STANDARD CLEANING SERVICE COMPANY V. THE COUNCIL OF OBAFEMI AWOLOWO UNIVERSITY ILE-IFE (2011)

STANDARD CLEANING SERVICE COMPANY V. THE COUNCIL OF OBAFEMI AWOLOWO UNIVERSITY ILE-IFE

(2011)LCN/4279(CA)

In The Court of Appeal of Nigeria

On Monday, the 7th day of February, 2011

CA/I/M211/07

RATIO

GROUNDS OF APPEAL: PURPOSE OF THE RULES OF PROCEDURE ON THE GROUNDS OF APPEAL; CIRCUMSTANCE WHERE GROUNDS SHOULD NOT BE STRUCK OUT

The rules of procedure on grounds of appeal are primarily designed to put the other side on notice and to ensure fairness. Once the grounds are not vague or general in terms and they disclose a reasonable ground of appeal, the grounds should not be struck out notwithstanding that it did not conform to a particular form. See Nteogwuija & Ors. v. Ikuru & Ors. [1998] 10 NWLR (Pt. 569) 267 @310; Aderounmu v. Olowu [2000] 4 NWLR (Pt. 652) 253 @ 265. PER CHINWE IYIZOBA, J.C.A.

ORIGINATING SUMMONS: CIRCUMSTANCES WHERE AN ORIGINATING SUMMONS WILL BE APPLICABLE AND WHERE IT SHOULD NOT EMPLOYED

ORIGINATING PROCESS: EFFECT OF AN INCOMPETENT ORIGINATING PROCESS ON THE JURISDICTION OF THE COURT OF ITS JURISDICTION

It goes without saying that incompetent originating process by which an action is begun robs the court of its competence or jurisdiction to entertain the matter. See Madukolu v. Nkemdilim (1962) All NLR 589: and E.B.N v. Halilco (Nig.) Ltd (supra) where this court observed per Ariwoola J.C.A. at page 585, paras. A – D: “I am not in the slightest doubt, that the instant case did not come before the lower court, initiated by due process of law, in that, the conditions precedent and expected to be fulfilled before the court assumed jurisdiction was jettisoned by the plaintiff. Therefore the lower court was simply wrong not to have discovered the incompetence in the action and declined jurisdiction in the matter. The parties cannot by their acquiescence grant to the court the competence the law says it does not possess. The law empowers the court to take issue of its competence suo motu at any stage of the proceeding even when neither party raises it. PER CHINWE IYIZOBA, J.C.A.

DISTINCTION BETWEEN DEMURRER / JURISDICTION OF THE COURT: DISTINCTION BETWEEN PROCEDURE RELATING TO DEMURRER AND AN OBJECTION TO THE JURISDICTION OF THE COURT

The respondent is right that there is a distinction between procedure relating to demurrer and an objection to the jurisdiction of the court. The distinction was clearly brought out in the case of N.D.I.C v. CBN (supra) where the Supreme Court observed: “The tendency to equate demurrer with objection to jurisdiction could be misleading. It is a standing principle that in demurrer, the plaintiff must plead and it is upon that pleading that the defendant will contend that accepting all facts pleaded to be true, the plaintiff has no cause of action, or, where appropriate, no locus standi: see Federal Capital Development Authority v. Naibi (1990) 3 NWLR (Pt.138) 270: Williams v. Williams [1995] 2 NWLR (Pt.375) 1: Akpan v. Utin [1996] 7 NWLR (Pt.463) 634; Brawal Shipping (Nig.) Ltd. V. F.I. Onwadike Co Ltd. [2000] 11 NWLR (Pt.678) 387. But as already shown the issue of jurisdiction is not a matter for demurrer proceedings. It is much more fundamental than that and does not, entirely depend as such on what a plaintiff may plead as facts to prove the reliefs he seeks. What it involves is what will enable the plaintiff to seek a hearing in court over his grievance, and get it resolved because he is able to show that the court is empowered to entertain the subject-matter. It does not always follow that he must plead first in order to raise the issue of jurisdiction. PER CHINWE IYIZOBA, J.C.A.

