CALEB UNIVERSITY & ANOR v. ODERINDE & ORS
(2022)LCN/16096(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Tuesday, December 13, 2022
CA/LAG/CV/528/2019
Before Our Lordships:
Jimi Olukayode Bada Justice of the Court of Appeal
Muhammad Ibrahim Sirajo Justice of the Court of Appeal
Peter Oyinkenimiemi Affen Justice of the Court of Appeal
Between
1. CALEB UNIVERSITY 2. PRINCE CALEB OLADEGA ADEBOGUN APPELANT(S)
And
1. CHIEF ASHIRU ODERINDE 2. CHIEF LAMIDI ODERINDE 3. KOLAWOLE ABU ASEBOSUNWA 4. PRINCE ADESOYE OLATUNDEAWOLESI KULATON (For Themselves And On Behalf Of The Onofoyin Family) 5. THE DEPUTY SHERIFF, HIGH COURT OF LAGOS STATE RESPONDENT(S)
RATIO:
THE CIRCUMSTANCES UNDER WWHICH A JUDGMENT WOULD BE SET ASIDE
The law is settled that a Court has an inherent jurisdiction to set aside its own judgment or order obtained by means of misrepresentation and concealment of facts in the nature of fraud, or where the Court is devoid of jurisdiction. The Courts have set down the circumstances under which a judgment would be set aside:
(i) Where the judgment is obtained by fraud or deceit on the Court of one or more of the parties. Such a judgment can be set aside by means of a fresh action.
(ii) Where the judgment is a nullity in which case a person affected by it is entitled ex debito justitiae to have it set aside.
(iii) Where it is obvious that the Court was misled into giving the judgment under a mistaken belief that the parties consented to it.
(iv) Where the judgment was given in absence of jurisdiction.
(v) Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.
See Dingyadi vs. INEC (2011) LPELR-950 (SC), Jev vs. Iyortyom & Ors (2014) LPELR-23000 (SC), Bello vs. INEC & Ors (2010) LPELR-767 (SC), Olufunmishe vs. Falana (1990) LPELR-2516 (SC), Igwe & Ors vs. Kalu & Ors (2002) LPELR-1455 (SC), Tomtec Nigeria Ltd vs. Federal Housing Authority (2009) LPELR-3256 (SC), Alawiye vs. Ogunsanya (2013) 5 NWLR (Pt.1348) 570 at 620.
Where the principal question in a suit is for construction of a written law, which includes the Constitution, or involve only questions of law without dispute as to fact, originating summons will be an appropriate method to commence such suit. See Dapianlong & Ors vs. Dariye & Ors (2007) LPELR-928 (SC), Inakoju & Ors vs. Adeleke & Ors (2007) LPELR-1510 (SC). In other words, originating summons is resorted to only in non-contentious matters, where the evidence in the main is documentary and there is no serious dispute on the existence of such documents. In the case of Inakoju & Ors vs. Adeleke & Ors (supra), Niki Tobi, JSC, (of blessed memory) said of originating summons: “In originating summons, facts do not have a pride of place in the proceedings. The cynosure is the applicable law and its construction by the Court. The situation is different in a trial commenced by writ of summons where the facts are regarded as holding a pride of place and the fountain head of the law, in the sense that the facts lead to a legal decision on the matter. That is not the position in proceedings commenced by originating summons where facts do not play a central role but an infinitesimal role, if at all.”
MUHAMMAD IBRAHIM SIRAJO, J.C.A. (Delivering the Leading Judgment): Following an intra-family dispute amongst the members of the various branches of Onofonyin family, Isiwu, Ikorodu Local Government Area of Lagos State, a section of the family, made up of the current 1st – 4th Respondents and 4 others, commenced an action at the Lagos State High Court in 2003 against some members of another branch of the family. The action was Suit No. IKD/63/2003. Judgment was entered for the Claimants in that case on 11/09/2008. They also obtained an order for possession from the Lagos State High Court on 19/05/2015. In June, 2016, the Appellants were served with originating processes in Suit No. IKD/2317LMW/15, wherein the 1st – 4th Respondents and 4 others claimed for declaration that they are entitled to statutory/customary right of occupancy to a parcel of land in Isiwu, Ikorodu Division of Lagos State. While the suit was pending, the Appellant received a letter from a Law firm called “Law Update Consultancy” on 13/07/2016 notifying them about the judgment of 11/09/2008 and the order for possession of 19/05/2015 and threatening that they will take possession of the 1st Appellant’s land within 7 days of the receipt of that letter.
