Elder C. C. Mbacci & Ors V. Attorney General Anambra State & Anor (2016)

LawGlobal-Hub Lead Judgment Report

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. 

This is an appeal against the judgment of Anambra State High Court sitting at Awka (hereinafter referred to as the Lower Court), delivered by Hon. Justice M. I. Onochie on the 10thday of October, 2008.

Brief summary of facts of the case.
The appellants who were plaintiffs at the Lower Court are retired civil servants of Anambra State. Sometime in 1997 after Anambra State was created, the Anambra State Government allocated some buildings to the State Civil servants in order to alleviate their problems with regard to accommodation, since some of the workers lived in Enugu State while they worked in Anambra State. Due to persistent pleas from the civil servants and in line with the Federal Government housing policy, the Anambra State House of Assembly passed a law; Government Quarters and Estate Flats (Owner Occupier Status) Anambra State Law No. 6 of 2002 And thereby allegedly transferred ownership of the government quarters being occupied by the civil servants (including the appellants) to them. However, the State Governor as at that time refused to give

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assent to the Law, but his veto was overridden by 2/3 majority of members of the State House of Assembly. However, the Law remained comatose and unimplemented by the State Government. Later in the year 2005, the Law was repealed, thereby, divesting all occupiers of the said government apartments of the owner occupier status. Consequent upon this, the appellants were served notices to quit by the 2nd respondent herein who sought to eject them from the various apartments which they occupied. The appellants in order to prevent the said ejection, instituted the instant action and claimed ownership of the various apartments occupied by them. They placed heavy reliance on the Anambra State Law No. 6 of 2002. The respondents in turn, challenged the suit contending that no right of ownership had been passed on to the appellants by the said Anambra State Law No. 6 of 2002, as the pre-conditions for the same to occur, were never fulfilled. Also, the respondents counter claimed for the possession of the said apartments as well as arrears of rents for their occupation by the appellants.

?The suit was originally instituted by the plaintiffs/appellants vide an

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originating motion dated and filed on the 11th day of April, 2005. Pursuant to the said originating motion, the parties exchanged their respective affidavits and written addresses in support and opposition to the said originating motion. The learned trial judge after a thorough examination of the processes placed before him and after considering the reliefs sought by the appellants, ordered the parties to file their respective pleadings. The appellants? statement of claim was filed on the 25th day of October, 2005, wherein they sought for the following reliefs:
?a. Declaration that the plaintiffs are bona fide owners of the buildings and premises which they occupy on owner/occupier basis at Real Estate Qtrs. Awka, at Joseph Abulu Road, Zakiri Haliu Road, Chukwuemeka Ezeife Road, Rufai D. Garba Road, Chudi Nwike Road, Vincent Anago Road, Dabo Aliu Road and Mike Attah Road.
b. An order quashing and declaring as void the Notices to quit Ref. No. ANS/HOS/REQ/GEN/VOL.2/492 of 10th January, 2005 issued to the applicants and signed by the 2nd Defendant, with respect to plaintiffs? buildings and premises at Real Estate Quarters, Awka.<br< p=””

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c. Declaration that the threat to deprive the plaintiffs of their rights of ownership and occupation of their building and premises contrary to the Government Quarters and Estate Flats (Owner Occupier Status) Anambra State Law No. 6 of 2002 is wrongful and amounts to a deprivation of the plaintiffs? right to property without due process.
d. Declaration that the threat to evict the plaintiffs from their building and premises at Real Estate Quarters Awka without affording the plaintiffs right to fair hearing is violative of the 1999 Constitution of the Federal Republic of Nigeria.
e. Injunction restraining the Defendants by themselves, their agents, privies and assigns or howsoever from interfering with the plaintiffs? right as owners/occupiers of their respective buildings and quarters at Real Estate Quarters Awka or from further doing anything or taking any steps inconsistent with the owner/occupier status conferred on the plaintiffs by virtue of Anambra State Government Quarters and Estate Flats (Owner Occupier Status) Law No. 6 of 2002.
f. An order of prohibition, prohibiting the defendants from exercising a quasi judicial

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function of evicting the plaintiffs in total deprivation of their acquired and vested right under Anambra State Law No. 6 of 2002 and the 1999 Constitution of the Federal Republic of Nigeria.
IN THE ALTERNATIVE
(i) 1st Plaintiff claims N15,000,000.00 (Fifteen Million Naira) being general damages and the cost and value of the improvement made on the 1st Plaintiff?s building by the 1st Plaintiff.
(ii) 2nd Plaintiff claims N15,000,000.00 (Fifteen Million Naira) being general damages and the cost and value of the improvement introduced on the 2nd Plaintiff?s building by the 2nd Plaintiff.
(iii) 3rd Plaintiff claims N15,000,000.00 (Fifteen Million Naira) being general damages and the cost and value of the improvement introduced on the 3rd Plaintiff?s building by the 3rd Plaintiff.
(iv) 4th Plaintiff claims N15,000,000.00 (Fifteen Million Naira) being general damages and the cost and value of the improvement introduced on the 4th Plaintiff?s building by the 4th Plaintiff.
(v) 5th Plaintiff claims N15,000,000.00 (Fifteen Million Naira) being general damages and the cost and value of the improvement introduced

