CHIEF OLIVER UBAH & ANOR v. FIDELITY BANK PLC (2013)

CHIEF OLIVER UBAH & ANOR v. FIDELITY BANK PLC

(2013)LCN/6124(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 23rd day of April, 2013

CA/L/676/07

RATIO

In the case of NASARALAI ENT. LTD. VS. ARAB BANK (1986) 4 NWLR (Pt. 36) 409, Eso, JSC (of blessed memory) aptly stated thus:

I am in agreement with the judgment which has been delivered by my learned brother Bello JSC and will also dismiss the appeal. Having regard to the reasons which I have given in A. M. O. Akinsanya Vs. UBA. SC. 95/1985 with regard to the law on documentary credits, I can only dismiss the appeal on the issue of waiver which has been well treated in the judgment of my learned brother Bello JSC, to which I intend to add nothing. As regards jurisdiction, I adopt the views I expressed in AMO Akinsanya Vs. UBA aforesaid.

In essence, my considered view regarding both issues 1 & 2 in question, is conclusively that the proviso to Section 251 (I) (d) of the 1999 Constitution (supra) has lent a credence to the far-reaching, and rather authoritative, decision of the Supreme Court in NASARALAI’S case (supra) to the effect, inter alia, that the instant case –

“is essentially a matter of documentary contract between a banker and his customer which has nothing to do with Maritime law. It is a matter within the jurisdiction of the High Court and not of the Federal High Court.” Per Bello, JSC (of blessed memory, as he then was).”

Hence, in view of the above postulations, I have no further hesitation in resolving both issues 1 & 2 against the Appellants. And I so hold.

ISSUE NO. 3:

The issue No. 3 raises the vexed question of whether or not the lower court was right in holding, as it did, that the use of originating summons in commencing this suit is thus the appropriate procedure.

The term originating summons denotes a summons that initiates proceedings. The merits of the originating summons lie in the fact that proceedings initiated thereby are usually expeditiously dealt with. The reason being that pleadings are not filed. Thus, witnesses are very rarely needed and called. Rather, the determination of the action is based largely on affidavit evidence. It usually involves questions of law, rather than disputed issues of facts. However, where the facts are apparently disputable, then originating summons should not be adopted. This proposition of law has long been settled in a plethora of authorities, including – DOHERTY VS. DOHERTY (1969) NMLR 24.

The originating summons procedure was hitherto regarded as “foreign and unknown to the Rules of the Supreme (High) Court of Nigeria.” See CHAIRMAN LEDB VS. ONIMOLE (1940) 16 WACA 96 @ 98. However, the situation has considerably changed. The use of originating summons has been provided for under the Uniform High Court (Civil Procedure) Rules.

Under Order 3, Rule 5 of the Lagos State High Court (Civil Procedure) Rules, 2004, any person claiming under a deed, will, enactment or other written instrument, may apply by originating summons for the determination of any question of construction arising from the said instrument, and for a declaration of such rights thereof.

Rule 6 of Order 3 of the Lagos State High Court (Civil Procedure) Rules, 2004 (supra) equally provides that –

Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of enactment, may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed.

With particular regard to foreclosure, as in the instant case, the procedure for the originating summons has been provided under Order 51 of the Rules (supra), as follows:

Any mortgage or mortgagor, whether legal or equitable, or any person entitled to or having properly subject to a legal or equitable charge, or any person having the right to foreclose or redeem any mortgage, whether legal or equitable may take out an originating summons, and as the circumstances of the case may require; that is (a) payment of moneys secured by the mortgage or charge; (b) Sale; (c) foreclosure; (d) delivery of possession …

Instructively, the principle has cherishingly been settled, that the originating summons procedure should be resorted to only where it is so obvious that the main question in issue is likely to be for construction of a written law, or of any instrument made under a written law, or deed, will, contract or other document, or some other question of law. Secondly, the originating summons procedure may equally be resorted to, where there is likely not to be any substantial dispute of fact. See PDP VS. ABUBAKAR (2007) 3 NWLR (Pt. 1022) 515 @ 544 -545 paragraphs.

I have accorded a very critical, albeit dispassionate, consideration upon the processes filed by the respective parties in the instant case, most especially the affidavits in support of the originating summons and the counter affidavit in opposition thereto.

