JONAH CAPITAL (NIG) LTD & ANOR v. BLESSED AND PRECIOUS CHILDREN ACADEMY LTD & ORS (2022)

JONAH CAPITAL (NIG) LTD & ANOR v. BLESSED AND PRECIOUS CHILDREN ACADEMY LTD & ORS

(2022)LCN/16962CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, July 05, 2022

CA/A/217A/2012

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Between

1. JONAH CAPITAL NIGERIA LTD 2. HOUSE FOR AFRICA NIGERIA LTD APPELANT(S)

And

1. BLESSED AND PRECIOUS CHILDREN ACADEMY LTD 2. GENERAL BUILDING MATERIAL DEALERS ASSOCIATION, LUGBE CHAPTER 3. LUGBE 1 LAND OWNERS ASSOCIATION 4. FEDERAL CAPITAL DEVELOPMENT AUTHORITY RESPONDENT(S)

RATIO

THE POSITION OF LAW ON WHERE A SURVEY PLAN IS RELEVANT

Secondly, at no stage in the proceedings in the suit whether by affidavit facts or howsoever was the issue of area or size or location of the lands in dispute ever made a specific issue. It is long settled in law that a survey plan becomes relevant and necessary only where there is a triable dispute as to the exact identity or size of the land in dispute. Absence of a survey plan cannot defeat a Plaintiff’s claim for title to land where the land in dispute is identifiable and ascertainable. See Idehen vs. Osemwenkhae (1997) LPELR – 1417 (SC), Adedeji vs OIoso & Anor (2007) LPELR – 86 (SC), Okukuje vs. Akwido (2001) LPELR – 2526 (SC). PER GAFAI, J.C.A.

WHETHER OR NOT IT IS EVERY CONFLICT ARISING FROM AFFIDAVIT EVIDENCE THAT WARRANTS THE CALLING OF ORAL EVIDENCE

In law, it is not every seeming conflict arising from affidavit evidence that would warrant the calling of or resort to oral evidence for its resolution. It is only where the issues of facts are so contentious and irreconcilable as to facts that a Court would, or rather should, be wary of rushing to determine such a claim on affidavit evidence only in an Originating Summons. Indeed, such a claim would be more suited and proper for determination on the pleadings and evidence of the parties under proceedings begun by means of a Writ of Summons. Generally, the Originating Summons procedure is limited in its scope of use and should not be adopted in civil proceedings in which there are substantial disputes of facts. It should never be resorted to in cases where there arc controversies and a lot of disputed facts between the parties. In such cases, a Claimant should approach the Court by way of a Writ of Summons, which will allow each side to file pleadings and sort out the issues in dispute between them at full trial. See Hon. Olayide Adewale Akinremi & Anor V. Muttaka Bala Suleiman & 17, 916 08 Ors (2022) LPELR- 56903(CA) per Sir Biobele Abraham Georgewill JCA. See also Johnson & Ors V. Mobil Producing Nigeria Unlimited & Ors (2009) LPELR – 8280 (CA). See also Pam V. Mohammed (2008) 16 N.W.L.R (pt. 112) 1 Cd p. 88, Esezoobo V. Nsitf & Ors (2012) LPELR- 9282 (CA), Ossai V. Isaac E. Wakwah (2006) 4 NWLR (Pt. 969) 208, AG. Adamawa V. AG. Federation (2005) 18 NWLR (Pt. 958) 581. PER GEORGEWILL, J.C.A.

BATURE ISAH GAFAI, J.C.A.:(Delivering the Leading Judgment): This appeal questions the judgment of the High Court of the Federal Capital Territory Abuja delivered on the 14th of March, 2011 in Suit No. FCT/HC/CV/2138/2020 in which the lower Court entered judgment in favour of the Respondents.