The Appellants (as Claimants) approached the High Court of Lagos State, vide an Originating Summons marked as Suit No. IKD/925MJR/2016 dated and filed on 27/07/2016 seeking for reliefs against the current Respondents and 5 others, as follows:
1. An order setting aside the judgment of the High Court of Lagos State delivered on 11th September, 2008 and the order for possession made on 19th May, 2015 in Suit No. IKD/63/2003: Chief Ashiru Oderinde & 7 Ors vs. Yekini Owolegbon Bangbaiye & 9 Ors, having been obtained by fraudulent misrepresentation and deceit.
2. An order of mandatory injunction restraining the 9th Defendant from issuing a writ of possession for the execution of the judgment dated 11th September, 2008 of for the enforcement of the order of possession made by the High Court of Lagos State on 19th May, 2015 in Suit No. IKD/63/2003: Chief Ashiru Oderinde & 7 Ors vs. Yekini Owolegbon Bangbaiye & 9 Ors.
3. Cost of this action.
The 1st – 4th Respondents herein contested the suit by filing a counter-affidavit.
The case of the Appellant at the lower Court is that they are lessee of the Lagos State Government in respect of land consisting of 1,170,000 sq meters, particularly delineated and verged red on survey plan No. LA/D/KD/97 dated June, 2006. That the land was allocated to them after it was compulsorily acquired vide “Notice of Revocation of Customary Rights of Occupancy” published in Lagos State Notice No. 108 and gazetted in Lagos State Gazette No. 33, volume 18 of 4th July, 1985. According to the Appellants, in line with the purpose of the allocation, the 1st Appellant substantially developed the University with several houses and structures placed on the land for educational purpose and running full University academic session on the land peacefully. The 1st – 4th Respondents maintained in their counter-affidavit that their land was never compulsorily acquired by Lagos State Government and allocated to the 1st Appellant. At the conclusion of hearing, the High Court of Lagos State presided over by Lawal-Akapo, J., dismissed the Appellants’ claim in a considered Ruling delivered on 05/03/2018.
Dissatisfied with the outcome of the suit at the lower Court, the Appellants filed their Notice of Appeal, predicated on three grounds of appeal, on 05/06/2018, wherein they sought for the following reliefs:
1. To allow the appeal and set aside the decision of the trial Court’s Judgment dated 11th September, 2008.
2. To grant the reliefs sought in the originating summons dated 27th July, 2016.
The Appellants’ Brief of Argument, settled by Taiwo Kupolati, SAN, with Adeola Abiola (Mrs.), was filed on 25th March, 2021, while that of the 1st – 4th Respondents, settled by Olumide Otayomi Esq., was filed on 12/10/2021 but deemed to have been properly filed and served at the hearing of the appeal on 22/09/2022. The 5th Respondent, though served with the Appellant’s Brief of Argument, did not file any brief in this appeal.
In the Appellants’ Brief of Argument, adopted by Taiwo Kupolati, SAN, with Adeola Abiola, two issues were distilled for the determination of this Court, viz:
(i) Whether the trial Court was right to have held that the Appellants, not being a party to Suit No. IKD/63/2003: Oderinde & Ors v. Bamgbaiye & Ors and the resulting judgment of 11 September, 2008 given therein, are disentitled from applying to set aside the said Judgment.
(ii) Whether the trial Court was right to have held that the Judgment of a Court of competent jurisdiction does not come within the purview of Order 3, Rule 5 of the High Court of Lagos State (Civil Procedure) Rules, 2012 and that the reliefs sought by the appellants cannot be pursued by an action instituted by originating summons. Olumide Otayomi with Olusola Otayomi adopted the brief of the 1st – 4th Respondents, wherein the two issues distilled by the Appellants were adopted by them.
Arguments
Issue 1
On issue 1, learned senior counsel for the Appellants submitted that the land affected by the judgment and possession order in Suit No. IKD/63/2003, delivered on 11/09/2008, is a state land under lease. But strangely, the 1st to 4th Respondents, who were Claimants in the said suit deceptively suppressed the fact that the land was a State land, having been acquired by Lagos State Government in 1985 and all interest previously held by owners under native law and custom in respect of the said land had been statutorily extinguished in 1985. He stated that the Appellants were never parties to the action in suit No. IKD/63/2003, and the said judgment did not mention their names at all and therefore, the orders made in that suit did not relate to them, just as no survey plan was tendered to show that the judgment affects the land presently occupied by the 1st Appellant.