Having done so, I am in agreement with the Appellants’ contention, that the affidavit in support of the originating summons and the Appellants’ counter affidavit show a substantial divergence and disputes as to the instant case. It is evident on the records, that by the paragraphs 4, 5, 6, 7, 8, 9 and 11 of the counter affidavit thereof, dated 23/8/05, the Appellants have vehemently denied having “signed the unexecuted tripartite legal mortgage” and the Deed of Assignment, (relied upon by the Respondent) as having been purportedly executed by the 2nd Appellant.

What’s more, paragraph 22 of the counter affidavit is to the effect that the purported Deed of Assignment was forged. In that regard, exhibits AB, the Forensic Report of the Forensic Science Laboratory, Force CID Alagbon was equally relied upon by the Appellants, showing that the alleged signatures thereof were irregular.

Curiously, the Respondent on the part thereof equally procured another Forensic Report to contradict Exhibits AB of the Appellants. Yet, rather strangely, the lower court failed to make any specific finding of fact regarding whether or not the purported Deed of Tripartite Legal Mortgage were indeed genuine or forged, as alleged by the Appellants. No indication was made in the said judgment as to which of the two Forensic Reports in question was relied upon or rejected by the lower court.

In the present circumstances of this case, there is every cogent reason for me to believe, as rightly contended by the Appellants, that the lower court could not have made any specific findings of fact on the fundamentally vexed disputes of facts, without the need to call for oral evidence, thereby subjecting the forensic experts (that issued the reports) to rigorous and tortuous cross examination.

Thus, there is no gainsaying the fact, that the originating summons procedure was not the appropriate and most convenient procedure that ought to have been adopted in commencing the instant action. This view is predicated upon the simple, albeit rather obvious, reason that the facts in dispute, as contained in the parties’ respective processes, could not have been conveniently resolved without resorting to oral evidence. Undoubtedly, the law is very much settled on that question. As aptly, and rather authoritatively, held by the Supreme Court –

When it is evident or obvious from state of the affidavits that there would be an air of friction in the proceedings, then an originating summons is no longer appropriate. A writ of summons would suffice in such circumstance. In other words originating summons is only applicable in such circumstances as where there is no dispute on questions of facts or the likelihood of such dispute. Where, for instance, the issue is to determine short questions of construction and not matters of such controversy that the justice of the case would demand the settling of pleadings, originating summons could be applicable. In the instant case, there were an affidavit, counter affidavit, further affidavit and reply affidavit. Therefore, there were bound to be contested facts on material issues and originating summons should not have been used to commence the proceedings.

See PDP VS. ABUBAKAR (supra) @ 551 -552, paragraphs H -C. See also ADEYELU II VS. AJAGUNGBADE III (2007) NWLR (Pt. 1053) 1 @ 14 -16.

In view of the foregoing postulations, there is no doubt that the answer to issue No. 3 ought to be in the negative. And I so hold.

JUSTICES

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

1. CHIEF OLIVER UBAH

2. UBAH GLOBAL INC – Appellant(s)

AND

FIDELITY BANK PLC – Respondent(s)

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.(Delivering the Leading Judgment): The instant appeal is against the judgment of the High Court of Lagos State, Lagos Judicial Division, delivered on February 13, 2006 in Suit No. LD/M91/06. By the said decision, the lower court, Coram H. A. O. Abiru, J; (as the learned trial judge then was) made an order nisi in favour of the Respondent, thereby enforcing foreclosure of the Mortgaged property, laying and situate at Plot 57A, Block A Parkview Extension, Ikoyi, Eti-Osa Area of Lagos State, otherwise known as No. 1 Alade Odunewu Street, off Tony Eromosele Street, Parkview Estate, Ikoyi, Lagos.

BACKGROUND FACTS:

In the year 2002, the Respondent granted to the Appellants an import finance facility to the tune of $1Million (USD). The finance facility was secured by the Appellants’ depositing the original certificate of occupancy regarding Plot 57A, Block A Parkview Extension, Ikoyi Eti-Osa Area of Lagos State, otherwise known as No. 1 Alade Odunewu Street, off Tony Eromosele Street, Parkview Estate, Ikoyi, Lagos. And the said certificate was in the name of MakeGood Enterprises Limited.

The case of the Appellants was that they have liquidated the said facility and upon completion of repayment thereof applied for a second facility in the sum of $1.5Million (USD). The Appellants neither executed a tripartite legal Mortgage, nor any deed of assignment.