To bring this appeal in proper view, I shall briefly make a recap of the facts I read in the Record on it. As gleaned therefrom, the Respondents by their Originating Summons claimed before the lower Court that the 4th Respondent (Federal Capital development Authority) allocated to them plots of land in Lugbe 1 Extension Layout within Lugbe District of the Federal Capital Territory and issued them with statutory rights of occupancy. Later however, the Appellants encroached on the said lands, erecting therein barricades on the lands, excavated same preparatory to construction works on same. The Respondents claimed that the Appellants’ acts were neither with their authority- nor under any superior or valid grant by the 4th Respondent. The Appellants denied these claims; contending that the 4th Respondent did not make any land allocation to the Respondents and that the documents of allocation being paraded by the Respondents are invalid and contrary to law. The Appellants contended also that they were given a development right by the 4th Respondent over the lands in the area known as Lugbe 1 Extension Layout without any encumbrance. It was this dispute that was essentially presented to the lower Court in which the Respondents as the Plaintiffs sought against the defendants now Appellants:
“1. An injunction to restrain the defendants and their privies, servants assigns or agents from unlawfully expropriating or re-allotting the titles to the plaintiffs’ lands situate at Lugbe 1 Extension Layout, Abuja.
2. An order restraining the defendants from unlawfully interfering with the plaintiffs’ occupation and enjoyment of their lands situate at Lugbe I Extension Layout, Abuja.
3. An order nullifying any purported re-allotment of the plaintiffs’ lands at Lugbe 1 Extension Layout, Abuja to the 2nd & 3rd defendants under any guise or sobriquet adopted by the 2nd & 3rd defendants.
4. An order compelling the 1st defendant to perform the statutory duties of processing the applications of the Plaintiffs for building permits and render all other services offered to the public by the 1st defendant’s land registry department and development control department.
5. An order nullifying the purported Development Lease Agreement between the Ministry of FCT and Jonah Capital Nigeria, trading under (Houses For Africa Nigeria).
6. An order on the defendants to pay N20,000,000 as damages for trespassing on the lands of the plaintiffs situate at Lugbe 1 Extension, Lugbe, Abuja.”

At the conclusion of the hearing, the lower Court as stated earlier entered judgment in favour of the Respondents and ordered thus:
“1. The title or designation of the 2nd and 3rd Plaintiffs in the originating summons and all other Court processes in this suit, this Judgment inclusive, will be and are hereby amended by substituting for them “The Incorporated Trustees of General Building Material Dealers Association Lugbe Chapter” and “The Incorporated Trustees of Lugbe I Land Owners Association” respectively, and shall be construed accordingly;
2. The Defendants whether acting by themselves or through their agents, servants, privies or otherwise howsoever are hereby restrained from expropriating, revoking, re-allocating, re-allotting or granting to any other person(s) any form of right of occupancy or title or in any manner whatsoever rendering void, invalid, ineffective or ineffectual the Plaintiffs’ statutory rights of occupancy over all that parcel or plot of land known as Lugbe I Extension Layout, Lugbe District, Federal Capital Territory, Abuja save in accordance with law;
3. The Defendants whether acting by themselves or through their agents, servants, privies or otherwise howsoever are hereby restrained from trespassing, entering upon or interfering with or otherwise disturbing the Plaintiffs’ enjoyment and possession of all that parcel of land known as Lugbe 1 Extension Layout, Lugbe District, Federal Capital Territory, Abuja save as provided by law.
4. The grant or allocation made in favour of the 2nd Defendant herein (i.e. Jonah Capital Nigeria Limited) as expressed or contained in the Letter of Grant dated 28/5/2007, the Development Lease Agreement dated 28/5/2007 and the Deed of Addendum dated 15/9/2009 will be and is hereby declared invalid, null and void to the extent that it covers, concerns, touches upon or affects all that parcel of land known as Lugbe 1 Extension Layout, Lugbe District, Abuja.
5. In exercise of powers conferred on this Court under and by Order 46 Rule x of the High Court of the Federal Capital Territory, Abuja (Civil procedure Rules) 2004, it is hereby ordered that the 1st Defendant shall issue certificates of occupancy to the Plaintiffs upon payment of applicable processing fees and act upon or process the applications made by or on behalf of the Plaintiffs for building plan or other approvals and matters incidental thereto in recognition of the Plaintiffs’ title to the plots granted to each of them in the parcel of land comprised in Lugbe 1 Extension Layout, Lugbe District, Federal Capital Territory, Abuja.
6. The Defendants jointly and severally shall pay to the Plaintiffs, the sum of N5,000,000.00 (Five Million Naira) as general damages for trespassing upon the lands comprised in Lugbe I Extension Layout, Lugbe District, Abuja validly allocated to the Plaintiffs.
7. I assess the costs of this suit at N20,000.00 m favour of the Plaintiffs and against the Defendants.”
See pages 184 to 186 of the Record.

