HON. A.G & COMMISIONER FOR JUSTICE, AKWA IBOM STATE & ORS v. ESSIEN (2020)

HON. A.G & COMMISIONER FOR JUSTICE, AKWA IBOM STATE & ORS v. ESSIEN

(2020)LCN/14021(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, March 13, 2020

CA/C/352/2016

Before Our Lordships:

Uchechukwu Onyemenam Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

1. THE HONOURABLE ATTORNEY GENERAL AND COMMISIONER FOR JUSTICE, AKWA IBOM STATE 2. AKWA IBOM MINISTRY OF TRANSPORT 3. THE HONOURABLE COMMISSIONER MINISTRY OF TRANSPORT, AKWA IBOM STATE APPELLANT(S)

And

1. UWEMEDIMO ESSIEN (Trading In The Name And Style Of Transit Favour Service) RESPONDENT(S)

RATIO

ORIGINATING SUMMONS PROCEDURE

It is settled that the originating summons procedure is used to determine questions of construction arising under a Deed, Will or other written instrument or for the interpretation of statutes. It is often used where the facts are not in dispute or where it is unlikely that the facts would be in dispute. In these cases, evidence is usually documentary and there is unlikely to be any dispute as to their existence. It is an expedient mode of hearing where plaintiff merely seeks a declaration of his rights. See FAMFA OIL LTD V A. G., FEDERATION (2003)12 NWLR (prt 852) 453 INAKOJU V ADELEKE (2007) 4 NWLR (prt 1025) 423 and TITILAYO PLASTIC IND. LTD V FAGBOLA (2019) 14 NWLR (prt 1691) 88 at 122 – 123. In OGUEGEGO V PDP (supra), the Supreme Court has held that in determining whether the facts in support of an originating summons are contentious, it is the nature of the claim and the facts deposed to in the affidavit in support of the claims that will be examined to see if they disclose dispute of facts and a hostile nature of the proceedings. PER SHUAIBU, J.C.A.

FACTORS TO CONSIDER WHETHER FACTS IN SUPPORT OF AN ORIGINATING SUMMONS ARE CONTENTIOUS

It must be emphasized that it is not the filing of a counter- affidavit to oppose claims in an originating summons that makes such proceedings contentious or result in disputed facts. For it is settled law that in determining whether the facts in Support of Originating summons are contentious, the Court will consider the claim and the affidavit in support of the claims. Having examined the totality of the Respondent’s claim at the Trial Court and the affidavit in support, I find that the suit was in the main, the interpretation of statutory provisions and the construction of documents. There was no contest on the essential facts supporting the claim and so no need for oral testimony to resolve conflicts. The suit was appropriately commenced by originating summons. See: OSSAI V. WAKWAH & ORS. (2006) 2 All N.L.R 312; OGUEBEGO V. PDP (2016) 4 NWLR (PT. 1503) 446. PER ONYEMENAM, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Akwa Ibom State, sitting at Uyo delivered on 15th day of June, 2016 wherein the Lower Court dismissed the appellant’s preliminary objection and answered all the questions contained in the originating summons in favour of the respondent herein.

The facts leading to this appeal as can be garnered from the record of appeal shows that the respondent, at the Lower Court by an originating summons filed on 24th November, 2015, commenced proceedings against the appellants as defendants in which the respondent posed for the determination of the Lower Court four questions as set out in the originating summons as follows:-
“1. Whether or not the defendants acted lawfully in invading the premises/private motor park of the plaintiff on the 13th day of October, 2015 and taking away therefrom 8 (eight) vehicles, amplifiers, phones, loading boards, signpost, horn speaker and wireless microphone belonging to the plaintiff forcefully considering and in view of the judgment of the High Court of Uyo in suit No. HU/51/2014 delivered on the 10th day of July, 2014.

