 was tendered through CW2.

On the other hand, the 3rd Defendant claims that it has been exempted from implementing the aspect of the Policy relating to its staff quarters. Its defence is certainly built on exemption granted to it by the Federal Government of Nigeria. DW2 who testified for the 3rd Defendant confirmed that its board by a resolution resolved not to monetize its staff quarters but to pursue the allocation of lands for alternative accommodation for members of the Claimants.

It was argued for the 3rd Defendant that based on the exemption the Claimants are not entitled to any right of first refusal. It also submitted that the Court cannot command the impossible bearing in mind that the exemption granted to it is legal, lawful and valid by virtue of Exhibits DW2F – DW2G. It was therefore submitted that the exemption granted to the 1st Defendant was a form of government directive in line with the aforementioned Clause of Exhibit DW2F-DW2G.

The 3rd Defendant argued that the effect of the exemption granted to it is that it is free from the obligation to monetize its staff quarters as sought by the Claimants. In support of its case, learned counsel cited the case of Iniama v. Akpabio (supra); Peter v. David (supra) and the definition of the word “exemption” by the Black’s Law Dictionary, 7th Edition.

DW2 testified for the 3rd Defendant and informed the Court that the Board of the 1st Defendant passed a resolution declining the implementation of the aspect of the Policy relating to its staff quarters. DW2 also testified that the 1st Defendant was granted an exemption from the application of the Policy relating to its staff quarters.

In further proof of its case, the 3rd Defendant tendered Exhibits DW2F-W2G; DW2H; DW2I-DW2K which were admitted by the Court. On the other hand, Exhibits DW2L-DW2N; DW2P; DWQ and DW2R-DWS were admitted provisionally. They are the evidence relied upon by the 3rd Defendant to establish that the 1st Defendant was granted exemption by FGN. It suffices to state here that these exhibits have been expunged by the Court from its record.

On its own part, the 1st Defendant argued against the grant of reliefs 2, 3, and 5 sought by the Claimants because they are based on wrong assumptions. It was submitted that members of the Claimants were neither ejected nor facing the threat of ejection from the staff quarters they occupy. It was also submitted that the 1st Defendant was not offering its staff quarters for sale to non-sitting legal tenants or to any person as alleged by the Claimants. It therefore urged the Court to refuse reliefs 2, 3 and 5 sought by the claimants because they have failed to adduce evidence in proof of their allegations that:

a. their members were/are being ejected or facing the threat of ejection from the staff quarters;

b. the 1st Defendant has sold, selling or offering for sale its staff quarters to non-sitting legal tenants employees of the 1st Defendant.

In the evidence in proof of their assertions, the Claimants, according to the 1st Defendant are deemed to have abandoned their pleaded facts in this respect. The cases cited and relied upon are Akinfosile v. Ijose (supra); Obinlami Brick and Stone Ltd. v. A.C.B. Ltd (supra) and Anyah v. A.N.N. Ltd (supra) and Chief L. Oyelakin Balogun v. Alhaji Busari Amubikanhun (supra).

In a strand of its defence, the 1st defendant posited that the Board passed a resolution in supporting of non-implementation of the Policy as it relates to its staff quarters. And that this resolution was passed prior to the commencement of this action by the Claimants.

The cover letter to Exhibit B written by the Minister of Transport directed the 1st Defendant to implement the attached monetization policy. Clause 7 of Exhibit B provides for the monetization of fringe benefits such as salaries, vehicles, telephone and residential quarters occupied by staff of government ministries, departments and agencies. It is settled that the 1st Defendant controlled by the Federal Government through FMT is a government agency or parastatal. See the case of Agbule v. WR & PP. Co. Ltd (supra).

It is also settled that the Federal Government through FMT can give directives to the 1st Defendant, and that it is legally bound to comply with such directives. It cannot cherry pick which directive it will comply with. See section 12 of the Nigerian Railway Corporation Act LFN 2004. Consequently, Exhibit B deals with the policy of the Federal Government on monetization as applicable to all government ministries, agencies, parastatals and departments including the 1st Defendant. It simply means that the directive conveyed to the 1st Defendant by the cover letter to Exhibit is legally binding on it being one from its supervising ministry. I therefore agree that the Board of the 1st Defendant has no power to pass a resolution directing the 1st Defendant not to implement a lawful directive from the Federal Ministry of Transport. Hence, the purported resolution of the Board of the 1st Defendant of 8th April, 2009 directing the 1st Defendant not to monetize its staff residential quarters in line with Policy of the Federal Government duly conveyed to it by FMT is ultra vires the Board. It is of no legal effect whatsoever.

I am comforted by the fact that the parties agree that Exhibit G-G3 (which is also Exhibit DW2F-DW2FG) applies to all government agencies, departments and ministries except those specifically exempted in its Clause 16 or those exempted by the directive of the Government. It is my finding that the 1st Defendant is not exempted under the said Clause 16 of Exhibit G-G3. I am equally satisfied that there is no evidence that the 1st Defendant has been exempted from implementing the Policy including the aspect relating to the monetization of its staff quarters.

