HASSAN v. LIMAN (2022)

HASSAN v. LIMAN

(2022)LCN/16792(CA)

In the Court of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, July 01, 2022

CA/A/117/2020

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Between

MOHAMMED MUNIR HASSAN (SUED AS PERSONS UNKNOWN IN OCCUPATION OF PROPERTY OF THIS ACTION) APPELANT(S)

And

HASIYA K. LIMAN (SUING THROUGH HER LAWFUL ATTORNEY, MONKAS GAS NIGERIA LTD) RESPONDENT(S)

RATIO

WHETHER OR NOT A PERSON WHO IS NOT A PARTY TO A SUIT CAN ON HIS OWN VOILITION FILE A PROCESS IN THE SUIT AS A DEFENDANT

It follows therefore, a person who is not a party to a suit, having not been sued as a Defendant by a Claimant, can neither on his own volition file any process in the suit as a Defendant nor can he on his own volition file an appeal against the judgment of a Court in a suit to which he was not a party. He must first seek and obtain the order of the Court to join at the lower Court to file processes as a party or seek and obtain the leave of this Court to appeal against such a judgment in a suit to which he was not a party as an interested party. Unless, through either of this options or procedures, a person who was not sued as a party cannot in law on his own volition file any process as a party before the lower Court or file an appeal against a judgment in a suit, in which he was not a party as of right. See Section 243(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). See also Council for the Regulation of Engineering in Nigeria (COREN) V. Registered Trustees of Licensed Electrical Contractors Association of Nigeria & Ors. (2022) LPELR-56795(CA) per Sir Biobele Abraham Georgewill JCA; Bi – Courtney Ltd V A.G. Federation (2019) 4 MJSC (Pt. 1) 118 AT p. 142; Owena Bank (Nig) Plc V NSE Ltd (1997) 8 NWLR (Pt. 515) 1 AT p. 19. Chukwu V. INEC (2014) 10 NWLR (Pt. 1415) 385 AT pp. 414 – 415; Bala V. Dikko (2013) NWLR (Pt. 1343) 52. PER GEORGEWILL, J.C.A

THE CONDITION THAT MUST BE FUILFILED FOR A PERSON WHO IS NOT A PARTY TO A SUIT CAN BE PERMITTED TO APPEAL

In Omotesho V Abdullahi (2008) 2 NWLR (PT. 1072) P.526 AT 547, the Supreme Court held inter alia thus:
“Before a person who was not a party can be permitted to appeal under that provision of the Constitution, such person ought to show that he is interested or aggrieved by the decision sought to be appealed against”
See also AGIP Nig Ltd V AGIP Petrol International & Ors. (2010) All F WLR (Pt. 2010) 1198; Dana Airlines Limited V. Mrs. Grace Eventus Mbong & Ors (2017) LPELR- 43052 (CA) per Sir Biobele Abraham Georgewill, JCA; FGN V. Zebra Energy Ltd (2003) 105 LRCN 363 AT p. 367; Ziklagsis Network Ltd. V. Adebiyi & Ors (2017) LPELR-42899 (CA), per Sir Biobele Abraham Georgewill JCA; Peter Chidebelu & Anor V. Probate Register High Court of Anambra State & Ors. (2013) LPELR-21215 (CA); Panalpina World Transport Nig. Ltd V. J.B Olandeen International & Ors. (2010) LPELR-2902 (SC); Assams & Ors. V Ararume & Ors. (2015) PELR-40828 (SC). PER GEORGEWILL, J.C.A

THE POSITION OF LAW ON THE JURISDICTION OF THE COURT

In law, jurisdiction is the authority a Court has to entertain an action or matter brought before it. It is fundamental to adjudication and without it a Court would lack the power to entertain a suit over which it had not the requisite jurisdiction, since to do so would amount to a nullity, no matter how well conducted the proceedings might be or how sound the resultant judgment or decision might be. Generally, it is the claim of the Claimant that determines the jurisdiction of the Court and therefore, once the claim of a Claimant is outside the jurisdiction of the Court, it is incompetent and must be put or brought to an end. See Madukolu V Nkemdilim (1962) 1 All NLR 58 AT p. 595. See also Western Steel Works Ltd. V. Iron & Steel Workers Union (1987) 1 NWLR (Pt. 49) 284; Andrew V. Oshoakpemhe & Ors (2021) LPELR-53228 (CA) per Sir Biobele Abraham Georgewill JCA. PER GEORGEWILL, J.C.A

