AKPAN & ORS v. NNAH & ORS (2021)

AKPAN & ORS v. NNAH & ORS

(2021)LCN/15048(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Tuesday, February 16, 2021

CA/C/274/2016

RATIO

PURPORT OF AN ORIGINATING SUMMONS

In general terms, originating summons is used for non-contentious actions that is, those actions where facts are not likely to be in dispute. Where facts are in dispute or riotously so, an originating summons procedure will not avail a plaintiff and he must come by way of Writ of Summons. In other words, an originating summon, will not lie in favour of a plaintiff where the proceedings are hostile in the sense of violent dispute. See INAKOJU VS. ADELEKE (2007) 4 NWLR (pt. 1025) 423 SC; OSUNBADE VS. OYEWUNMI (2007) ALL FWLR (pt. 368) 1004 SC; BALONWU VS. OBI (2007) 5 NWLR (pt. 1028) 488 CA. PER MOJEED ADEKUNLE OWOADE, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

KINGSLEY AKPAN (Chairman Ministry Of Transport Monitoring Unit) 2. THE COMMISSIONER, MINISTRY OF TRANSPORT, AKWA IBOM STATE 3. AKWA IBOM STATE GOVERNMENT APPELANT(S)

And

MICHAEL EMMANUEL NNAH 2. PRINCE ETEBONG LAWRENCE UDOM 3. ENEFIOK AUGUSTINE 4. HON. JAPHET AKPAN (For Themselves And As Representing Members Of The Haulage Transport/Drivers Association, Of Road Transport Owners Association, National Association Of Road Transport Owners & Corporate Drivers Association) 5. MALDINI MARBLES LIMITED 6. UYO LOCAL GOVERNMENT COUNCIL RESPONDENT(S)

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice Pius P. Idiong delivered on 10th July, 2014 in Suit No. HU/51/2014 sitting at the High Court of Justice, Akwa Ibom State, Uyo Judicial Division.

The Respondents as Claimants in the Court below instituted this action against the Appellants as Respondents (Defendants).

By the said originating summons of 11th February, 2014, the Respondents/Claimants pray for the following reliefs:
A. A declaration that by virtue of the powers granted to Local Government Councils under Paragraph 1(e) of 4th Schedule to the Constitution of the Federal Republic of Nigeria 1999 (as amended), Sections 1 and 2 of Taxes and Levies (Approved List for collection) Act Cap. 2 Vol. 14 LFN 2004 and Section 28 subsection 1(e) of the Akwa Ibom State Local Government (Administration) Law 2007 (as amended), the 1st, 2nd and 3rd Respondents cannot regulate motor parks and or collect parking permits, park fees or charges from commercial motor vehicles in Akwa Ibom State.
B. A declaration that by the virtue of the Motor Park

Bye-law of the 4th Respondent regulating motor parks and charging park fees and other charges from commercial motor vehicles operating within its area of authority, the regulation and collection of parking permits on vehicles belonging to the Claimants in Uyo Local Government Area of Akwa Ibom State by the 1st – 3rd Respondents amounts to double taxation and constitutes an illegal and void act.
C. The sum of One Hundred Million Naira (N100m) as general damages for obstructing the commercial business transactions of the Claimants, collection of illegal charges/levies from the Claimants, the indiscriminate arrest and detention of the Claimants and their vehicles, assaults and extortions perpetrated by the 1st – 3rd Respondents and/or their agents against the Claimants herein.
D. An order of perpetual injunction restraining the 1st – 3rd Respondents, their agents, servants and privies from regulating motor park and/or collecting parking permits, park fees/charges from commercial vehicles particularly the Claimants vehicles in Uyo Local Government Area and other Local Government Areas of Akwa Ibom State.

Also, the Respondents/Claimants submitted the following questions for determination for the trial Court:
A. Whether the 1st – 3rd Respondents have the legal right to regulate and/or collect parking permits, park fees and charges from commercial motor vehicles in Akwa Ibom State.
B. Whether the collection of parking permits and/or park fees and charges by 1st -3rd Respondents on the one hand and the 4th Respondents on the second part does not amount to double taxation and therefore illegal, null and void.
C. Whether the Claimants are not entitled to damages by reason of the illegal and unlawful acts complained of in this suit and perpetrated against the Claimants by the 1st -3rd Respondents and/or their agents.
D. Whether the Claimants are not entitled to a perpetual order of injunction against the Respondents for their unlawful and illegal acts and to restrain them from continuing in such illegal and unlawful acts.

The parties exchanged affidavit evidence and written addresses.
On 10th July, 2014, the learned trial judge gave judgment for the Respondents (Claimants).