Dissatisfied with the Judgment, the Appellants lodged this Appeal vide a Notice of Appeal filed on the 19th of April, 2011 which later by leave of this Court, the Appellants amended and filed in This Appeal, now complaining against same on seven Grounds as follows:
“GROUND 1
The Learned Trial Judge erred in Law which error occasioned serious miscarriage of justice when he held thus:
’’However, it seems to me that where an Association duly registered as Trustees either sues or is sued in an action but the words “incorporated trustees of” are omitted in the name stated in the Writ of Summons or other Originating Court process, this would amount to a mere misnomer or mis-description that should not ordinarily lead to a nullification of the proceedings”.
GROUND 2
The Learned Trial Judge erred in law which error occasioned serious miscarriage of justice when he declared as follows:-
“The Development lease dated 28/5/2007 and the Deed of Addendum dated 15/9/2009 will be and is hereby declared invalid, null and void to the extent that it covers, concerns, touches upon or affects all that parcel of land known as Lugbe 1 Extension Layout, Lugbe District, Abuja”.
GROUND 3
The learned trial Judge erred in law by exceeding its jurisdictional limits when he made the following order:
5- “In exercise of powers conferred on this Court under and by ORDER 46 Rule X of the High Court of the Federal Capital Territory, Abuja {Civil Procedure Rules) 2004, it is hereby ordered that the 1st Defendant shall issue Certificate of Occupancy to the Plaintiff upon payment of applicable processing fees and act upon or process the applications made by or on behalf of the Plaintiff for building plan or other approvals and matters incidental thereto in recognition of the plaintiff’s title to the plots granted to each in the parcel of land comprised in Lugbe 1 Extension Layout Lugbe District, Federal Capital Territory, Abuja”.
GROUND 4
The learned trial Judge erred in law when he made the following order (s)
2.”The Defendants whether acting by themselves or through their agents, servants, privies or otherwise howsoever are hereby restrained from expropriating, revoking, reallocating or granting to any other personas) any form of right of occupancy or title or in any manner whatever rendering void, invalid, ineffective or ineffectual the Plaintiffs statutory rights of occupancy over all that parcel or plot of land known as Lugbe 1 Extension Layout, Lugbe District, Federal Capital Territory; Abuja save in accordance with law.”
3-”The Defendants whether acting by themselves or through their agents, servants, privies or otherwise howsoever are hereby restrained from trespassing, entering upon or interfering with or otherwise disturbing the Plaintiffs enjoyment and possession of all that parcel of land known as Lugbe 1 Extension Layout, Lugbe District, Federal Capital Territory, Abuja save as provided by law.”
GROUND 5
The Learned Trial Judge misdirected himself in law and on the facts when in the face of conflicting facts contained in the affidavit of the parties and absence of sufficient prove proceeded to answer the question raised in the Plaintiff’s Originating Summons in the affirmative anti granted the relief sought by the Plaintiffs.
GROUND 6
The learned trial Judge erred in Law, which error occasioned serious miscarriage of justice when he held as follows:-
”It does not seem to me that the powers entrusted or delegated to the Minister of FCT under S. 51(2) of the Land Use Act and/or S.18 of the Federal Capital Territory Act are powers inevitably requiring the personal attention of the Minister so as to render invalid any action(s) taken by responsible officers of his Department under his direction as alleged in the instant case……”
GROUND 7
The judgment is against the weight of evidence.”

The respective particulars enumerated and these grounds are noted.

At the hearing of this appeal, the Appellants relied on the Record of Appeal and the Additional Record of Appeal transmitted to this Court on the 2nd of July, 2013 and 22nd of May, 2015 respectively, their Amended Notice of Appeal and Amended Brief of Argument both filed on the 8th of December 2017 while the 1st – 3rd Respondents relied on the Record and their Brief of Argument filed on the 20th of March, 2020. In their Amended Brief of Argument settled by their learned counsel P. T. Akan Esq., three issues for determination are formulated for the Appellants on:
“1. Whether the learned trial judge was not in error when he proceeded to determine the case commenced by the respondents by way of an originating summons when it was clear to him that originating summons was inappropriate and inadequate in the circumstance and whether by so doing there was no miscarriage of justice (ground 5).
ii. Whether the 1st appellant who is delegated by the President of the Federal Republic of Nigeria to act on his behalf on matters relating to the grant of statutory rights of occupancy in the Federal Capital Territory can sub-delegate such powers to any person, in this case the zonal lands managers of area council? If not whether the statutory rights of occupancy granted to the Respondents by zonal lands managers of an area council purportedly acting for the Hon. Minister of Federal Capital Territory is valid? (GROUND 6).
iii. Whether the learned trial Judge was right to have declared invalid in part, the development lease agreement between the 1st Appellant and the 2nd Appellant, when there was no evidence before him showing the land covered by the Development Lease Agreement (GROUND 2)
Or put differently,
Whether the evidence upon which the learned trial Judge relied upon to declare the Development Lease Agreement between the 1st Appellant and 2nd Appellant invalid was not based on speculation (GROUND 2).”