JURISDICTION: WHETHER WHERE THE ISSUE TOUCHES ON THE JURISDICTION OF A COURT, THE COURT CAN RAISE THE ISSUE SUO MOTU

JUSTICES

NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria

CHINWE E. IYIZOBA Justice of The Court of Appeal of Nigeria

MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria

Between

STANDARD CLEANING SERVICE COMPANY Appellant(s)

AND

THE COUNCIL OF OBAFEMI AWOLOWO UNIVERSITY ILE-IFE. Respondent(s)

CHINWE IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the decision of the Federal High Court sitting at Oshogbo, Osun State. The appellant is a registered company based in Ile-Ife, Osun State while the respondent is the Obafemi Awolowo University Ile-Ife.
The appellant provides cleaning services and had a contract with the respondent for the purposes of cleaning a certain place in the University. A disagreement arose between the parties leading to the termination of the cleaning contract by the respondent. Aggrieved by what he considered was unlawful termination of the contract, the appellant sued the respondent by originating summons. The respondent did not file a counter affidavit but filed a conditional memorandum of appearance out of time and a notice of preliminary objection challenging the competence of the originating summons. The respondent did not obtain the leave of the court to file the memorandum of appearance out of time. In spite of objection by the appellant, the preliminary objection was argued first and was upheld on the ground that the issues raised in the originating summons can only be resolved by leading evidence. The appellant was ordered to file writ of summons and statement of claim.

The appellant being dissatisfied with this ruling filed a notice of appeal with three grounds of appeal on 18/7/07. His brief of argument was filed on 23/3/08. On 5/11/08, the respondent filed a notice of preliminary objection to the competence of the grounds of appeal and their particulars followed by his brief of argument dated 5/11/08 and deemed filed on 13/11/08. Therein he incorporated his arguments on the preliminary objection. On 27/4/09, the appellant filed his reply to the notice of preliminary objection.
At the hearing, O. Olatunji Esq. of counsel for the Respondent raised his preliminary objection before the parties adopted their respective briefs. I shall reproduce the grounds of appeal being objected to with their particulars:

Ground I
1. The lower court erred in law to hold on the Originating Summons that;
“It is only applicable in such circumstances as where there is no dispute on questions of fact or the livelihood (sic) of such dispute. From the fact contained in the sworn affidavit attached to originating summons in paragraph 3, 9, 11, 12, 13, 18, 21, 22, 25, 26, 27, 28, 29, 35, 43, 44, 49 and Exhibits A, C, D, F, G, H, I and N enough issues have been raised which can only be settled by way of evidence.
Particulars
1. The facts as contained in the affidavit in support of the originating summons are enough to decide the case without calling for evidence
2. The issue involved is based on contract between the appellant and the respondent and all the transactions are documentary.
3. All the documents attached as exhibits are enough to decide the suit.
4. The court cannot decide whether there is need to call for oral evidence or not without hearing the parties.

Ground 2
2. The trial court misdirected itself in law to evaluate paragraphs of the affidavit in support of the originating summons to conclude that there is need to call for oral evidence during trial
Particulars
1. The lower court can not take an issue suo motu without inviting the parties to address the court no matter how dear (sic) is the issue 2. The lower court had descended into arena by embarking on what it did.
3. The respondent who filed the notice of preliminary objection did not evaluate the paragraphs of the affidavit herself in her argument before the lower court.

Ground 3
3. The trial judge committed error in law by ruling that; “The defendant/applicant did not file an extension of time within which to appear in view of their failure to file within the appropriate time. The defendant/applicant only file a conditional appearance 8 days after the time to file appearance has lapse (sic). This is no doubt an irregularity. To me this does not go to the root of the matter. I have not seen any injustice their present appearance will cause the plaintiff/respondent in this case.”
Particulars
1. The originating summons was served on the respondent on the 7th of August, 2006
2. The appellant also filed a motion dated the 2nd of November 2006 asking the court to set the case down for hearing in default of defence and appearance.
3. The respondent then responded by filing conditional appearance and Notice of Preliminary Objection dated 14th of November 2006
4. The issue is compliance with rules of the court and not whether the appellant had suffered injustice or not on late appearance of the respondent at the lower court.

