GLOBAL FLEET OIL AND GAS (NIG) LTD. v. OROK & ORS (2020)

GLOBAL FLEET OIL AND GAS (NIG) LTD. v. OROK & ORS

(2020)LCN/14464(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, July 08, 2020

CA/C/392/2014

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

GLOBAL FLEET OIL AND GAS NIGERIA LIMITED APPELANT(S)

And

CHIEF EMMANUEL ITO NYONG OROK (For Himself And On Behalf Of Orok Odo Family Ikpai Qua Town Calabar) 2. GOVERNMENT OF CROSS RIVER STATE 3. ATTORNEY GENERAL, CROSS RIVER STATE 4. REGISTRAR OF DEEDS, CROSS RIVER STATE 5. CHINA CIVIL ENGINEERING CONSTRUCTION COMPANY LIMITED RESPONDENT(S)

RATIO

WHETHER OR NOT A COURT IS PRECLUDED FROM DRAWING INFERENCE IN THE DISCHARGE OF ITS ADJUDICATIVE DUTIES FROM ESTABLISHED FACTS, ORAL OR DOCUMENTARY

I am strengthened in making this deduction in that it is the statement of the law that a Court is not precluded from drawing inferences in the discharge of its adjudicative duties from established facts, oral or documentary. See Galadima vs. The State (2013) 217 LRCN 58 @ 75, MTN vs. Corporate Communication Investment Ltd (2019) LPELR-SC.674/2014. PER BARKA, J.C.A.

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice O. A. Ogar of the Cross River State High Court, sitting in Calabar, the Cross-River State Capital in suit No. HC/176/2011, between Chief Emmanuel Ito Nyong Orok, (for and on behalf of Orok Odo family Ipai Qua Town Calabar), and The Government of Cross River State and 4 Ors, delivered on the 28th day of May, 2014. By the said judgment, the claimant’s case succeeded and judgment entered against the defendants in the following terms:
(a) A declaration that 1st defendant has no right or power to acquire or revoke the claimant’s family land lying off Marian (Ndidem Usang Iso) Road, known and identified as Scorpio Hotel at Ediba Qua Town, Calabar referred to in Cross River State survey plan No. CR/C/655 (tracing No. 5265) and turn round to assign same to private person and/or a limited liability company.
(b) An order voiding the purported deed of Assignment between the 1st and the 4th defendant, China Civil Engineering Construction Company Nigeria Limited registered as No. 38 at page 38 in Volume 132 of Lands Registry in the

office at Calabar and the deed of Assignment between China Civil Engineering Construction Company Nigeria Limited and 5th defendant, Global Fleet Oil and gas Nigeria Limited Registered as No. 61 at page 61 in Volume 138 of Lands Registry in the office at Calabar.
(c) The said land shall henceforth vest in the claimant and the 3rd defendant, the Registrar of Deeds is hereby ordered to effect the change in the Lands Registry, Calabar, to reflect the true ownership of the land.
(d) An order of perpetual injunction restraining all the defendants, their agents, privies, allottes, assignees from trespassing or further trespassing into the claimant’s family land lying and situate off Marian (Ndidem Usang Iso) Road, Calabar identified and known as Scorpio Hotel at Ediba Qua Town, Calabar.
(e) The 5th defendant shall vacate the claimant’s land lying and situate off Marian (Ndidem Usang Iso) Road identified and known as Scorpio Hotel at Ediba Qua Town, Calabar, forthwith.

History of the case:
I agree and adopt the finding of facts originating the instant appeal as stated by the lower Court. The claimant before the lower Court, Chief

Emmanuel Ito Nyong Orok was the original owner of the parcel of land measuring 4348.525 square metres and more particularly described and delineated in survey plan No. CR/C/860 made on the 8th of October, 2007 and lying off Ndidem Usang Iso Road, Ediba Town, Calabar (hereinafter called the land in dispute). The said land was leased to one Chief Michael A. A. Etim, now deceased for a term of 99 years commencing from the 31st of January, 1978 at an annual rental of N200.00 subject to a periodic review, with the rent for the first ten years having been paid. The deceased Michael Etim in his lifetime, commenced the building of what he called Scorpio Hotel but could not finish the project before his untimely death. In March, 2001, his administrators of his estate by advertisement advertised their intention to sell the uncompleted structure. The 1st defendant before the lower Court (Cross River State Government), indicated interest, negotiated and agreed with the administrators of the estate to buy the property. The claimant got wind of the arrangement seeking to sell the land earlier leased to the deceased Michael Etim, and thereby protested on the ground that he

was not given the 1st option to purchase in terms of the lease agreement with the deceased Michael Etim, and further that the lessee was in arrears of payment for 15 years as at that time, and thereby threatened to sue for breach of contract, and indeed actualised his threat by suing the Administrators of the estate and the 1st defendant, asking that the purported sale be stopped and an order of forfeiture be made against the administrators of the estate. In spite of the case being before a Court of law, 1st and 2nd defendants, the administrator of the late Mr. Michael Etim and the Cross River State Government concluded the sale of the property upon a consideration of N100 million naira only. The case was eventually settled out of Court, and the terms of settlement filed as the judgment of the Court, with the administrators agreeing to pay the claimant the sums of N5 Million Naira only for the period of 15 years the land was in arrears of rent. Things took a new dimension when on the 12th of January, 2004, the 1st defendant published a notice of the revocation of the right of occupancy over the land in issue on the ground of public purposes and particularly for

urban renewal and re-development. On the 17th of October, 2008, however, the 1st defendant assigned her entire interest in the land to the 4th defendant, China Civil Engineering Construction Company Nigeria Limited, a limited liability company. The 4th defendant in turn assigned its interest to the 5th defendant, Global Fleet Oil and Gas Nigeria Ltd, another limited liability company, by way of sale on the 25th of May, 2009.