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on the 5th Plaintiff?s building by the 5th Plaintiff.
(vi) 6th Plaintiff claims N15,000,000.00 (Fifteen Million Naira) being general damages and the cost and value of the improvement introduced on the 6th Plaintiff?s building by the 6th Plaintiff.
(vii) 7th Plaintiff claims N15,000,000.00 (Fifteen Million Naira) being general damages and the cost and value of the improvement introduced on the 7th Plaintiff?s building by the 7th Plaintiff.?

On the part of the defendants/respondents, they filed their initial statement of defence and counter claim on the 11th day of November, 2005, but with the leave of the Lower Court, they subsequently amended and filed the same on the 11th day of November, 2005 and on the 13th day of December, 2007. The plaintiffs/appellants in response to the respondents? statement of defence and counter claim, filed their reply to the said statement of defence and counter claim on the 14th day of January, 2008. The defendants/respondents in their counter claim sought for the following reliefs:
(i) A Declaration that the Anambra State Law No. 6 of 2002 is inconsistent with the provisions of

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Section 1 of the Land Use Act of 1978 and therefore null and void.
(ii) A Declaration that the Anambra State Law No. 6 of 2002 is inconsistent with the provisions of the Constitution of Federal Republic of Nigeria 1999 and therefore null and void
(iii) A Declaration that the pre conditions for the acquisition of owner occupier status by the plaintiffs over the properties occupied by them at the Government Real Estate Awka have not been fulfilled.
(iv) A declaration that Anambra State Law No. 6 of 2005 had been repealed by the Government Quarters (ownership status) (repeal) Law 2005.
(v) A declaration that Anambra State Law No. 6 of 2005 has divested the plaintiffs of any ownership interest in the flats occupied by the plaintiffs at the Government Real Estate Awka.
(vi) An Order directing the plaintiffs to deliver up possession forthwith of the various flats/accommodation occupied by them at the said Government Real Estate Awka to the defendants.
(vii) A Declaration that the plaintiffs are in breach of the agreement severally entered into with the State Government.
(viii) A Declaration that proprietary rights did not vest on

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the plaintiffs as the contingency provided by Law No. 6 2002 was not satisfied.
(ix) An Order that the 1st plaintiff pays to the defendants counter claimant the sum of N23,000 as money owed the defendants for occupying their quarters for 23 months, February 2003 ? October, 2005 without payment and N1, 000 every month from November, 2005 until he vacates the accommodation.
(x) An order that the 2nd plaintiff pays the defendants/counter claimants the sum of N42,000 as money owed them for occupying their quarters for 42 months, July 2002 to October, 2005 without payment and N1,000 every month from November, 2005 until he vacates the accommodation.
(xi) An order that the 3rd plaintiff pays the defendants/counter claimants the sum of N42,000 as money owed them for occupying their quarters for 42 months, July 2002 to October, 2005 without payment and N1,000 every month from November, 2005 until he vacates the accommodation.
(xii) An order that the 4th plaintiff pays the defendants/counter claimants the sum of N62,400 as money owed the defendants for occupying their quarters for 78 months, July 1999 to October, 2005 and N800 monthly

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from November, 2005 till he vacates the accommodation.
(xiii) An order that the 5th plaintiff pays to the defendant /counter claimants the sum of N387,400 as money owed to them for occupying the quarters for 48 months ? January, 2001 to October, 2005 and N800 monthly from November, 2005 till she vacates the said occupation.
(xiv) An order that the 6th plaintiff pays to the defendants/counter claimants the sum of N40,000 as money owed to them for occupying their quarters for 40 months, June 2002 to October, 2005, without payment and N1,000 monthly from November, 2005 till he vacates the said accommodation.
(xv) An order that the 7th plaintiff pays to the defendants/counter claimants the sum of N44,200 as money owed the defendants for occupying their quarters for 59 months, January, 2001 to October, 2004 without payment and N800 monthly from November, 2005 till she vacates the said accommodation.
(xvi) An Order mandating the plaintiffs to observe the terms of the agreement severally entered into by them.?

At the completion and due exchange of pleadings, both parties called a single witness in proof and

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defence of their respective cases. At the end of it all, the learned trial judge entered judgment partly for the defendants/respondents in terms of their counter claim and dismissed the principal reliefs sought by the plaintiffs/appellants.

