GUDU v. LURA (2020)

GUDU v. LURA

(2020)LCN/14747(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Thursday, November 05, 2020

CA/J/19/2020

RATIO

PROCEEDINGS: PROCEDURE OF PROCEEDING BY ORIGINATING SUMMONS

Now, the procedure of proceedings by originating summons, which Respondent elected to adopt for his action in the lower Court, is restricted. That is quite unlike that of action by writ of summons. Proceedings which can be begun by originating summons are where the sole or principal issue is, or likely to be, one of construction of a written law or any instrument made under any written law, or of any deed, will, contract or other document or some other question of law, or actions where there is no substantial dispute of fact: see Order 1 Rule 2(a) (b) of the High Court (Civil Procedure) Rules of Bauchi State.
Besides the raging doubts expressed over and over by the superior Courts as to whether judgments of a law Court, like the ones in issue in this case, are within the meaning of ‘instrument’ in the Rules of Courts to be subject of construction by originating summons procedure (see Race Auto Supply Co. v. Akib (2006) ALL FWLR (PT 327) 486, (2006) 13 NWLR (PT 997) 333 (SC); NICON v. P.I.E. Co. Ltd (1990) 1 NWLR (PT 129) 697 @ 705-708; Shema v. Gov. Katsina State (2020) 5 NWLR (PT 1717) 204 @ 219; National Bank of Nigeria v. Alakija (1978) 2 LRCN 78; A.C.B. v. Ademiluyi (1965) NMLR 24 @ 25 -28), it is well established that originating summons procedure is unsuitable for hostile proceedings where facts are in dispute or likely to be in dispute. A long line of cases including the cases of National Bank of Nigeria v. Alakija (supra), A.C.B. v. Ademiluyi (supra); Race Auto Supply Co. v. Akib (supra) Shema v. Gov. Katsina State (supra) cited above and Ossai v. Wakwah (2006) ALL FWLR (PT 303) 239 @ 256 C-H, (S.C), (2006) 16 WRN 136 @ 143 all attest to that point. PER MOSES UGO, J.C.A.

PROCEEDING: APPROPRIATE PROCESS WHERE FACTS ARE LIKELY TO BE DISPUTED OR IN DISPUTE

Where facts are likely to be disputed or are in dispute the appropriate process is writ of summons, so that complete justice can be done in the case by calling oral evidence, and in fact any other evidence that the parties may desire to call, to help guide the Court in reaching an informed decision on the issues in dispute. PER MOSES UGO, J.C.A.
RETRIAL ORDER: DUTY OF THE APPELLATE COURT WHERE AN ORDER OF RETRIAL IS GIVEN

Given this order for retrial, this Court is under a duty to refrain from making any comment that is likely to prejudice the mind of the Court at the retrial: see Elijah v. State (2019) 17 NWLR (PT 1702) 527 @ 575-576 (S.C). I shall therefore refrain from giving answers to issues 1 and 2 of parties. PER MOSES UGO, J.C.A.

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

ISHAYA GUDU APPELANT(S)

And

JACOB LURA RESPONDENT(S)

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is from the judgment of the High Court of Bauchi State entering judgment for Respondent as claimed by him in his originating summons against appellant who was the defendant to the summons.

Respondent was issued a writ of possession by Area Court Bogoro on 14th June, 2000 after obtaining judgment in that Court against Respondent’s now late father who he claimed was wrongfully in occupation of his said land. Respondent filed his originating summons in the High Court of Bauchi State seeking answers to the following questions:
1. Whether by virtue of the writ of possession granted to the claimant/plaintiff by the Area Court Bogoro on 14th June, 2000, he (claimant) is not the valid owner of the farmland described in the writ of possession, in the absence of any superior title by way of appeal conferring title to the defendant (now Appellant).
2. Whether the writ of possession issued on the 31st day of May, 2001 to the father of the defendant (now Appellant) by Area Court 1 Bula in the absence of a valid Court proceeding or inconclusive Court proceedings or an appeal,

which he, claimant (now Respondent) challenged as not being proper in its content at the hearing of the summons, is a valid writ over the one issued to him, claimant (now Respondent).
3. If the 1st and 2nd issues are answered in the affirmative, whether Appellant’s occupation of the land in question vested on him (Respondent) in the writ of possession dated 14/6/2000 is not trespass.
4. Whether he, claimant (Respondent), is not entitled to compensation for the act of the trespass, if the finding of the Court with regard to inconclusive proceeding with respect to the defendant’s writ of possession is proved to be so.