Irked by the turn of events, claimant filed an originating summons on the 26th of May, 2011 against the Government of Cross Rivers State, and four others, wherein he formulated the following questions for determination:
1. WHETHER IT IS LAWFUL FOR THE 1ST DEFENDANT, ITS AGENTS OR PRIVIES TO COMPULSORILY ACQUIRE THE CLAIMANT’S FAMILY LAND FOR A PURPORTED PUBLIC PURPOSE AND TURN AROUND TO ASSIGN SAME TO PRIVATE INDIVIDUAL OR COMPANY.
2. WHETHER THE 5TH DEFENDANT WHO WAS ASSIGNED OR WAS SOLD THE CLAIMANT’S FAMILY LAND COMPULSORILY ACQUIRED FOR PUBLIC PURPOSE BY THE 1ST DEFENDANT OT ITS ALLOTEES, ASSIGNS, PRIVIES OR AGENTS CAN BE SAID TO HAVE ACQUIRED A VALID TITLE TO THE LAND ASSIGNED OR SOLD IT.
3. WHETHER THE

CLAIMANT IS NOT ENTITLED TO A REVERSION OF HIS FAMILY LAND NOT BEING USED FOR PUBLIC PURPOSES ABSOLUTELY AGAIN.

The reliefs sought by the claimant are that:
(a) A declaration that the 1st defendant has no right or power to acquire or revoke the Claimant’s family land lying off Marian (Ndidem Usang Iso) Road, known and identified as Scorpio Hotel at Ediba Qua Town, Calabar referred to in Cross River State survey plan No. CR/C/655 (tracing No. 5265) and turn around to assign same to private person and/or a limited liability company.
(b) An order voiding the purported deeds of Assignment between the 1st Defendant and the 4th Defendant, China Civil Engineering Construction Company Nigeria Limited registered as No. 38 at page 38 in Volume 132 of Land Registry in the office at Calabar and the deed of Assignment between China Civil Engineering Construction Company Nigeria Limited and 5th defendant, Global Fleet Oil and Gas Nigeria Limited registered as No. 61 at Page 61 in Volume 138 of Lands Registry in the office, Calabar.
(c) An order vesting the land so wrongly acquired on the Claimant and directing the 3rd defendant, the Registrar of

Deeds to effect the change in the land registry, Calabar, to reflect the true ownership of the land.
(d) An order of perpetual injunction restraining all the Defendants, their agents, privies, allottees, assignee from trespassing or further trespassing into the claimant’s family land lying and situate by Marian (Ndidem Usang Iso) Road, Calabar identified and known as Scorpio Hotel at Ediba Qua Town, Calabar.
(d) An order ejecting the 5th defendant from the claimant’s family land wrongly acquired by the 1st Defendant, or its agents, privies lying and situate by Marian (Ndidem Usang Iso) Road identified and known as Scorpio Hotel at Ediba Qua Town, Calabar forthwith.

In support of the process filed is an affidavit of 18 paragraphs deposed to by the claimant in person. The respondents in contesting the action filed series of counter affidavits, further and better affidavits and so forth. Appellants state that the final processes used in the determination of the action were:
i. The claimant’s (now 1st respondent’s) affidavit of 26/5/2011 min support of the Originating Summons and the exhibits thereto (at pages 9-40 of

the Records);
ii. The 5th defendant’s (now appellant’s) counter-affidavit of 30/4/12 and the exhibits thereto (at pages 82-94 of the Records);
iii. The 1st to 3rd defendant’s (now 2nd to 4th respondent’s) counter-affidavit of 30/4/12 and the exhibits thereto (at pages 114-124 of the Records);
iv. The 4th defendant (now 5th respondent’s) counter-affidavit of 22/1/13 and exhibits thereto (at pages 208-225 of the Records);
v. The claimant (now 1st respondent’s) Further and Better affidavit of 31/1/13 (at pages 205-207 of the Records).

The issue arose as to whether the suit before the trial Court can be validly determined without calling evidence. Addresses were then filed on the issue and adopted. On the 28th of May, 2014, the lower Court considered the various affidavits filed, and also considered the various submissions of counsel, over ruled the appellant’s objection and resolved all issues in favour of the 1st respondent, thus granting all the reliefs sought.

Utterly disturbed by the judgment of the trial Court given against him, appellant approached this Court on the 19th of August, 2014,

when it filed a Notice of Appeal predicated upon eight grounds of Appeal. The extant notice of appeal is the Further Amended Notice and grounds of Appeal filed on the 13th of March, 2017, deemed filed on the 7th of May, 2018 with the leave of Court, which reduced the grounds of appeal to seven. The appeal proper was entered to this Court on the 2nd of October, 2014. The appellants brief filed on the 13/3/2017 was deemed filed on the 7th of May, 2018. Appellant also filed a reply brief on the 13th of June, 2018, reacting to the preliminary objection filed by the 1st respondent. The learned Appellants counsel adopted the two briefs filed on the 2nd of June, 2020 in urging the Court to allow the appeal.

The 1st respondent on their part, opposed the appeal and in so doing filed the amended respondent’s brief incorporating a preliminary objection on the 22nd May, 2018. Counsel adopted the brief filed and urged the Court to dismiss the appeal. Mr. Ikone for the 2nd – 4th respondents informed the Court that they do not intend filing any brief and therefore did not file any. On the part of the 5th respondent, a brief of argument was filed on its behalf

on the 22nd of August, 2019 with the leave of Court. Learned counsel identified the brief filed and urged the Court to allow the appeal.