On ground 1, Mr. Olatunji for the respondent submitted that the particulars especially 2, 3 and 4 did not flow from the ground of appeal. On ground 2, he submitted that it is incompetent as “there is nothing like misdirection in law” and that the court can only “misdirect itself on fact” or “err in law”. Counsel further submitted that particular 1 of this ground 2 ought to be a separate ground of appeal as it does not relate to ground 2 while particulars 2 & 3 do not flow from ground 2.

On ground 3, counsel submitted that all its particulars did not show or demonstrate the error of law committed by the learned trial Judge.
The reply of Mr. Fabunmi, of learned counsel for the Appellant on the preliminary objection is that all the grounds and particulars are competent. He referred to the case of Odingi v. Oyeleke (2001) 2 SC 194 and submitted that the courts these days aim at doing substantial justice and will not allow technicalities defeat the course of justice. He urged us to dismiss the preliminary objection.

There are several authorities which advise caution on the assessment of grounds of appeal and its particulars. The rules of procedure on grounds of appeal are primarily designed to put the other side on notice and to ensure fairness. Once the grounds are not vague or general in terms and they disclose a reasonable ground of appeal, the grounds should not be struck out notwithstanding that it did not conform to a particular form. See Nteogwuija & Ors. v. Ikuru & Ors. [1998] 10 NWLR (Pt. 569) 267 @310; Aderounmu v. Olowu [2000] 4 NWLR (Pt. 652) 253 @ 265. I am however, constrained to point out that some of the particulars of the three grounds of appeal are argumentative and narrative contrary to the provision in Order 6 rule 2 sub rule 3 of the Court of appeal Rules 2007. Further, Mr. Fabunmi could have shown more elegance and less verbosity in the drafting of the grounds and their particulars, but no one would have been left in doubt as to what the complaints were. With respect to ground 2, it is true that the normal nomenclature in the circumstances under consideration is “misdirection on facts” or “error in law”. Nonetheless the mistakes are not such as to justify striking out the grounds of appeal and the entire notice of Appeal as urged by Mr. Olatunji. The preliminary objection is dismissed. The appellant in his brief formulated three issues for determination. They are:
1. Whether the procedure of originating summons can be used to interpret the Obafemi Awolowo University Act to the effect that contract between Appellant and the Respondent had not been properly terminated by the Respondent when all the transactions are documentary.
2. Whether the lower court can suo motu evaluate paragraphs of the affidavit in support of the originating summons and conclude that there is need to lead oral evidence to prove the plaintiffs case and settle the issues involved without listening to addresses of counsel.
3. Whether the Respondent who did not file application for extension of time to file Memorandum of Appearance and Notice of Preliminary objection against the plaintiffs originating summons; can have his preliminary objection heard and upheld.

The Respondent in his own brief formulated two issues for determination, viz:
1. Whether from the totality of the pleadings before the lower court, particularly the Appellant’s originating summons and the Affidavit in support, the lower court was right in holding that the suit can not be heard under Originating summons procedure.
2. Whether the Respondent who had filed a Conditional Memorandum of Appearance and Notice of Preliminary Objection must in law file a motion for extension of time within which to appear if he did not appear within 8 days.
The issues are basically same. I will deal with Respondent’s issues 1 & 2 and then appellants issue no 2 as issue 3

Issue 1
The contention of Mr. Fabunmi on this issue is that this case commenced by originating summons comes well within the provisions of the Federal High Court (Civil Procedure) Rules Order 2 Rule 2 (2a & b) 2000 as the appellant’s prayer is for an interpretation of the University Act as to whether the Vice Chancellor acted beyond his powers by terminating the University’s contract with the Appellant.
Learned Counsel argued that all the documents required for the interpretation were before the trial court and that the facts contained in the various documents could not be denied by the respondent. Counsel called in aid the case of Daplanlong v. Dariye (2007) SCM 21 @ 60 and urged us to hold that the action was properly commenced under the originating summons procedure.
Mr. Olatunji in his brief in reply reproduced Order 2 Rule 1 of the Federal High Court Rules and also referred to the case of Oyewumi v. Osunbade (2001) FWLR 1919 @ 1962. Counsel further examined the issues raised by the appellant for determination in his originating summons and the affidavit in support and submitted that issues 3, 4 and 5 do not involve interpretation of any written law and that several of the paragraphs of the affidavit show that there is a serious dispute and issues of fact which require the leading of evidence in court.
Order 2 Rule 2(a & b) of the Federal High Court (Civil Procedure) Rules 2007 provides:
(2) Proceedings may be begun by Originating Summons where:
(a) The sole principal question at issue is or is likely to be, one of the Construction of a written law or of any instrument made under any Written law, or of any deed, will or contract or other document or Some other question of law; or
(b) There is unlikely to be any substantial dispute of fact.