The appellants being dissatisfied with the said judgment appealed against it vide their notice of appeal which was filed on the 13th day of October, 2010. The notice of appeal was later amended and deemed as having been properly filed and duly served on the 5th day of February 2015. Henceforth in this judgment, the plaintiffs/appellants shall be called the appellants while the defendants/respondents shall be called the respondents. The appellants were dissatisfied with the judgment on seven (7) grounds of appeal. The said grounds of appeal without their particulars are reproduced below:
?GROUND 1
ERROR IN LAW
The learned trial judge erred in law and occasioned a gross miscarriage of justice when he held as follows:-
?The defendants in their statement of defence and counter claim pleaded that the 3rd, 4th, 5th, and 7th defendants are not entitled to any benefit under Law No. 6 of 2002

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because they had already retired from service before the said law was passed. Counsel for the Plaintiffs in his final address submitted that the defendants did not lead evidence as to when the 3rd, 4th, 5th, and 7th defendants retired from service. I had held that on the state of the pleadings, issue were not joined as to the averments in paragraphs 7(f) (g), (h), (i), (j), (k), (l), (m), (n), (o), (s), (t) and 2 of the counter claim. It is trite law that a fact admitted needs no further proof. It is therefore my view that the failure of the plaintiffs to join issues with the defendants on the averments in paragraphs (f), (g), (h), (i), (j), (k), (l), (m), (n), (o), (s), (t) (u) of the counter claim relieved the defendants of the burden of proving the averments in those sub paragraphs of paragraph 7 of the counter claim.?
?Ground II
ERROR IN LAW
The learned trial judge erred in law and occasioned a gross miscarriage of justice when he held as follows:-
?While I agree wholly with the Plaintiffs that it is the responsibility of the Government to set the machinery in motion for the compliance of the said Law, it is also my view

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that where the Government failed to do so the plaintiffs are not without remedy. They are at liberty to file an action in Court to compel the Government to comply with the provisions of the said Law. PW 1 admitted that even when he noticed that the Government did not comply with the said Law, he did not institute any action to compel the Government to do so because he was still in service then. I am not at all satisfied with the explanation given by Pw1. I am not aware of any Law prohibiting a civil servant still in service from instituting any action against the Government to enforce any right conferred on him by statute.?
?GROUND III
ERROR IN LAW
The learned trial judge erred in law and occasioned a gross miscarriage of justice when he held as follows:
?Is it the intention of the framers of Law No. 6 of 2002 that ownership of government Quarters occupied by civil servants should vest on them from the date of the commencement of that Law? I do not think so. Section 5 (i) of the said Law provides that the owner occupier status shall have the implication of a mortgage. Section 3(c) of the said Law provides that where the

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occupier fails to complete full mortgage payment within one year after leaving service of the state, the property shall be forfeited to the state. This again shows that the ownership rights conferred on occupiers is contingent right and not a vested right capable of enforcement.?
?GROUND IV
ERROR IN LAW
The learned trial judge erred in law and occasioned a gross miscarriage of justice when he held thus:-
?Section 13 of the Interpretation Law Anambra State provides that the repeal of an enactment shall not unless a contrary intention appears affect any right, privilege obligation or liability accrued or incurred under any enactment so repealed. This section of the Interpretation Law again is of no assistance to the plaintiffs as the right to ownership of the quarters occupied by them had not accrued to them at the time Law No. 6 of 2002 was repealed.?
?GROUND V
ERROR IN LAW
The learned trial judge erred in law and occasioned a gross miscarriage of justice when he held as follows:-
?The Plaintiffs cannot therefore maintain an action claiming the reliefs in paragraphs 19 (a) to (f) of

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the statement of claim. Again any right conferred on them by the said Law has been wiped away by the repeal of Law No. 9 of 2005. The claims of the plaintiffs in paragraphs 19 (a) to (f) of their statement of claim therefore fails and is accordingly dismissed.?
?GROUND VI
ERROR IN LAW
The learned trial judge erred in law and occasioned a gross miscarriage of justice when he held thus:-
?I do not think that the plaintiffs acquired any equitable interest capable of protection by this Court as there is no evidence that the plaintiffs expended money on the said properties after the passing of Law No. 6 of 2002 in the belief that the said properties were theirs following inducement or promise made to them by the defendants.?
?GROUND VII
ERROR IN LAW
The learned trial judge erred in law and occasioned gross miscarriage of justice when he held thus:-
?I held earlier stated in this judgment the Plaintiffs alternative claim for damages and cost incurred in maintenance of their respective quarters seems to me to be in the nature of special damages which requires strict proof. Each of the

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plaintiffs have claimed the sum of N15,000.000. They however failed to plead or prove by evidence how they arrived at the figure. It is my view that the plaintiffs have failed to prove their entitlement to the sum of N15,000.000.?