In reviewing the Respondent’s affidavit evidence on

pages 211-212 of the record of appeal, the trial judge held inter alia:
I have had a recourse to the affidavit evidence of the Claimants. I have in particular referred to paragraphs 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24, 25, 26, 27, 28, 29, 30 and 31 of the claimant’s affidavits such modes of collection of the said fees and taxes involving the use of Police and Civil Defence Corps men as well as other foot soldiers to compel or enforce payments of the said levies were not anything other than arbitrary acts in the face of the finding of this Court that the 1st -3rd Defendants had no lawful authority to collect the said taxes and levies. It is therefore no wonder that the Claimants had to suspend their businesses at one point for three days at a stretch. See paragraph 26 of their said affidavit. That was not all, they have alleged that they were arrested and detained while on the other occasions they had their vehicles impounded and detained.
As if that was not enough, the agents of the 1st – 3rd Defendants involved in that misadventure were said to have extorted money from the Claimants. Above all, they were compelled to pay taxes

and levies which they had no liability under the law to pay. See Exhibits E, F, G, H, I, J and K example.

He concluded on pages 214 -215 of the record of Appeal thus:
In the end, this case succeeds and judgment be and is therefore hereby entered for the Claimants. For the avoidance of doubt it is hereby declared that by virtue of the powers granted, the 4th Defendant and other Local Government Councils under Paragraph 1(e) of the 4th Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Sections 1 and 2 of the Taxes and Levies (Approved List for Collection) Act Cap. T2, Laws of the Federation of Nigeria; and Section 28 (1) (e) of the Akwa Ibom State Local Government (Administration) Law, 2007 as amended, the 3rd Defendant and by extension, the 1st and 2nd Defendants do not have any lawful power to regulate motor parks and/or to collect parking permits, fees or charges from the Claimants or from commercial motor vehicles in Akwa Ibom State.
Consequently, it would amount to double taxation, which the law abhors for the 4th Defendant and the 1st and 3rd Defendants to collect such taxes and levies, either simultaneously

or one after the other; from commercial vehicles operating in Akwa Ibom State. The Claimants are entitled to nominal damages which I hereby assess at N500,000.00 only to cover at least the unlawful levies which they were compelled to pay and which evidence is before this Court. Accordingly, the 1st to 3rd Defendants whether by themselves or however called from the Claimants or their vehicles in Uyo Local Government Area and other Local Government Areas of Akwa Ibom State.

Dissatisfied with the judgment, the Appellants filed a Notice of Appeal containing three grounds of Appeal in this Court on 10th May, 2016.

The relevant briefs of Argument for the appeal are:
1. Appellant’s brief of Argument which was filed on 7th July, 2020 but deemed filed on 17th September, 2020. It is settled by Bassey J. Ekanem, Director, Civil Litigation, Akwa Ibom State.
2. Respondents brief of Argument [incorporating preliminary objection]. It was filed on 21st October, 2020 but deemed filed on 11th January, 2021. It is settled by Otu Inwang Esq.
3. Appellant’s Reply brief to the Respondent’s Notice of Preliminary Objection and the

Respondent’s brief of Argument. It was filed on 11th January, 2020 and deemed filed the same day. It is settled by Bassey J. Ekanem, Esq. Director of Civil Litigation, Akwa Ibom State.
4. Respondents Rejoinder on points of law of 18th January, 2021. It is settled by Otu Inwang Esq.

THE PRELIMINARY OBJECTION
Learned counsel for the Respondents raised preliminary objection on the following grounds:
A. The Grounds of Appeal formulated by the Appellants are incompetent.
B. The Appellants’ brief of argument is predicated on extraneous facts that are not borne from the records of appeal.
C. The Appellants’ case on appeal is inconsistent with their position at the trial Court.
D. The Court of Appeal lacks the jurisdiction to determine the constitutionality or otherwise of the power of the National Assembly to make the Taxes and Levies (Approved List for Collection) Act, as against the power of the State Legislature to legislate for Local Government Council.

On (A), learned counsel for the Respondents submitted that the three (3) grounds of Appeal filed by the Appellants are incompetent. The major contention of

the Respondents to Ground 1 of the appeal is that the said ground of appeal is on mixed fact and law. The said ground of appeal cannot be properly considered and disposed of without assessing the affidavit evidence tendered in the proceedings. That by Section 242 (1) of the Constitution, an appeal lies in the circumstance with the leave of Court. The Appellants have not obtained leave of Court.

On Ground 2 of the Appeal, the grouse of the Respondents is that the Appellants failed and/or violated the provisions of the law and Order 7 Rule 2 (2) of the Court of Appeal Rules by not stating the particular law that the trial Court is alleged to have violated.