The amended Appellant’s brief of argument was settled by Essien H. Andrew, though adopted by Eke Edem, wherein at pages 4-5, three issues were formulated for the Court’s consideration and resolution. The three issues which were adopted by the 1st and 5th respondents respectively are as follows:
1. Whether the jurisdiction of the lower Court was properly invoked through the originating summons which was not signed by either the claimant or his counsel.
2. Whether the learned trial judge was right to determine the issues in this suit by originating summons without calling for oral evidence in the matter.
3. Whether the learned trial judge was right to uphold that the 1st respondent was entitled to the immediate possession of the Scorpio Hotel as the owner thereof and that the appellant should vacate the property for him.

I have carefully studied the records, the grounds of appeal and submissions of the learned counsel on all sides, and I cannot but agree with the learned counsel for the

appellant as well as that for the 1st and 5th respondents that the issues identified where duly considered will settle the instant appeal, before adopting the issues in the determination of the appeal however, there is the urgent need to treat the preliminary objection raised by the 1st respondent in the brief.

PRELIMINARY OBJECTION:
The 1st respondent herein is Chief Emmanuel Ito Nyong Orok. He raised the issue as a preliminary point that issue 2 distilled from grounds 1, 4 and 5 in the amended notice of appeal is incompetent. He named three grounds in support of the objection as follows:-
i. The issue of whether it was appropriate to commence this action by Originating Summons or not was abandoned by the Appellant at the Court of trial and so this honourable Court is deprived of jurisdiction to hear same.
ii. The Appellant having waived his right to challenge the propriety of commencing this suit by Originating Summons by joining issues it cannot do so now.
iii. Having not canvassed the issue at the lower Court and not seeking, leave of this Honourable Court to raise the new issue deprived the Court of jurisdiction to entertain the

issues raised therein.

Proffering argument on the 1st ground of objection, learned senior counsel made mention of the fact that the trial Court adjourned proceedings to the 9th of April, 2014, to enable parties address it on whether the issue arising from the suit can be determined without calling evidence, but parties on the adjourned date abandoned addressing on the issue, but maintained the originating summons as constituted. Relying on the case of Ojoh vs. Kamalu (2005) 12 SC (pt. II) 1 @ 12 and Eyesan vs. NNPC (2012) LPELR-19667, submitted that an abandoned issue cannot in law be raised on appeal. he argued that parties having failed to address on the issue, to enable the lower Court rule on it, thus enabling the Court to review the decision, the issue becomes incompetent. The cases of Asst. IGP vs. Gombe (2016) LPELR-40816 (CA) per Hussaini JCA, and Iliyasu vs. Shuwaki (2009) LPELR-4305 (CA) per Okoro JCA (as he then was) were cited in support of the argument.

With respect to the second ground of objection, learned senior counsel leaned heavily on the decision of Ugwuegede vs. Asadu (2018) LPELR-43717 (SC) per Bage JSC and submitted that the act

of the appellant joining issues and proffering arguments on all the issues canvassed by the 1st respondent without objection by way of a motion calling for the ordering of pleadings, is deemed to have waived his right and cannot at this stage raise the issue.

On the final ground of objection, the learned silk is of the position that the issues being canvassed herein were not argued before the lower Court. particularly, counsel submitted that the issue of 1st respondent seeking declaration of title to the land was never canvassed in the written address, and the issue of conflicting facts as to the size of the land being claimed or awarded was also not canvassed before the lower Court. He submitted on the authority of Akpan vs. Bob (2010) 17 NWLR (pt. 1223) 421, that since the issue being canvassed were not raised before the lower Court, and leave of Court was not sought and obtained deprived this Court the power to deal with the issue. The appellant responded to the three grounds of objection seriatim. With respect to the 1st ground of objection, counsel argued that the issue was not abandoned as the objection was argued through its written address at the

trial Court on the stipulated date. On whether by joining issues with the 1st respondent having filed a counter affidavit, learned counsel referred to the case of Aliyu vs. Intercontinental Bank PLC (2013) ALL FWLR (pt. 702) 1810 @ 1829-1830, to argue that the filing of the counter affidavit was necessary in order to join issues on the disputed facts in the Originating Summons.

Responding to the last ground, learned counsel posits that the contention of the learned counsel for the appellant is untenable, as the issue is not a fresh issue being raised for the first time having been argued clearly and specifically in the 5th defendant’s written address at the lower Court.

I have given the submissions of learned counsel due consideration. I see at page 267 of the record, the lower Court adjourning the matter for counsel to streamline the processes to be considered in the suit and also address on whether the suit can be determined without calling evidence. The record shows that on the specified date learned counsel addressed the Court on the issue in his written address as issue two. The ground of the objection is not supported by the records and

is thereby discountenanced. See pages 95 – 100 of the record. I also agree with the appellants counsel that by filing a counter affidavit, and filing a written address does not perse translate to the appellant waiving his contention to the hearing of the suit under the Originating summons as contended. The issue is aptly described and settled in the case of Aliyu vs. Intercontinental Bank PLC (supra), which held that:
“Now it is not for a party to a case to conclude that there is likelihood of dispute in the case and to submit that as such Originating Summons is inappropriate. It is a decision for the Court, and the Court will reach such a decision based on the processes filed by the parties…. In the instant case, the appellants have not filed any response to the Originating Summons of the first respondent and on the basis of which the lower Court could have, and this Court will have ascertained whether or not the fact in the matter were contentious. It is settled law that the arguments in the written address of counsel do not constitute evidence upon which the Court can act. The assertion of the appellant that the Originating Summon

of the first respondent is not appropriate to commence this matter is not based on concrete facts before the Court…’’

The case of Ugwuegede vs. Asadu (supra) though good law is clearly distinguishable and not applicable. Lastly the appellant is on solid ground in his argument that the issues raised are not fresh issues having been raised earlier by the 5th defendant. The dispute on the size of the disputed land cannot be said to be coming for the first time owing to the contents of paragraph 21 of the counter affidavit filed by the appellant. See pages 86 of the record. I see no merit in the preliminary objection filed, and same is hereby dismissed.