In accordance with the rules of this Court, the parties exchanged their briefs of argument. The appellants? brief of argument was prepared by Ben Osaka Esq. It was filed on the 16th day of September, 2011. The said appellants? brief of argument was subsequently amended and deemed as having been properly filed and duly served on the 5th day of February, 2015. The respondents? brief of argument was prepared by G. B. Obi Esq. It was filed on the 6th day of March, 2015. The learned counsel to the appellants in their brief, formulated six (6) issues for the determination of this appeal. The issues are as follows:
?1. Whether the trial judge was correct when he applied averments in support of counter claim filed by the Respondent to defeat the averments contained in the Appellants statement of claim.(Ground 1).
2. Whether the trial judge was right after holding that it was the responsibility of

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the respondents (Government) to set the machinery in motion for the compliance of Law No. 6 of 2002 went ahead to impose on the appellants the burden of instituting an action against the Government to comply with the provisions of Law No. 6 of 2002 (Ground II).
3. Whether the trial judge was correct when he held that the rights vested on the Appellants by Law No. 6 of 2002 as owner/occupier and protected by Section 13 of Interpretation Law of Anambra State is contingent right subject to payment of the mortgage in full by the appellants (Grounds III and IV).
4. Whether the learned trial judge was correct when he held that the Appellants are not entitled to reliefs contained in paragraphs 19 (a) to 19 (f) of the statement of claim on the grounds that the right conferred on the appellants has been wiped away by the repeal of Law No. 6 of 2002 by Repeal Law No 9 of 2005.
(Ground 5)
5. Whether the learned trial judge was correct when he held that the Appellants had not acquired any equitable interest capable of protection by the Court as there is no evidence that the plaintiffs expended money on the properties after the passing of Law No. 6 of

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2002. (Ground 6)
6. Whether the learned trial judge was correct when he held that the appellants failed to prove the alternative claim for N15 Million each as damages and cost incurred in maintenance of their respective quarters, which is in nature of special damages.?

The respondents? counsel on his own part distilled four (4) issues in the respondents? brief for the determination of this appeal. The issues are as follows:-
(i) Whether the decision of the High Court that the appellants admitted and did not join issues with the respondents as to the date of retirement of the 3rd, 4th (S. A. Chinweuba), 5th (Mrs. Christiana Anayachebelu) and 7th appellants is correct (Ground 1).
(ii) Whether the decision of the High Court that the Government Quarters and Estate Flats (owner ? occupier status) Law No. 6 2002 did not automatically vest in the appellant ownership of the building occupied by the appellants at the Real Estate Quarters Awka on the coming into force of the law on 1st January 2002 is correct. (Grounds 2 & 3)
(iii) Whether the decision of the High Court that Section 13 of the Interpretation Law

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of Anambra State does not avail the appellants is right (Grounds 4, 5 & 6).
(iv) Whether the High Court was right to have granted only part of the alternative relief of N15 Million claimed by each of the appellants (Ground 7).?

I have carefully gone through the records before me; the judgment of the Lower Court; notice of appeal; issues formulated by learned counsel to the parties and legal arguments in support thereof; and I am of the firm view point that the issues as formulated by the learned counsel to the respondents are more apt in the resolution of this appeal and has completely embodied the issues and arguments of the appellants. Thus, the issues as formulated by the learned respondents? counsel are hereby adopted by me for the determination of this appeal.

ISSUE 1 (Appellants Issue 1)
The learned counsel for the appellants submitted that the learned trial judge was (with due respect) wrong when he chose to apply the averments in support of the counter claim of the respondents to defeat the specific averments contained in the appellants? statement of claim. The learned counsel further submitted that a

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counter claim is to all intents and purposes a separate action, although the defendant for convenience and speed, usually joins it with his defence. He referred us to the cases of Ogbonna v. A. G. Imo State (1992) 1 NWLR (Pt. 220) 647 @ 675 and Gowon v. Ike Okongwu (2003) 6 NWLR (Pt. 815) 38 @ 48-49.

The learned counsel contended that contrary to the finding of the learned trial judge, the appellants adequately joined issues and or sufficiently controverted the respondents? averments in paragraphs 2 and 7 in their counter claim, through their reply to counter claim in paragraphs 14 and 15. The learned counsel thereby submitted, that the respondents have the burden under the law to prove all their averments contained in the said paragraphs 2 and 7 of the counter claim. He relied on Section 136 (1) of the Evidence Act, 2011.

?On the strength of the above, the learned counsel thereby argued that the respondents who averred that the 3rd, 4th , 5th and 7th appellants had retired before Government Quarters and Estate Flat (owner/occupier status) Law No. 6 2002 was enacted by the Anambra State House of Assembly; have the onus to adduce evidence

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in proof of their averments. The learned counsel further contended that ?pleadings is not synonymous with evidence and so cannot be confirmed as such in the determination of merit or otherwise of a case?; and that even though the appellants did not specifically controvert the said paragraphs, the respondents are not absolved of their duty to lead evidence in support of their averments. He relied on the cases of Arabambi v. Advance Beverages Ind. Ltd. (2005) 18 NWLR (Pt. 959) 7; Okonkwo v. F. R. N. (2011) 11 NWLR (Pt. 1258); and Echere v. Ezirike (2006) All FWLR (Pt. 232) 1597@1608.