WHETHER OR NOT IT IS EVERY CONFLICT IN AN AFFIDAVIT THAT WILL WARRANT THE CALLING OF ORAL EVIDENCE FOR ITS RESOLUTION

In law, it is not every seeming conflict arising from affidavit evidence that would warrant the calling of or resort to oral evidence for its resolution. It is only where the issues of facts are so contentious and irreconcilable as to facts that a Court would, or rather should, be wary of rushing to determine such a claim on affidavit evidence only in an Originating Summons. Indeed, such a claim would be more suited and proper for determination on the pleadings and evidence of the parties under proceedings begun by means of a Writ of Summons. Generally, the Originating Summons procedure is limited in its scope of use and should not be adopted in civil proceedings in which there are substantial disputes of facts. It should never be resorted to in cases where there are controversies and a lot of disputed facts between the parties. In such cases, a Claimant should approach the Court by way of a Writ of Summons, which will allow each side to file pleadings and sort out the issues in dispute between them at full trial. See Hon Olayide Adewale Akinremi & Anor V. Muttaka Bala Suleiman & 17,916 08 Ors (2022) LPELR- 56903(CA) per Sir Biobele Abraham Georgewill JCA. See also Johnson & Ors V. Mobil Producing Nigeria Unlimited & Ors. (2009) LPELR-8280 (CA). See also Pam V. Mohammed (2008) 16 N.W.L.R (pt. 112) I at p. 88; Esezoobo V. Nsitf & Ors. (2012) LPELR-9282 (CA); Ossai V. Isaac F. Wakwah (2006) 4 NWLR (Pt. 969) 208; AG. Adamawa V. AG. Federation (2005) 18 NWLR (Pt. 958) 581. PER GEORGEWILL, J.C.A

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Federal Capital Territory, Abuja. Coram: Bello Kawu J, in Suit No, FCT/HC/3()20/2019: Hasiya K. Liman (Suing Through Her Lawful Attorney, Monkas Gas Nigeria Ltd) V. Persons Unknown (Mohammed Munir Hassan sued as persons unknown in occupation of Property), delivered on 17/1/202(). in which it entered judgment for and ordered possession of the affected property for the Respondent against the Appellant.

The Notice of Appeal was filed on 20/1/2020 on three grounds of appeal. See pages 45-47 of the Record of Appeal. The Record of Appeal was compiled and transmitted to this Court on 14/2/2020. The Parties filed and exchange their briefs, which were adopted as their arguments at the hearing of this appeal on 4/4/2022. The Appellant was represented by S. I. Ameh SAN appearing with Ganny Ajape Esq. and John Itodo Esq. The Respondent was represented by I.E. Udegbu Esq. appearing with P. Igbita Esq.

By an Originating Summons for possession pursuant to Order 60 Rule 2 of the Rules of the lower Court filed on 24/9/2019, the Respondent as Claimant commenced an action against ‘Persons Unknown’ for an Order to recover possession of Plot No. 3561 Cadastral Zone AO5 of Maitama District measuring about 1,663. 30sqm on the ground that Respondent is entitled to possession and that the persons in occupation are in occupation without his licence or consent. See pages 1-5 of the Record of Appeal.

BRIEF STATEMENT OF FACTS
The case of the Respondent as Claimant before the lower Court as can be seen from the Record of Appeal was that some unknown persons were in occupation as squatters in her property situate at Plot No 3561, Cadastral Zone A05 Maitama District, Abuja and that she was allotted the said plot by the Ministry for Federal Capital Territory as approved by the Honourable Minister of the FCT. The Claimant complied with all the conditions and terms of the offer and was issued with a Certificate of Occupancy in respect of the said plot, which she later conveyed her interest to her lawful attorney through an irrevocable Power of Attorney duly executed on 8/10/2005 and duly registered on 26/7/2019. That despite these, unknown person without any title to the said plot had gone into the said plot and erected shanties and batchers, where they sell lea and bread and have refused to give up possession to the Claimant. See pages 1-26 of the Record of Appeal.