According to learned senior counsel, the trial Court’s dismissal of the Appellants’ case on the ground that, not being parties to the Judgment of 11 September, 2008, they are disentitled from applying to set it aside, was a misapplication of the principle of law as decided in the case of N. A. Williams vs. Hope Raising Voluntary Society (1982) All NLR 1 at 4, to wit:
a. The reason for absence of the party in Court when the order was made.
b. Whether the case of the applicant deserves sympathetic consideration.
c. Whether the respondent will not be prejudiced by the grant of the order.
d. Whether the case of the applicant is manifestly supported.
He argued that where the interest of anyone may be affected by a suit either directly or indirectly, that person can, in appropriate circumstances, be admitted or allowed to apply to set aside the judgment of the Court entered in the case, relying on Bello vs. INEC (2010) 8 NWLR (Pt. 1196) 342 at 413, (2010) All FWLR (Pt. 526) 397 at 452. It was submitted that one of the grounds for which a Court would set aside its judgment is when the judgment was obtained by fraudulent concealment or misrepresentation by one of the parties, as in the case of the judgment of 11/09/2008 sought to be set aside by the Appellants, where the 1st – 4th Respondents fraudulently concealed from the Court the fact that the land was compulsorily acquired by the Lagos State Government. On this submission, the Court was referred to the cases of Okoye vs. Nigerian Constructive and Furniture Co. Ltd (1991) 6 NWLR (pt.199)501, A.C.B. Ltd vs. Losada (1992) 2 NWLR (Pt.225) 572. Learned senior counsel further argued that the judgment of 11/09/2008 together with the order for possession of 19/05/2015 are nullities having been obtained by fraudulent concealment of the critical fact of acquisition.
He submitted that the deception that tainted the judgment of 11/09/2008 and the order for possession of 19/05/2015, is further heightened by the desperate efforts of the 1st – 4th Respondents to enforce the said judgment against the Appellants in their letter of 13th July, 2016, (Exhibit E), wherein they gave the Appellants 7 days ultimatum to yield possession of the land. He argued that the threat to take possession of the land raised a critical question as to the enforceability of the said judgment against the Appellants who were not parties to the action and did not participate in the proceedings that gave rise to the judgment. Reliance was placed on the cases of Reynolds Const. Co. v. R.B.B. (1993) 6 NWLR (Pt. 279) 122 at 129, Ekeke Okpata v. Chief Ikem Obo (1960) S.C.N.L.R 103 at 110, to the effect that a Court cannot give judgment against a non-party to the suit.
It was submitted that the trial Court’s judgment was inconsistent and contradictory, having held that the Appellants could not be bound by judgment in a suit in which they were not parties, for it to turn round and dismiss the whole action. The Court was urged to resolve this issue in favour of the Appellants.
On his part, learned counsel for the 1st – 4th Respondent, Olumide Otayomi, noted that the finding of the lower Court that the Appellants were not affected by the judgment they sought to set aside has not been appealed against. He submitted that a party seeking to set aside the judgment of a Court has the duty to show that the ground of his complaint is apparent on the judgment and/or the proceedings. That, it is not enough to allege fraudulent misrepresentation as the Appellants have done in this case, citing the case of Sken Konsult vs. Ukey (1981) NSCC 1. It was contended that where no question of nullity is raised, a judgment of a competent Court remains valid and subsisting, relying on Agbonmagbe Bank vs. CFAO (1966)1 ANLR 140.
Learned counsel further submitted that a Court lacks jurisdiction to set aside its own decision or that of a Court of co-ordinate or concurrent jurisdiction except as permitted by the common law, statutory provision such as when decision is a nullity by reason of a breach of procedure or lack of jurisdiction or as provided for by the rules. He argued that where a judgment or order has been obtained by fraud, a fresh action will lie to impeach the judgment. But that where no question of nullity is raised, a judgment of a competent Court remains valid and subsisting.