Allegedly, the warehouse managers approached by the Respondent to superintend the sale of goods in the warehouse frustrated the Appellants in their bid to dispose off the goods. The shipping documents were all seized by the Respondent, thereby frustrating the Appellants from clearing the goods from the ports. As a result of which, the goods in the warehouse incurred heavy demurrage, and some of them expired at the port. Further frustrating the Appellants, the Respondent got the 2nd Appellant arrested by the Economic Financial Crime Commission (EFCC). He had to pay the Sum of N26,133,679.4k to the Respondent before he was released by EFCC.

Thus, the Appellants vehemently claim that they are no longer indebted to the Respondent, having repaid the loan facility in question.

The Respondent’s suit was commenced vide an originating summons, dated 28/02/05, thereby seeking the following reliefs:

1. A Declaration that the 1st Respondent’s failure to comply with terms three to five of the DEED of Agreement (Exhibit A3) on or before the 8th of April, 2004 made that DEED of Assignment (Exhibit A2) a Registerable instrument in Law and extinguished all the Respondents rights and interest whether reversionary or otherwise in the property and the Respondents are therefore stopped from dealing with PLOT 57A Block A, Park-view Extension V, Ikoyi, Eti-Osa Area of Lagos State otherwise known as No. 1 Alade Odunewu Street off Tony Eromosele Street, Parkview Estate, Ikoyi Lagos save and until they have liquidated their indebtedness to the Applicant.

2. An Order of interim, interlocutory and perpetual injunction restraining the Defendants, their Assigns successors in title from dealing with PLOT 57A Block A, Park-view Extension V. Ikoyi, Eti-Osa Area of Lagos State otherwise known as No. 1 Alade Odunewu Street off Tony Eromosele Street, Parkview Estate, Ikoyi Lagos save and except with the consent or permission of the Claimant.

And/Or in the alternative

2A. An Order granting the Claimant the right to exercise the powers conferred under Articles 5 (a) and 6 of the Deed of Mortgage to foreclosure and terminate all the 1st Respondent’s rights over the PLOT 57A Block A, Parkview Extension V, Ikoyi, Eti-Osa Area of Lagos State otherwise known as No.1 Alade Odunewu Street off Tony Eromosele Street, Parkview Estate, Ikoyi Lagos and Leave to the Claimant to assign all the rights of the Respondents if need be, and use the proceeds of such sell to liquidate the debt owed by the 2nd Respondent (provided the receipt of Stamp duties on the Mortgage paid on behalf of the Respondents is filed before the Court as a condition for the Court’s Registrar to release the Court Order for enforcement).

3. An Order of the Honourable Court directing the Respondents to deliver the defacto and dejure possession of the premises to the Claimant forthwith under Order 53 Rule 6 of the Court’s Rules.

4. An Order of the Honourable Court directing the Respondents to bear the total cost of this application inclusive of the Solicitors fees, and all other costs, adjudged by the Court.

The Appellants filed a 29 paragraphed counter affidavit to the suit. On 06/12/05, the learned counsel to the respective parties addressed the lower court, and judgment was accordingly reserved to 30/01/06.

The judgment was eventually delivered on 13/02/06, to the conclusive effect, thus:

This court finds and holds that the claimant is entitled to the exercise of its power of foreclosure over the Mortgaged property in the circumstances of this case. An order of foreclosure nisi is hereby made and the Defendants shall ensure the full repayment of their indebtedness to the claimant on the import finance facilities within sixty days of today. And failing which the order of foreclosure shall become absolute and the equity of redeption of the Defendants and the rights and interests on persons claiming through them, including subsequent incumberances, in the property at Plot 57A, Block A, Parkview Extension V. Ikoyi, Eti-Osa Area of Lagos State otherwise known as No. 1 Alade Odunewu Street, off Tony Eromosele Street, Park-view Estate, Ikoyi, Lagos shall completely terminate and the claimant shall become entitled to the immediate possession of the property. The claimant is awarded the costs of this action assessed at N10,000.00. These shall be the orders of this court.

Dated the 13th of February, 2006.

Being dissatisfied with the decision of the lower court in question, the Appellants filed their notice of appeal on February 14, 2006.