Whether or not the defendants acted lawfully in impounding and detaining the 8 (eight vehicles, amplifiers, phones, loading boards, sign post, horn speaker and wireless microphone of the plaintiff in the 2nd defendant office at 115 Ikot Ekpene Road, Uyo (former Akwa Ibom Transport Company Motor Park) from 13th day of October, 2015 in view of and considering the judgment of the High Court of Uyo in suit No. HU/51/2014 delivered on the 10th day of July, 2014.
3. Whether or not the defendants acted lawfully when they invaded the private motor park of the plaintiff and impounded 8 vehicles, amplifiers, phones, loading boards, sign post, horn speaker and wireless microphone belonging to the plaintiff on the 13th day of October, 2015 considering the provision of illegal motor parks and hawking (prohibition) Law Cap 59 volume 3 Laws of Akwa Ibom State – particularly the schedule thereto.
4. Whether or not the provision of Section 4 (1) & (2) of the illegal motor parks and hawking (prohibition) Law Cap 59 Volume 3 Laws of Akwa Ibom State which empowers the task force of the defendants to seize vehicles or goods without the orders of Court is not contrary to the provision of the 1999 Constitution of Nigeria (as amended) particularly Section 44 (1) of the Constitution of the Federal Republic of Nigeria (as amended).

The respondent thereafter prayed the Lower Court for declaratory and injunctive reliefs thus:
(a) A declaration that the invasion of the premises, private motor park of the plaintiff on the 13th day of October, 2015 by the agents of the defendants and taking away therefrom 8 (eight) vehicles, amplifiers, phones, loading boards, signpost, horn speaker and wireless microphone belonging to the plaintiff forcefully is illegal.
(b) A declaration that the impounding and detention of the 8 (eight) vehicles, amplifiers, phones, loading boards, sign post, horn speaker and wireless microphone of the plaintiff in the 2nd defendant’s office at 115 Ikot Ekpene Road, Uyo (former Akwa Ibom Transport Company Motor Park) by the defendants from 13th day of October, 2015 is illegal.
(c) An order of Court directing the defendants to release forthwith the amplifiers, phones, loading board, sign post, horn speaker, wireless microphone and 8 vehicles, impounded and detained to wit:-

(i) One president bus with registration Number EPE 07XG.
(ii) One Toyota Hiace bus with Registration Number KMT 193 AA.
(iii) One Joylong bus with Registration Number KSF 97 XB.
(iv) One Toyota Sienna with Registration Number AAJ 552 NR.
(v) Two vehicles with Registration Number MDK 407 XA and XD 241 ABA.
(d) An Order of Court restraining the defendants, their agents, servants, employees and persons acting on their behalf and instructions from further invading the premises/private motor park of the plaintiff and impounding vehicles thereto.
(e) N200,000,000 (Two Hundred Million Naira) damages.

In support of the originating summons, the respondent as plaintiff filed an affidavit of 17 paragraphs and attached thereto are 3 exhibits marked A, B, and C. The respondent also filed address in support of the originating summons, motion on notice for interlocutory injunction, supporting affidavit and address.

On their part, the appellants in response to the originating summons filed a notice of preliminary objection, counter affidavit and address to the motion for interlocutory injunction, counter affidavit to the originating summons and written address in support.

After contemporaneous hearing of both the preliminary objection and the originating summons, the learned trial judge dismissed the preliminary objection, assumed jurisdiction and answered all the questions in favour of the respondents.

Being dissatisfied with the judgment of the Lower Court, appellants appealed to this Court through a notice of appeal filed the on 9th September, 2016 in respect of the main appeal while the notice of appeal against the interlocutory decision was filed on 14th November, 2016 upon the grant of leave by this Court. The notices of appeal respectively contains two and one grounds at pages 202 – 205 and 64 – 66 of the both the main record and the additional record. At the hearing of the appeal on 30/1/2020 Angela Mick-Akpabio Esq. adopted and relied on the appellants’ brief of argument filed on 14/9/2017, deemed on 17/01/2019 along with reply brief filed on 3/10/2019 but deemed on 30/1/2020. Enyinekpe Udosen, Esq., adopted and relied on the respondents’ brief of argument filed on 3/5/2019 and deemed 7/5/2019. The appellants distilled three issues for the determination of this appeal.