Issue 2
Learned senior counsel for the Appellant, submitted on this issue that the trial Court’s conclusion on page 151 of the Record of Appeal that a judgment of a Court is not envisaged under Order 3 Rule 5 of the High Court of Lagos State (Civil Procedure) Rules, 2012, is an erroneous conclusion, in that the rules expressly refers to “other written instrument” which by construction includes the judgment of the trial Court, because a written instrument mean a written document reduced to writing.
Referring to Order 3 Rule 5 of the Lagos State High Court Rules, he maintained that proceedings may begin by originating summons where the sole or principal question is, or is likely to be one of construction of a written law or of any instrument made under any written law or of any deed, Will, contract or other document or some other question of law; or there is unlikely to be any substantial dispute of fact. In urging the Court to adhere strictly to the ordinary plain meaning of the words used in the interpretation of the Rules of Court under reference, learned senior counsel cited and relied on UTC (Nig.) Ltd vs. Pamotei (1989) 2 NWLR (Pt.103) 224 at 270, Gankon vs. Ugochukwu (1993) 6 NWLR (Pt.297) 55 at 72.
It was submitted that the Appellants’ complaint for the setting aside of the judgment of 11/09/2008 on grounds of fraud and deceit was properly pursued by means of originating summons, citing Anyakora vs. Obiako (1990) 2 NWLR (Pt.130) 52 at 65.
He further submitted that where literal interpretation of a word or words used in enactment will result in an absurdity or injustice, it will be the duty of the Court to consider the enactment as a whole with a view to ascertain whether the language of the enactment is capable of any other fair interpretation, or whether it may not be desirable to put a secondary meaning on such language, or even to adopt a construction which is not quite strictly grammatical.
It was the final contention of learned senior counsel that the dispute between the parties in this case is appropriate for resolution by way of originating summons procedure, as against the holding of the trial Court. On this premise, he urged the Court to resolve this issue in favour of the Appellants.
On the part of the 1st – 4th Respondents, learned counsel submitted on the authority of Keyamo vs. House of Assembly, Lagos State (2002) 18 NWLR (Pt.799) 605, that it is settled law that originating summons may be employed to commence an action where the issue involved is one of construction of a written law, instrument, deed, will or other documents or some question of pure law or where there is unlikely to be any substantial dispute on issues of facts between the parties.
Making reference to Order 3 Rules 5, 6 & 7 of the High Court of Lagos State (Civil Procedure) Rules, 2012, Mr. Otayomi submitted that a look at the provisions of the Rules does not take cognizance of the judgment of a Court of co-ordinate jurisdiction. That a High Court cannot interpret the judgment of a Court of co-ordinate jurisdiction. He submitted that originating summons is adopted where the issue is one of law, construction of statutes, discretion arising upon facts substantially not in dispute and that declaratory relief on an originating summons is inappropriate, citing Nig. Breweries Plc vs. Lagos State Internal Revenue Board (2001) FWLR) (Pt.72) 1974 at 1981.
Also argued for the 1st – 4th Respondents is that originating summons is not a procedure to determine contentious issues nor appropriate for mounting hostile proceeding. Oba OyewunmiI vs. Oba Osungbade & Ors (2001) FWLR (Pt 82) 1919, Doherty vs. Doherty (1967) NSCC 237.
It was further submitted that even where there is no opposition by way of counter-affidavit, where the Court views the action by way of originating summons as one likely to be contentious and extremely hostile, the Court should decline taking the action by way of originating summons. On this submission, reliance was placed on Ossai vs. Wakwah (2006) ALL FWLR (Pt.303) 239. He argued that for a suit to be recognized under the originating summons procedure, parties must be ad idem on issues of fact and that they only require the Court to give directive on points of law involved, relying on Obasanya vs. Babafemi (2000) FWLR (Pt.15) 2585, Ogunsola vs. APP & Ors (2004) ALL FWLR (Pt.207) 727.
Learned counsel also relied on Race Auto Supply Co. Ltd & Ors vs. Alhaja Akib (2006) ALL FWLR (Pt.327) 486, to submit that a judgment of Court does not fall within such other instruments in species. Moreover, such judgment cannot be subjected to a Court of co-ordinate jurisdiction for interpretation like the other instruments, deed or will containing rights and obligations, and that if the converse were possible then the judgment of the Court of Appeal or the Supreme Court could in an absurd and anomalous stance be subject to interpretation in the High Court.