For the 1st – 3rd Respondents, their learned counsel Stephen Nwigwe Esq., adopted the Appellants’ issues and argued same from the Respondents’ position.

Two observations should be noted at the onset. Firstly, at page 5 of their Amended Brief, the Appellants posited that “the 2nd and 3rd Appellants shall abandon Grounds 1, 5 and 7 and canvass arguments on Grounds 2,4, 5 and 6.” Having thus been abandoned, the Appellants’ Grounds 1, 3 and 7 in the Amended Notice of Appeal are hereby struck out. Secondly, the 4th Respondent abstained from taking any significant role in this Appeal having not filed a Brief of Argument.

As reproduced earlier, the Appellants’ first Issue essentially questions the procedure by which the lower Court determined the suit, contending that the lower Court was in error when it determined same by way of Originating Summons. It is argued for the Appellants that a suit may be commenced by Originating Summons only when the question or issue in the suit is one on construction of law or instrument, deed, will, contract or other documents and in all cases in circumstances where there is no dispute on facts or likelihood of such dispute. It is argued that the Respondents’ Suit was clearly one based on facts, which was therefore wrongly commenced and determined by way of Originating Summons. Learned Counsel referred to the provisions of Order 1 Rule 2 (2) of the lower Court’s Civil Procedure Rules of 2004 which provides interalia that a suit may be commenced by Originating Summons where there is unlikely to be substantial dispute of fact. Reliance is also placed on the decisions in NBN & Anor vs. Alakija & Anor (1978) 11 NSCC 470, Alegbe vs Oloyo (1983) £4 NSCC 315, Doherty vs. Doherty (£9-83) NMLR 2,411 among others to buttress the argument. Learned counsel argued further that the issue of title to land is profound in the proceedings which the lower Court although aware of wrongly continued with the proceedings accordingly, which the Court itself acknowledged in its judgment the relevant portion of which is found at page 170 of the Record thus:
’’The foregoing are the depositions contained in the affidavit and counter-affidavits filed on behalf of the parties in this matter which I have found to be quite intriguing.”

Learned counsel also referred to the lengthy facts in the 1st Appellant’s counter-affidavit at pages 166 to 169 of the record to demonstrate the dispute in the suit; which therefore made it all the more incumbent on the lower Court to discontinue the proceedings channeled through Originating Summons, which the Court was empowered to do under Order 46 Rule 1 of its Civil Procedure Rules; to wit:
“Subject to particular rules, the Court may in all causes and matters make an order which it considers necessary for doing justice, whether or not the order has been expressly asked for by the person entitled to the benefit.”

The Appellants have thus urged this Court to set aside the proceedings or in the alternative refer the case back for trial by pleadings.

Naturally, the Respondents have argued this issue in the contrary. It is argued in the main that the Respondents approached the lower Court vide Originating Summons specifically to seek interpretations on the provisions of Section 44 of the Constitution FRN 1999 as amended, Sections 2 and 26 (6) and (7) of the Land Use Act, Section 3 of the Land Regulation Act, provisions of the Federal Capital Territory Act and the Companies and Allied Matters Act. It is further argued that the method of Originating Summons does not contemplate total absence of factual dispute where such disputes are not substantial and can be resolved by the documents before the Court. Learned Counsel drew attention of this Court to the provisions of Order 1 Rule (2) (2) (b) of the lower Court’s Civil Procedure Rules relied upon by the Appellants and argued that the emphasis of those provisions on when to employ the method of Originating Summons is where “there Is unlikely to be substantial dispute o£ fact”; not total absence of dispute of fact. The Respondents argued further that in any case, the Appellants did not controvert the facts in the supporting affidavit to the Originating Summons because those facts are clearly indisputable. Learned counsel referred to a portion of the judgment at pages 166 to 169 where the lower Court observed that the Appellants did not deny the facts of the Respondents; quoting a part of it thus:
“It occurs to me that the 1st Defendant did not specifically deny these depositions. The Counter-Affidavit deposed on behalf of the 1st Defendant merely stated that “The 1st Defendant has never delegated any of his statutory functions to any agency or area council” and that ’’the 1st Defendant carries out its functions through her own officers and departments and not that of the Area Councils which are separate entities with their own staff distinct from the 1st Defendant.” The Plaintiffs did not allege that the power to allocate lands was delegated to any agency or Area Council. No. Rather, the Plaintiffs assertion is that the 1st Defendant created land offices in the Area Council and manned such offices with its own employees. Quite clearly the 1st Defendant chose to deny what the Plaintiffs did not allege, and even at that, it is a denial (If at all is a denial) that does not amount to sufficient denial in law capable o£ dislodging the Plaintiffs’ depositions.”