The Appellants’ brief of argument was filed on 16/4/09, but deemed properly filed on 08/7/09. At pages 3 -4 of the said brief, three issues have been raised, viz:

i. Whether the transaction which gave rise to this appeal being an import facility is not an admiralty matter.

ii. Whether by virtue of Section 19 of the Admiralty Jurisdiction Act, 1991 the Lagos State High Court had the requisite jurisdiction to hear and determine this suit?

iii. Whether this suit was rightly commenced by originating summons?

On the other hand, the Respondent has formulated two issues in the brief thereof, filed on July 10, 2009. The two issues are to the following effect:

i. Whether the High Court of Lagos State had jurisdiction to hear and determine this case?

ii. Whether in the circumstances of this case, the Trial Judge exercised his discretion judiciously and judicially in entering judgment against the Appellants pursuant to Order 51 of Lagos State High Court Civil Procedure Rules 2004?

THE PRELIMINARY OBJECTION:

The Respondent has raised and argued a preliminary objection at pages 3 -5 of the brief thereof. The objection is to the effect that –

“Grounds 1, 2, 3, 4 and 5 did not attack the ratios of the judgment subject of the appeal. The consequence is the (sic) each ground is incompetent and thus liable to be struck out.”

The Appellants did not deem it expedient to respond to the argument, regarding the Respondent’s preliminary objection in question.

Instructively, the instant appeal is a sister-appeal to appeal No. CA/L/29/09 (Suit No. LD/555/05) which has just been disposed off. That appeal was allowed by this court. Just as was held in the said sister appeal, the instant preliminary objection is grossly incompetent, for some obvious reasons. The preliminary objection is not in conformity with the well set out provisions of Order 10 Rule 1 of the Court of Appeal Rules, 2007. No notice was given by the Respondent prior to raising the purported preliminary objection in question. Even the Respondent’s brief itself does not contain any notice of preliminary objection. As was held in the sister appeal –

Yet, it’s a trite fundamental requirement of the law, that a Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days notice before the hearing. And that he shall thereby set out the grounds of objection. The law is equally settled, that if the Respondent fails to comply with the law, the court may refuse to entertain the objection, or adjourn the hearing of the appeal, or make any such order it deems expedient. See Order 10 Rules 1 & 2 of the Court of Appeal Rules 2007 (which are in pari materia with the current 2011 Rules).

Undoubtedly, the preliminary objection raised in the Respondent’s brief is grossly incompetent, and it’s accordingly hereby discountenanced.

In a nutshell, the submission of the Appellants’ learned counsel on issue NO.1 is to the effect that it’s obvious from the contents of the letter of offer dated 15/02/02, the transaction between the parties was an import finance facility involving importation of goods in a ship. Therefore, the said transaction has qualified as an admiralty matter, by virtue of Section 1 (h) of the Admiralty Act, 1991.

Paragraph 4 of the affidavit in support of the originating summons was referred to, in support of that contention. The instant case arose out of a banking letter of credit transaction involving the parties. It is not thus an ordinary loan. The court is urged to hold that the instant suit arose from an admiralty transaction, and accordingly resolve issue No. 1 in favour of the Appellants.

On issue No.2, it’s been submitted that by virtue of Sections 1 & 19 of the Admiralty Jurisdiction Act, 1991, the said transaction falls squarely within the purview of the exclusive jurisdiction of the Federal High Court. The implication being that the lower court was not cloaked with necessary jurisdiction to hear and determine the said suit. As such, the suit is a nullity, and must be set aside. For that contention, the learned counsel cited and relied upon: BRAWAL SHIPPING LTD VS. EXTRACTION & COMMODITY SERVICE LTD & ORS. (2001) 14 NWLR (Pt. 732) 172 @ 189 -190 H -A; 193 A -D; DICKSON VS. OKOI (2003) 16 NWLR (Pt. 846) 397.

The court is urged to resolve issue 2 in favour of the Appellant.

Regarding issue No. 3, it was summised that Order 3 Rules 5 & 6 of the High Court of Lagos State (Civil Procedure) Rules, 2004 has provided the mode of commencement of an action by originating summons. That, courts have held that originating summons should only be used (1) where the sole or principal question in issue is likely to be for construction of a written law, or of any instrument made under a written law, deed, will, contract, etc; or some other question of law; or (2) where there is likely not to be any substantial dispute of fact. See PDP VS. ABUBAKAR (2007) 3 NWLR (Pt. 1022) 515 @ 544 -545 G -E.