In the event of those questions being answered in his favour, he prayed the lower Court to grant him the following relief:
1. An order of the Court declaring, restoring and confirming the writ of possession granted by Area Court Bogoro to him (Respondent) on 14/6/2000 as the rightful owner of the land described in the writ.
2. An order of perpetual injunction restraining defendant (appellant) from trespassing on the land.
3. An order that defendant (appellant) vacate the said land.
4. An order that

he, Respondent, is entitled to be compensated by defendant (appellant) for the period of years he, appellant, has been on the land.
5. Cost of the action.

He swore to a three-paragraph affidavit in support of his summons but the depositions relevant to his summons are contained in eighteen sub-paragraphs of paragraph 3 of that affidavit where he swore that:
1. Sometime in the year 2000 he had a case with Appellant’s now late father at the Area Court Bogoro which ended in his favour, for which he was issued Judgment and Writ of Possession. (He annexed the Hausa and English translations of the said Judgment and Writ of Possession as Exhibits A & A1 and B & B1 respectively
2. That appellant’s father refused to vacate the land despite that judgment so he commenced contempt proceedings against him but appellant’s father produced a Writ of possession issued him by Area Court Grade 1 Bula said to have been issued him by that Court upon his appeal against the Bogoro Area Court judgment, so his committal application was struck out by the Bogoro Area Court.
3. That consequent upon the striking out of his application and

in an effort to find out if his there was an appeal over the judgment he obtained at Bogoro Area Court against appellant’s father, he applied for certified true copy of the records of proceedings of Area Court 1 Bula, but what was issued to him, which he annexed as Exhibit D and D1 (Hausa and English versions) to his affidavit, was an inconclusive record of retrial of Upper Area Bula of 17th April 2001.
4. That the proceeding of the Area Court 1 Bula in Exhibits D and D1 being inconclusive, it cannot lead to or support the issuance of the Customary Right of Occupancy, annexed to his affidavit as Exhibits E & E1, issued to appellant’s father on 31/5/2001 which is the basis of Respondent and his father continued stay on the disputed land.

In a manner that left no one in doubt that his summons was likely to verge on dispute of facts, Respondent concluded his affidavit with the following almost incomprehensible prayers, conclusions and arguments in paragraphs 3(l) (m) (n) (o) (p):
3(l). That this Honourable Court is called upon to interpret the content of the two writs, Exhibit B and E, which are two writs of possession issued by

the two Courts, while in Exhibit B the record of proceeding has a judgment thereto leading to Exhibit B, while in Exhibit D which is the inconclusive record with judgment, but Exhibit E was issued.
(m) That this Honourable Court is urged upon to subpean (sic: subpoena) the maker of Exhibit E since he is alive to find out whether there was conclusive proceeding that later gave rise to Exhibit E.
(n) That the Registrar of the Area Court Bula can also be subpean (sic: subpoenaed) to attest to the fact in Exhibit D which we applied for and he certified same and gave to us.
(o) That Exhibit D and E are at variance in their content as regard to the suit numbers and the description of the land in Exhibit E.
(p) That the signature on Exhibit E [Certificate of Occupancy] as attested to by the registrar upon which was shown to him at the time we applied for Exhibit D was said to not be that of the judge who conducted the case.