It is also argued that the Appellants’ attempt to introduce a new issue on the identity of the land in dispute is one that cannot be accommodated in this Appeal because firstly it was never in the Appellants’ case and secondly the identity of the land has never been in dispute; placing reliance on the decision in Aiyeola vs. Pedro (2004) 44 WR.H page 57 line 20 to 35 where the Supreme Court held interalia that:
”It has been held by this Court that before the identity of the land can be raised as an issue, the defendant must have raised it in his statement of defence by specifically disputing either the area or size covered or the location shown in the Plaintiffs plan (if there is a plan) or as described in the statement of claim.”

I found this decision also reported in Law Pavilion Law Reports cited as (2014) LPELR – 22913 (SC).

Learned counsel also further justified the method of Originating Summons in the suit by arguing that the lower Court neither found any difficulty in construing the Respondents’ facts or indeed the entire facts nor found any substantial dispute in them when the lower Court held in its judgment more particularly at pages 172 to 173 of the record that:
“I have carefully evaluated the submissions and arguments canvassed in the various written address filed on behalf of the parties. The Defendant’s arguments which are essentially the self-same arguments earlier canvassed in support of the 1st Defendant’s notice of objection, are aimed at showing that the rights of occupancy granted to the Plaintiffs are customary rights granted by AMAC and not acquired through the 1st Defendant and therefore invalid, null under extant law.” The further contention of the defendant is that the minister of FCT merely exercises delegated powers to allocate land in the FCT under and by virtue of Section 51 (2) of the Land Use Act, and as such he cannot sub-delegate those power because delegates non-protest delegare. (See page 172-173 Records).”

Learned counsel therefore urged this Court to resolve this Issue against the Appellants.

As referred by both learned counsel, the provisions of Order 1 Rule 2 (2) of the High Court of FCT (Civil Procedure) Rules 2014 under which the suit ensued provide thus:
“(2) Proceedings may commence by Originating Summons where:
(a) the main issue is, or likely to be one of construction –
(i) of a written law or of an instrument made under any written law; or
(ii) of any deed, will, contract or other document or some other question of law; or
(b) there is unlikely to be a substantial dispute of fact.”
As can be seen, the method of commencing a suit by Originating Summons under these Rules, just like in all the various States Rules of Court, is employed when the sole or principal question in issue is or is likely to be one of construction of a written law or any instrument or of any deed, Will, contract or other document or other question of law or in a circumstance where there is not likely to be any substantial dispute as to the facts. In essence, it is used in non-contentious actions; i.e. those actions where the facts are not likely to be in substantial dispute. See Inakoju vs. Adeleke (2007) I SC, (Pt. I), at 227 to 228; Jev. & Anor vs iyortyom & Ors (2014) LPELR 2300 (SC).
As stated earlier, the Respondents approached the lower Court vide their Originating Summons seeking for the interpretation of constitutional and other statutory provisions, on the following issues:
“1. Whether after due construction of S.44 of the 1999 Constitution of the Federal Republic of Nigeria, can the defendants expropriate the lands of the plaintiffs situate at Lugbe 1 Extension Layout, Abuja without affording the plaintiffs any opportunity to make representations?
2. Whether after due construction of S. 28(6) & (7) of the Land Use Act, can the defendants expropriate the plaintiffs’ titles to lands situate within Lugbe 1 Extension Layout, Abuja without issuing any revocation notices to the plaintiffs?
3. Whether after due construction of S.28 (6) & (7) of the Land Use Act, can the defendants revoke the plaintiffs’ titles to lands situate within Lugbe 1 Extension Layout, Abuja without mentioning any public purpose for which the lands are required?
4. Whether after due construction of S.2 of the Land Use Act, can the construction of a private housing estate be sufficient public – purpose to ground expropriation of lands under the Land Use Act?
5. Whether after due construction of the Companies and Allied Matters Act and the Federal Capital Territory Act, can the 1st defendant contract the services of an unregistered organisation and vests such unregistered organisation with interests over the plaintiffs’ lands?
6. Whether after due construction of S. 3 of the Land Registration Act CAP LFN 1990 applicable to the FCT, can an unregistered private organization establish and operate a land registry within the FCT which registry pertains to lands within Lugbe 1 Extension Layout, Abuja?”
See pages 2 to 3 of the Record.