The three issues are as follows:
1. Whether the trial Court was right in assuming jurisdiction to hear the suit under originating summons procedure despite the highly contentious nature of the suit? (Distilled from ground 1 of the interlocutory appeal).
2. Whether in determining the law that sets the geographical boundaries of the area designated as the capital city of Akwa Ibom State, the trial Court was right to have excluded the principal law; the Uyo Capital City Development Authority. (Distilled from ground 1 of the main appeal).
3. Whether the trial judge was correct in relying only on the illegal motor parks and hawking (prohibition) Law to determine the area within the state capital where siting of Motor Park is allowed. (Distilled from ground 2 of the main appeal).
The respondent adopts the three issues formulated by the appellants.

Learned counsel for the appellants submits that the facts of the case were highly contentious and could not have been determined by way of originating summons. He referred to paragraphs 10, 15, 16 and 17 of the respondent’s affidavit in support of the originating summons and the cases of S. C. S. CO V COUNCIL O. A. U, ILEIFE (2011) 14 NWLR (prt 1269) 193 and NWOKO V EKERETE (2010) 4 NWLR (prt 1183) 78 at 88 to the effect that an originating summons should only be applicable where there is no dispute on questions of facts or even likelihood of such dispute.

In further argument, learned counsel submits that having denied impounding any vehicle from the respondent, it is impossible for the Lower Court to answer the questions put forward by the respondent without first resolving the controversial facts. Thus, the Lower Court was wrong to have assumed jurisdiction and having reached a decision without the requisite jurisdiction, such a decision according to the learned counsel is a nullity.

It was however contended by the respondent that the claim at the Lower Court being one seeking the Court to interpret the provisions of the Constitution of the Federal Republic of Nigeria (as amended) and the illegal Motor Park and hawking (prohibition) Law Cap. 59 Laws of Akwa Ibom State 2000 particularly the schedule thereto as

well as the judgment of the High Court in Suit No. HU/51/2014, the suit was properly commenced by an originating summons. And that in determining whether the facts in support of originating summons are contentious or hostile, it is the claim and the affidavit in support that will be examined. He referred to OGUEBEGO V PDP (2016) 4 NWLR (prt 1503) 446 at 485.

Still in argument, learned counsel submits that there was no dispute that the appellants acting on the basis of the illegal motor park and hawking (prohibition) Law Cap. 59 vol. 3 Laws of Akwa Ibom 2000 had ordered all motor parks within the area specified in the schedule to the law to vacate and relocate. There was also no dispute that the respondent had relocated his motor park to Itam Industrial layout at Mbak Itam in Itu Local government Area. There was equally no dispute that the respondent had obtained a license to operate the private motor park from Itu Local Government Council. Also not in dispute is the fact that the High Court made an order restraining the appellants from regulating motor parks and/or collecting sundry fees and charges in any Local Government in Akwa Ibom

State. It was similarly not in contest that inspite of the subsisting Court’s order, the appellants wrote to the respondent to vacate the motor park and relocate from the new private motor park at Mbak Itam in Itu Local Government Area. Thus, having regards to the main issue before the Lower Court, there was no dispute on the essential facts necessary for the grant of the claim of the respondent. The Court according to the learned counsel has a duty not to allow its eyes to be blinded by irrelevancies and smoke screen raised by the appellants.

In OGUEGEGO V PDP (supra), the Supreme Court has held that in determining whether the facts in support of an originating summons are contentious, it is the nature of the claim and the facts deposed to in the affidavit in support of the claims that will be examined to see if they disclose dispute of facts and a hostile nature of the proceedings.