The Court was urged to resolve the issues for determination against the Appellants as the facts in the originating summons were very contentious.
Resolution
Issue 1
Whether the trial Court was right to have held that the Appellants, not being a party to Suit No. IKD/63/2003: Oderinde & Ors v. Bamgbaiye & Ors and the resulting judgment of 11 September, 2008 given therein, are disentitled from applying to set aside the said Judgment.
The law is settled that a Court has an inherent jurisdiction to set aside its own judgment or order obtained by means of misrepresentation and concealment of facts in the nature of fraud, or where the Court is devoid of jurisdiction. The Courts have set down the circumstances under which a judgment would be set aside:
(i) Where the judgment is obtained by fraud or deceit on the Court of one or more of the parties. Such a judgment can be set aside by means of a fresh action.
(ii) Where the judgment is a nullity in which case a person affected by it is entitled ex debito justitiae to have it set aside.
(iii) Where it is obvious that the Court was misled into giving the judgment under a mistaken belief that the parties consented to it.
(iv) Where the judgment was given in absence of jurisdiction.
(v) Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.
See Dingyadi vs. INEC (2011) LPELR-950 (SC), Jev vs. Iyortyom & Ors (2014) LPELR-23000 (SC), Bello vs. INEC & Ors (2010) LPELR-767 (SC), Olufunmishe vs. Falana (1990) LPELR-2516 (SC), Igwe & Ors vs. Kalu & Ors (2002) LPELR-1455 (SC), Tomtec Nigeria Ltd vs. Federal Housing Authority (2009) LPELR-3256 (SC), Alawiye vs. Ogunsanya (2013) 5 NWLR (Pt.1348) 570 at 620.
In the instant case on appeal, the case of the Appellants is that the judgment of the High Court of Lagos State in Suit No. IKD/63/2003 delivered on 11/09/2008 was obtained by fraudulent concealment or misrepresentation by the 1st – 4th Respondent that they had customary right over the land while concealing the fact that the land was compulsorily acquired by Lagos State Government in 1985. It is not in dispute between the parties to this appeal that the Appellants were not parties to the Suit No. IKD/63/2003 in which judgment was delivered on 11/09/2008, and therefore the orders in that judgment cannot bind them as it did not relate to them. There was however serious conflict as to whether the land, the subject matter of Suit No. IKD/63/2003, is the same land upon which the 1st Appellant is situate. There was also a serious dispute between the parties on whether the 1st – 4th Respondents’ land was ever acquired by the Government of Lagos State as the 1st – 4th Respondents denied knowledge of the said acquisition, if at all. While the Appellants maintained that it is the same land, the 1st – 4th Respondents contended that the judgment sought to be set aside relates to a different land altogether, not the land occupied by the Appellants. This is what was deposed in their counter-affidavit at page 75 of the Record, paragraphs 12b and 12c:
“12b. In relation to the Certificate of Occupancy exhibited by the Applicants, the land presently occupied by the 1st Applicant, Caleb University, shown in the survey Plan No. LS/D/KD/97 dated June 2006 at paragraph 6 of the Affidavit in support and paragraph 4.6 Written Address in support, lies before the Atori River coming from Isiwu LCDA and not in Imota LCDA as wrongly stated in the schedule in the Certificate of Occupancy in this matter.
12C. The Lagos State Government is aware that the present location of the 1st claimant is in Ikorodu North Local Council Development Area/Ikorodu North Local Government Area, (outside the Gazette area in the notice) situate, lying and being before the Atori River, boundary between Ikorodu North LCDA and Imota LCDA. 1st, 4th, 7th and 8th defendants shall rely on a document addressed to “The Executive Secretary, Ikorodu Local Government, Beach Road, Ikorodu”, headlined Ikorodu North Local Government and captioned DELINEATION OF WARDS. Under WARD B3 ISIU, the boundary of Ikorodu North Area with Imota with the caveat letter by the Onofonyin written to the claimant herein attached and marked Exhibit A clear. (sic) Iswu is the headquarter of Ikorodu North LCDA. The present location of the 1st claimant therefore, being in Ikorodu North LCDA, is invariably in Isiwu not in Imota.”