In the case of Oyewumi v. Osunbade (supra) cited by the Respondent, the court of Appeal described Originating Summons as follows:
“Originating Summons should only be applicable in circumstances where there is no dispute on questions of facts or even the likelihood of such dispute. Application by Originating Summons should never be a substitute for initiating contentious issues of fact. Where the affidavit of the Plaintiff leaves matters for conjecture, Originating Summons is not appropriate procedure.”
Similar definition of Originating Summons is also contained in the case of Daplanlong v. Dariye (supra) cited by the Appellant. In National Bank of Nig Ltd v. Alakija (1978) 9 – 10 SC 59 @ 70, Tobi JCA (as he then was) stated that it is inadvisable to employ an originating summons for hostile proceedings. The fact that the appellant’s contract was terminated by the respondent immediately underscores the point that the proceedings will be very hostile. The respondent is bound to try to justify its action in terminating the contract. Whether it will succeed or not is another matter but the point is that they would try. They would fight the case all the way through. Even a cursory look at the issues set out in the originating summons and the 56 paragraph affidavit in support reveals that there will be disputes or likelihood of it on questions of facts. Just one example:

Issue 5 in the originating summons:
“(5). Is the defendant right to refuse to pay the plaintiffs the money due under the contract being the money for profit margin and materials between December 2005 and March 2006”
This issue surely does not involve the interpretation of any written law or determination of any question arising out of the construction of any contract. For the sake of argument, the response to the issue by the defendant could be “we have paid him all his entitlement” or “We do not owe him any money” or there could be a dispute as to the exact amount owed. It thus becomes necessary to lead evidence to show that the money is due or the amount owed. Indeed the affidavit in support of the originating summons is replete with facts showing that there is a likelihood of serious dispute requiring evidence to be led. Further the mere fact that the root of the disagreement which gave rise to the institution of this action is the termination of the appellant’s contract with the respondent immediately smacks of controversy. There must be disputes as to facts. The appellant also raised the issue of fair hearing. I agree with Mr. Olatunji that the issue calls for evidence and cannot be determined by originating summons procedure. In the case of Ejura v Idris [2006] 4 NWLR (Pt. 971) 538, where the Appellant sued the Respondent at the Federal High Court by originating summons seeking the nullification of his election as the Governor of Kogi State on the grounds that he gave false information on INEC FORM CF 001,this court observed:
“Where it is obvious from the state of the affidavits that there would be an air of friction in the proceedings then an originating summons is not appropriate.
A writ of summons would suffice in such circumstances….The Appellant seeks the removal of an elected Governor on the ground that form filled by him for the gubernatorial election contained false information …Surely, the appellant never expected the 1st respondent to agree to or concede to all the damaging facts to his person in the affidavit in support. A look at the questions for determination on the face of the originating summons, the reliefs sought and the affidavit in support show beyond doubt that if trial proceeded at the court below, it would have been hostile proceedings which would involve contentious issues and questions of fact which can only be resolved by oral evidence from the parties and their witnesses.”

With all due respect and considering the point raised by Mr. Fabunmi in his reply brief, it seems he is laboring under a fundamental and very serious misconception as to the law on originating summons procedure. In paragraph 2.03 of his reply brief, Mr. Fabunmi queried “On the amount due payable the respondent was supposed to have joined issues on it, they did not. How can you now say that there is dispute as to fact on the issue? They had the opportunity of joining issues at the lower court, they did not do so”. By this I understand Mr. Fabunmi to be saying that the respondent should have joined issues by filling a counter affidavit at the lower court. If the respondent had filed counter affidavit evidence, in which case, evidence would then be led to resolve the conflicts. This is precisely why originating summons procedure is not right for such a case. In my humble view, it is as clear as day light that originating summons proceed is out of place in this suit. The University having terminated the Appellant’s will try to justify its action. They are likely to fight the case and dispute every issue raised in the court process. It is better that pleadings be filed and evidence led by the parties.
This issue is resolved in favour of the respondent.