It was contended, that a cursory look at the affidavits filed by the (respective) parties, especially the affidavit supporting the originating summons, show a substantial divergence and disputes as to the facts of the case.

That, while the Respondent relied on an unexecuted tripartite legal mortgage, as well as deed of assignment purportedly executed by 2nd Appellant on behalf of the 1st Appellant, Appellants contend that no such documents were signed by them. And that, indeed, it did not form part of the transaction documents. It was also contended, that the Deed of Assignment was forged, thus should be discountenanced by court.

Exhibit “AB”, a Forensic Report from the Forensic Science Laboratory, Force CID, Alagbon (close) was referred to, showing that the alleged signatures were irregular. However, surprisingly, the lower court did not make any finding on whether the purported Deed of Tripartite Legal Mortgage were indeed genuine or forged, as alleged by Appellants. No indication as to which of the two reports was adopted or rejected (by the lower court).

Thus, the lower court ought not to have made any findings of facts on this fundamental dispute, without calling evidence, and subjecting the experts to cross examination.

Moreover, the Appellants have allegedly repaid the loan. Surprisingly, however, the lower court resolved the issue without calling any oral evidence, thereby holding that the Appellants were indebted to the Respondent in the sum of N144,026,861.72k.

Further contended, that originating summons was not the appropriate procedure to commence the action. See PDP VS. ABUBAKAR (supra) @ 551 -552 H -C; ADEYELU II VS. AJAGUN GBADE III (2007) NWLR (Pt. 1053) 1 @ 14 & 16.

That, failure to order for pleadings in this case has occasioned a gross miscarriage of justice, which rendered the judgment liable to be set aside. The court is urged to so hold, and resolve issue No. 3 in favour of the Appellants. On the whole, the court has been urged upon to allow the appeal.

As alluded to above, the Respondent has formulated two issues for determination, at page 1 of the brief thereof. The Respondent’s argument on both issues 1 & 2 could be found at pages 5 -8, & 8 -12 of the brief thereof, respectively.

On issue No. 1, it’s been submitted, inter alia, that the issue of jurisdiction has been raised for the first time. And as an attack on the existence of the claim before the court: NUHU VS. OGELE (2004) MJSC 70 @ 88 F -G., CGG NIG. LTD VS. LAW OGI (2005) 5 MJSC 1, WESTERN STEEL WORKERS LTD VS. IRON & STEEL WORKERS UNION OF NIG. (1987) 1 NWLR (Pt. 49) 284; 286 -287.

It was contended, that the primary issue before the lower court was the enforcement of an equitable mortgage: ACB VS. YESUFU (1977 -78) 11 NSCC 67.

Further submitted, that goods imported in Bank’s name using the facilities granted, meant dejure the Bank was the importer. The letters of credit were completely irrelevant: NASARALAI NET. LTD. VS. ARAB BANK (1986) 4 NWLR (Pt. 36) 409 @ 411.

Further contended, that even if the issue had been founded on letters of credit or admiralty matters, the lower court had exclusive jurisdiction, on four grounds:-

(i) That any land matter, it is reserved exclusively for the State High Court.

(ii) The Customer/Banker relation, the State High Court has jurisdiction;

(iii) Debts and debt recovery matter is exclusively reserved for State High Court jurisdiction; and

(iv) That simple documentarily based commercial transaction is reserved exclusively for State High Court jurisdiction to entertain.

In support of the above proposition, various authorities have been cited and relied upon by learned counsel, thereby urging the court to dismiss the appeal on the issue of jurisdiction.

Regarding the 2nd issue, it was submitted, that the dispute in this case was fanciful and not material to the live issues. See PAM VS. MOHAMMED (2008) 6 NWLR (Pt. 1112) 1 @ 88.

Also submitted, that the lower court at pages 319 -321 Record, that it was common ground that the original Root of Title documents of the land exhibits A11, A12 & A13 were deposited with Respondent by Appellants as security for the loan. Based on which the lower court held that act created an enforceable equitable mortgage. That, the Appellants suo motu admitted Tripartite Legal Mortgage over same property was drawn up but signed only by the Mortgagor/Appellants and exhibited same as exhibit “A”. The finding of the lower court was that this constructive intention to create a legal mortgage is enforceable once the mortgagor defaults. No appeal against these decisions of lower court. Thus, resolving these issues becomes rather academic on the question of whether there’s an outstanding debt unpaid to warrant foreclosure. Reference was made to page 320, 2nd paragraph line 8 to 3rd paragraph of the Record, regarding the finding of the lower court thereon.