On Ground 3 of the Appeal, the Respondents say that the Appellants again did not furnish particulars and that the particulars stated are independent complaints and offend the provisions of Order 7 Rules 2 (1) (2) and (3) of Court of Appeal Rule 2011.
On issue (B) the Respondents complained that the facts alluded to in paragraphs 4.07, 4.08, 4.25, 4.32, 4.34, 4.37 and 4.38 of the Appellants brief are not borne from the record of appeal.

On (C), the Respondents alleged that the Appellants are

not permitted by law to change their case at the appeal stage. That the Appellants are estopped from holding a contrary position on appeal from the position and arguments contained on pages 167 – 170 of the record of appeal.
He referred to the case of CHIEF AYOOLA ADEOSUN VS. THE GOVERNOR OF EKITI STATE (2012) 49 NSCQR 534 at pages 562 – 564.

On (D) the Respondents contend that the Appellants can only challenge the constitutionality of the Taxes and Levies (Approved List of Collection) Act in the Supreme Court as such challenge constitutes a dispute between the Federation and a State under Section 232 (1) and (2) of the Constitution. He referred to the case of AG FED. VS. AG LAGOS STATE (2017) LPELR 42769 (SC) or (2017) 8 NWLR (pt. 1566) 20 at pages 25, 33 and 46.

He submitted that the Court of Appeal lacks the jurisdiction to determine Appellant’s issue 2 distilled from ground 2 of the Notice and Ground of Appeal.

On issue (A) on alleged incompetence of the Appellant’s grounds of appeal, learned counsel for the Appellants submitted that Ground 1 of his grounds of appeal does not require leave of Court, being an

appeal on the final decision of a High Court.

He referred to the provision of Section 241 (1) (a) and (b) of the Constitution of the Federal Republic of Nigeria 1999 and a host of cases including GLOBESTAR ENGINEERING COMPANY (NIG.) LTD. VS. MALLE HOLDINGS LTD. (1999) 10 NWLR (pt. 622); NWAIWU & ORS. VS. GOV. IMO STATE & ORS. (2013) LPELR – CA.

Moreover, that ground 1 of the grounds of appeal is based on jurisdiction and therefore does not require leave of Court at any stage of the proceedings.
He referred amongst several authorities to the cases of ADEGBITE VS. AMOSU (2016) 15 NWLR (pt. 1536) 405 at 432; A.G KWARA STATE & ANOR. VS. ADEYEMO & ORS. (2016) LPELR – 41147 (SC).

Still on issue (A) but on grounds 2 and 3 of the grounds of appeal, learned counsel for the Appellants submitted that all the particulars itemized as i – iii pointed directly to the error in law complained of in ground 2 of the Appeal by the Appellants being the restrictions or non collection of certain fees by the Appellants.

Also, that in ground 3 of the Appellant’s grounds of appeal, the trial Court awarded to the Respondents

nominal damages at the sum of N500,000.00. And that the reason for not agreeing with the decision of the trial Court was clearly stated in the particulars itemized.

Appellants counsel insisted that grounds 2 and 3 of the grounds and the particulars stated conform totally to Order 7 Rule 2 (2) of the Court of Appeal Rules. That the Appellants certainly do not need to state in the Notice of Appeal the particular law the trial Court is alleged to have violated.

He then referred to several cases including the cases of BEST (NIG.) LTD. VS. BLACKWOOD HODGE (NIG.) LTD. (2011) 5 NWLR (pt. 1239) 95 and DAKOLO VS. REWANE – DAKOLO (2011) 16 NWLR (pt. 1272) 22 where it was held that where the complaint in a ground of appeal gives adequate and/or sufficient information to the Respondent on the case to be met the Court should deal with the merit of the case.

On issue (B) and (C) learned counsel for the Appellants submitted that the Appellants did not approbate and reprobate in their positions in between the Court below and this Court but merely extended their argument in alternative by attacking the constitutionality of the said Taxes and Levies Act

He submitted that the Appellants did not speak to issues that are not on record, that Appellants merely highlighted some well-known facts in their brief of argument.

He referred to the cases of ONYENWE MOTORS LTD. VS FBN (MERCHANT BANKERS) LTD. (2013) LPELR – 21878; UDO VS. AKPABIO (2013) LPELR – 22119 CA; RUWA VS. MANJA (2018) LPELR – 44939 and submitted that argument made on the basis of the issues raised is competent.