Appellant responded to the summons with a six-paragraph counter affidavit which hardly improved on that of Respondent in terms of compliance with Section 115 of the Evidence Act. There, he admitted that, sometime in

the year 2000, Respondent’s father filed a case against his now Late father, Gudu Turaki, in Area Court Bogoro; that that Court, in what he referred to as its ‘abradabra style,’ entered a default judgment in favour of Respondent against his father and issued Respondent the writ of possession he is now brandishing in support of his summons. He said his father was aggrieved and appealed to the Upper Area Court Tafawa Balewa, which heard the appeal and set aside the judgment of the Area Court Bogoro and ordered a retrial of the case before Area Court Bula. The Area Court Bula, he swore, actually heard the case afresh on its merits and witnesses testified for both parties following which it dismissed Respondent’s case and confirmed the title of his father over the disputed land as shown in its record of proceedings “Exhibits Gudu and Gudu 1” annexed to his counter affidavit. Upon conclusion of its proceedings and judgment, the Area Court Bula issued his late father Exhibit E (Certificate of Occupancy) annexed to Respondent’s affidavit. The judgment of Area Court Bula, he said, has not been appealed against not set aside by

Upper Area Court Tafawa Balewa so it is subsisting while Respondent’s Writ of Possession (Exhibit B) having been set aside by Upper Area Court Tafawa Balewa is dead and cannot be given life to by Respondent’s summons. He annexed to his affidavit the Hausa and English versions (Exhibits Gudu and Gudu 1 respectively) of the complete Proceedings of the retrial of the case at Area Court Bula.

After taking written addresses that were filed by counsel to the two parties, the trial High Court of Bauchi State presided over by Kafin Madaki, J., gave its judgment of 02/10/2019 by answering in the affirmative, in favour of the Respondent, all the four questions he posed and granted all his claims. Interestingly, it managed to do that without even acceding to the prayer of Respondent/claimant in his affidavit reproduced that it subpoena the Registrar of Area Court Bula, who issued Exhibits D and E, to clear the differences in the said processes. It is however evident, even from its judgment, that it found quite herculean the task it took upon itself of resolving the questions posed in the summons without first taking oral evidence to clarify which of the

two different versions of the certified true copies of the proceedings of Area Court Bula – ‘Exhibits D and D1’ brandished by Respondent, or ‘Exhibits Gudu and Gudu 1’ relied on by Appellant – was the authentic proceedings of that Court, and was left to moan loudly in its judgment as follows:
“The question posed by this case is by no means easy to answer.”
(See Line 12 of p. 6 of its judgment at p. 149 of the Records).
Further down at page 10 of its judgment in p. 153 of the records, it moaned even louder, saying:
“Even at that, the fact remains that two different and irreconcilably conflicting judgments of the Bula Area Court have been placed before me. One of them – Exhibit D1 attached to the supporting affidavit – shows that the judgment is inconclusive as it stops where the first plaintiff’s witness was cross-examined by the Court. The other one – Exhibit “Gudu 1” attached to the counter affidavit – shows that the judgment has been logically concluded where the farmland in dispute was vested on Gudu Turaki, the father of the defendant.

“The situation where I am confronted with two different and conflicting judgments of the Bula Area Court has placed me in a state of confusion, helplessness, and bewilderment.”

It likened its ordeal to an appellate Court faced with incomplete records and cited the dictum of Tobi, JSC, in Okochi & Ors v. Animkwoi (2003) LPELR-2455 (SC) to buttress that point.

One would have thought that, at that point it would occur to it, in the larger interest of justice, to do what the law demands of it in such situation and order pleadings to be filed, so that oral evidence, including the one suggested by the Respondent, could be taken to put everything in proper perspective and save it from its “confusion, helplessness and bewilderment” before it proceeds to write judgment. Surprisingly, it did not take that path but proceeded to work through its difficulties with only affidavit evidence and entered judgment for Respondent.

Appellant, against whom judgment was entered by that procedure, is dissatisfied hence this appeal. He framed the following three questions from his five grounds of appeal for us to determine:

Whether the Respondent discharged the burden of proof upon a party seeking for declaring of title and therefore entitled to judgment.
2. Whether failure to produce the records of proceedings is fatal to the appellant’s case when same is not in issue and admitted by the Respondent and the Court.
3. Whether suit No: BA/143/2019 being contentious could be resolved by affidavit evidence without ordering pleadings.