It was contended, that there is no appeal against those specific findings of the lower court. That, the said decisions are unassailable, as by exhibit E thereof the Appellants have settled the issue of debts; Exhibit “E” reinforces exhibit “A7”.

Admissions before court need no further proof. And cannot be retracted. See ADEYE VS. ADESANYA (2001) FWLR (Pt. 41) 1850 -1851, AJUWON VS. AKANNI (1993) 9 NWLR (Pt. 316) 182 @ 204.

By virtue of Sections 16 -26, 75 & 151 of the Evidence Act, Appellants are estopped from trying to use oral evidence to derogate the integrity of the repeated admissions in Exhibits “A6”, “A10 & E”. See EHIDAMAKEN VS. MUSA (200) FWLR (Pt. 21) 930; @ 947 B -C, G -H; BARCLAYS BANK OF NIG. VS. ABUBAKAR (1977) NSCC 415. UNION BANK OF NIG. VS. OZIGI (1994) 15 LRCN 257, UBN VS. SAX NIG. LTD (1994) 8 NWLR (Pt. 361) 150; BARKLAYS BANK DCO VS. HASSAN (1961) ALL NLR 836; NATIONAL BANK VS. EDO . MILLS (1983) FNR 540; OGBONNA VS. AG OF IMO (1992) 1 NWLR (Pt. 220) 676; FASHANU VS. ADEKOYA (1974) 1 ALL NLR 35; 48; NWOSU VS. IMO STATE ENV. SANITATION AUTH. (1990) 1 ALL NLR 379.

On the whole, it was submitted that the judgment of the lower court is unassailably sound. And that by the order of the lower court for immediate grant of possession to the Respondent, the continued possession by Appellants is contempt of court. See MIL. GOV. LAGOS STATE VS. OJUKWU (1986) ANLR 233 @ 234; SGB NIG LTD. VS. AWEYE MOTORS LTD (1992) 4 NWLR (Pt. 234) 231 @ 247.

As alluded to above, the Appellants have filed a reply brief in response to the Respondent’s argument contained in the brief thereof. The said reply brief spans three pages, thereby urging upon the court to-

“Disregard the Respondent’s submission and grant the Appellants’ Reliefs as canvassed in the Appellants’ brief of Argument.”

It is pertinent to reiterate, that I have accorded an ample consideration upon the nature and circumstances surrounding the appeal, the submissions of the learned counsel to the parties, contained in their respective briefs of argument vis -a -vis the record, as a whole. At this point in time, it’s imperative to allude to the fact that the instant appeal (Suit No: LD/M/91/05) is in respect of the same subject matter and same parties as in the sister appeal (No: CA/L/29/09; Suit No: LD/555/05). It is evident from the Records of Appeal, that the Suit (LD/M/91/05) was first to be filed on 03/03/05, thereby seeking the declaratory foreclosure reliefs in question. The ruling thereon was delivered by the lower court on 13/02/06. On the other hand, the sister case (Suit No: LD/555/05) was filed on 04/04/05 and the judgment was delivered therein on 30/11/05, respectively.

Not surprisingly, the 1st & 2nd issues in the sister appeal NO: CA/L/29/09 (just delivered by me) have raised exactly the same questions for determination as issues 1 & 2 in the present appeal. Both the 1st and 2nd issues in the said sister appeal (CA/L/29/09) were determined together, to the conclusive effect, thus:

Now, in the light of the foregoing far reaching postulations, I have come to the conclusion, without any further hesitation, that the Lagos State High Court undoubtedly did, and still does, have jurisdictional competence to entertain and determine the instant suit. Both issues 1 & 2 are therefore hereby resolved against the Appellants.

For the purpose of determining the instant appeal, I have deemed it apt to adopt the three issues raised at pages 3 & 4 of the Appellants’ brief of argument, anon.