On (D) learned counsel for the Appellants submitted that by virtue of the provision of Section 6 (6) (a) of the 1999 Constitution, any Court in Nigeria vested with judicial powers can declare that the provision of any law is inconsistent with the Constitution and that such power cannot be limited to the original jurisdiction of the Supreme Court under Section 232 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

Starting from Respondent’s issue (A) on the incompetence of the three grounds of the Appellant’s grounds of appeal, I think the complaint on Appellant’s Ground 1 of the Notice of Appeal is totally misconceived and unfounded.

The Appellant does not require any leave of Court to sustain the Ground 1 of his Notice of Appeal, presumably that the said ground is mixed law and fact. In the first place the said Ground 1 of the Notice of Appeal is based on an appeal from a final judgment of a High Court which is covered by Section 241 (1) (a) and (b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and for that reason does not require any leave of Court.
See, AHAMEFULE VS. IMPERIAL MEDICAL CENTRE (2005) 5 NWLR (pt. 917) 51; NIC VS. ACEAN INSURANCE CO. LTD. (2007) 6 NWLR (pt. 1031) 589; KALAGBOR VS. GENERAL OIL LTD. (2008) ALL FWLR (pt. 418) 303; NAFIU RABIU VS. THE STATE (1980) 8/11 SC 130 at 146 – 148; N.N.P.C. VS. FAWEHINMI (1998) 7 NWLR (pt. 554) p. 598; ALIYU VS. IBRAHIM (1997) 2 NWLR (pt. 489) 571 at 583; INYANG VS. EBONG (2002) 2 NWLR (pt. 751) 284 at 321; EZEOBI VS. ABANG (2000) 9 NWLR (pt. 672) 230 at 240; U.B.N. PLC VS. NWADIKE (2009) 4 NWLR (pt. 1131) 352; AULT & WIBORG (NIG.) LTD. VS. NIBEL INDUSTRIES LTD. (2010) 16 NWLR (pt. 1220) 486.

Moreover, ground 1 of the Appellant’s Notice of Appeal is on jurisdiction, a ground of appeal which could be

raised at any stage of the proceeding without leave of Court.
See OMAGHONI VS. NIG. AIRWAYS LTD. (2006) 18 NWLR (pt. 1011).

Still on Respondent’s issue (A) of the preliminary objection, the complaints on the Appellant’s grounds 2 and 3 of the Notice of Appeal are with respect oti-ose. This is because the purpose of a ground of appeal is to furnish both the Respondent and the Court with adequate or sufficient information as to the nature or content of the error of law or misdirection alleged in the ground of appeal. This is to enable the Respondent meet the case of Appellant and to enable the Court to determine the nature of error or misdirection complained of. Thus, where as in the instant case the grounds of appeal are succinct, the Courts will not entertain any technicalities to defeat the complaints in the appeal.
See REGD. TRUSTEES C.A.C VS. DADA (2017) 2 NWLR (pt. 1548) 61 at 77; IFARAMOYE VS. STATE (2017) 8 NWLR (pt. 1568) 457 at 477; OKAFOR & ORS. VS. UGOLO & ORS. (2018) LPELR – 43963; WAZIRI & ANOR. VS. GEIDAM & ORS. (2016) LPELR – 40660.

Learned counsel for the Appellants denied the

allegations of the Respondents relating to Respondent’s issues (B) and (C) in the preliminary objection.

Appellant’s counsel claimed he did not present any facts that are not contained in the record of appeal in his brief of Argument. And, that he did not approbate and reprobate in the positions he took in the Court below and this honourable Court but that he merely extended his argument in this Court in alternative by attacking the constitutionality of the Taxes and Levies Act by way of fresh argument on an established issue.

Beyond the explanations by the learned counsel for the Appellants on issues (B) and (C) of the Respondents Preliminary Objection, I do not think any of those issues qualify as basis or grounds of preliminary objection. The complaints of the Respondents in his issues B and C would have been presented in the main appeal.

By issue (D) learned counsel for the Respondents submitted that the Appellants challenge of the constitutionality of the Taxes and Levies (Approved List for Collection) Act can only be entertained by the Supreme Court exercising its original jurisdiction under

Section 232 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
The above proposition by the learned counsel for the Respondents is not correct. The judicial powers of the Federation and of a State are provided for in Section 6 of the 1999 Constitution and the superior Courts mentioned therein can adjudicate on the constitutionality of laws made by the National Assembly.
For these reasons, the Respondent’s preliminary objection is misconceived and it is accordingly overruled.