The learned counsel to the respondents on his own part counter-argued that the appellants having admitted in their statement of claim that they are retired civil servants and indeed filed this suit in that capacity have the onus to prove before the Court that they had not retired as at the date of commencement of Law No. 6 of 2002. The learned counsel further argued that the contention of the appellants that the averments in the counter claim cannot be used to defeat the claim of the appellants in their statement of claim since the counter claim is separate action

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and distinct from the appellants own action, is highly misconceived. He maintained that a counter claim though taken to be separate suit,is also part of the defence of the respondents to the appellants? claim. This is more so, that in the instant case where the subject matter and claims sought in the counter claim are closely related or intertwined with the subject matter of the main suit. Thus, the Court can apply the said facts pleaded in the statement of claim and evidence led in proof thereof to the counter claim, and vice versa. He referred us to the cases of Dabup v. Kolo (1993) 9 NWLR (Pt. 317) 254; and Usman v. Garke (2003) 14 NWLR (Pt. 840) 261@288.

Again, the learned counsel argued that the appellants failed and or neglected to properly answer, challenge and traverse paragraph 7 of the respondents? counter claim (which borders on the date of retirement of 3rd, 4th, 5th and 7th appellants) in accordance with the standard required by law, thus, the averments in the said paragraph is deemed admitted, without the need to further prove the same. He relied on the cases of Meridian Trade Corporation Ltd v. M. C. (W. A) Ltd (1998) 4 NWLR (Pt.

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502) 1, and Lewis & Peat C.N.R.I. Ltd. v. A. E. Akhimien (1976) 1 All NLR 460.

I agree with the submission of the learned counsel to the appellant that, even though, a counter claim is considered to be a separate and independent action distinct in nature from the substantive suit. It is required to succeed on its own strength. But it is interrelated, interwoven or intertwined with the substantive suit, especially where the parties to both actions are relying on the same sets of fact. Thus, I agree with the learned trial judge that the averments in the counter claim can be used to join issues with the averments contained in the statement of claims and vice versa. See the case of Dabup v. Kolo (supra).

?On the issue of whether paragraphs 14 and 15 of the appellants? reply to the statement of defence and counter claim sufficiently traversed the respondents averments in paragraph 7 (f), (g), (h), (i), (j), (K), (l), (m), (n), (n), (o), (s), I have carefully examined the said paragraphs and I am also of the firm view point that the said paragraphs 14 and 15 of the appellant?s reply did not challenge or traverse any specific averment

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contained in paragraph 7 of the statement of defence and counter claim referred to above. The said paragraph 7 contained copious facts which stipulated the times the 3rd, 4th, 5th and 7th appellants retired from service and averred that the provisions of Governments Quarters and Flat (owner/occupier) Law No. 6 of 2002 did not enure to their benefits. The appellants did not challenge this copious facts and strong averments, but merely sought to argue that the said law applies to all occupants of the said government quarters and flats, notwithstanding their time of retirement. That is, the law was enacted to operate retrospectively. Thus, any occupier of the said government quarters and flats covered by this law would be conferred with the status of owner occupier whether he has retired or not. This to me did not constitute or amount to any meaningful traverse, whatsoever. It is now elementary law that any averment that is not specifically traversed or not traversed at all is deemed admitted by the adverse party. See the case of Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745; (1990) LPELR ? 2342, 29 ? 30. In this vein, I agree with the decision of the

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learned trial judge that respondents in the instant have been relieved of the duty to prove the said sub paragraphs of paragraph 7 of the counter claim. Thus in the light of the above, this issue is hereby resolved in favour of the respondents.

ISSUE 2 (Appellants? Issues 2 & 5)
The learned counsel to the appellants submitted that the learned trial judge (with due respect) ?was wrong? when he came to the conclusion that the appellants were at liberty to institute an action in Court to compel the Anambra State Government to implement the provisions of Government Quarters and Estate Flats Law, supra; after he had earlier observed, that it was the responsibility of the respondents (Government) to set the machinery in motion for the due compliance with the said law in accordance with the specific and mandatory provisions of Section 4 of the Law. The learned counsel further argued that Section 3 of the said law conferred on the appellants the status of ?Owner Occupier? from the date of commencement of the Law. Thus, he submitted that by virtue of the combined provisions of the said Law, the appellants are deemed owners of

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the house and flats they occupy at Real Estate Awka. According to the learned counsel, the appellants cannot lose their acquired rights by the inaction on part of the Respondents.

In addition, the learned counsel submitted that the learned trial judge (with due respect) was also wrong when held that the appellants have not acquired any equitable interest capable of being protected, as there was no evidence that the appellants expended money on the properties after the said Law was duly passed. The learned counsel contended that there was evidence on record as to the fact that the appellants have been maintaining the apartments which they occupied before the enactment of Law No. 6 of 2002 and up to the time it was repealed in 2005, before they were consequently issued with the bothersome and worrisome notice to quit. The learned counsel contended that this piece of evidence was not challenged or contradicted by the respondents, thus it is deemed admitted and proved. According to the learned counsel, the learned trial judge was bound to act on them. Therefore, he urged this Court to resolve the issue in favour of the appellants.