His argument on issue One was directed, strangely, at the correctness of the judgment of the Area Court Bogoro upon which the Respondent founded his case at the lower Court. He argued that a person who seeks declaration of title has the burden of proving his entitlement to it and that was the burden on respondent at the Area Court Bogoro, he being the claimant there. He says appellant failed to discharge it so Area Court Bogoro Court was wrong in giving effect to that judgment and we should so hold.

On issue 2, he argued that the trial Judge was also wrong in his decision that there was no proof before him that the decision of Area Court Bogoro was set aside by the Upper Area Court Tafawa Balewa, culminating in the judgment of the Area

Court Bula. He submitted that not only were parties in agreement in their affidavits that the decision of Area Court Bogoro was set aside by the Upper Area Court Tafawa Balewa, thus making it unnecessary for proof of same as facts admitted need no further proof, the proceedings of that Court attached to the affidavits of parties at the lower Court showed that Respondent and his father also appeared at the Area Court Bula and contested it there so it was not a fact that needed further proof.

On issue 3, he argued that the facts in the originating summons of respondent were contentious, especially as regards whether the proceedings of the decision of Area Court Bula were conclusive or not. He said that fact was further demonstrated by the lower Court in its judgment where it admitted the irreconcilably conflicting nature of the two proceedings of Area Court Bula tendered by parties and bemoaned the helpless and confused state it was put into by that reason. In those circumstances, he argued, it should have ordered pleadings; that the failure to order pleadings caused miscarriage of justice so we should set aside the judgment of the lower Court.

In response first to issue 1, Respondent argued that it proved its case before the Area Court Bogoro and so properly given judgment by that Court; that the burden was rather on appellant who claimed that the Bogoro Area Court judgment was set aside by the Upper Area Court Tafawa Balewa failed to prove it by producing the proceedings of the Upper Area Court Tafawa Balewa setting aside the decision of the Area Court Bogoro; that he failed to do so the lower Court was correct in its decision. He submitted that the decision of the Upper Area Court Tafawa Balewa on appeal, by virtue of Section 128(1) of the Evidence Act 2011, is only provable by its proceedings itself and nothing else. As for appellant’s attack on the judgment of the Area Court Bogoro, Respondent replied that the judgment on appeal here is the judgment of the High Court of Bauchi State and not that of Area Court Bogoro.

On issue 2, he repeated his argument of Section 128(1) of the Evidence Act 2011 making the proceedings of Court exclusive proof thus making production of the records of proceedings of Area Court Tafawa Balewa setting aside the decision of the Area Court Bogoro inevitable.

Without that proceeding, he again submitted, judgment was bound to be entered in his favour by the lower Court as it did.

On issue 3, he argued that the case before the lower Court was not contentious to warrant an order for filing of pleadings. He said facts were not in dispute; that the only issue before the Court was one of merely going through documents to decipher which document between his Exhibit B issued by Area Court Bogoro in 2000 and Exhibit E issued by Area Court Bula to appellant prevails. Appellant’s failure to tender the retrial order of retrial order of the Upper Area Court Tafawa Balewa, he once again argued, was fatal to his case at the lower Court so it was correct. He concluded by praying us to dismiss this appeal with severest cost.

Resolution of issue
Now, the procedure of proceedings by originating summons, which Respondent elected to adopt for his action in the lower Court, is restricted. That is quite unlike that of action by writ of summons. Proceedings which can be begun by originating summons are where the sole or principal issue is, or likely to be, one of construction of a written law or any instrument made