THE MAIN APPEAL
Learned counsel for the Appellants nominated three (3) issues for the determination of the appeal.
They are:
1. Whether the trial Court was right in assuming jurisdiction to hear the suit under originating summons procedure despite the highly contentious nature of the suit. (Distilled from ground 1).
2. Whether by the provisions of the Constitution of the Federal Republic of Nigeria, the Taxes and Levies (Approved List for Collection) Act and the Local Government (Administration) Law, the 6th Respondent is vested with the exclusive functions to establish, maintain and regulate motor parks within its territory as a Local Government Area

(Distilled from ground 2).
3. Having regard to the entire circumstance of this case, whether 1st – 5th Respondents were entitled to be awarded damages (Distilled from ground 3).

Learned counsel for the Respondents adopted the three issues nominated by the Appellant’s counsel.

On issue 1, learned counsel for the Appellants submitted that the facts of the case were highly contentious and could not have been determined by way of originating summons procedure.

He referred to the case of MADUKOLU VS. NKEMDILIM (1962) 1 ALL NLR 587 and emphasised the (iv) ingredient of jurisdiction as espoused by the Supreme Court in that case that is:
“The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.”

He submitted that the due process required in the instant case is as provided in Order 3 Rule 5, 6 and 7 of Akwa Ibom State High Court (Civil Procedure) Rule, 2009.

Learned counsel for the Appellants reproduced the above provisions and submitted that the combined interpretation of these provisions is simply that an originating

summons procedure can only be used when a person is interested in the interpretation or determination of a question in a Deed, Will, Enactment or other Written instrument.

He submitted that in the case at hand, the 1st – 5th Respondent’s affidavit in support of the originating summons revealed that the facts stated therein were hostile and contentious. Appellants counsel broadly categorized the alleged contentious facts in the Respondent’s affidavit as follows:
a) Determining the facts as to Respondents area of Authority.
b) Using the machinery of Nigeria Police and Civil Defence Corps to compel or enforce payments of the said levies.
c) Forcibly extortion of money from the Respondents.
d) Detention of vehicles.

Learned counsel for the Appellants submitted that apart from the above contentious facts, the 1st – 5th Respondents attached various Exhibits being tickets and receipts purportedly issued by the Appellants to some persons. The Appellants denied these Exhibits and stated that they were all forgeries.

He submitted there is no evidence on the face of these Exhibits to indict the Appellants as

having issued same in respect of any motor park within the area of authority of the 6th Respondent to warrant the declarations sought by the 1st – 5th Respondents or questions raised in the suit as was urged by the 1st – 5th Respondents.

Appellants counsel submitted that it was wrong for the trial Court to allow the 1st – 5th Respondents to commence this action by way of originating summons in view of the mentioned contentious facts. That the position of the law is that the Court need not even look at the Counter Affidavit to determine whether the facts are contentious. That 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 no longer appropriate. And, that under the originating summons procedure, the Court cannot resolve conflicting facts or evidence which would result in the Court believing one deponent at the expense of the other.

On the above, Appellant’s counsel referred to the cases of S. C. S. CO. VS. COUNCIL O. A. U. ILE-IFE (2011) 14 NWLR (pt. 1269) 193 at 215 – 216; NWOKO VS. EKERETE (2010) 4 NWLR (pt. 1183) 78 at 88;

EZEIGWE VS. NWAWULU (2010) 4 NWLR (pt. 1183) 159 at 197; EJURA VS. IDRIS (2006) 4 NWLR (pt. 971) 538.

Learned counsel for the Appellants submitted that the injustice in the present case was obviously displayed by the trial Court at pages 211 – 212 of the record of appeal when he relied on the affidavit of the 1st – 5th Respondents with no regard to the denial of the Appellants in their Counter Affidavit.

He submitted that the facts relied upon by the learned trial judge in the Respondent’s affidavit were denied by the Appellants but the trial judge without calling oral evidence to substantiate them, relied on the facts and used them to compensate the Respondents thereby causing grave injustice to the Appellants.

Learned counsel for the Appellants further referred to the cases of G. S. & D. IND. LTD. VS. N. A. F. D. A. C. (2012) 5 NWLR (pt. 1294) 511 at 544 and UYO LOCAL GOVERNMENT VS. AKWA IBOM STATE & OTHERS. (unreported) Appeal No. CA/C/388/2017, he pointed out that the latter case is with almost similar facts as the present case, this Court held that the issue of facts brought by the Appellant in which the question

was based was contentious and as such the question cannot be determined without settling the facts.

He concluded on issue 1 that the trial Court erred when he assumed jurisdiction to hear the case when there were highly contentious facts that were not resolved. This, counsel said, has deprived the Court of the jurisdiction to hear the case and as such the decision of the trial judge that was reached without jurisdiction is a nullity.