The case of the Appellant as can be seen from the Record of Appeal was that the said plot belongs to his son, one Mohammed Munir Hassan and that his attention was drawn to the processes of the lower Court served on the said plot on 16/10/19. In 1991, he had applied to Federal Housing Authority for a piece of land on behalf of his said son and was allocated a residential Plot No. 8A, LS (D) Federal Housing Authority Estate, Maitama District, Abuja, FCT on 10/9/1991, over which said plot he has consistently exercised absolute possession and control. Sometimes in 1998, he sold a bungalow he built thereon to the Joint Admission and Matriculation Board. He has some structures he built on the remaining portions of the said plot and has been paying outstanding charges on the said plot to the Federal Housing Authority, and is not a squatter on the said plot as claimed by the Respondent. See pages 27-37 of the Record of Appeal.

The Originating Summons was supported by an affidavit and a written address. However, upon service on the ‘Persons Unknown’ on the affected property, the Appellant filed a memorandum of conditional appearance on 18/10/2019 along with a Counter-Affidavit and written address. On 11/12/2019, the Originating Summons was heard, wherein the written addresses were duly adopted, and on 17/1/2020, the lower Court delivered its judgment granting possession to the Respondent against the Defendant on record, hence this appeal by the Appellant. See pages 40-44 and 45-47 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s brief, two issues were distilled as arising for determination from the Grounds of appeal, namely:
1. Whether the Respondent commenced her action by a competent Originating process to vest jurisdiction in the lower Court? (Distilled from Ground 1)
2. Whether the lower Court was right in refusing to order pleadings and proceeded to hear and determine the Suit via Originating Summons and affidavits? (Distilled from Grounds 2 and 3)

In the Respondent’s Amended Brief, a lone issue was distilled as arising for determination in this appeal, namely:
“Whether the trial was properly commenced by the Respondent by way of Originating Summons?”

I have taken time to consider the endorsements on the Originating Summons as to the facts and the parties therein before the lower Court as well as the affidavit and counter-affidavit of the parties in this appeal. I have also considered the submissions of counsel for the parties in the light of the findings and decisions reached in the judgment of the lower Court appealed against. I am of the view that the apt issues arising for determination in this appeal are the two issues as distilled in the Appellant’s brief, a consideration of which, in my view, would involve a consideration of the sole issue as distilled in the Respondent’s Amended brief. However, I shall consider both issues one and two together and resolve them in one fell swoop.

But first, there is a Notice of preliminary objection as well as a Respondent’s Notice challenging the competence of the appeal. However, there is a challenge to the competence of the Respondent’s Notice. I shall therefore, consider both the preliminary objection of the Respondent and the challenge of the Appellant to the Respondent’s notice together, both being jurisdictional in nature before proceeding to, if need be, consider and determine the merit or otherwise of the substantive appeal.

RULING ON NOTICE OF PRELIMINARY OBJECTION AND RESPONDENT’S NOTICE
By a Notice of preliminary objection incorporated into the Respondent’s Amended Brief, the Respondent is praying this Court for an order dismissing this appeal for lack of jurisdiction on the grounds that the Appellant was not a party to the Respondent’s suit before the lower Court and failed to seek and obtain the leave of this Court to appeal as an interested party as required of him by law.

By a Respondent’s Notice filed on 4/8/2021, the Respondent intends to contend that the judgment of the lower Court delivered on 17/1/2020 should be affirmed on grounds other than those relied on by the lower Court below in that Appellant was not a party to the Respondent’s suit as instituted before the lower Court and having not been joined as a Defendant by the lower Court, and therefore lacks the locus to file this appeal.

RESPONDENT’S COUNSEL SUBMISSIONS
In his submissions, which I have taken time to review, learned counsel for the Respondent had submitted inter alia that in law, jurisdiction is sine quo non for assumption of power by a Court to try a matter and contended that a Court can only assume jurisdiction over parties when the originating processes have been served on the Defendants and urged the Court to hold that a person who is not a Defendant to a suit but wants to be a party must apply to be joined to the suit as a party and be so joined by order of Court before he can come under the jurisdiction of the Court and to uphold the preliminary objection against the appeal filed by a person who was neither a party to the Respondent’s suit before the lower Court nor applied and was so joined by the lower Court and to strike out the appeal for being incompetent. Counsel relied on Zenith Bank Plc V. Mrs Elizabeth Umom (2013) LPELR-22001 (CA); Monsuru Davies & Ors V. Prince Tajudeen & Ors (2017) LPELR-41871 (CA).