ISSUE 2
The argument of Appellant’s Counsel here is that the Respondent did not enter appearance within the 8 days stipulated by law. The contention is that the respondent filed his conditional memorandum of and preliminary objection well over three months after he was served originating summons.
Counsel argued that he ought to have first applied for leave of the court to enter appearance out of time before filing the processes. Counsel referred to Order 25 Rules 1& 2(1) of the Federal High Court (Civil Procedure) Rules on demurrer and submitted that demurrers having been abolished, what the respondent ought to have done was, after obtaining leave to enter appearance out of time, to now file his memorandum of appearance and his defence, The issues raised in the preliminary objection would then be raised in the defence. Having failed to do this, counsel argued that the court below erred in giving him audience, and worse still, granting him the prayers sought. He urged us to set aside the ruling of the lower court.
In reply, learned counsel for the respondent submitted relying on the case of Petrojessica Enterprises Ltd v. Leventis Technical Coy Ltd (1992) 5 NWLR (Pt.244) 675 @693 that objection to the jurisdiction of the court can be raised at any stage of the proceedings. Counsel argued that bringing an application for extension of time to file a conditional appearance and deeming same as properly filed and served in a situation where the defendant is challenging the jurisdiction of the court as canvassed by the appellant’s counsel is a misconception. Counsel further submitted that where the jurisdiction of the court is being challenged, the law is that the court should not take any further step in the proceedings but must first determine whether or not it has jurisdiction. Counsel argued that the court is not in a position to grant any relief or prayer until the issue of jurisdiction is resolved. He finally submitted relying on N.D.I.C. v. C.B.N [2002] 7 NWLR (Pt.766) 272 @ 296-297 that there is a clear distinction between procedure relating to demurrer and an objection to the jurisdiction of the court and that the issue of jurisdiction is not a matter for demurrer proceedings.

I agree with learned counsel for the appellant, Mr. Fabunmi, that the respondent should have obtained the leave of the court before filing his memorandum of appearance out of time, notwithstanding that he was challenging the competence of the suit. The failure to do so under the circumstances is of no moment since the court ruled that the action ought not to have been commenced by originating summons. To that extent the trial court was right in his decision that the failure did not occasion any injustice. This is because the court could have raised the issue suo motu and given its ruling on it being a jurisdictional matter. See E.B.N. v. Halilco (Nig.) Ltd (2006) 1 NWLR (Pt. 980) 568 @584 – 585. Mr. Fabunmi had in his reply to the Respondent’s brief at paragraph 3.04 argued that the question involved in this case did not have anything to do with the jurisdiction of the court; that it was merely a question of the respondent challenging the procedure of originating summons adopted by the appellant at the lower court.
Learned Counsel clearly got it wrong. It goes without saying that incompetent originating process by which an action is begun robs the court of its competence or jurisdiction to entertain the matter. See Madukolu v. Nkemdilim (1962) All NLR 589: and E.B.N v. Halilco (Nig.) Ltd (supra) where this court observed per Ariwoola J.C.A. at page 585, paras. A – D:
“I am not in the slightest doubt, that the instant case did not come before the lower court, initiated by due process of law, in that, the conditions precedent and expected to be fulfilled before the court assumed jurisdiction was jettisoned by the plaintiff. Therefore the lower court was simply wrong not to have discovered the incompetence in the action and declined jurisdiction in the matter. The parties cannot by their acquiescence grant to the court the competence the law says it does not possess. The law empowers the court to take issue of its competence suo motu at any stage of the proceeding even when neither party raises it.