On issue 1, learned counsel for the Respondents urge us to note that the Appellants did not raise the issue of contentious facts at the trial Court and that, the Appellants never raised any issue challenging the area of authority of 6th Respondent as contended in paragraph 4.07 (a) of the Appellant’s brief. These, he said are glaringly new issues not borne from the record of appeal.

The Respondents submitted that the material facts in support of the Respondent’s/Claimant’s reliefs are stated in paragraphs 9, 10, 19, 31, 32 of their affidavit in support of originating summons thus:
‘9. That on or about the 2nd week of January, 2014 the 2nd Respondent, agent of the 3rd Respondent set up a

Task Force referred to as ‘Ministry of Transport Monitoring Unit’ with the 1st Respondent as the Chairman and mandated the 1st Respondent to charge, collect and/or enforce the collection of parking permit on luxurious buses, trailers, cars and by corporate companies, construction companies and private companies. etc.
10. That the 1st Respondent, agent of the 2nd and 3rd Respondents therefore issued demand notices attached with ‘recommended price list’ and served same on the Claimants and other persons/corporate bodies. Attached hereto and marked as Exhibits A, B, C, D and D1 are copies of the demand notice/price list issued by the 1st Respondents herein.
19. That some of the receipt/emblems issued by the 1st Respondent upon extortion of various sums from the Claimants are hereto attached and marked Exhibits E, F, G, H, I, J, and K.
31. That the 4th Respondent also regulates and collects daily parking and haulage fees from the Claimants.
32. That the 4th Respondent’s bye-law regulating motor parks and park fees/charges is hereto attached and marked Exhibit L.’

He submitted that the Appellants made a

general but evasive denial of the material facts in paragraph 5 and 9 of their counter affidavit filed on 10th March, 2014 thus:
‘5. That paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25 and 26 of the Claimant’s/Applicant’s affidavit are not true and accordingly denied.
9. That paragraphs 31, 32, 33 and 34 of the Claimant’s affidavit are false and thereby denied accordingly.’

He submitted that the law is trite that a denial of specific facts must be specific and not general or evasive. That it is also the law that essential allegations in an affidavit which are not specifically denied are deemed to be admitted by the adverse party.

He referred on this to the cases of OKONKWO VS. C.C.B. NIG. PLC (2003) 8 NWLR (pt. 822) 347 at 419; U.B.N. VS. DAWODU (2003) 4 NWLR (pt. 810) 287 at 300.

Learned counsel for the Respondents submitted that their case was properly brought under Order 3 Rule 6 of Akwa Ibom State High Court (Civil Procedure) Rules 2009.

He submitted further that reliefs 3 and 4 on the originating summons were/are equitable and/or consequential reliefs which followed

automatically even without being specifically claimed to be awarded by the Court where the substantive claims 1 and 2 are granted by the Court.
He referred to the cases of ARAB CONSTRUCTION LTD. VS. ISAAC (2012) LPELR 9781; SPDC LTD. VS. NWABUEZE (2013) LPELR 21178.

He concluded that the legal or equitable reliefs on the originating summons depended upon the construction of the provisions of the Constitution, the Taxes and Levies (Approved List of Collection) Act and the Akwa Ibom State Local Government (Administration) law.

The summary of the contention of the Appellants in their issue 1 is that the originating summons procedure is not designed to accommodate suits as in the instant case where the facts alleged in the Respondent’s/Applicant’s affidavit are hostile and highly contentious.

The consequence of using such procedure for facts that are contentious is that the process and proceedings could not be said to have been brought by due process of law and/or in fulfillment of conditions precedent to bringing the suit. This, said counsel makes the issue to be jurisdictional and the resulting proceedings are to be declared a

nullity.

The Respondents who in conscience could not say that the facts in the Applicant’s affidavit are not contentious resulted to argue that having denied the Respondents material facts without more or without further explanations, the Appellant’s affidavit evidence are evasive and the Appellant’s are thereby deemed to have admitted facts deposed to by the Respondents. The consequence of the above scenario accordingly to the Respondents is that the facts in the Respondent’s/Applicant’s affidavit could not be held to be contentious.

On another wicket, Respondents submitted that reliefs 3 and 4 on the originating summons are equitable and/or consequential reliefs which would automatically be awarded where the substantive claims 1 and 2 are granted.

A careful look by a discerning mind will quickly observe that from the very beginning, Respondent’s/Applicant’s reliefs C and D and questions for determination C and D all on page 8 of the record of appeal portend serious disputes of facts that ought not to be determined by originating summons procedure but by the writ of summons procedure.