It was also submitted that neither the Appellant made the Respondent a Defendant nor did the Appellant ever applied and/or was joined as a Defendant by the lower Court to the Respondent’s suit as a Defendant and contended that in law a person whose name was not on the originating processes cannot become a party without the order of the Court joining him as such and urged the Court to hold without the order of Court joining a person as a party to a suit, such a person cannot file papers claiming to be a Defendant in a pending suit and urged the Court to hold that in the absence of such joinder and the service of the originating processes on such a person as joined by the order of Court, there is no jurisdiction in the Court over such a person, a mere meddlesome interloper and to uphold the preliminary objection and strike out the appeal commenced by a meddlesome interloper for being incompetent. Counsel referred to Order 13 Rule 21(1) of the Civil Procedure Rules of the High Court of the Federal Capital Territory Abuja and relied on Panapina World Transport Nig. Ltd V. J.B Olandeen International & Ors. (2010) LPELR-2902 (SC); Okeke V. Lawal & Ors. (2018) LPELR-43920 (SC); Captain A. Olu Olumogba V. Baale Musendiku Ishola Jatto & Ors. (2018) LPELR-49353 (CA); Diamond Bank V. Opara & Ors. (2018) LPELR-43907 (SC).

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his submissions, which I have taken time to review, learned senior counsel for the Appellant had submitted inter alia that in law a Respondent who wants the decision of the lower Court to be varied or affirmed on other grounds, other than the grounds relied upon by the lower Court, such a Respondent is at liberty to file a Respondent’s Notice but contended that a Respondent Notice must be based on the originating processes before a lower Court, issues raised, evidence led and the decision appealed against and urged the Court to hold that the issues sought to be raised in the Respondent’s Notice, purporting to challenge the appearance and participation of the Appellant as the Defendant at the lower Court is not predicated upon the Record of Appeal and therefore, incompetent and should be struck out. Counsel referred to Order 9 of the Court of Appeal Rules 2021 and relied on AG. Imo State V. Imo Rubber Estates Ltd (2020) 13 NWLR (Pt. 1741) 209 AT p. 241; Achianga V. AG. Akwa Ibom State (2015) 6 NWLR (Pt. 1445); Etiemone V. Apina (2019) 15 N WLR (Pt. 1696) 557; Govt. Akwa Ibom State Vs. Polaris Bank Ltd (2019) 8 NWLR (Pt. 1674); Alade V. Ogundele (2014) All FWLR (Pt. 743) 2027; Re: INDIC V. Rosabol (Nig.) Ltd. & Ors (2017) LPELR-41925; Gwede V. INEC (2014) 18 NWLR (Pt. 1438) 56; Labour Party V. INEC & Ors (2011) LPELR-4418 (CA); Joseph Afolabi V. John Adeleke (1983) 2 SCNLR 141 AT p. 150; EZE V. UGWUEZE (2014) LPELR-22482 (CA); Lagos City Council V. Ajayi (1970) LPELR-1742; County V. City Bricks Development Company Ltd & Anor (2019) LPELR-46889 (CA); Williams V. Daily Times (1990) 1 NWLR (Pt. 124) 1 AT p. 20 Liba V. Koko (2017) 11 NWLR (Pt. 1576) 335.

RESOLUTION OF THE PRELIMINARY OBJECTION
My lords, on the Respondent’s Notice, I have taken time to consider the processes filed by the parties as in the Record of Appeal. I have also considered the issues canvassed by the parties before the lower Court as well as the findings in the judgment appealed against. In the Respondent’s Notice, the purpose as can be clearly discerned therefrom is to raise issue completely strange to the issues joined by the parties and on which the lower Court delivered its judgment. In law, a Respondent’s Notice cannot be relied upon outside the facts and issues canvassed in the Record of Appeal. It is therefore, not an avenue for a Respondent to raise and canvass any and every issues not supported by the Record of Appeal. Thus, the facts sought to be relied upon in a Respondent’s Notice must be apparent from the face of the Record of Appeal. See Inspector General of Police & Ors V. Peter O. Ikpila & Anor (2015) LPELR-40630(CA), per Sir Biobele Abraham Georgewill, JCA.