Now to the issue of demurrer; with all due respect, the appellant’s contention on the matter is misconceived. The respondent is right that there is a distinction between procedure relating to demurrer and an objection to the jurisdiction of the court. The distinction was clearly brought out in the case of N.D.I.C v. CBN (supra) where the Supreme Court observed:
“The tendency to equate demurrer with objection to jurisdiction could be misleading. It is a standing principle that in demurrer, the plaintiff must plead and it is upon that pleading that the defendant will contend that accepting all facts pleaded to be true, the plaintiff has no cause of action, or, where appropriate, no locus standi: see Federal Capital Development Authority v. Naibi (1990) 3 NWLR (Pt.138) 270: Williams v. Williams [1995] 2 NWLR (Pt.375) 1: Akpan v. Utin [1996] 7 NWLR (Pt.463) 634; Brawal Shipping (Nig.) Ltd. V. F.I. Onwadike Co Ltd. [2000] 11 NWLR (Pt.678) 387. But as already shown the issue of jurisdiction is not a matter for demurrer proceedings. It is much more fundamental than that and does not, entirely depend as such on what a plaintiff may plead as facts to prove the reliefs he seeks. What it involves is what will enable the plaintiff to seek a hearing in court over his grievance, and get it resolved because he is able to show that the court is empowered to entertain the subject-matter. It does not always follow that he must plead first in order to raise the issue of jurisdiction.”

The respondent’s complaint is that the appellant adopted a wrong procedure in instituting the action; that he should not have come by way of originating summons. Why then should he react to the appellant’s process by filing a counter affidavit? This clearly is not one of those cases where the preliminary objection should be raised in the defence on the basis that demurrers have been abolished.
The respondent was perfectly right in filing his preliminary objection without first filing any defence. This issue is resolved in favour of the respondent.

Issue 3
Mr. Fabunmi’s contention here is that the trial court erred by evaluating the facts deposed to in the affidavit suo motu and in coming to the conclusion that there was need to lead evidence to resolve the issues without giving the parties the opportunity to address the court on the issue.
Mr. Olatunji in reply submitted that where the jurisdiction of the court is questioned, the court will have to look at the plaintiff s statement of claim, in this case, the originating summons to determine whether it has jurisdiction or not.
Counsel further submitted that the learned trial Judge had done no wrong by looking at the originating summons and affidavit to determine whether the court has jurisdiction to entertain the suit.

I agree with Mr. Olatunji that Mr. Fabunmi’s argument is misconceived. The respondent raised a preliminary objection to the procedure adopted by the appellant in instituting the action. In deciding whether the procedure was right or wrong, the court had to look at the facts deposed to in the affidavit. It is wrong therefore to say that the judge raised the issue suo motu. And as earlier pointed out, even if the trial court did raise the issue suo motu, it would have been right so to do as the issue touches on the jurisdiction or competence of the court to hear the case.
Finally, Mr. Fabunmi called on us to invoke our power under Section 15 of the Court of Appeal Act. He commended to us the case of Inakoju v. Adeleke (2007) 1 SCM 1, and then went on to analyze in great detail running into several pages the facts and issues in the originating summons. At the end Counsel urged us to resolve the issues raised in the appeal in the appellant’s favour and not to order a retrial of the case because:
1. “The appellant’s activities had been paralyzed since November, 2005 when the appellants (sic) agents started fishing in troubled water in appellant’s company
2. That if the case is sent back to the lower court we may need to wait for more time to get justice. Such delay is not good for a company as a business enterprise, more so, much damage had been done through the respondent.
Such order of retrial will definitely work injustice against the appellant which will be tantamount to adding insult to injury. It is our submission that the available facts and pieces of evidence that are before the court are enough to decide the issues raised in this suit with originating summons.
We may also have to go back to the same court which is the only court in Osun State that has jurisdiction on the matter.”

In reply, Mr. Olatunji for the respondent submitted that this court lacks the jurisdiction to invoke its powers under Section 15 of the Court of Appeal Act, as that did not form part of the appellant’s prayers in its Notice of Appeal. Counsel argued that the appellant did not specifically pray for the re-hearing of this suit in his Notice of Appeal and that this court is bound by the prayers contained in the Notice of Appeal. Counsel called in aid the cases of Governor of Gongola State v. Tukur [1989] 4 NWLR (Pt. 117) 517 @ 603; Inakoju v. Adeleke (supra). Counsel further submitted that the phrase “re-hearing” was defined by the Court of Appeal in Inakoju v. Adeleke (supra) as “an examination of the case as a whole” and that since the appellant did not pray for the re-hearing or examination of the case as a whole, this court cannot invoke its powers under Section 15 of the Court of Appeal Act. Counsel again relying on Inakoju v. Adeleke (supra), submitted that certain fundamental conditions must be met before the court could exercise the very wide power conferred on it by Section 15 of the Court of Appeal Act. These conditions include:
(a) Availability of the necessary materials to consider and adjudicate in the matter
(b)The length of time between the disposal of the action at the trial court and the hearing of the appeal; and
(c) The interest of justice by eliminating further delay that would arise in event of remitting the case back to the trial court for re-hearing and hardship such an order would cause on either or both parties in the case.

