Appeal Court’s decision and payment of grounded rents by 707 traders
VIVIAN OKEJEME examines the legal conundrum confronting the N6.5billion, Wuye Ultra-Morden market commissioned by the previous administration, and how they have become hindrances to its take-off
It has been a fierce legal battle for about three years now with 707 traders, led by Abah Dennis, and a firm, All Purpose Shelters Limited (APSL) over the allocation of shops at the Wuye Ultra-modern Market.
The firm, APSL and the Abuja Investment and Property Development Company Limited (AIPDCL) signed an agreement to Build, Operate and Transfer the N6.5billion Wuye Ultra-modern Market.
During the construction of the market, provisional offers of allocation were issued to the traders who were expected to pay a certain amount of money to have access to the shops for their business transactions.
The legal battle over allocation of shops in the N6.5billion market which has 1,700 shops, has hampered the use for full business transactions, even after it was commissioned by the by then President Goodluck Jonathan administration.
Justice O.A Musa, of the Federal Capital Territory High Court, has since been determined the case, with the court refusing a request by the traders not to pay the required fees and grounded rents before taking possession of the shop.
With the gladiators not satisfied with the court ruling, the case was moved from the lower court to Court of Appeal, Abuja Division.
Although, the appeal of All Purpose Shelters (Developers) against Abah Dennis and 706 others (Parties who claim to be entitled to shops in the Wuye Ultra Modern Market) was dismissed by the Court of Appeal in Appeal No. CA/A/605A/2015 the Court of Appeal, but like the High Court, it did not make a pronouncement in favour of the 707 traders, who claimed to be entitled to the shops.
According to the appellate court, the reason for the dismissal is that the developer was in abuse of court process, in that the other defendants against whom the High Court made direct orders (Abuja Investments and the Hon. Minister of the FCT), had lodged a competent appeal and that the 2nd and 3rd respondents (Abuja Investments and the Hon. Minister of the FCT) are the ones directly in contract with the 1st set of respondents and who could demand payment, a decision which the developer had sought and obtained leave of the Court of Appeal and is challenging at the Supreme Court.
Earlier in the lower court, the traders sought six reliefs. The main reliefs which, if they succeeded, would grant them possessory rights; were reliefs (d) and (e) . These reliefs are as follows:
An order of specific performance ordering and directing the defendants to allow the plaintiffs to have and enjoy quiet possession, occupation and use of their various shops and/or open spaces allocated to them by the 1st and 2nd defendants which shops and/or open spaces are lying and situate at Wuye Market which is now called Wuye Ultra Modern Market, lying and situate in Wuye District, Abuja.
They also prayed the court an order of perpetual injunction restraining the defendants, either by themselves, servants, agents, privies, howsoever described from re-allocating or in any other way giving possession of the plaintiffs’ shops and/or open spaces in Wuye Market which is now called Wuye Ultra Modern Market lying and situate in Wuye District, Abuja.
In his judgement on May 22, 2015, Justice Musa held on the issue of possession without further payment, “I think I have enough. I can stop here but before then, the plaintiffs in their further amended statement of Claim paragraph 37(h) and (i) claims as follows:
A declaration that the plaintiffs are not under any lawful obligation and/or duty to pay any amount of money over and above the various specific amount of money demanded by the 1st and 2nd defendants from the plaintiffs, for the allocation of shops and/or open spaces situate at Wuye Market which is now called Wuye Ultra Modern Market lying and situate in Wuye District, Abuja which sums have already been paid by the plaintiffs to the 1st and 2nd defendants.
A declaration that the 1st and 2nd defendants shall be liable for and bear the cost of the construction of the shops allocated to the plaintiffs in Wuye Market which is also now called Wuye Ultra Modern Market lying and situate in Wuye District, Abuja.
Ipso facto, the 3rd defendant who claimed to have agreed with the 1st and 2nd defendants to participate in the construction of the said shops lying and situate in Wuye District, Abuja is not entitled to demand for any amount from the plaintiffs again in respect of the use and or occupation of the said shops by the plaintiffs who had already been allocated with the said shops by the 1st and 2nd defendants.
Continuing, the Judge ruled:
“The Plaintiffs did not lead evidence to sustain these claims; it is trite law that Court cannot speculate on evidence not placed before it. More so, a declaration on these claims will amount to a court declaring that the Plaintiffs should not pay even ground rent and other statutory fees which the Plaintiffs are bound to pay under the law. I am not ready to do that here.
“Therefore these two claims referred above of the plaintiffs cannot be granted for the reason stated therein. On that note they are hereby refused accordingly.”
After reviewing the evidence led before the High Court, the Court of Appeal came to this conclusion.
“It is clear from the above exhibit that N2,000.00 is for administrative charge.
It is therefore highly unreasonable for the 1st set of Respondents (707 traders) to assume that the N2,000.00, N5,000.00, and N8,000.00 which they paid as administrative charges are all that is required from them for the allocation when it is clear from the allocation letters, the sums paid were for administrative charges.
“It is ridiculous for the 1st of respondents to believe that they cannot be subjected to any further payment apart from the administrative charges they paid for shops.
The 2nd and 3rd respondents who are grantors of these shops have the right of demand for payment of appropriate fee allowed by law for the allocated shops.
“The 2nd and 3rd respondents possessed the right to vary the payment depending on the circumstances. As such, it is wrong for them to say that they are not subjected to any further payment apart from the payment made on the allocation letters,” the judge further ruled.
The fact is that nothing is unclear about this decision. Certainly, the traders do not have a valid contract entitling them to a place in the market in that there is no consideration furnished in this respect by the decision above.
In the heat of the legal battle between traders and the FCTA and the APSL, the office of the permanent secretary of the FCTA advised the 707 traders agitating to take possession of the N6.5billion ultra-modern market forcefully not to do so.
A letter from the office of Solicitor General in the legal services secretariat of the FCT, said the Permanent Secretary had directed them to approach the developer of the market, All Purpose Shelters Limited, with original or certified copies of letters of offer of allocation of shops dated October 23, 2002, for the collection of necessary bills payable.
It said the traders are expected to bring the original or certified copy of offer letter; statutory photo ID card and evidence of payment of administrative charges.
“Please note that any attempt to forcibly take possession of shops without compliance will constitute a breach of peace for which violators may be subjected to prosecutors,” it reads in part.
About two years ago at a stakeholders meeting in Abuja, more than a thousand traders that had paid the statutory fees, met with officials of the FCDA and the developer on the shops and it’s stated that the shops would be open for business.
Many traders at the meeting that had paid for the shops lamented that their money had been tied down due to the close of the market for about three years.
They begged the officials of the FCDA and the developer to prevail on the FCT minister to intervene in the matter “so that the market will be open for business.”
With this legal conundrum, can the litigants really seek an out-of-court settlement?
The fact is that nothing is unclear about this decision. Certainly, the traders do not have a valid contract entitling them to a place in the market in that there is no consideration furnished in this respect by the decision above