I have read the Respondents’ supporting affidavit to the Originating Summons, found at pages 5 – 8 of the record.

To begin with, in the entire arguments for the Appellants under this Issue, there is not a single specific reference to any particular fact(s) in the Respondents’ affidavit in support of the Originating Summons. The Appellants have neither indicated the particular facts in the Respondents’ affidavit that are hostile nor demonstrated how the entirety of those facts are or are likely to be in dispute; talkless of substantial dispute. Impression on whether facts are contentious or likely to be is to be garnered mainly from the Plaintiffs’ facts, not solely on what the defendant chooses to state in his counter-affidavit from which he may then raise the issue of dispute on facts. Basically, the consideration of substantial factual dispute or its likelihood is based on the facts submitted in the Originating Summons. What the Appellants have skilfully done is to construct different facts in their counter-affidavit which they thought will raise substantial factual dispute in the suit but sadly without specific, substantial denial of the key facts in the Respondents’ supporting affidavit. I agree with the lower Court’s finding that there was no specific denial by the Appellants of the Respondents’ facts, talkless of raising any substantial dispute on same. In Zakirai vs. Muhammad & Ors (2017) LPELR – 42349 (SC), the Apex Court held that:
“…The bottom line, as far as this case is concerned is the observation –
“when facts are deposed to in an affidavit is to contradict those facts and not to merely set up a distinct fact as defence.”

It is also noteworthy that this issue was never raised or even hinted in the proceedings in the suit. It is being raised for the first time on appeal. The Appellants took all necessary steps in the proceedings in the lower Court and defended the suit without objecting to the method of its commencement. The Appellants are deemed to have waived any such right they may have had to object to the method of the commencement of the suit, having acquiesced to it by participating all through the proceedings without raising objection against it. What is more, the Appellants have not stated or shown the injustice they suffered an account of the method of commencing the suit. If the Appellants had truly desired to, nothing stopped them from applying to the lower Court to set aside the Originating Summons in the manner provided under Order 2 Rule 2 of those Rules; to wit:
“2. An Application to set aside for irregularity –
a) may be made by summons or by motion on notice and the grounds of objection shall be stated in the summons or notice of motion, and;
(b) shall not be allowed unless it is made within a reasonable time before the Applicant takes any fresh step after noticing the irregularity.”
See Amaechi vs. INEC & Ors(2008) LPELR – 446 (SC), A. G. Bendel State vs. A. G. Federation & Ors (1981) LPELR – 605 (SC), SPDC (Nig) Ltd vs. Edamkue & Ors. (2009) LPELR – 3048 (SC); Baalo vs. FRN (2016) LPELR – 40500 (SC).

As is deducible from the record of proceedings of the lower Court, neither the parties themselves nor the lower Court addressed any significant, substantial factual dispute in the suit because there was none. I am in agreement with the learned counsel for the Respondents that this issue be and is accordingly resolved against the Appellants.

As may be recalled, the Appellants’ second Issue, briefly restated here, is on whether the 1st Appellant can sub-delegate power delegated to him by the President of the Federal Republic of Nigeria relating to grant of statutory rights of occupancy to any person. For the purpose of what is to follow immediately, I will take the pains to reproduce in verbatim once again the Appellants’ second Issue as couched thus:
“ii. Whether the 1st appellant who is delegated by the President of the Federal Republic of Nigeria to act on his behalf on matters relating to the grant of statutory rights of occupancy in the Federal Capital Territory can sub-delegate such powers to any person, in this case the zonal lands managers of Area Council? If not whether the statutory rights of occupancy granted to the Respondents by zonal lands managers of an Area Council purportedly acting for the Hon. Minister of Federal Capital Territory is valid? (GROUND 6).”