Counsel further submitted that all the above conditions did not exist in this case and that Mr. Fabunmi did not even address the court as to the existence or otherwise of the conditions as to enable the court decide whether to invoke the provisions of the relevant section in his favour.
Counsel finally submitted that the real question in controversy before the lower court is whether the contract between the Plaintiff/Appellant and the Defendant/Respondent was properly terminated by the Defendant/Respondent.
Relying again on Inakoju v. Adeleke (supra), Counsel contended that this question not having been donated in the Appellant’s ground of appeal, this court cannot invoke Section 15 in its favour. Counsel urged us to dismiss the appeal.

This last issue raised by Mr. Fabunmi does not really deserve any detailed response. This is because the decision of this court as implied from issues already dealt with is that the lower court rightly decided that the case calls for filing of writ of summons and statement of claim. The question of this court invoking its powers under Section 15 of the Court of Appeal Act does not therefore arise. The court of appeal can exercise its power under Section 15 only if the trial court had jurisdiction in the matter. It is a pre-condition for the invocation of the section. See Olutola v. University of Ilorin (2004) 18 NWLR (Pt.905) 416; Fadeye v. Otapo (1995) 3 NWLR (Pt. 381) 1. Further, in Inakoju v. Adeleke (supra), the Supreme Court held that before Section 16 (now Section 15) power can be invoked the for the determination of the real question in controversy in the appeal, that question must be a ground of appeal. Tobi J.S.C. said at page 614;
“The real question in controversy in this appeal is whether the removal of the 3rd respondent complied with section 188 of the 1999 Constitution or whether it was in violation or in breach of that section. The grounds of appeal and their particulars before the Court of Appeal clearly donated the real question in controversy. And so the coast was clear for the Court of Appeal to decide on the real question in controversy by invoking its section 16 powers.”
Even if the decision here is that the lower court had jurisdiction to hear the suit under the originating summons procedure, we would not have been able to invoke our Section 15 power because as rightly submitted by Mr. Olatunji, the real question in controversy which is whether the contract was properly terminated by the respondent was not made a ground of appeal. Mr. Fabunmi had contended in his reply brief at paragraph 5.03, that they invoked Section 15 under the Relief sought in their Notice of Appeal where they had prayed for an order of this court granting all the prayers of the appellant as contained in the originating summons.

With all due respect, while this could possibly be construed as a prayer for rehearing of the suit, surely, it is not the same as making the real issue in controversy a ground of appeal. Finally, the case of Inakoju v. Adeleke (supra) which Mr. Fabunmi referred to extensively does not help his case at all. The court of appeal in Inakoju was able to invoke Section 16 because all the necessary conditions were satisfied, the High Court was found to have jurisdiction to hear the case; the real issue in controversy was a ground of appeal; all the issues for determination in the originating summons were basically points of law requiring no affidavit evidence. It was consequently of no moment that no counter affidavit had been filed, although the finding was that the defendants deliberately refused to file a counter affidavit. I think the appellant here committed a tactical error in appealing the decision of the lower court. He should have filed his statement of claim and proceeded with his case under an ordinary writ of summons.

In the light of the foregoing, I hold that this appeal lacks merit. It is hereby dismissed with N10,000 costs in favour of the Respondent.

NWALI SYLVESTER NGWUTA, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother Iyizoba JCA and I entirely agree with the reasoning and conclusion therein.

Originating summons should be used only where the proceeding involves questions of law rather than disputed facts. Even where the facts are not disputed originating summon should not be used of the proceedings are hostile. See Doherty v. Doherty (1969) NWLR 24. For the above and the fuller reasons in the lead judgment. I also dismiss the appeal as devoid of merit. I adopt the order for costs.

MOORE A. A. ADUMEIN, J.C.A.: I read, before now, the judgment just delivered by my learned brother – IYIZOBA, JCA.