In the circumstances therefore, I cannot but agree with the apt submissions of the learned senior counsel for the Appellant, and I do so hold, that there is nothing in the Respondent’s Notice that shows any intention in compliance with the correct purposes for the use of a Respondent’s Notice as provided by the Order 9 of the Court of Appeal Rules, 2021 and pronounced in countless numbers of decided cases. The Respondent does not by her Respondent’s Notice seek to contend that the decision of the lower Court was correct but its conclusion had adversely affected her and should be affirmed on other grounds as is required in law of a Respondent relying on a Respondent’s Notice. I hold therefore, that the Respondent’s Notice in the instant appeal is neither proper nor appropriate, as aptly and unassailably contended by the learned senior counsel for the Appellant, and which contention is hereby upheld and consequently, the Respondent’s Notice is hereby struck out. See Inspector General of Police & Ors V. Peter O. Ikpila & Anor (2015) LPELR-40630(CA), per Sir Biobele Abraham Georgewill, JCA. See also Williams V. Daily Times (1990) 1 NWLR (Pt. 124) 1 AT p. 20; AG. Imo State V. Imo Rubber Estates Ltd (2020) 13 NWLR (Pt. 1741) 209 AT p. 241; Gwede V. INEC (2014) 18 N WLR (Pt. 1438) 56; County V. City Bricks Development Company Ltd & Anor (2019) LPELR-46889 (CA).

Let me now proceed to consider the Respondent’s Notice of preliminary objection. In law, jurisdiction is sine qua non for assumption of power by a Court of law to try any matter before it. A Court would only assume jurisdiction over a party as Defendant when the Originating processes have been served on him as required by law. Thus, a person on whom an originating process was not served is not subject to the jurisdiction of the Court and therefore, the Court cannot assume jurisdiction over a person not served with the Originating process in a suit.
In similar vein, a person who is not sued as a Defendant, and therefore, not served with an Originating Summons, is not subject to the jurisdiction of the Court, unless and until he is joined either on the application of the Claimant or on his own application as a Defendant or in deserving cases he is joined by the Court suo motu as a Defendant. Thus, a person who though not sued as a Defendant to a suit but who wants to be made a party to protect his interest in the subject matter of the suit, must apply to be joined to the suit as a Defendant and if and when so joined by an Order of Court then he becomes party and therefore, comes under the jurisdiction of the Court.
It follows therefore, a person who is not a party to a suit, having not been sued as a Defendant by a Claimant, can neither on his own volition file any process in the suit as a Defendant nor can he on his own volition file an appeal against the judgment of a Court in a suit to which he was not a party. He must first seek and obtain the order of the Court to join at the lower Court to file processes as a party or seek and obtain the leave of this Court to appeal against such a judgment in a suit to which he was not a party as an interested party. Unless, through either of this options or procedures, a person who was not sued as a party cannot in law on his own volition file any process as a party before the lower Court or file an appeal against a judgment in a suit, in which he was not a party as of right. See Section 243(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). See also Council for the Regulation of Engineering in Nigeria (COREN) V. Registered Trustees of Licensed Electrical Contractors Association of Nigeria & Ors. (2022) LPELR-56795(CA) per Sir Biobele Abraham Georgewill JCA; Bi – Courtney Ltd V A.G. Federation (2019) 4 MJSC (Pt. 1) 118 AT p. 142; Owena Bank (Nig) Plc V NSE Ltd (1997) 8 NWLR (Pt. 515) 1 AT p. 19. Chukwu V. INEC (2014) 10 NWLR (Pt. 1415) 385 AT pp. 414 – 415; Bala V. Dikko (2013) NWLR (Pt. 1343) 52.