Inevitably, the paragraphs of the Respondent’s/Applicant’s affidavit evidence tended to justify questions C and D and reliefs C and D in the originating summons are clearly hostile and contentious. For example, in paragraphs 13 to 31 of the Affidavit in Support of the originating summons, the Respondents aver thus:
13. That the 1st – 3rd Respondents use Police Officers from the State Anti-Robbery Squad, Policemen from the State Police Headquarters, Ikot Akpan Abia, members of the Civil Defence and other civilian recruits to enforce the collection of parking permit from members of the Claimants and other corporate bodies.
14. That the 1st Respondent, agent of the 2nd and 3rd Respondents operate by forcibly stopping the Claimants’ vehicles on the road, seizing the key from its driver and by forcing the driver to buy the parking permit there and then.
15. That where the driver delays to pay or has no money to pay, the 1st Respondent and his Task Force will force the driver to drive the vehicle to their office at No. 108 Ikot Ekpene Road, Uyo the property of the 3rd Respondent.
16. That the task force led by the 1st Respondent

assault the Claimants in the process of enforcing the collection of the parking permit and often times detain them by the instrument of the law enforcement officers in the Task Force.
17. That the Task Force of the 1st Respondent extorts various sums of money from the Claimants apart from the parking permit fees collected from them.
18. That some of the demand notices issued by the 1st Respondent to the Claimants are hereto attached and marked Exhibits A, B, C, D and D1.
19. That some of the receipt/emblems issued by the 1st Respondent upon extortion of various sums from the Claimants are hereto attached and marked Exhibits E, F, G, H, I, J and K.
20. That on 3rd February, 2014 the 1st Respondent and members of his Task Force forced the driver of 5th Claimant to drive a man-diesel truck No. XP 400EN loaded with marble tiles from her office at No. 191 Aka Road, Uyo to the Respondent’s operational base at No. 108 Ikot Ekpene Road, Uyo. The 5th Claimant’s vehicle and the goods was detained for 3 days at the 1st Respondent’s base until the sum of N40,000 was extorted from the Uyo Branch Manager (Mr. Alex Esin).

That the driver of the 5th Claimant’s vehicle aforementioned was detained by the 1st Respondent and his Task Force and released upon payment of N4,000 as bail fee.
22. That the Claimants made a peaceful protest on Tuesday 4th February, 2014 requesting the 2nd and 3rd Respondents to rescind their action against the Claimants to no avail.
23. That the 2nd Respondent (Hon. Godwin Ntukude) informed the Claimants that he had a revenue target to meet for the 3rd Respondent uncommon transformation agenda and as such the collection of parking permit must continue.
24. That on 6th February, 2014 the 1st Respondent and the Task Force blocked a Mercedes Truck No. XU 488 FKJ driven by Ubong Bernard Akpan (a member of the Claimant) along Nsikak Eduok Street, Uyo. The Task Force removed the battery and the spare tyre of the vehicle and caused the truck to be parked at Nsikak Eduok overnight.
25. That the agents of the 2nd and 3rd Respondents adopt very cruel method and arbitrary force in enforcing the collection of the parking permit from the Claimants.
26. That the 1st Respondent caused the Claimants to suspend their services for 3 days from 7th

– 10th February, 2014 trying to persuade 1st – 3rd Respondents to refrain from the illegal taxation.
27. That on 10th February, 2014 the 1st Respondent seized Mercedes Truck of Sunday Eyo Asuquo and took it to their office at No. 108 Ikot Ekpene Road, Uyo.
28. On 11th February, 2014 the 1st Respondent impounded 911 Mercedes Truck No. XW 125 HWN belonging to Aniedi Etim took the vehicle with the driver to their office at No. 108 Ikot Ekpene Road, Uyo. The driver Aniekan Asanga was beaten up and the money in his possession was stolen by members of the task force.
29. That also on 11th February, 2014 the 1st Respondent and his Task Force accosted the trailer truck No. EPE 449 XG driven by Emmanuel Chosen. The number plate of the trailer and 2 batteries were removed and the vehicle demobilized and parked along Aka Road, Uyo.
30. That the illegal activities of the 1st and 2nd Respondents against the Claimants continue unabated till date. The Claimants’ vehicles impounded by the 1st Respondent and his task force are released on payment of fines ranging from N30,000 to N100,000 per vehicle.