There is also a conflict/dispute as to whether the letter written to the Appellants giving them 7 days ultimatum to vacate the land, where the 1st Appellant is situated and carrying out its academic programmes, was written under the instruction and authorization of the 1st – 4th Respondents, who vehemently denied authorizing the letter. In fact, the 1st – 4th Respondents maintained that they did not even know the law firm, Law Update Consultancy, that authored the letter. See paragraphs 12e and 12f of the counter affidavit at pages 775-76of the Record, where the deponent stated:
“12e. 1st, 4th, 7th and 8th Respondents, however, deny that on 13th July, 2016 the 1st, 4th, 7th and 8th Respondents solicitors wrote to these claimants notifying them of the existing judgment and order of possession knowing fully well that it has nothing to do with the claimants. 1st, 4th, 7th and 8th Respondents also deny that 1st, 4th, 7th and 8th respondents and solicitors on the basis of the Court decisions threatened to take possession of the 1st applicants’ land within 7 days of the receipt of the letter dated July 13, 2016 which ordinarily will prejudiced the leveling execution pursuant to order of possession.
12f. 1st, 4th, 7th and 8th Respondents maintained that Yomi Alokolaro Esq., from Femi Alokolaro & Co., Osuntowe Chambers represented the 1st, 4th, 7th and 8th Respondents and others in the suit IKD/63/2003. Yomi Alokolaro Esq., died in November, 2009. After the death of Yomi Alokolaro Esq., the Onofonyin family, represented by the 1st, 4th, 7th and 8th Respondents herein from year 2009 moved their briefs to Olu Otayomi & CO., till date and remains the solicitors to the Onofonyin family of the 1st, 4th, 7th and 8th Respondents also in this suit and not Legal Update Consultancy.”
In its judgment at page 150 of the record, the learned trial Judge held that since judgment of a Court binds only parties to the suit, their heirs and/or agents, not strangers, the Appellants being strangers to Suit No. IKD/63/2003, cannot be bound by the terms of the judgment. The learned trial Judge reasoned that since the interests of the Appellants are not in any way affected by the judgment in Suit No. IKD/63/2003 delivered on 11/09/2008, it is improper for them to apply to set aside the judgment. Issue 1 now under resolution is an attack on the above finding of the lower Court.
The 1st – 4th Respondents denied having anything to do with the letter by Law Update Consultancy in which the Appellants were given 7 days ultimatum to vacate the land occupied by them or they would be forcefully removed, and asserted that they could not have authorized the letter to be written in view of the fact that they had a pending suit against the Appellants, Suit No. IKD/2317LMW/2015 at the High Court of Lagos State, Ikorodu. In summary, the defence of the 1st – 4th Respondents against the Appellant’s suit at the lower Court was predicated on three planks, to wit: (1) The land subject matter of Suit No. IKD/63/2003 decided on 11/09/2008 did not concern the land occupied by the Appellants; (2) The judgment in that suit did not concern the Appellants or their privies and therefore cannot bind them as they were not parties in the suit. That being the case, the Appellants have no basis to apply for the setting aside of the judgment, as same is not detrimental to their interest; (3) Originating summons is not the appropriate mode of commencing the case in view of the conflicts as to facts.
The Appellants have conceded that they were not parties to the Suit No. IKD/63/2003, whose judgment they applied to set aside on grounds of fraudulent non-concealment of material facts concerning the acquisition of the land occupied by the Appellants by Lagos State Government in 1985. The Appellants’ admission that they were not parties to the suit giving rise to the judgment of 11/09/2008, coupled with the 1st- 4th Respondents’ counter affidavit to the effect that the land occupied by the Appellants is not the subject matter of Suit No. IKD/63/2008 in which judgment was given on 11/09/2008, lend credence to the finding of the learned trial Judge that the Appellants, having not been affected by the judgment in question, are not entitled to apply that the said judgment be set aside. A party, or even a non-party to a suit, can only apply that judgment entered in such a suit be set aside if he can prove that his right is affected one way or the other by the said judgment. While the Appellants claimed that the judgment concerns the land occupied by them, the 1st – 4th Respondents maintained the opposite position. What is more, the 1st – 4th Respondents also deny writing a threatening letter of eviction to the Appellants through a Solicitor, whom they disowned. This means that the interest of the Appellants is not threatened either by the judgment in Suit No. IKD/63/2003 or by the 1st – 4th Respondents. That being the case, the Appellants have no legal basis to apply to set aside a judgment in which they were not parties and in which their interest was not jeopardized or threatened. On this score, I am in agreement with the finding of the learned trial Judge at page 150 of the Record when his lordship said:
“A judgment of a Court only bind parties to the suit, their heirs and/or agent, but certainly not a stranger. The Applicants herein are strangers to IKD/63/2003, they can therefore not be bound by the terms of the Judgment. See Obaseki vs. Orukwo (2007) 17 NWLR (Pt.1062) page 138. Since the interest of the Applicants are not in any way affected, it is therefore improper to seek to set aside the Judgment.”