In the instant case, I have looked at and scrutinized the Originating Summons filed by the Respondent to commence the action in this case before the lower Court. Now to know and ascertain who are parties to a suit, particularly for the purposes of determining whether a prospective Appellant is a person who can appeal as of right as a party or one who must seek the leave of Court to appeal as an interested party, the document to be scrutinized is simply the Originating processes and any other Court Ordered amended Originating process to see who the parties are on the record. In this respect, even a mere record of proceeding of the lower Court not in consonance with the parties as reflected either on the Originating process or amended Originating process would be of no moment as it is not the Court that creates parties before it.

Thus, in the instant appeal, where there is no evidence of any Court ordered amended Originating Summons, the only document to scrutinize to ascertain the parties before the lower Court, for the purposes of determining the preliminary objection, is the Respondent’s Originating Summons, which can be glaringly found and seen at page 2 of the Record of Appeal. In it, I can see the parties to be as follows Claimant – The Appellant. Defendant – ‘Persons Unknown’. I am unable to see the name of the Appellant as a party, either as Claimant or Defendant. In law, who then can be referred to as ‘Persons Unknown’? ‘Persons Unknown’ have been defined to refer to natural persons whose name or real identity is not known to the Claimant at the time of instituting the action in Court. See Monsuru Davies & Ors V. Prince Tajudeen Odofin & Ors (2017) LPELR-41871 (CA).

However, once a person identifies himself as the ‘Persons Unknown’ he is under a duty to apply to the Court before which the suit is pending by way of Motion identifying himself as the Persons Unknown’ and seeking to be joined as a party to the suit. It is only and only when the Court grants his application that he becomes a party on record to the suit, but until then he remains a stranger to the suit. In the instant appeal, the only Defendants on record in the Respondent’s Originating Summons before the lower Court were the ‘Persons Unknown-. There is nowhere in the Record of Appeal that the name of the Appellant was endorsed on the Respondent’s Originating Summons as a Defendant. The parties as well as this Court are bound by the Record of Appeal. Interestingly, at page 2 of the Record of Appeal, it is stated inter alia thus:
“NOTE: Any person occupying the premises who is not named as Defendant by this Summons may apply to the Court personally or by legal practitioner to be joined as Defendant….”
My lords, I thought the above procedure was very clear and simple enough for any person, including the Appellant, to have complied with without any fuss to simply apply to the lower Court to be joined as a Defendant. There is no record that the Appellant did apply to be joined as a Defendant, and he also did not say that he did applied to be joined as a Defendant to the Respondent’s suit before the lower Court. I find therefore, as fact that the Appellant was not and is still neither a party nor a Defendant to the Respondent’s suit. His joinder as a Defendant was thus sine quo non for his participation as a party to the Respondent’s suit. See Order 13 Rule 21(1) of the Civil Procedure Rules of the High Court of the Federal Capital Territory Abuja 2018. See also Okeke V. Lawal & Ors. (2018) LPELR-43920 (SC). See also Captain A. Olu Olumogba V. Baale Musendiku Ishola Jatto & Ors. (2018) LPELR-49353 (CA); Diamond Bank V. Opara & Ors. (2018) LPELR-43907 (SC).

In law, parties, particularly in a Superior Court of Record duly established under the Constitution of Nigeria 1999 (as amended), do not just jump into proceedings of the Court. They are either made parties by the Claimant or they seek and obtain the leave of the Court to be joined as parties, either as co-Claimants or Defendants. They do not have the prerogative or the luxury to, at their own whims and caprices, just jump into the fray, as one often sees at the professional wrestling shows on Television where even non-wrestlers could jump into the fray to make the program merrier for both the spectators and those viewing from the comfort of their homes. The lower Court was not one of such Arena, it was a Court of law, a superior Court of Record for that matter, where due process is king!
My lords, the Appellant was neither made a Defendant by the Respondent nor did he apply and was joined as a Defendant by the Order of the lower Court. In law, a person whose name was not on the Originating processes cannot therefore, become a party without the Order of the Court joining him as such. The Appellant cannot therefore, without an Order of lower Court joining him as a Defendant file any papers or processes claiming to be a Defendant in the Respondent’s suit. His purported counter-affidavit, on whose basis he had thought he was a party and had filed this appeal as of right without the leave of this Court first sought and obtained as an interested party, was incompetent and never existed in the eyes of the law as a Court process before the lower Court. See Order 13 Rule 21(1) of the Civil Procedure Rules of the High Court of the Federal Capital Territory Abuja 2018. See also Panalpina World Transport Nig. Ltd V. J.B Olandeen International & Ors. (2010) LPELR-2902 (SC).
I firmly hold therefore, that in the absence of any joinder of the Appellant as a Defendant by the lower Court and due service on him of the Respondent’s Originating Summons properly amended to reflect his name as a Defendant, the lower Court had no jurisdiction over the Appellant who remained a non-party to the Respondent’s suit. The Appellant therefore, was and had remained a meddlesome interloper, who had no vires not being a party to file this appeal without the prior leave of this Court sought and obtained to appeal as an interested party as required by law. See Section 243 (A) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). See also Council for the Regulation of Engineering in Nigeria (COREN) V. Registered Trustees of Licensed Electrical Contractors Association of Nigeria & Ors. (2022) LPELR-56795(CA) per Sir Biobele Abraham Georgewill JCA; AGIP Nig Ltd V AGIP Petrol International & Ors. (2010) All FWLR (Pt. 2010) 1198; FGN V. Zebra Energy Ltd (2003) 105 LRCN 363 AT p. 367.