The arguments canvassed under the Issue all revolve around whether the Minister of the Federal Capital Territory can delegate his statutory powers in the manner formulated in the Issue. However, the Appellants’ Amended Brief of Arguments has listed on its face the extant Appellants in this Appeal; being (1) Jonah Capital Nigeria Ltd and (2) Houses For Africa Nigeria Ltd. The listing of the two Appellants is also distinctly shown and stated as “Amended”. The same names of these two Appellants are listed also at page 2 of the Appellants’ Brief, ditto the 1st – 3rd Respondents’ Amended Brief of Argument. What is more, the Appellants’ Amended Notice of Appeal too bears exactly the same two names listed as Appellants in both Briefs of the parties.

For emphasis, the 1st of the only two Appellants in this Appeal is Jonah Capital Nigeria Ltd. Surely, the 1st Appellant cannot be the Minister of the FCT. In effect, the entire arguments under the issue do not relate to the listed, specified 1st Appellant. It is not the role of the Court to change the character of a party’s case or to construe same in a context and manner that is prejudicial to the opponent.

It is obvious that although the Appellants took their time to amend their Notice of Appeal and Brief of Argument by deleting the name of the hitherto 1st Appellant, they however ignored the specific Issues for determination and the arguments under them; resulting in the present stark, irredeemable confusion that has characterized their second issue for determination.
It is obvious also that the arguments under their second issue do not relate to the crux of the issue formulated. The effect is fatal. See Orji vs. Zaria Industries Ltd & Anor (1992) LPELR – 2768 (SC), Minister FCT & Anor vs. Mononia Hotel (Nig) Ltd & Anor (2010) LPELR – 4257 (CA).
The end result is that the Appellants’ second issue for determination does not merit any consideration and is thus discountenanced.

The Appellants’ third issue faults the lower Court’s decision on the nullity of the lease agreement between the 1st and 2nd Appellants.

Once again, the main arguments for the Appellants under this issue too proceeded under the same confusion that the Minister of the FCT is the 1st Appellant which as explained earlier is a false representation of the listed parties on record in this appeal. The degree of this confusion can best be imagined where this Court proceeds to make orders howsoever against the Minister of the FCT who is erroneously conveyed in the formulation of this issue as the 1st Appellant when the proper 1st Appellant is not shown to be the staff or agent of the Minister and when the Minister is not a party in this appeal. The Appellants’ Amended Notice of Appeal …. specifically listed who the two Appellants are; neither of whom is the Minister of the FCT nor his agent or staff. The Appellants also in their own considered choice listed those they viewed as proper Respondents. It is not the role of the Court to change the character of the listed Respondents into any other than Respondents against the clear wordings and intendment of the Appellants’ Amended Notice of Appeal.

Unlike the Appellants’ arguments under their second issue (supra) which was all about the Minister of the FCT albeit erroneously conveyed, there are however under the present issue other allied arguments which are not directly on the Minister of the FCT whether as a party or not but on some findings of the lower Court on particular points; specifically that the Appellants’ argument that the development Lease Agreement which the lower Court declared invalid was not tendered in evidence before it, that there was no evidence as to the extent of the various plots of land allocated to the Respondents, that a Survey Plan therefore ought to have been tendered by the Respondents to specify the extent of the area trespassed into by the Appellants. In summary also, the 1st – 3rd Respondents’ arguments on these points are that the Appellants themselves found on and frontloaded the development Lease Agreement and that the issue of a survey plan was never raised by the Appellants at the trial nor was the area and location of the plots in dispute.

Firstly, it should be remembered that the suit before the lower Court was by way of Originating Summons. The question of tendering or admitting documents in evidence as done in a trial on pleadings by writ of summons does not arise. It is the affidavits of the parties that take the place of pleadings in a trial by Originating Summons. As referred by the learned counsel for the 1st – 3rd Respondents, I have read the 1st Appellant’s counter-affidavit to the originating summons filed in the suit where I found in it at page 3 of the Additional Record of Appeal the following facts by the Appellants:
“8. That the 2nd Defendant accepted this grant and in furtherance executed a Development Lease Agreement with the 1st Defendant. A copy of the Development Lease Agreement is hereby attached as Exhibit ‘B’.
9. That the parties later amended the agreement sequel to which a Deed of Addendum was executed. A copy of the Deed of Addendum is hereby attached as Exhibit ‘C’.”

The said Exhibits B and C are as attached to the counter-affidavit found at pages 7-35 and 36 – 39 respectively of the Additional Record. It is therefore surprising, to say the least, that it is the Appellants themselves, more particularly the 1st Appellant, who are now arguing that the lower Court found on and nullified the development Lease Agreement without ever seeing one at the trial when they themselves pleaded and attached it to their counter-affidavit in their defence to the suit.