Having determined the preliminary objection against the 1st respondent, I now proceed to determine the main appeal, and in doing so adopts the three issues distilled by the appellant.

ISSUE ONE
Whether the jurisdiction of the lower Court was properly invoked through the originating summons which was not signed by either the claimant or his counsel.

Mr. Andrew the learned counsel for the appellant posits on this issue that the Originating Summons which originated the

action before the lower Court was not signed by either the claimant and or his counsel as demanded by Order 8 Rules 1 and 2 of the Cross River State High Court (Civil Procedure) Rules 2008, which stipulates that:
Order 8 Rule 2 (3) Each copy shall be signed by the legal practitioner or by a claimant where he sues in person..

Learned counsel referred to pages 5-8 of the record submitting that the writ was neither signed by the claimant or his legal practitioner on his behalf. He referred to the cases of Buhari vs. Adebayo (2014) LPELR 2346 (CA), Braithwaite vs. Skye bank PLC (2013) ALL FWLR (pt. 664) 39 @ 48 and Kida vs. Ogunmola (2006) ALL FWLR (pt. 327) 402 @ 412, all to the effect that failure to sign the writ in the manner required by law fundamentally affects the validity of the suit, and further relying on the case of Madukolu vs. Nkemdilim (1962) 2 ALL NLR 581 @ 589-590 on initiating the case by due process to submit that the incompetent writ affected the jurisdiction of the lower Court and thereby urged the Court to allow the appeal on that ground, set aside the decision of the lower Court and strike out the writ as being incompetent.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Arguing per contra, Joe Agi SAN, drew the Court’s attention to what constitutes a signature in the case of The vessel MV Naval gent & Sons vs. Associated Commodity Intl Ltd (2015) LPELR-25973 (CA) per Nimpar JCA to mean:
“A person’s name or mark written by the person or at the person’s name or mark written by the person or at the persons direction. Any name mark or writing used with the intention of authenticating a document.”

He further referred to the case of SLB Consortium Ltd vs. NNPC (2011) 9 NWLR (pt. 1252) 317 dealing with the mode of signing a document and relying on Guarantee Trust Bank vs. Innoson Nig. Ltd per Eko JSC on the validity of an appended signature to argue that the writ of summons was duly signed. He urged the Court to be guided by the record of proceedings as decided in the case of Onwuka vs. Ononuju (2009) 11NWLR (pt. 1151) 174, and to dismiss the appeal on this ground.

The 5th respondent on his own part conceded to the argument of the appellant on the issue in urging the Court to set aside the judgment of the lower Court on the issue.

The case of Guaranty Trust Bank vs. Innoson Nig. Ltd

(supra) is illuminating on the issue in view. The Apex Court in that case stated that:
“It is trite that it is the seal or signature of the author on a document that authenticates the document. A legal document or process of Court must be settled or signed by either the legal practitioner of the choice of the litigant or the litigant himself….. where ex facie a Court process is uncertain if the process was signed by the litigant or the legal practitioner representing him, the process is incompetent. Court process must either be signed by the litigant himself or by the legal practitioner retained by him. A Court process that purports to be settled by a legal practitioner must as a requirement of statute, have not only the signature of the legal practitioner, but also his name clearly shown and indicating that the signature is his. The decision of this Court in SLB Consortium Ltd vs. NNPC (supra) and many others on Court processes prepared and filed by a legal practitioner clearly demonstrate that for the signature thereon appended to be valid, it must be traceable to a legal practitioner. The process must have the signature or mark of the

legal practitioner either against his name, or over and above his name.”
I have in obedience to the case of Onwuka vs. Ononuju (supra), examined pages 5 – 8 of the record, and my examination shows the name of Muhammed Shuaibu of counsel for the claimant, duly signed as commanded in the case of Bolaji Akinsanya vs. Federal Mortgage Finance Ltd (2010) LPELR-3687 (CA), and Guaranty Trust bank vs. Innoson Nig. Ltd (supra) by a mark made to the left of the name of the legal practitioner on behalf of the claimant. No doubt the cases cited by the appellant herein represents the position of the law with regards to unsigned processes of Court, more so where an originating process is not signed as stipulated by the rules of Court as amounting to an incompetent process robbing the Court the jurisdiction to attend to the suit before it. The claimant before the lower Court having duly signed the Originating Summons under review as demanded by law, the complaint by the appellant on the issue is unfounded and the issue resolved against them.

ISSUE TWO
Whether the Learned Trial Judge was right to determine the issues in this suit by Originating

Summons without calling for oral evidence in the matter.