The implication and effect of the above findings is that the 1st Defendant is legally bound to implement all aspects of the Policy as duly conveyed to it by FMT. The prejudicial view that it is exempted has no legal foundation upon which to stand. The testimony of CW2 and DW2 to the contrary cannot stand in view of Exhibits B and Exhibit G-G3. It is settled that oral evidence cannot be admitted to contradict or alter documentary evidence. It is also trite that documentary evidence is the best form of evidence. Where evidence placed before the Court is credible and cogent, the court is entitled to accept it and act on same. I hereby disbelieve and reject the evidence of CW2 and DW2 to the effect that the 1st Defendant was exempted from implementing the aspect of the Policy relating to the monetization of its staff quarters. Learned counsel’s position that the Claimants are entitled to a right of first refusal by virtue of Clauses 12-15 of Exhibit G-G3 is correct and unassailable. The Defendants do not dispute the claim that the members of the Claimants have not been accorded this right. By their pleadings, the 1st and 3rd Defendants admit that the claimants have not been accorded this right. This denial is unjustifiable in law and liable to be declared unlawful.

For the foregoing reasons and findings, I have no option but come to a conclusion that the Claimants have proved their case on the preponderance of evidence. I therefore resolve issue number two formulated by the 3rd Defendant against it. I hold that the Claimants have proved their case. This conclusion effectively determines issue number one distilled by the 1st Defendant. It is needless for me to also point out that the lone issue submitted for determination on behalf of the Claimants is hereby resolved in their favour.

Having held that the claimants have proved their case, they are legally entitled to the ancillary reliefs sought. This court can legally grant declaratory reliefs pursuant to section 254D(1) of the 1999 Constitution as amended. In our jurisprudence, the powers of a superior court of record to grant declaratory reliefs as well as ancillary reliefs in deserving cases are unfettered. See the cases of A.G Cross river State v. A.G. Federation (supra); Omomeji v. Kolawole (supra).

On the strength of these judicial authorities, I hold that the Claimants are entitled to the relies 2, 3, 4 and 6 as per the originating process. All arguments canvassed to the contrary by the 1st and 3rd Defendant do not hold water. The cases of Anyanwu v. Uzowuaka (supra) and Amos v. Okpara (supra) relied upon by counsel for the 3rd Defendant are not applicable in the instant case as the circumstances are different. However, I agree with learned counsel for the 1st Defendant that the Claimants have not placed any cogent and compelling evidence to substantiate the allegations that the 1st Defendant has ejected their members or that such members are facing the threat of ejection. There is also no compelling evidence before the Court to support a finding that the 1st Defendant has sold or offering its staff quarters for sale to non-sitting tenants.

In all, I hold that the Claimants are entitled to a grant of some of the reliefs sought. In consequence, I hereby order and declare as follows:

1. That the extant “Approved Guidelines for the sale of Federal Government Property” published at page 20 of the Daily Champion Newspaper of Monday 20th June, 2005 as well as the “Generic Guidelines for the Reform of Parastatals” issued by the Bureau of Public Service Reforms in collaboration with the Bureau of Public Enterprises published by the Presidency in March 2006 are binding on the Management of the Nigerian Railway and the Implementation Committee of the White Paper on the Commission of Inquiry into Alienation of Federal Government Landed Property in the disposal of all residential facilities {houses, flats etc) built, acquired or otherwise owned by the Nigerian Railway Corporation

being an agency of the Federal Government of Nigeria; and the said properties or facilities not exempted from the application of the guidelines.

2. That pursuant to Clause 12 of the aforesaid Approved Guidelines all members of the claimants unions who are legal sitting tenants in the said qualified and affected properties are entitled to right of first refusal (as part of their fringe benefits) to bid for and buy the affected properties before any such affected properties can be validly offered to the public to bid for and purchase.

3. That the Defendants shall issue and avail to the Claimants’ members who are legal sitting tenants in the residential houses and flats and other tenanted accommodation which they occupy as part of their fringe benefits, bidding forms to enable each of them exercise their rights of first refusal to purchase their tenanted apartments as guaranteed by paragraph 12 of the Approved Guidelines for sale of Federal Government Properties vested in the 1st Defendant in all its stations throughout Nigeria.

4. That any offer made to any third party or non-sitting tenant employees of the 1st Defendant who are members of the 1st and 2nd Claimants unions as at the date of the commencement of this suit in respect of the residential houses, flats and other tenanted accommodation which they occupy as part of their fringe benefits, in derogation of the exercise of their rights of first refusal to purchase their tenanted apartments as guaranteed by paragraph 12 of the Approved Guidelines for the sale of Federal Government Properties vested in the 1st Defendant in all its stations throughout Nigeria is hereby set aside.

5. The Defendants whether by themselves or their agents, servants, privies or any person whatsoever acting on their behalf or authority are hereby perpetually restrained from offering for bid to purchase, sell, or otherwise disposing to the public, or ejecting such employees-sitting tenants therefrom in pursuit of such sale, all or any of residential facilities (houses, flats etc) built, acquired or otherwise owned by the Nigeria Railway Corporation being an agency of the Federal Government of Nigeria and which presently are legally occupied by members of the Claimants’ unions in the employment of the 1st Defendant as legal sitting tenants, without first giving each such employee opportunity to exercise their right of first refusal to purchase the said propert (ies) in accordance with the Approved Guidelines.

In all, the case of the Claimants is meritorious. Judgment is therefore entered accordingly.

…………..………………………………………………………………

Hon. Justice, B. A. Adejumo, OFR,

MCI.Arb, GFSM, CFIAR, FCIArb, FNILS,

President,

National Industrial Court of Nigeria.