The main issue for determination in this appeal is whether having regard to the facts of the case; originating summons was the proper mode of commencing the suit in the court below.
The appellant, in its originating summons asked the trial court to determine the following 6 (six) questions, namely:
1. Whether the clause ‘D’ of the Exhibit ‘A’ in this Originating Summons which is letter of award of contract by the Defendant to Plaintiff to Clean Zone 5 of the Defendant’s University precludes the Plaintiff from disciplining her workers to enhance efficiency.
2. Whether the Defendant’s University Vice-Chancellor has the power to terminate the contract under the law as he had done with Exhibit 1.
3. Whether the Defendant was right to insist on determining the staff composition of the Defendant’s company for the purpose of executing the contract awarded to the plaintiff to clean zone 5 to the Defendant’s University.
4. Whether the Defendant can give the plaintiff 3 months probatory period after the contract for the cleaning of the Defendant’s university had been re awarded to the plaintiff in November 2005; the Plaintiff having executed similar contract for the Defendant for 18 years without blemish.
5. Is the Defendant right to refuse to pay the plaintiff the money due under the contract, being the money for profit margin and materials between December 2005 and March, 2006.
6. Is the Defendant justified to terminate the contract with the Plaintiff based on its own interpretation of Clause ‘D’ of Exhibit ‘A’ and the trouble engineered and fermented by the Defendant’s agents without giving the Plaintiff fair hearing despite the good performance of the Plaintiff as attested to by the Defendant itself.
The prayers sought in the originating summons are as follows:
1. An order declaring the termination of the contract for the cleaning of zone 5 of the Defendant’s university by the vice-Chancellor as Ultra-Vires the powers of the Vice-Chancellor of the Defendant, null and void, and without due process of the law.
2. Injunction restraining the Defendant from terminating the contract between the Plaintiff and the Defendant via the letter of award of contract Exhibit ‘A’ in this originating summons.
3. N1 million (one million naira) damages against the Defendant for breach of contract.
4. Injunction restraining the Defendant from determining the composition of the 34 members Quota Staff of the Plaintiff in executing the said contract.
5. Injunction restraining the Defendant from further holding the sum of N317, 455.32 (Three hundred and seventeen thousand naira, four hundred and fifty-five naira, thirty-two kobo) due payable under the contract to the plaintiff being the money for profit margin and materials between December 2005 and March 2006.

For the sake of emphasis, the appellant’s originating summons is supported with a copious affidavit – an affidavit of 56 (fifty-six) paragraphs!
The learned counsel for the appellant argued that the respondent ought to have joined issues with the appellant. By that I understood him to be saying that the respondent ought to have filed a counter affidavit before it could be determined whether or not there are disputed facts.

The nature of the appellant’s questions, prayers and the affidavit in support of the originating summons are such that is quite clear that the appellant’s case is very likely to engender highly hostile and contentious disputes on issues of facts.
The areas of a likelihood of disputes include money allegedly due to the appellant “being the money for profit margin and material between December 2005 and March 2006”; the staff composition of the appellant company for the purpose of the contract under dispute; breach of contract; whether the appellant had executed contracts for the respondent for 18 years without blemish and N1,000,000.00 general damages for breach of contract: These are matters that cannot be resolved without oral evidence.

On the face of the appellant’s originating summons, there is a high likelihood of disputes arising on issues of facts. In such a situation, it is not necessary to wait for a counter affidavit to be filed before determining that originating summons is an improper mode for the commencement of the action.
See OSSAI V. WAKWAH (2006) ALL FWLR (pt.303) 239 at256, where the Supreme Court, per MAHMUD MOHAMMED, JSC, expressed thus:
“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 results in disputed facts. Even where no counter affidavit was filed or where counter-affidavit was filed…….the nature of the claims and the facts deposed in the affidavit in support of the in the originating summons are enough to disclose dispute facts and the hostile nature of the proceedings.” (Underlining mine).

The appellant’s action was wrongly commenced by an originating summons.
For the foregoing reasons and the more comprehensive and detailed reasons of my learned brother, IYIZOBA, JCA I hold that this appeal lacks merit and it is, accordingly, dismissed.
I abide by the order as to costs.

Appearances

ABAYOMI FABUNMI ESQFor Appellant

AND

OLUWAGBEMIGA OLATUNJI ESQFor Respondent