The complaint by the appellant herein is that the action before the lower Court being that for a declaration of title to land, which by its nature is contentious, it cannot validly be determined through the Originating summons procedure. The cases ofEkpuk vs. Okon (2002) FWLR (pt. 84) 145, and Peters vs. Jackson (2002) FWLR (pt. 113) 376, were cited in support of the legal principle. Learned counsel also submitted that the other reason why the originating summons is not appropriate in commencing the present action is because of the material conflicts in the affidavits filed by the parties, which cannot be resolved without calling oral evidence. Counsel on this referred to the size of the disputed land contending that the various sizes of the land cannot be resolved except by adducing evidence. On this counsel referred to the case of Ossai vs. Wakwah (2006) FWLR (pt. 303) 239 @ 245. He goes on to argue that where the plaintiff fails to prove the exact extent of the land he is claiming, his action should be dismissed. He sought support from the cases of Iyordye vs. Ihyambe (2001) FWLR (pt. 31) 2881 @

2887, and Alase vs. Bernice (2005) ALL FWLR (pt. 260) 27 @ 44.

He maintained that a Court cannot properly evaluate evidence founded on irreconcilable evidence and without witnesses being subjected to cross examination, as held in the cases of PDP vs. Abubakar (No. 2) (2007) ALL FWLR (pt. 386) 711 @ 729 and Kabiru vs. Ibrahim (2005) ALL FWLR (pt. 240) 94 @ 114.

He therefore argued that the failure of the trial Court to avail the appellant the opportunity to cross examine the 1st respondent on his conflicting evidence concerning the size of the Scorpio Hotel constituted a denial of fair hearing. He states that the Court gave the 1st respondent more land than that acquired from them. He therefore urged the Court to resolve the issue in his favour.

Responding, learned senior counsel for the 1st respondent, relied on the cases of Dapianlong vs. Dariye (2007) 8NWLR (pt. 1036) 332, and Famfa Oil Ltd vs. AG of the Federation (2003) 18NWLR (pt. 852) 453 @ 467 to argue that there cannot be any better mode for the commencement of the case before the lower Court. Counsel alluded to the three issues raised for determination and enumerated the documents

calling for interpretation by the Court, as well as those documents filed by the opposition, contending that there are no violent contradictions calling for oral evidence as evidence cannot be taken to vary, contradict or add or subtract a written document. He called in support the cases of Nnubia vs. AG Rivers State (1999) 12 NWLR (pt. 631) 392, UBN PLC vs. Ozigi (1994) 3NWLR (pt. 333) 385, Koiki vs. Magnusson (1999) 8NWLR (pt. 615) 492 and Agbakoba vs. INEC (2008) 18NWLR (pt. 1119) 489 @ 539.

Learned counsel also submitted that the mere filing of a counter affidavit to an originating summons does not automatically turn it to a contentious matter, and referred the Court to the case of Dagogo vs. AG, Rivers State (2012) FWLR (pt. 131) 1956 @ 1981. On whether the trial Court evaluated the affidavit evidence placed before it, leaned senior counsel referred to the holding of the lower Court at pages 275 – 278 of the record, submitting that the question for resolution boiled down to whether the government can do what it did upon the interpretation of the documents presented.

IGUH JSC, in Keyamo vs. House of Assembly, Lagos State & Ors. (2002)

LPELR – 1689 (SC), held the view that originating summons is employed in commencing an action where the issue involved is one of the construction of a written Law, instrument, deed, will or other document or some question of pure law or where there is unlikely to be any substantial dispute on issues of fact between the parties. Similarly, Chukwuma Eneh JSC in Agbakoba vs. INEC (2008) 18 NWLR (pt. 1119) 489, opined that originating summons is employed where the questions in controversy for determination turns on the simple questions of construction and would not call for settlement of pleadings. See also Ekpuk vs. Okon (supra) and Peters vs. Jackson (supra).
Onnoghen JSC, (as he then was) in Dapianlong vs. Dariye (supra) relying on the decision of Director, State Security Services vs. Agbakoba (1999) 3NWLR (pt. 595) 314, had this to say on the issue:
“The originating summons procedure is a means of commencement of action adopted in cases where the facts are not in dispute or there is no likelihood of there being a dispute and when the sole or principal question in issue is likely to be one directed at the construction of a written law,

constitution of any instrument or of any deed, will, contract or other documents or other question of law or in a circumstance where there is not likely to be any dispute as to the facts…….. Pleadings are not required rather affidavit evidence are employed.”
This decision by the erudite jurist finds support in the earlier decision of Belgore JSC (as he then was) in the case of Famfa Oil Ltd vs. AG of the Federation (supra).
In the case in contention, the claimant before the lower Court asked for the determination of the following issues;
1. Whether it is lawful for the 1st defendant, its agents or privies to compulsorily acquire the claimants land for a purported public purpose and turn around to assign same to private individual or company.
2. Whether the 5th defendant who was assigned or was sold the claimants family land compulsorily acquired for the purpose by the 1st defendant or its allottees, assigns, privies or agents can be said to have acquired a valid title to the land assigned or sold to it.
3. Whether the claimant is not entitled to a reversion of his family land not being used for public purposes

absolutely again.
The reliefs sought by the claimant have hitherto been reproduced before now, and contrary to the position of the appellants, that 1st respondent, as claimant before the lower Court, did not ask the Court to interpret any particular instrument, statute or contract, the questions for determination were as set out, and in particular, the Court was asked to examine the following documents;
i. The deed of lease between the 1st respondent and late Chief Michael A. A. Etim.
ii. The notice of acquisition issued by the 2nd respondent acquiring 1st respondent land for public purposes.
iii. The deed of assignment between the Government of Cross River State and a Chinese construction Company, the 2nd and 5th respondents.
iv. The deed of assignment between the 5th respondent and the Appellant all over the land compulsorily acquired for public purposes absolutely.
v. The letters of the 1st respondent and the reply to them from the administrators of the estate of late Chief Micheal A. A. Etim, and,
vi. The suit filed by the 1st respondent against the 2nd respondent and the terms of settlement.
The Court in reaction to