ISSUES 1 & 2:

The issue No. 1 raises the very vexed question of whether the transaction which gave rise to the instant appeal, being an import finance facility, is not an admiralty matter. The issue No. 2 raises the vexed fundamental question of whether by virtue of Section 19 of the Admiralty Jurisdiction Act, 1991, the Lagos State High Court had the requisite jurisdiction to hear and determine this suit.

I have, herein above, laid a foundation for the summary determination of both issues 1 & 2. In view of the correlative nature of the two sister appeals vis -a -vis the 1st & 2nd issues therein, it would amount to a sheer wasteful academic exercise for me to laboriously reproduce the reasoning or repeat the far-reaching findings reached in the sister appeal (NO. CA/L/29/09) in question.

Thus, it’s my privilege to adopt the reasoning and findings under issues 1 & 2 of the judgment in the sister appeal in question for the present 1st & 2nd issues. I think, It’s not an entirely novel for a judge to adopt the reasoning or views expressed in a previous case in a later decision. My view is fortified by the precedent cherishingly established by the Supreme Court in a plethora of authorities.

In the case of NASARALAI ENT. LTD. VS. ARAB BANK (1986) 4 NWLR (Pt. 36) 409, Eso, JSC (of blessed memory) aptly stated thus:

Hence, in view of the above postulations, I have no further hesitation in resolving both issues 1 & 2 against the Appellants. And I so hold.

ISSUE NO. 3:

Rule 6 of Order 3 of the Lagos State High Court (Civil Procedure) Rules, 2004 (supra) equally provides that –

With particular regard to foreclosure, as in the instant case, the procedure for the originating summons has been provided under Order 51 of the Rules (supra), as follows:

See PDP VS. ABUBAKAR (supra) @ 551 -552, paragraphs H -C. See also ADEYELU II VS. AJAGUNGBADE III (2007) NWLR (Pt. 1053) 1 @ 14 -16.

In view of the foregoing postulations, there is no doubt that the answer to issue No. 3 ought to be in the negative. And I so hold.

Hence, having accorded an ample consideration upon the peculiar nature of the instant appeal, the submissions of the learned counsel to the parties, contained in their respective briefs of argument vis -a -vis the records of appeal, as a whole, I have come to the in evitable conclusion that the present appeal succeeds in part. The appeal is accordingly allowed in part. The judgment of the court below, Coram HOA Abiri, J (as he then was), delivered on February 13, 2006 in Suit No. LD/M/91/05, is hereby set aside.

Consequently, I hereby order that the suit No: LD/M/91/05 in question shall be remitted to the lower court for reassignment by the state chief judge to another judge for trial denovo.

The Appellants shall be entitled to costs of N50,000.00, against the Respondent.

CHIMA CENTUS NWEZE, J.C.A.: I had the advantage of reading the draft of the leading judgment which my astute Lord, Saulawa JCA, just delivered now. I, also, take the view that this appeal is meritorious. In this contribution, however, I shall circumstance my comments to the propriety of employing the Originating Summons procedure in hostile proceedings.

The third issue in the appellants’ brief of argument was couched thus: “whether this suit was, rightly, commenced by Originating Summons?”

The leading judgment has, insightfully, identified Order 3 Rules (5) and (6) of the Lagos State High Court (Civil Procedure) Rules, 2004, as the provenance of the lower court’s authority for resorting to the Originating Summons procedure in appropriate cases.

Now, the said Order 3 Rules 5 and (6) of the Lagos State High Court (Civil Procedure) Rules, 2004, are in pari materia with the Rules of the various High Courts that deal with the commencement of suits under the originating summons procedure: a procedure, amply and exhaustively, dealt with in many cases: NBN v. Alakija (1978) 2 LRN 78, 86-87; Din v. A.G., Federation (1986) 1 NWLR (Pt.17) 471; Obasanya v. Babafemi (2000) 15 NWLR (Pt.689) 1; Nigerian Breweries Plc v. L.S.B.I.R. (2002) 5 NWLR (Pt.759) 1; Alubankudi v. A.G., Federation (2002) 17 NWLR (Pt.796) 338; Keyamo v. House of Assembly, Lagos State (2002) 18 NWLR (Pt.799) 605; Oloyo v. Alegbe (1983) 2 SCNLR 35; Famfa Oil Ltd v. A.G. Federation (2003) 51 WRN 19.