?The learned counsel to

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the respondents in response, submitted that the learned trial judge was right when he held that the intendment of Law No. 6 of 2002 was not to vest automatic ownership of the apartments on the appellants, but to create mortgage relationship between the Anambra State Government and the appellants in terms of the combined provisions of Sections 3 (b-c), 4 and 5 of the Law No. 2002. He further submitted that the learned trial judge was correct when he held that the rights of the appellants are contingent rights which did not crystallize or became concretize, due to the non-performance/occurrence of the events/condition necessary for the vesting of the right.

?In addition, the learned counsel submitted that the onus was on the appellants to prove and/or adduce evidence to establish and or show that the performance/occurrence of the events that ought to precede the vesting on them of ownership of the properties as provided by the law have occurred, but they failed to do so. He argued further that the contention of the appellants? counsel that money was deducted from the appellants? salary monthly, in settlement of the mortgage was neither pleaded by

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them in their statement of claim nor form the basis of the appellants? case at the Lower Court as can be ascertained from their statement of claim. He further contended that from the pleadings and totality of the evidence on record, that the money being deducted from the appellants? salary was the rent for the building which the appellants occupied respectively.

Finally on this issue, the learned counsel submitted that the pre-condition for vesting any right on the appellants having not been fulfilled, the appellants could not be held to have been entitled to any right under the Law. Additionally, that the situation was different from a private contract between two parties in which case, a party cannot benefit from his default in performing his obligations under the contract. That the instant case was one of a substantive law which prescribed certain pre-conditions for the conferment of a right. He thereby urged this Court to resolve this issue in favour of the respondents.

?It is trite law that in the construction of a statute, the entire provisions of the statute should be considered collectively, holistically and no single section

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should be construed disjointedly or separately. The purpose of this is to give proper interpretation and purposive meaning to the statute in line with the intendment of the law makers. Such a collective interpretation of the section of the statutes would also ensure that the sections are not interpreted in a manner that would be inconsistent with other provisions of the statute and which may lead to absurdity or confusion.

I have examined the various sections of the Government Quarters and Estate Flat (owner-occupier status) Law No. 6 of 2002, and I agree with the learned trial judge that the right conferred on the appellants with respect to the ownership of the various government apartments occupied by them was a contingent right subject to the fulfillment of various conditions stipulated by the law. For purpose of clarity, I will undertake to reproduce the relevant sections which are applicable to this case and form the basis of this case and the appeal which emanated therefrom.

Section 2 of the Government Quarters and Estate Flats (Owner-Occupier Status) Law defines owner-occupier as follows:
?Owner-occupier status means the arrangement

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whereby the State Government builds houses and sells them to public servants through long term payments made by monthly mortgage payments deducted at source from the occupiers? salaries.?

Section 1 states as follows:
?This law may be cited as the Government Quarter and Estate Flat (Owner- Occupier Status) Law and shall come into force on the 1st day of January 2002.? (Underlining mine for emphasis)

Section 3:
?3(a) All public servants in occupation of Government Quarters and Estate Flats shall do so on owner-occupier basis from commencement of this law.
(b) Without prejudice to Sub-section (a) above, any occupier leaving the services of the state must make full mortgage payment in respect of the occupier?s apartment.
(c). If the occupier fails to complete the full mortgage payment within one year after leaving the service of the state, the property shall be forfeited to the state.?

Section 5
?1. The owner-occupier status for the purpose of this Law shall have all the implication of a legal mortgage.
2.The mortgage payment as prescribed by the Housing Board shall be

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deducted at source monthly from the salary of each occupier.? (Underlining mine for emphasis)

It is a trite rule of interpretation, that if the wording of a statute is plain, clear and unambiguous, the Courts are bound to construe such statute literally, that is, giving it its ordinary grammatical meaning. In the instant case, the above quoted statutory provisions are clear and unambiguous. From the provision of Section 1 of the Law, it is clear that the said Government Quarters and Estate Flat Law, (supra) was enacted the 1st day of January, 2002 as the commencement date. Thus, it does not apply to civil servants, whose period of service expired before the said 1st day of January, 2002. Also, a proper analysis of the above reproduced statutory provisions, points graphically to the fact that the civil servants who are the intended beneficiary of the Law are not conferred with any immediate or automatic right of ownership over the said government apartments. Their rights are subject inter alia to the payment of the full mortgage price of the apartment they occupy before retirement, or at least one year after they have retired. In this vein, I am of the

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firm view point that the law merely created a legal mortgage between the Anambra State Government and the civil servants; it does not transfer any immediate or automatic right of ownership on any civil servant (including the appellants) with regard to any of the government apartments they are in possession of or occupying.