the claimant’s action was also asked by the 1st respondent to also examine the following documents;
a. The letters of administration of the personal and real property of the late Chief Michael A. A. Etim.
b. The 1st respondent’s statement of claim, and
c. The terms of settlement and the consent judgment.
with a view of resolving the questions posed.
What then is the complaint of the appellant. I see from his submissions that appellant identified the area the Court is being asked to resolve as being the ownership of Scorpio Hotel between the present appellant, who is in possession and the 1st respondent, who is claiming a right of reversion of the property. Appellant further complain of material conflicts in the affidavit evidence before the Court, making the procedure adopted most unsuitable. In particular, learned counsel referred to the issue bordering on the identity and the precise area of the land in dispute, thus relying on the decisions ofIyordye vs. Ihyambe (supra), Alase vs. Bernice (supra), PDP vs. Abubakar (supra) and Kabiru vs. Ibrahim (supra) to contend that the action was unsuitable coming by way of

Originating Summons.
In the main what is before the Court does not seem to me to be the size, identity or otherwise of the hotel Scorpio. Rather the issue seems to be whether the 2nd respondent having compulsorily acquired the land earlier leased to one Chief Michael A. A. Etim, for public purposes, can later turn round and grant or sell the same land to an individual as against public interest. I am inclined accepting the submission of the learned senior counsel for the 1st respondent that the size of the land in the action before the lower Court was not made an issue. The case of Dagogo vs. AG Rivers State (supra), cited by learned counsel, to the effect that; a respondent to an originating summons cannot by deliberately swearing to facts which are irrelevant and or remote to the real issue submitted for determination turn an otherwise non-contentious case to a contentious one. Further to that, where it is clear that the questions are linked with the construction of exhibits, as in the case at hand, the dispute as to facts does not become substantial as to stall a clear construction of the documents. See Ports and Cargo Handlings Services Company Ltd., and Ors vs. Migfo Nig. Ltd

(2009) 11 NWLR (pt. 1153) 611 @ 651.
The submission that what was before the lower Court was the matter of interpreting the various documents placed before it, which it finally did from pages 275 – 278 of the record cannot be faulted. I resolve this issue against the appellant.

ISSUE THREE
Whether the learned trial Judge was right to hold that the 1st respondent was entitled to the immediate possession of the Scorpio Hotel land as the owner thereof and that the Appellant should vacate the property for him.

Learned counsel on the issue, drew the Courts attention to the cycle of events, coupled with the findings of the lower Court at page 281 and 286 of the record, and submits that in view of those findings, the lower Court erred in holding that the subsequent assignments of Scorpio Hotel by the 2nd to the 5th respondents and by the 5th respondent to the appellant herein were all null and void. He referred to the provisions of Section 34(2) of the Land Use Act, whereby the deemed statutory Right of Occupancy to the Scorpio Hotel was vested in the late Chief Michael Etim by virtue of the lease granted him. He

then posited that upon his death, the right devolved on the administrators of the estate of the late Michael Etim by virtue of the letters of administration granted to them, and by the year 2003, that right was conveyed to the 2nd respondent upon the payment of N100,000,000.00 (One Hundred Million Naira only) as consideration with the consent of the 1st respondent. He described as curious the decision of the 2nd respondent revoking that right of occupancy already vested on the 2nd respondent having purchased the land from the previous owners. Flowing therefrom, it was argued that the 1st respondent is not complaining about the sale of Scorpio Hotel to the 2nd respondent, but rather its revocation, and that revocation having been annulled, the property reverts to the 2nd respondent having validly purchased the same from the administrators of Chief Michael Etim with the consent of the 1st respondent. Counsel then argued that, that being the case, the subsequent sale of the property to the 5th respondent, who sold to the appellant was lawful. He also complained about the order granting the 1st respondent a right to immediate possession of the Scorpio Hotel, since

the revocation of the right of occupancy to the Scorpio Hotel land, simply means the right of the 1st respondent as the landlord of the land is restored and the lease granted to the late Chief Etim still subsists. The implication is that appellant still remains a tenant to the 1st respondent’s family up till the 30th of January, 2007 when the lease expires, and referred to the terms of settlement in suit No. HC/413/2003. In conclusion, counsel retorted that the decision of the lower Court vesting ownership of the hotel to the 1st respondent as being perverse in line with the decision of Yaro vs. Arewa Construction Ltd (2008) ALL FWLR (pt. 400) 603, and thereby urged the Court on the particular ground to set aside the judgment of the trial Court and to replace it with an order dismissing the 1st respondents claims.

In his response on the issue, the learned counsel for the 1st respondent alluded to the terms of settlement, MOJ 2 & 3 at pages 119-124 of the record, stating that the settlement was in respect of the arrears of rent being owed the 1st respondent, as found by the lower Court, and therefore the argument that such payment was in respect of

the sale of the Scorpio Hotel in full and final settlement of all his claims in the suit does not avail the appellant, as he was not a party to the terms of settlement. He further alluded to the findings of the lower Court to the effect that the property was sold in April, 2003, while the property was acquired compulsorily on the 12th of December, 2003 for public purposes only, whereas the settlement was entered in May, 2004 and adopted in June of the same year, contending that the appellant couldn’t have consented to the sale or acquisition of the land after it had been sold or acquired.