I have right from the onset reproduced the respondent’s claims at the Lower Court, and it is beyond any peradventure that by the said claims, the respondent was merely seeking a declaration of his right and also an interpretation of some Constitutional and/or statutory provisions. The pertinent paragraphs 4 – 17 of the affidavit in support of the originating summons contains the facts upon which the respondent predicated his claims at the lower court thus:-
“4. That before February 2014, I operated my transport business from my private park at No. 115 Ikot Ekpene Road, Uyo opposite the former Akwa Ibom Transport Company Limited (AKTC) park Uyo.

That sometime in February 2014, the defendants acting on the basis of the illegal Motor Park and Hawking (Prohibition) Law Cap 59 volume 3 Laws of Akwa Ibom State ordered all motor parks within the area specified in the schedule to the law to vacate and relocate.
6. That acting in obedience to that order, I relocated my private motor park from 115 Ikot Ekpene Road, Uyo, to the Itam Industrial Area at Mbak Itam in Itu Local Government Area.
7. That the new location where my private motor park situates is well outside the area stipulated by the schedule to the illegal Motor Park and Hawking (prohibition) Law Cap 59 Volume 3 Laws of Akwa Ibom State.
8. That I applied for and obtained a license to operate the private motor park from Itu Local Government Council. ATTACHED AND MARKED EXHIBIT A is the receipt for the private motor park license renewal for the year 2015.
9. That other private motor parks relocated also as directed.
10. That regrettably the defendants continued to harass and raid the private motor parks and their owners collecting from them sundry fees and charges and seeking to regulate the operations of these motor parks.

That consequently, 4 Four Transport Associations and a certain Maldini Marbles Limited sued the defendants in the Uyo High Court presided over by Honourable Justice Pius Idiong in Suit No. HU/51/2014 seeking orders to restrain the defendants; their servant, agents and privies from regulating motor parks and collecting sundry fees and charge from the plaintiff in any Local Government Area in Akwa Ibom State.
12. That the Learned Trial Judge after due consideration of the matter granted the reliefs sought by the plaintiff and also awarded N550,000,00 (Five Hundred and Fifty Thousand Naira) damages and cost against the defendants. ATTACHED AND MARKED EXHIBIT B is the certified true copy of the judgment Order.
13. That as a member of the National Association of Road Transport Owners, I and my private motor parks are covered by the judgment in Exhibit B.
14. That after the judgment in Exhibit B, the defendants acting through their agents again resumed their invasion of my private motor parks and wrote on the 26th of October, 2015 to me to vacate my private motor park. ATTACHED AND MARKED EXHIBIT C is the copy of the said letter.

That on the 13th day of October, 2015, a group of thugs acting as agents of and on the instruction of the defendants invaded my private Motor Park at Itam Industrial Area at Mbak Itam in Itu Local Government Area and took away amplifiers, phones, loading boards, sign post, horn speaker, wireless microphone and a total of 8 vehicles from the premises of my private motor park to wit.
(i) One president bus with Registration Number EPE 01 XG
(ii) One Toyota Hiace bus with Registration Number KMT 193 AA
(iii) One Joylong bus with Registration Number KSF 97 XB
(iv) One Toyota Sienna with Registration Number ABJ 552 NR
(v) Two Nissan Serena with Registration Numbers GG 639 XK and KMR 565 XW.
(vi) Two vehicles with Registration Number MDK 407 XA and XD 241 ABA.
16. That the defendant and their agents took the amplifiers, phones, loading boards, sign post, horn speaker, wireless microphone and 8 vehicles and detained them at the former premises of Akwa Ibom Transport Company at Ikot Ekpene Road Uyo till date.
17. That the defendants and their agent took away the amplifiers, phones, loading boards, sign post, horn speaker, wireless microphone and 8 vehicles and detain them without any order of Court.

From the above, the main issue relates to construction of document as well as the interpretation of statutory provisions. And where the issue is that of construction of documents or interpretation of statutory provisions, it is safe and prudent to approach the Court by originating summons. In the circumstance, I cannot but agree entirely with the learned trial judge that the suit was properly commenced by originating summons.