In the circumstances therefore, I hold firmly that this appeal filed by an Appellant who was neither a Defendant on record before the lower Court nor who had first sought and obtained the leave of this Court to appeal against the judgment of the lower Court as an interested party, is one not only incompetent but one also amounting to an abuse of the processes of this Court, and ought to be terminated in limine without much ado! The Courts frown deeply at abuse of its processes. The preliminary objection therefore, succeeds and it is hereby upheld. Consequently, this appeal is hereby struck out for being both incompetent and an abuse of Court process See Section 243 (A) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

However, I am aware that we are only but the penultimate Court in the land enjoined consistently by the Apex Court to consider and resolve all issues presented before us by the Parties. I shall therefore, in due deference to this admonition proceed to consider the merit or otherwise of this appeal, and I do so anon!

ISSUES ONE AND TWO
Whether the Respondent commenced her action by a competent Originating Process to vest jurisdiction in the lower Court AND whether the lower Court was right in refusing to order pleadings and proceeded to hear and determine the suit via Originating Summons?

APPELLANT’S COUNSEL SUBMISSIONS
In his submissions on issues one and two, which I have taken time to review, learned senior counsel for the Appellant had submitted inter alia that the Respondent’s suit was incompetent having been commenced by means of an Originating Summons filed not pursuant to Order 2 Rules 1, 2 and 3 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 2018, which prescribes the mode of commencement of actions before the lower Court but rather purportedly pursuant to Order 60 Rule 2 as in Form 47 of the Rules of the lower Court and contended that in law Order 60 Rule 2 of the Rules of the lower Court is a special procedure only meant to be used where issue of title or proprietary interest is not in issue but where possession is sought to be secured or recovered from squatters or any other unknown(s) occupying the premises without lawful permission or licence and urged the Court to hold that the claim of the Respondent was not within the prescription of Order 60 Rule 2 of the Rules of the lower Court under which it was purportedly commenced and to allow the appeal, set aside the judgment of the lower Court entered in want of competence and to strike out the Respondent’s suit for being incompetent. Counsel referred to Order Order 2 Rules 1, 2 and 3 and Order 60 Rule 2 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 2018, and relied on Dr. Paul Nnodi V. Thanks Investment Ltd. (2005) 11 NWLR (PT. 935) 29 AT p. 50; See Persons, Names Unknown V. Sahris International Ltd (2006) 8 NWLR (Pt. 982) 255 AT p. 265; Emeka Okoli & Ors. V. Alhaji Ibrahim Gaya (2014) LPELR-23067 (CA).