Learned counsel for the Appellants reminded us of the provision of Order 3 Rule 5, 6 and 7 of Akwa Ibom State High Court (Civil Procedure) Rule 2009which provide thus:
“5. Any person claiming to be interested under a deed, will, enactment or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.
6. 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 an enactment, may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed.
7. A judge shall not be bound to determine any such question of construction if in his opinion it ought not to be determined on originating summons but may make any such orders as he deems fit.”
By these provisions, it is clear that the Respondents could not rely on the above Order 3 Rule 6 in the originating summons to determine the questions posed in C and D in the questions for determination or the

reliefs in C and D in the reliefs claimed.
Furthermore, no Court of justice needs to look at or rely on the denials or lack of denials of the Respondents depositions by the Appellants in coming to the conclusion that the depositions in paragraphs 13 to 31 of the Respondent’s/Applicant’s affidavit in support are hostile and highly contentious.
In the case of S. C. S. CO. VS. COUNCIL, O. A. U. ILE-IFE (2011) 14 NWLR (pt. 1269) 193 at 215-216, the Court stated thus:
“It is not even necessary to wait for a counter affidavit to be filed before determining that originating summons is an improper mode for the commencement of an action. 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. Where no counter-affidavit was filed or where same was filed but ignored, the nature of the claims and the facts deposed in the affidavit in support of the originating summons are enough to disclose disputed facts and the hostile nature of the proceedings.”
In the instant case reliefs C and D and the questions for determination C and D in

the Respondent’s/Claimant’s originating summons have taken the Respondent’s/Claimant’s case beyond the purview of the originating summons procedure as provided under Order 6, Rules 5, 6 and7 of Akwa Ibom State High Court (Civil Procedure) Rules 2009. By necessary implication the Respondent’s/Claimant’s case has not come before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See MADUKOLU VS. NKEMDILIM (1962) 1 ALL NLR 587; EJIKE VS. IFEADI (1998) 6 SCNJ 87; ABDUL HAMID VS. AKAR(2006) 13 NWLR (pt. 996) 127; NONYE VS. ANYICHIE (2005) 2 NWLR (pt. 910) 623 at 649; KIDA VS. OGUNMOLA (2006)13 NWLR (pt. 997) 377; AKINMADE VS. AJAYI (2008) 12 NWLR (pt. 1101) 498; FABS LTD. VS. IBIYEYE (2008) 14 NWLR (pt. 1107) 375.
In general terms, originating summons is used for non-contentious actions that is, those actions where facts are not likely to be in dispute. Where facts are in dispute or riotously so, an originating summons procedure will not avail a plaintiff and he must come by way of Writ of Summons. In other words, an originating summon, will not lie

in favour of a plaintiff where the proceedings are hostile in the sense of violent dispute.
See INAKOJU VS. ADELEKE (2007) 4 NWLR (pt. 1025) 423 SC; OSUNBADE VS. OYEWUNMI (2007) ALL FWLR (pt. 368) 1004 SC; BALONWU VS. OBI (2007) 5 NWLR (pt. 1028) 488 CA.
In the instant case, it is indeed impossible for the trial Court to answer the questions put forward by the 1st – 5th Respondents and declare the reliefs in C and D of the originating summons without resolving the controversial facts by oral evidence.
I agree with the learned counsel for the Appellants that the trial Court erred when he assumed jurisdiction to hear the case when there were contentious facts that were not resolved.

The decision of the trial Court reached without jurisdiction is a nullity and ought to be set aside.
Issue 1 is resolved in favour of the Appellants.

Having resolved issue 1 which has turned out to be an issue of jurisdiction in favour of the Appellants, I do not consider it necessary to deal with other issue(s) in the appeal.
The appeal is meritorious and it is accordingly allowed.

The judgment and orders of the Hon. Justice Pius P.

Idiong delivered on 10th July, 2014 in Suit No. HU/51/2014 at the High Court of Justice, Akwa Ibom State, Uyo Judicial Division are hereby set aside.
Suit No. HU/51/2014 is hereby struck out.
Parties to the appeal are to bear their respective costs.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just delivered my learned brother Mojeed Adekunle Owoade, JCA and I agree that the action was not suitable for the originating summons procedure. The Court below therefore erred when it wrongly proceeded on that route. It is trite law that the originating summons procedure is not an appropriate procedure for highly contentious or hostile proceedings.

This issue has been exhaustively dealt with in the lead judgment. For the reasons contained in the ead judgment, too allow the appeal and set aside the judgment and orders in suit No. HU/51/2014.
Suit No. HU/51/2014 is struck out.
I abide by all other orders Including the order as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned

brother, Mojeed A. Owoade, JCA and I agree with the reasoning contained therein conclusion arrived thereat.

The appeal is meritorious and it is allowed by me. I also abide by all the consequential orders contained in the lead judgment.

Appearances:

Bassey J. Ekanem, Esq. For Appellant(s)

Otu Inwang, Esq. For Respondent(s)