On the second issue, learned counsel for the appellants referred to Section 4 (6) and (7) of the 1999 Constitution to contend that the State House of Assembly is vested with the power to make laws for regulating the industrial and commercial activities in the state and that it was in pursuant of that power that the Akwa Ibom House of Assembly enacted Uyo Capital City Development Law Cap. 136 Laws of Akwa Ibom State 2000. He referred to paragraphs 10 and 11 of the appellants’ counter affidavit to contend that it was also pursuant to the provision of Section 2 of the Uyo Capital City Development Law that

the Governor of the State had by order published in the Gazette specified the villages that are within the radius of the capital city, inclusive of where the respondent’s structure is located. And that the Uyo Capital City Development Authority is the agency responsible for the enforcement of the extant law which includes the responsibility of regulating the building or location of a motor park.

Responding to the above submission, the learned counsel for the respondent referred to Section 3 of the Land Use Act Cap. 5 Laws of the Federation of Nigeria, 2004 to submit that it is the Land Use Act that empowers the Governor to designate parts of the area as an urban area which power has already been exercised by the Governor of Akwa Ibom in a gazette known as Urban Area (Designation) Order Cap. 202 volumes 6 Laws of Akwa Ibom State 2000. He referred to Section 2 of the Urban Area (Designation) Order to the effect that Mbak Itam is not part of the urban area so designated.

He further submitted that the power to designate an urban area resides with the Governor and not the House of Assembly and the document being relied upon by the appellants does not form part of the Uyo Capital Development Law and no Court can bring into statute extraneous matters relying on the authority in the case of AROMOLARAN V AGORO (2015) Vol. 239 LRCN 79 at 85.

The complaint of the appellants was that the Lower Court excluded the Uyo Capital City Development Law in determining the geographical boundaries of the Capital City of Akwa Ibom. The pertinent provisions of Section 1 (i) of the Uyo Capital City Development Area Law provides that –
“There is hereby established for the purpose of developing a proper capital city for the State an authority to be known as the Uyo Capital City Development Authority.”
Section 2 therefore states:-
“The city consists of all that area within a radius of ten kilometers from Itam Etoi and the Governor shall by order published in the Gazette specify the villages and their Local Government Area which are within the said radius.”
The issue in contention is which of the laws empowers the Governor to designate urban areas in the state. It needs to be stated without any equivocation that since the enactment of the Land Use Act, 1978, any Act or Law relating to

land in any State of Nigeria inconsistent with the provision of the Land Use Act is to the extent of such inconsistency be void. See ONAMADE V ACB LTD (1997) LPELR – 2671 (SC). Also Section 3 of the Land Use Act has conferred power on the Governor of the state to designate any land under his management and control by virtue of Section 2 of the Act as an urban Area. Such exercise when made by any order shall be published in the Gazette. Thus, it becomes a subsidiary legislation having the force of law.
In the light of the above, the learned trial judge in my respectful view was right when he held that Uyo Capital City Development Authority Law was not made as addendum; an appendage or a substitute for Urban Areas (Designation) order which remain the extant law for the designation of Urban Areas in the state.

On the third issue, learned counsel for appellants contend that the illegal motor parks and hawking (prohibition) law set out areas where operation of parks for commercial purposes are absolutely prohibited and those areas that parks can be operated with license obtained from the relevant Local Government. The Uyo Capital

city Development Authority on the other hand is for developing a proper capital city. It was therefore submitted that on the strength of these laws, the Lower Court was wrong in relying only on the illegal motor parks and hawking (prohibition) law to determine the area within the state capital where the siting of Motor Park was allowed.

In response, the learned counsel for the respondent submits that the area where the respondent operates the Motor Park not being an urban area within the exclusive control and management of the Governor, same is in a rural area under the control and management of Itu Local Government Council. He referred to Section 7 (5) of the 1999 Constitution (as amended) to contend that the functions of Local Government Council includes the establishment, maintenance and regulation of slaughter houses, slaughter slap, market, motor park and public convenience. And since the respondent’s park is not an urban area, the Uyo Capital City Development Area Law does not apply.