On the issue of monthly deductions from the appellants? salary which they claimed was in respect of the mortgage transaction. It is trite law that parties are bound by their pleadings. Any fact or evidence adduced or given in the course of a trial which has not been pleaded goes to no issue. Such a fact or evidence thereon, except if later incorporated through an amendment, would be discountenanced. See N. B. Plc v. Adetoun Oladeji (Nig) Ltd (2000) 15 NWLR (Pt. 791) 589; and Consolidated Breweries Plc. v. Aisowieren (2001) 15 NWLR (Pt. 736) 424. I have perused the appellants? pleadings before the Lower Court and found nowhere therein where they pleaded that the respondents collected monthly mortgage payments in respect of the apartments they occupied. Also, the evidence of PW 1 that money was being deducted from their

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salaries directly does not in any way support the case of the appellants. Thus, the contention in that regard is accordingly discountenanced.

Also, the appellants who alleged that they have been maintaining the apartments on their own account before and after the Law was passed, are to be deemed to have equitable interest in the apartments are saddled with the onus to prove that the said ?maintenance? was beyond the normal tenant maintenance responsibility and show that they have actually altered their positions in the belief that the house already belonged to them. It is a well established principle of law, that averments in pleadings do not by themselves constitute evidence in respect of which the Court can act. Basically, averments should be supported by cogent and credible evidence. Any averment that is not supported by evidence is deemed abandoned, and consequently, discountenanced. The appellants who averred that they incurred or expended some money in ?maintenance? of the apartments which they occupied failed to show or demonstrate before the Court, through admissible evidence that such expenditure was beyond what an ordinary

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tenant is expected to expend on the leased property. This neglect and/or failure of the appellants is fatal to their claims, and the averments are deemed abandoned and accordingly discountenanced. Thus, I agree with the learned trial judge that appellants did not acquire any equitable interests which are capable of being protected. On the whole, this issue is hereby resolved in favour of the respondents.

ISSUE 3
The learned counsel to the appellants submitted that the learned trial judge (with due respect) was in error when he held that the right vested on the appellants by Law No. 6, 2002 as owner/occupier is a contingent right subject to payment of mortgage in full. He argued that the learned trial judge having made specific findings that the appellants are vested with the status of owner-occupier from the date the said Law No. 6 of 2002 commenced was wrong to have turned round to hold that it was a contingent right, subject to payment of the mortgage in full. He further argued that the learned trial judge was required to examine the whole sections of the Law as a whole in order to ascertain its intendment, and should not have interpreted the

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sections in piece meal which consequently led to absurdity. He insisted that Section 3 (a) had already conferred the appellants with the status of owner occupier before the issue of mortgage payment as provided in Section 3 (b) can be made operational.

Again, it was contended that the appellants have been paying for the mortgage sum monthly, as there was evidence that deductions were made from their salaries directly. He argued that this piece of evidence has gone to prove that Section 5 (2) of the Law has been complied with, notwithstanding that the Housing Board was not established as provided in Section 4. On the basis of the above, the learned counsel maintained that the appellants have acquired subsisting legal rights over the apartments which they occupied, thus, the repeal of Law No. 6, 2002 in 2005 does not affect their acquired rights. It was thus submitted that the appellants? rights having been acquired cannot be extinguished by a subsequent repeal in accordance with Section 13 of the Interpretation Law. He also relied on the cases of Lipede v. Sonekan (1995) 1 NWLR (Pt. 374) 668 and Eleran v. Aderonpe (2008) 11 NWLR (Pt. 1097) 50 among

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others. He submitted that the appellants? reliefs contained in paragraph 19 (a) to (f) of the statement of claim are within the said acquired rights of the appellants, and thus the learned trial judge (with due respect) was in error to have refused the same. Therefore, he urged this Court to resolve this issue in favour of the appellants.

The learned counsel to the respondents on his own part submitted that the decision of the Lower Court that Section 13 of the Interpretation Law is inapplicable was right. The learned counsel relied on his arguments in respect of Issue 2 in support of his position under this Issue. He further submitted that the supposed appellants? right is a contingent right subject to the performance/occurrence of an event that did not occur, thus, it should be deemed to have been extinguished by the clear provision of Law No. 9 of 2005. He submitted finally on this issue, ?that law No. 9 of 2005 by going further to make the specific provisions it did in Section 4 of the Law after repeal of law No. 6, 2002 in Section 3 is a clear indication that the law is intended to have retrospective effect of divesting all

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occupiers of Government Quarters such as the appellants of owner occupier status previously vested in them.? He referred to the Supreme Court case of Adesanya v. Adewole (2000) 7 NWLR (Pt. 671) 127.