I endorse the above finding of the lower Court in resolving Issue 1 against the Appellants.
Issue 2
Whether the trial Court was right to have held that the judgment of a Court of competent jurisdiction does not come within the purview of Order 3, Rule 5 of the High Court of Lagos State (Civil Procedure) Rules, 2012 and that the reliefs sought by the appellants cannot be pursued by an action instituted by originating summons.
This issue is hydra-headed. The first part concerns the determination of whether a judgment of a Court falls within the purview of Order 3 Rule 5 of the Rules of the High Court of Lagos State, while the second part deals with the suitability or otherwise of the adoption of originating summons procedure by the Appellants in their claim before the lower Court. I shall start with the first part.
Order 3 Rules 5, 6 & 7 of the High Court of Lagos State (Civil Procedure) Rules, 2012, the extant Rules applicable at the time material to this case at the lower Court, provides:
5. Any person claiming to be interested or claiming any legal or equitable right 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.
As rightly submitted by learned senior counsel for the Appellants, proceedings may begin by originating summons where the sole or principal question is, or is likely to be one of construction of a written law or of any instrument made under any written law or of any deed, Will, contract or other document or some other question of law; or there is unlikely to be any substantial dispute as to facts. The law is settled that where the facts are riotously in dispute or they are hostile, originating summons procedure will not avail a Claimant. Where the issue is that of construction of documents or interpretation of statutory provisions, it is safe and appropriate to come by way of originating summons. See Jev vs. Iyortyom & Ors (supra).
The Record of Appeal shows that the Appellants commenced this action by originating summons, seeking for an order setting aside the judgment in Suit No. IKD/63/2003 and the order of possession made pursuant thereto. The Appellants also sought for an order of perpetual injunction restraining the 9th Defendant from issuing a writ for possession in respect of the judgment sought to be set aside. A calm reading of the reliefs claimed by the Appellants clearly shows that the Appellants are not asking for the interpretation of any written law or the construction of any deed, Will or other written instrument in which they claimed interest. Not being parties in Suit No. IKD/63/2003, the Appellants have no interest in that judgment as to even seek for its interpretation. So, from the point of view of the reliefs sought, the Appellants’ action at the lower Court did not come under Order 3 Rules 5 and 6 of the High Court of Lagos State Rules, 2012.
Learned senior counsel for the Appellants urged the Court to hold that the phrase “other written instrument” as used in Order 3 Rule 5, includes judgments of Court. With due deference to the learned senior counsel, I do not subscribe to that view, as doing so will result in absurdity. If, for instance, it is taken that the High Court is conferred with power to interpret judgment as part of “other written instrument” as used in the Rules of Court, it follows that the High Court will be competent to be called upon to interpret not only the judgments of Courts of co-ordinate jurisdiction but also the judgments of the Court of Appeal as well as that of the Supreme Court, all in the name of “other written instruments.” This is the absurdity that the interpretation sought by the learned senior counsel will create, if allowed. In the case of Race Auto Supply Co. Ltd & Ors vs. Akib (2006) LPELR-2937, the Supreme Court held that a judgment of Court of law cannot be subjected to interpretation by a Court of co-ordinate jurisdiction like a deed, a will or an instrument containing right and obligations of parties. Mahmud Mohammed, JSC (as he then was) proceeded to hold at pages 18-19, thus:
“…whether anything reduced to writing is an instrument largely depends on the context in which it is used. For example, the same Strouds Judicial Dictionary, Volume 3 at page 1386 stated plainly that “orders of Court were not instrument within Apportionment Act, 1834”. One may find support in this observation by Stroud to say that a judgment of a Court of law can hardly be accommodated under the words “other written instrument” under Rule 1 of Order 46 of the Lagos High Court (Civil Procedure) Rules, 1994, under which the appellants filed their application for the interpretation of the consent judgment of 4-5-98.”