The provision of Sections 1 (1) and (2) of the Illegal Motor parks and hawking (prohibition) Law of Akwa Ibom deals with operation of parks for commercial purposes. It provides thus:-
“1 (i) No person shall operate a motor park for commercial purposes in the area specified in the schedule to this law.
2. No person shall operate a motor park for commercial purposes outside the areas specified in Subsection (1) of this Section without obtaining a license from relevant Local Government.”
It is clear from the above that there are areas to which no motor park can be established and operated. There are also areas where motor parks can be established and operated with license. That the respondent vide Exhibit A, attached to the affidavit in support of the originating summons averred that he applied and obtained a license to operate private motor park from Itu Local Government council.
In the instant case, the learned trial judge gave reason why he jettisoned the provision of the Uyo Capital City Development Authority Law and relied solely on the illegal motor park and hawking (prohibition) law at page 230 of the record of appeal thus:-
“Even if I elect to reconsider the provisions of the Uyo Capital City Development Authority Law, which I had earlier excluded on the reason I had proffered, but I have not found any provision in that statute that demands for procurement of license in relation to establishment of motor parks.”

The learned trial judge was therefore correct in relying on the extant law that is the illegal motor parks and hawking (prohibition) law to determine the area within the state where siting of Motor Parks are allowed. At any rate, Section 7 (5) of the 1999 Constitution (as amended) gave the Local Government Council the sole prerogative to establish, operate and maintain Motor Parks. A similar situation played out in AG, LAGOS V A.G. FEDERATION & ORS (2003) LPELR – 620 in which the Supreme Court held that under the Federal system of Government which we practice in the 1999 Constitution, the National Assembly except where the Constitution so provides, cannot legally impose any responsibility by legislation on a State in respect of any land in the territory of the state as it has no supervisory authority to do so under the 1999 Constitution.

Having resolved all three issues against the appellants, there is nothing left to be said than to state that there is no merit in this appeal. It is accordingly dismissed; I affirm the decision of the Lower Court. The parties shall bear their respective costs in the appeal.

UCHECHUKWU ONYEMENAM, J.C.A.: I read before now the lead judgment delivered by my learned brother, MUHAMMED L. SHUAIBU, JCA. I agree entirely with the reasoning and conclusion therein.

The main issue in the appeal is whether the suit was properly initiated by Originating summons having regard to the claim of the Respondent and the facts of the case. Originating summons is appropriate in the resolution of disputes involving questions of law or the interpretation and construction of documents; it is not allowed where there is dispute or likelihood of a dispute on the facts. It must be emphasized that it is not the filing of a counter- affidavit to oppose claims in an originating summons that makes such proceedings contentious or result in disputed facts. For it is settled law that in determining whether the facts in Support of Originating summons are contentious, the Court will consider the claim and the affidavit in support of the claims. Having examined the totality of the

Respondent’s claim at the Trial Court and the affidavit in support, I find that the suit was in the main, the interpretation of statutory provisions and the construction of documents. There was no contest on the essential facts supporting the claim and so no need for oral testimony to resolve conflicts. The suit was appropriately commenced by originating summons. See: OSSAI V. WAKWAH & ORS. (2006) 2 All N.L.R 312; OGUEBEGO V. PDP (2016) 4 NWLR (PT. 1503) 446.

In conclusion, I also dismiss the appeal and uphold the judgment of the High Court of Akwa Ibom State delivered on 15th June, 2016 by Edem E. Akpan, J. in Suit No. HIT/24/2015. Parties are to bear their costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the opportunity of reading in draft the judgment just delivered by my learned brother, M. L. SHUAIBU JCA and I agree with the resolution of the issues distilled for determination by the parties.

I have nothing more to add. I also dismiss the appeal for lacking in merit.

Appearances:

Angela Mick-Akpabio, PSC, MOJ, AKS For Appellant(s)

Udosen with him, I. Etuk For Respondent(s)