Let me commence the resolution of this Issue, by acknowledging that the law makers have the constitutional power to make a law which is expected to have retrospective effect. But such retrospective intention is required to be expressly and clearly expressed, anything short of this would not be acceptable, as Courts of law would be very mindful of interpreting a statute as having a retrospective effect. Thus, Courts usually apply strict interpretation to any statue which has retrospective effect in favour of the acquired or vested rights. Thus, I am of the firm view point that Law No. 9 of 2005 does not have retrospective effect. All rights which have been previously acquired or become vested are retained by the affected parties. This position is supported by the provision of Section 13 of the Interpretation Law. However, the said provision of Section 13 of the Interpretation Law does not protect or extend to the benefit of the appellants as no right have

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been acquired or became vested on them. I have earlier in this judgment, held that the appellants? right under Law No 6 of 2002 is a contingent right subject to some pre-conditions, and I do not wish to depart from that position herein. The pre-conditions as provided in Section 3 and 4 of Law No. 6 of 2002 having not been fulfilled and with no right having been acquired or vested on the appellants, the repeal of the said Law No. 6 of 2002 have completely extinguished their rights under the new Law. In the light of this, I hereby agree with the Lower Court that Section 13 of the Interpretation Law cannot avail the appellants. Thus, the repeal Law No. 9 of 2005 has wiped away the claims of the appellants, contained in paragraph 19 (a) ? (f) of their statement of claim. This issue is thereby resolved in favour of the respondents.

ISSUE 4 (Appellants? Issue 6)
The learned counsel to the appellants submitted that the learned trial judge (with due respect) was wrong when he held that the appellants had failed to prove their alternative claim of N15 Million each for damages and costs incurred in maintenance of their respective quarters.

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The learned counsel argued that Exhibit J on which the Lower Court relied upon to award the damages was not forwarded with the purpose of proving special damages and the Lower Court was wrong to have departed from the case put forward by them to find on facts and the making of an order which they never sought for. He relied on the case of Oko Nodafe & Ors. v. Chief Akpan Aquaisum & Ors. (1973) 1 ANCR (Pt. 1) 87 in support of his argument in this regard.

In addition, the learned counsel contended that the said ?Exhibit J had no nexus with the alternative claim nor does it require strict proof.? It was therefore submitted, that the finding and decision in this respect occasioned miscarriage of justice, which this Court should interfere with and consequently set it aside. He relied on the case of Agbomeji v. Bakare (1998) 9 NWLR (Pt. 564) 1 in support of this submission.

?The learned counsel to the respondents in response, submitted and countered that the Lower Court was right to have treated the relief or claim of N15 Million damages claimed by the appellants in their alternative claim as being special damages which must be

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specifically pleaded and strictly proved. The learned counsel further submitted that ?once the damages/loss suffered is capable of being quantified in money; it ceases to be a claim under the realm of general damages.? He referred us to the case of Obasuyi v. Business Ventures Ltd. (2000) 4 S. C. (Pt. 1) 162. He contended that the improvements carried out by the appellants as stated in paragraph 19 (1) ? (vii) of their statement of claim is clearly quantifiable in monetary terms. He further maintained that ?Exhibit J was tendered in proof of the cost of the said improvements made, but unfortunately for the appellants, the amount specified in exhibit J as having been expended were not up to N15 Million variously claimed by them.? Thus, the Lower Court could not have awarded more than what was proved by appellants. He therefore urged this Court to resolve this issue also in favour of the respondents, and consequently dismiss this appeal and affirm the judgment of the Lower Court.

It is a trite rule of pleadings that both the Court and parties are bound by pleadings filed in a suit. See N. B. Plc v. Adetoun Oladeji (Nig.) Ltd,

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supra. In the instant case, the appellants copiously pleaded that they expended huge amount of money in putting the apartments allocated to them by the then Military Governor of Anambra State in habitable conditions. See paragraphs 4 ? 6 of the appellants? statement of claim. These averments were substantiated in evidence by the appellants through the tendering of Exhibit J. Generally, an appellate Court has no business in disturbing an award of damages made by the trial Court, except where it has been shown that the Lower Court proceeded on a wrong or no known principle of law as a result of which the said damages is manifestly unwarranted, excessive, extravagant and unreasonable in comparison with the loss suffered by the claiming party. See Aluminium Manufacturing Co. of Nig. Ltd. v. Volkswagen of Nig. Ltd. (2010) LPELR- CA/L/414/2003; and A. G. Leventis (Nig.) Plc. v. Akpu (2007) 17 NWLR (Pt. 1063) 416. In the instant case, the award of damages made by the Lower Court was in tandem with evidence on record. Thus, this Court has no reason to interfere with the said award of damages. In the light of this, this issue is hereby resolved in favour of

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the respondents.

Having resolved the issues formulated for determination of this appeal in the manner stated above, this appeal lacks merit and it is hereby dismissed. The judgment of the Lower Court delivered in Suit No. A/MISC.30/2005 on the 10th day of October, 2008 is hereby affirmed and upheld by me. No order is made with regard to costs.

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Other Citations: (2016)LCN/8636(CA)