The above pronouncement by the apex Court has put the matter beyond contention, that judgments and orders of Court do not form part of “other written instrument” as used in the Rules of Court, as to be subjected to interpretation by the High Court.
The other plank of issue 2 is whether the use of originating summons is appropriate in the circumstances of this case. Originating summons is one of the four ways of commencing civil proceedings under the High Court of Lagos State (Civil Procedure) Rules, 2012. Originating summons is geared towards expeditious determination of the dispute between the parties in which facts are not likely to be disputed. Where the principal question in a suit is for construction of a written law, which includes the Constitution, or involve only questions of law without dispute as to fact, originating summons will be an appropriate method to commence such suit. See Dapianlong & Ors vs. Dariye & Ors (2007) LPELR-928 (SC), Inakoju & Ors vs. Adeleke & Ors (2007) LPELR-1510 (SC). In other words, originating summons is resorted to only in non-contentious matters, where the evidence in the main is documentary and there is no serious dispute on the existence of such documents. In the case of Inakoju & Ors vs. Adeleke & Ors (supra), Niki Tobi, JSC, (of blessed memory) said of originating summons: “In originating summons, facts do not have a pride of place in the proceedings. The cynosure is the applicable law and its construction by the Court. The situation is different in a trial commenced by writ of summons where the facts are regarded as holding a pride of place and the fountain head of the law, in the sense that the facts lead to a legal decision on the matter. That is not the position in proceedings commenced by originating summons where facts do not play a central role but an infinitesimal role, if at all.”
In the case leading to this appeal, parties are not ad idem as to facts. The material fact in the case, i.e., the identity of the land, subject matter of Suit No, IKD/63/2003, the judgment of which was sought to be set aside, is seriously in dispute between the parties, the particulars of which I have already highlighted supra in this judgment. The disputed facts between the parties is not restricted only to the identity of the land. There is also a dispute with respect to the Solicitor’s letter written to the Appellants, which is the immediate cause of the Appellants’ action at the lower Court. The 1st –4th Respondents have denied instructing any Lawyer to write to the Appellants asking them to vacate the land they are occupying within 7 days. To unravel the truth about the origin of that letter and the real persons behind it, would require evidence by way of witness deposition and the cross-examination of such a witness(es). The same applies to the identity of the land as well as the issue of compulsory acquisition by the Government of Lagos State, which are all put in issue. Affidavit evidence is not enough to substantiate the identity of the land, subject matter of Suit No. IKD/63/2003, the judgment of which is being sought to be set aside. Similarly, the dispute over compulsory acquisition cannot be resolved via affidavits. These disputed facts cannot be proved by affidavit evidence, thereby making the originating summons procedure adopted by the Appellants inappropriate in the present circumstance. Consequently, I resolve issue 2 against the Appellants.
Having resolved the two issues formulated by the Appellants in this appeal, against them, this appeal is doomed to fail. I hereby dismiss the appeal as same is bereft of merit. The ruling of the High Court of Lagos State in Suit No. IKD/925MJR/2016, delivered by Lawal-Akapo, J., on 5th day of March, 2018 is hereby affirmed. I award the cost of this appeal in the sum of N200,000.00 (Two Hundred Thousand Naira) to the 1st – 4th Respondents against the Appellants.
JIMI OLUKAYODE BADA, J.C.A.: I read before now a copy of the leading judgment delivered by my learned brother, MOHAMMAD IBRAHIM SIRAJO, JCA.
It is a well-considered judgment for which I have nothing more to add than to agree that this appeal lacks merit. The appeal is also dismissed by me.
I abide by the consequential orders made in the said leading judgment including order as to cost.
PETER OYINKENIMIEMI AFFEN, J.C.A.: I had the advantage of reading, in draft, the leading judgment of my learned brother, MUHAMMAD IBRAHIM SIRAJO, JCA which has just been delivered.
The judicial reasoning and conclusions reached on the issues raised accord with mine. I accordingly give my concurrence in dismissing this appeal for being destitute of merit and abide by the consequential orders set out in the leading judgment.
Appearances:
Taiwo Kupolati, SAN, with him, Adeola Abiola, (Mrs.) For Appellant(s)
Olumide Otayomi, with him, Olusola Otayomi – for 1st – 4th Respondents. For Respondent(s)