under any written law, or of any deed, will, contract or other document or some other question of law, or actions where there is no substantial dispute of fact: see Order 1 Rule 2(a) (b) of the High Court (Civil Procedure) Rules of Bauchi State.
Besides the raging doubts expressed over and over by the superior Courts as to whether judgments of a law Court, like the ones in issue in this case, are within the meaning of ‘instrument’ in the Rules of Courts to be subject of construction by originating summons procedure (see Race Auto Supply Co. v. Akib (2006) ALL FWLR (PT 327) 486, (2006) 13 NWLR (PT 997) 333 (SC); NICON v. P.I.E. Co. Ltd (1990) 1 NWLR (PT 129) 697 @ 705-708; Shema v. Gov. Katsina State (2020) 5 NWLR (PT 1717) 204 @ 219; National Bank of Nigeria v. Alakija (1978) 2 LRCN 78; A.C.B. v. Ademiluyi (1965) NMLR 24 @ 25 -28), it is well established that originating summons procedure is unsuitable for hostile proceedings where facts are in dispute or likely to be in dispute. A long line of cases including the cases of National Bank of Nigeria v. Alakija (supra), A.C.B. v. Ademiluyi (supra); Race Auto Supply Co. v. Akib (supra) Shema v. Gov. Katsina State

(supra) cited above and Ossai v. Wakwah (2006) ALL FWLR (PT 303) 239 @ 256 C-H, (S.C), (2006) 16 WRN 136 @ 143 all attest to that point. Where facts are likely to be disputed or are in dispute the appropriate process is writ of summons, so that complete justice can be done in the case by calling oral evidence, and in fact any other evidence that the parties may desire to call, to help guide the Court in reaching an informed decision on the issues in dispute.
In the instant case, by (1) the claims of Respondent himself, especially the parts of his claim I italicized, where he brought into issue the Area Court Bula proceedings in favour of Appellant, which proceeding he (Respondent) also referenced in the questions he wanted the lower Court to construe for him by his originating summons, (2) Respondent’s own prayer in his supporting affidavit, also referenced earlier, that the trial Judge subpoena the Registrar of the Area Court Bula to come to Court and clarify which of two different proceedings of his Court, one complete and the other incomplete, is the real proceeding of that Court, (3) the lamentation of the lower Court itself

regarding the helpless, confused and bewildered state it found itself when it not only overlooked the fact that the facts in support of the Respondent’s case showing likelihood of dispute on facts but also ignored Respondent/claimant’s own prayer to call oral evidence and proceeded to enter judgment for Respondent, it is clear that material facts were in dispute. That much is further shown by the complete version of the Bula Area Court proceedings, Exhibit “Gudu and Gudu1” annexed to appellant’s counter affidavit. Those two documents suggest, at least, that Respondent’s father, from whom respondent founds his claim to the disputed land, also participated in the Area Court Bula proceedings. If that is the position the case and Exhibits Gudu and Gudu 1 were by any chance the real proceedings of that Court, other serious issues of law, including whether Respondent’s father who already had the judgment of Area Court Bogoro in his favour would ignore that judgment and participate in the latter proceedings at Area Court Bula for title over the same land without any order of retrial by a superior Court, were likely to emerge,

hence the need to first heed Respondent’s plea by first calling necessary witnesses to resolve the disputed issue of the authentic proceedings of Area Court Bula.
It is thus clear to me that the judgment of the High Court of Bauchi State on Respondent’s originating summons, which it reached only on disputed depositions in affidavits, was perverse and occasioned miscarriage of miscarriage of justice and so liable to be set aside. Accordingly, this appeal is allowed and the judgment of the High Court of Bauchi and all the orders made therein, including damages is hereby set aside and in its stead, it is hereby ordered that pleadings be filed in the case by parties and the case be tried afresh by another Judge of that Court.

Costs of this appeal are assessed at ₦50,000.00 in favour of the appellant.

TANI YUSUF HASSAN, J.C.A.: I had the opportunity of reading before now, the lead judgment of my learned

brother, BOLOUKUROMO MOSES UGO, JCA. I agree with the conclusions reached therein and abide by the consequential order made. I also award costs of N50,000.00 in favour of the appellant.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the advantage of reading in draft the lead judgment just delivered by my learned brother, BOLOUKUROMO MOSES UGO, JCA and I agree with the reasoning and conclusion contained therein that the appeal is meritorious and should be allowed.

I also allow the appeal and subscribe to all the consequential orders made therein.

Appearances:

O. Nwoye, Esq. For Appellant(s)

M. Jabba, Esq. For Respondent(s)