Learned senior counsel also referred to paragraphs 12 and 13 of the 2nd respondent’s pleadings at pages 116 of the record to contend that the appellant’s assertion that 2nd respondent purchased the property from the estate of Chief Etim, runs contrary to the statement by the 2nd respondent. He drew the Court’s attention to the deed of assignment between the 2nd respondent and the 5th respondent in attacking appellants submission that the land should revert to the 2nd respondent contending that the recital thereat from the 2nd respondent is

explicit on the fact that it became seized of the land by virtue of revocation, and the revocation having been declared null, the appellant has no title to hang on. He goes further to submit that where Government acquires land for the overriding interest of the public, and turns round to sell to an individual, those acts remain condemnable and cited the cases of Guinness Nig. Ltd vs. Udeani (2000) 14 NWLR (pt. 678) 367, Olatunji vs. Mil. Governor of Oyo State (1995) 5 NWLR (pt. 397) 586 @ 602, CSS Bookshop Ltd vs. RTM CRS (2006) 11 NWLR (pt. 992) 530 @ 569 and Alao vs. ACB Ltd (1998) 3 NWLR (pt. 542) 339 @ 355 in support of the principle.

Finally, learned counsel supported the view by the lower Court to the effect that the whole transaction was an illegality, and urged the Court premised on the holding of the Apex Court in, Walter vs. Skyll (Nig) Ltd (2001) 3 NWLR (pt. 701) 438, which held that Courts should not close its eyes to illegality, and to uphold the decision of the trial Court and thereby dismiss the appeal.

Mr. Emmanuel Okang, learned counsel for the 5th respondent, having adopted the issues formulated by the appellant in the determination

of the instant appeal, aligned himself to the submissions made by the appellant, further contending that an order of perpetual injunction cannot lie against the 5th respondent and her assignee having acquired the subject matter from the 2nd respondent with good title and without any notice of defect. It is his contention founded on the case of Mohammed vs. Mohammed (2012) 18 WRN 74-75, that a party purchasing a property for value without notice of any defect acquires good title. He submitted that the issue of interest in the land was contested in the lower Court by the 1st respondent in suit No. HC/413/03 and determined when the 1st – 3rd respondents compromised their interest in settlement before the assignment of the land to the 5th respondent. He argued that as at the time title was assigned to the 5th respondent, the 2nd and 3rd respondents transferred good title and the 5th respondent in that wise transferred good title to the appellant.

The facts generating the instant appeal, cannot be said to be altogether in violent contention. For instance, the 1st respondent being head of the Orok Odo family Ikpai Qua town Calabar, and owner of the

disputed land prior to its assignment to Chief Mathew Etim is not in contest. Parties are also agreed that the 1st respondent leased the said land to Chief A. A. Mathew Etim, Exhibit A, for a period of 99 years commencing from the date of the agreement, being the 16th of February, 1978. The lease was subjected to some certain terms of particularly interest are:
i. Upon the execution of these(sic) presents the lessee shall to pay to the lessor the sum of (N2,000.00) (Two Thousand Naira) being rent for the first (ten) years of the term created at the rate of N200 (two Hundred Naira) per annum.
ii. The lessee shall…
iii. The lessee shall make the first offer of sale of any building or other structures on the demised land in the event of the lessee desiring to relinquish the same provided however that if the lessor shall not accept the offer, the lessee shall be free to sell to other purchasers subject always to the terms of these present.
iv. The lessee shall not assign, sublet, part with possession of or otherwise dispose of the demised land or part thereof without the consent in writing of the lessor, such consent cannot be unreasonable withheld.

Evidence from the record showed that the late Chief Etim upon being leased the land in contention, commenced the building of what he termed Scorpio Hotel, but before he could actualise his dream, was called unto his maker. Evidence from the record also showed that his administrators desirous of selling the property therein developed by the late Chief Etim, advertised the said Scorpio Hotel for sale. Indeed as at the time the 1st respondent wrote to remind the administrators of some particular clauses in the lease between them and the deceased Mr. Etim, it would appear that the land had already been sold to the 2nd respondent, but in order to fulfil all righteousness, an offer was made to the 1st respondent which was clearly not acceptable. Evidence in the record also showed that 1st respondent, sued the administrator of the Estate of the deceased Chief Etim, and the 2nd and 3rd respondents, before the High Court, in suit with number HC/413/2003, wherein the claimants in that action sought for the following reliefs:
i. An order of perpetual injunction restraining the 2nd and 3rd defendants from purporting to purchase all that land lying and

situate at Calabar on which Scorpio Hotel is situate and registered as No. 24 at page 24 in Vol. 135 of the Land Registry Office, Calabar.
ii. An order for forfeiture against the 1st defendant of all that piece or parcel of land measuring approximately 4730.695 sq. m and registered as No. 24 at page 24 in Volume 135 of the Lands Registry in the office at Calabar.

On the 19th of May, 2004, however, a term of settlement was executed and filed before the Court of trial, which became the judgment of the Court. The terms therein are captured as follows:
i. The plaintiff who is the family head of Orok Odo family of Ikpai Qua Town, Calabar and the 1st defendant as represented by Etinyin (Barrister) J. L. E. Duke and the Principal Administrators have both affirmed that the Estate is in arrears of land rent from 1988 to 2003 totalling 15 years.
ii. The 1st Defendant has agreed to pay the sum of N5m (Five Million Naira) as rent for a nominal period of 15 years in full and final settlement of this action.
iii. Payment of the agreed sum of N5m (Five Million Naira) shall be made out of the total purchase price of N100m (One Hundred Million Naira)

to the Plaintiff’s Counsel Joe Agi, Esq., by the 2nd Defendant for the payment to the plaintiff.
iii. Payment of the balance of N95m (Ninety-Five Million Naira) shall be made directly to Etinyin (Barrister) J. L. E. Duke, Attorney to the 1st Defendant, for disbursement to the beneficiaries of the Estate of Late Chief Michael A. A. Etim.