Secondly, at no stage in the proceedings in the suit whether by affidavit facts or howsoever was the issue of area or size or location of the lands in dispute ever made a specific issue. It is long settled in law that a survey plan becomes relevant and necessary only where there is a triable dispute as to the exact identity or size of the land in dispute. Absence of a survey plan cannot defeat a Plaintiff’s claim for title to land where the land in dispute is identifiable and ascertainable. See Idehen vs. Osemwenkhae (1997) LPELR – 1417 (SC), Adedeji vs OIoso & Anor (2007) LPELR – 86 (SC), Okukuje vs. Akwido (2001) LPELR – 2526 (SC).

In the circumstances, the lower Court was right when it made pronouncements on the Development Lease Agreement and nullified same as it did. This issue too is thus resolved against the Appellants.

The Appellants’ three issues having thus been resolved against them, the appeal ends as one without merit, liable to be and is hereby dismissed.
Parties shall bear their respective costs on this appeal.

STEPHEN JONAH ADAH, J.C.A.: I read in advance the lead judgment just delivered by my learned brother, Isa Bature Gafai, JCA., and I entirely agree with the reasoning and the conclusion that the appeal is devoid of merit and ought to be dismissed. I also do dismiss the appeal for lack of merit.

Parties to bear their respective costs.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have read with deep satisfaction the draft of the leading judgment of my Lord, Isah Bature Gafai JCA, and I completely agree that the appeal lacks merit and thus, liable to be dismissed.

My Lords, it is almost inconceivable that parties would go to Court to litigate over issues in which there are no disputes at all between them perhaps just of the fun of it. In other words, every suit would involve some form of dispute or even a disagreement, and if it were not so what would then be the basis of the Litigation? Thus, even Originating Summons would involve the resolution of some form of dispute, since even in the construction of documents there is a disagreement as to its meaning or scope or purport, hence the resort to the Court. What is prohibited therefore, in an Originating Summons generally even under Order 2 Rule 3 of the Rules of the lower Court are substantial disputes as to facts. This is so because in law Originating Summons is usually used when what is in dispute is the mere construction of documents or interpretation of law in respect of which pleadings and oral evidence at plenary hearings are unnecessary or where there are no real disputes as to facts between the parties. It would therefore, be improper to commence civil proceedings by means of Originating Summons where the facts are likely to be in substantial disputes. Thus, civil proceedings for which it is used usually involves questions of law rather than disputed issue of facts. See Hon. Olayide Adewale Akinremi & Anor V. Muttaka Bala Suleiman & 17, 916 08 Ors (2022) LPELR- 56903(CA) per Sir Biobele Abraham Gcorgewill JCA.
In law, it is not every seeming conflict arising from affidavit evidence that would warrant the calling of or resort to oral evidence for its resolution. It is only where the issues of facts are so contentious and irreconcilable as to facts that a Court would, or rather should, be wary of rushing to determine such a claim on affidavit evidence only in an Originating Summons. Indeed, such a claim would be more suited and proper for determination on the pleadings and evidence of the parties under proceedings begun by means of a Writ of Summons. Generally, the Originating Summons procedure is limited in its scope of use and should not be adopted in civil proceedings in which there are substantial disputes of facts. It should never be resorted to in cases where there arc controversies and a lot of disputed facts between the parties. In such cases, a Claimant should approach the Court by way of a Writ of Summons, which will allow each side to file pleadings and sort out the issues in dispute between them at full trial. See Hon. Olayide Adewale Akinremi & Anor V. Muttaka Bala Suleiman & 17, 916 08 Ors (2022) LPELR- 56903(CA) per Sir Biobele Abraham Georgewill JCA. See also Johnson & Ors V. Mobil Producing Nigeria Unlimited & Ors (2009) LPELR – 8280 (CA). See also Pam V. Mohammed (2008) 16 N.W.L.R (pt. 112) 1 Cd p. 88, Esezoobo V. Nsitf & Ors (2012) LPELR- 9282 (CA), Ossai V. Isaac E. Wakwah (2006) 4 NWLR (Pt. 969) 208, AG. Adamawa V. AG. Federation (2005) 18 NWLR (Pt. 958) 581.

It is for the above few words of mine and the fuller reasons marshalled out in the leading judgment that I too hold that the appeal lacks merit and is liable to be dismissed. I too hereby dismiss it for lacking in merit.