The term “originating summons” made its debut in the lexicon of Adjectival or Procedural law with the promulgation of the Chancery Procedure Act, 1852. It, however, only emerged as a feature of the rules of court in 1883 with the amendment of the 1875 Rules of the Supreme Court of England, NBN v. Alakija (1978) 2 LRN 78, 86 – 87. In this regard, the judgment of Lindley LJ in Re Holloway (A Solicitor), ex parte Pallister (1894) 2 QB 163, 167 furnishes invaluable insights into its historical evolution, see, per Nweze JCA in Biodun Olujimi v. Ekiti House of Assembly (2009) 33 WRN 44.

A survey of the earliest English cases and the leading Nigerian Supreme Court decisions would reveal the judicial attitude to the invocation of the originating summons procedure. In both jurisdictions, courts disclaim the propriety of resolving matters “of a contentious nature” by originating summons, Re Sir Lindsay Parkinson & Co. Ltd. Settlement Trusts (1965) 1 All ER 609; Re Powers, Lindsell v. Phillips (1885) 30 Ch D 291; Re Giles, Real and Personal Advance Co. v. Michell (1890) 43 Ch D 391; Re Doherty, Doherty v. Doherty (1967) 1 A.N.L.R. (reprint) 260, 265, (where Ademola CJN frowned at the invocation of the originating summons procedure in “hostile proceedings”]; NBN v. Alakija (1978) 2 LRN 78, 86 – 87; Famfa Oil Ltd. v. A.G. Federation (2003) 51 WRN 1, 9. In Inakoju v. Adeleke (2007) 1 CCLR 240, 311, Tobi JSC summed up the attitude of the apex court to this question thus: “commencement of action by originating summons is a procedure which is used where the facts are not in dispute or there is no likelihood of their being in dispute… Originating summons is…not (for) matters of such controversy that the justice of the case could demand the settling of pleadings”

Just like the other rules of courts of other jurisdictions, the above Lagos State Rules require the subsistence of substantial disputes of facts and not just disputed facts simpliciter, Habib (Nigeria) Bank Limited v. Ochete (2001) 3 NWLR (Pt.699) 114, 135; Jimoh v. Olawoye (2003) 10 NWLR (Pt.828) 307, 346; Peters v. Jackson (2001) 49 WRN 118, 136; Okumagba v. Gov. Delta State (2005) 23 WRN 93, 124; B. J. Exp. & Chem Ltd. v. K.R.P.C. Ltd (2003) 24 WRN 74, 94 – 95.

In Biodun Olujimi v. Ekiti House of Assembly (supra), this court explained that the word “substantial” which qualifies the word “dispute,” in rules similarly worded like the above Lagos State Rules, is the adjective of the noun “substance” (from the Latin word substantial), which derives from the Latin roots sub (under) and state (to stand). The court, further, noted that its lexical meaning has been given variously as “not imaginary or illusory” (Webster’s Ninth Collegiate Dictionary page 1176); “having real existence, not imaginary; relatively great in size, value or importance” (The Webster’s Dictionary of English Language International Edition, page 987); “considerable in amount, extent, importance…” (Chambers 21st Century Dictionary, page 1407; see, also, Angbazo v. Ebye (1993) 1 NWLR (Pt.268) 133, 143, (where the word “substantial” was defined to mean “having substance, being a substance, essential, actually existing, material, solid and ample, massy and stable”). In effect, then, the expression “substantial dispute” in the above rules would mean inter alia a real, as opposed to an imaginary, dispute or controversy or a dispute or controversy of considerable importance.

I, entirely, endorse the contention of the appellants’ counsel that the affidavit in support of the Originating Summons and the appellants’ counter affidavit evince the subsistence of substantial disputes, see, in particular, paragraphs 4; 5; 6; 7; 8; 9; 11; 22 etc and exhibit “AB”: dispute which could only be resolved in the usual adversarial proceedings upon the settlement and exchange of pleadings.

It is for these reasons, and the more detailed reasons in the leading judgment, that I take the view that this appeal ought to be, and is hereby allowed. I abide by the consequential orders in the leading judgment.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I read in draft the judgment prepared by my learned brother Saulawa, J.C.A., with which I agree with nothing useful to add. I too would allow the appeal, set aside the judgment of the court below and abide by the consequential orders contained in the said lucid judgment.

Appearances

A. O. Somoye with Obianuju NwogohFor Appellant

AND

A. EzetahFor Respondent