Deducible from the established facts before the lower Court, one is safe to infer that by the statement of settlement reproduced above, the 1st respondent was paid the areas of rent due from the lease with the deceased Chief Etim. It is also obvious that in accepting the rent of Five Million Naira, and further consenting that the sums of N95,000,000.00 being the purchase price of the Hotel Scorpio, by the 2nd respondent to be paid to the children of the deceased Chief Etim, 1st respondent had not only waived his right of first offer of the property to be sold, but rather endorsed the earlier sale agreement between the Administrators of the estate of Chief Etim and 2nd respondent. In other words, the sale of the Hotel Scorpio to the 2nd respondent, the Cross River State Government cannot be said to be unlawful in

the circumstance. I am strengthened in making this deduction in that it is the statement of the law that a Court is not precluded from drawing inferences in the discharge of its adjudicative duties from established facts, oral or documentary. See Galadima vs. The State (2013) 217 LRCN 58 @ 75, MTN vs. Corporate Communication Investment Ltd (2019) LPELR-SC.674/2014.

Having acquired the Hotel Scorpio sited on the 1st respondents land, leased to the late Chief Etim, 2nd respondent now proceeded to purportedly invoke Section 28(1) of the Land Use Act 1978 to acquire both the land and the structure built on it. The averments of the 2nd respondent in that regard is paragraphs 12 and 13 thereof, to wit:
12. When it became apparent to the Government of Cross-River State that the afore said suit was commenced, the Government in the overriding public interest decided to compulsorily acquire the aforesaid hotel in December, 2003 and the notice of acquisition was published in the Punch Newspapers of 17th July, 2004.
13. In line with the provisions of the Land Use Act, the Government of Cross River State agreed to pay the sum of N100,000,000.00 as

compensation for the unexecuted improvement upon the land being the partially completed Scorpio Hotel.

The submissions of the learned counsel for the appellant makes a lot of sense to me. This is because flowing from the findings of the lower Court, specifically at pages 281 and 286 of the record, the sale of Hotel Scorpio to the 2nd respondent being valid, the subsequent sale to the 5th and thence to the appellant cannot be said to be void as held by the trial Court. I agree with learned counsel that what was avoided was the illegal acquisition of the entire land leased to the late Chief Etim, which acquisition became illegal by virtue of the sale of the entirety of the land and hotel to the 5th respondent. Mr. Okang, rightly in my view, relying on Mohammed vs. Mohammed (supra), per Ogunwumiju JCA, stated the law in that where the whole basis of equitable principle of bonafide purchaser for value without notice is to protect a purchaser from the fraud of his vendor, and further that in the development of our law, two principles have striven for mastery. The first is the protection of property, no one can give a better title than he who possesses, and the

second being the protection of commercial transactions; the person who takes in good faith and for value without notice should get good title. See further on this the English case of Bishopgate Motor Finance Corporation Ltd vs. Transport Breaks Ltd (1949) 1 ALL ER 37 @ 46.
The decision of the lower Court asking appellant to vacate the Scorpio Hotel is tantamount to granting the 1st respondent the property, Scorpio Hotel free of charge, a property it failed to acquire, when it was offered to it for sale at N250 Million Naira. It was a great windfall indeed. The argument relying on Guinness Nig. Ltd vs. Udeani (supra), Olatunji vs. Mil Gov. of Oyo State, (supra) amongst many others, all to the effect that a title acquired outside the purposes enumerated by Section 28 of the Land Use Act is illegal is stating the obvious, however the property in contention here being the Scorpio Hotel cannot be said under any guise to have been illegally obtained, as the grouse of the claimant before the lower Court remained the acquisition of the land purportedly acquired. Indeed the decision is akin to that woman whose bowl is being used to bath an innocent baby, is

granted the bowl and the baby. That would be unjust. While I agree with the lower Court that the acquisition by the 2nd respondent of the 1st respondents land as being illegal and thereby void, I do not agree that the sale of the property, Scorpio Hotel, sold to the 2nd respondent, and thereafter to the 5th respondent and the appellant with the tacit approval of the 1st respondent as being likewise illegal as held by the lower Court. In the event, the lower Court was in grave error vesting the ownership and immediate possession of the Hotel Scorpio on the 1st respondent. If for anything, there is no evidence that the tenancy agreement entered to between the 1st respondent and the late Chief Etim was terminated, and the principle of what is on the land belonging to the land applicable in the circumstance. I resolve this issue in favour of the appellant.

This appeal succeeds in part. The decision of the lower Court to the effect that 1st respondent is entitled to the immediate possession of the Scorpio Hotel as the owner thereof, and thereby that appellant vacates the property in favour of the 1st respondent is hereby set aside. Appellant is entitled to N100,000.00 as costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the opportunity of reading in draft the judgment delivered by my learned brother HAMMA AKAWU BARKA JCA.
I agree first that the preliminary objection by the 1st Respondent fails.
I also agree that the appeal succeeds in part.
I abide by the consequential order and the order as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the opportunity of reading in draft the judgment of my learned brother, Hamma A. Barka, JCA, just delivered. I am in complete agreement with the reasoning and conclusion thereby reached in allowing the appeal in part. I abide by the consequential orders including the order as to costs.

Appearances:

Eke Edem Esq. For Appellant(s)