It was also submitted that though the Respondent’s suit was commenced appropriately but once the Appellant entered appearance to the said suit and filed his processes with his name fully disclosed, the Respondent’s suit can no longer be maintained under Order 60 of the Rules of the lower Court more particularly in the light of the irreconcilable conflicts of fact as to ownership of title to the property as brought into contention by the Appellant’s counter-affidavit and contended that in law as soon as the name of the Appellant became known to both the Respondent and the lower Court, it ceased to have jurisdiction to entertain the Respondent’s suit under the procedure in Order 60 of the Rules of the lower Court and urged the Court to hold that the only option then open to the lower Court was either to strike out the Respondent’s suit or to transfer same to the general cause list and order pleadings to be filed for the matter to be heard at plenary trial. Counsel referred to Order 2 (2) (1) and 3 (1) of the Rules of lower Court and relied on Aberuagba & Anor. V. Oyekan & Ors. (2018) LPELR-43669(CA); Trade Bank Plc V. LILGC (2003) 2 NWLR (Pt. 806) 11 AT p. 27; Abubakar V. BO & AP Ltd (2007) 18 NWLR (Pt. 1066) 319 AT p. 384; Duke V. Akpabuyo Local Government (2005) 19 NWLR (Pt. 959) 130 AT pp. 148-157; Owners of the MV ‘Arabella’ V. NAIC (2008) 11 NWLR (Pt. 1097) 182 AT pp. 205 – 206 and 222.

It was also further submitted that in law where a statute has provided the procedure by which a thing is to be done, only that procedure and none other is permissible or allowed and contended that where therefore, a Statute or Rule of Court provides for a procedure for the commencement of an action, failure to follow that procedure renders any suit commenced otherwise incompetent and urged the Court to hold that the originating summons filed by the Respondent is not in consonance with the prescribed Forms 3, 4 or 5 in Order 2 Rule 3 (4) of the Rules of lower Court, neither does it contain any questions for determination or issues formulated as required by law and to allow the appeal, set aside the judgment of the lower Court entered in want of competence and strike out the Respondent’s suit for being incompetent, having not been commenced in accordance with due process of law. Counsel relied on Akaer Jov V. Kutuku Dom (1999) 9 NWLR (Pt. 620) 538 AT p. 547; Odogwu V. Ilombu (2007) 8 NWLR (Pt. 1037) 488 AT pp. 515-516; Adejobi V. The State (2011) LPELR-262008(SC); Obasanjo V. Yusuf (2004) 9 NWLR (Pt. 877) 144 AT p. 221; AGIP (NIG.) LTD V. AGIP Petroli International (2015) 5 NWLR (PT. 1187) 348; Utih V. Onoyivwe (1991) 1 SC (Pt. 1) 65 AT pp. 96-97; Ohakim V. Agbaso (2010) 19 NWLR (Pt. 1226) 172 AT p. 216; Ikpekpe V. Warri Refinery & Petrochemical Co. Ltd & Anor (2018) LPELR-44471 (SC); Madukolu V. Nkemdilim (1962) 2 ALL NLR 581 pp. 589-590; Christaben Group Ltd. V. Oni (2008) 11 NWLR (Pt. 1097) 84; M.O.T. V. Okoroafor (2001) 18 NWLR (Pt. 745) 295 AT p. 327; Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 1) 552 AT pp. 557 – 558.

It was also submitted that the issues involved in the Respondent’s suit, going by the highly conflicting affidavit and counter affidavit of the parties, were highly inherently contentious relating to title or interest in land and contended that such a claim is unsuitable for adjudication by means of an Originating Summons under the extant Rules of the lower Court and urged the Court to hold that it is settled law which admits of no exception that in contentious matters, such as the instant appeal, Originating Summons must not be used to commence or maintain such claims and to allow the appeal, set aside the judgment of the lower Court and to either strike out the Respondent’s suit for being incompetent having been wrongly commenced or to remit the Respondent’s suit to the lower Court to be heard and determined on pleadings and evidence before another Judge. Counsel referred to Order 2 (3) and Order 60 (2) of the Rules of the High Court of the Federal Capital Territory Abuja, and relied on Abeeb Ayetobi V. Olusola Osiade Taiwo (2014) LPELR 33517 (CA); Keyamo V. House of Assembly, Lagos State (2000) 11 WRN 29 AT p. 40; Dada V. Alabi (2020) 5 NWLR (Pt. 1718) 420 AT pp. 430-432; Inakoju V. Adeleke (2007) 4 NWLR (Pt. 1025) 423 AT p. 571; AGIP (Nigeria) Ltd & Ors. V. Chief C. Ezendu & Ors. (2010) 1 SC (Pt. 11) 98; Amasike V. Registrar General, CAC & Anor. (2010) LPELR-456 (SC); Doherty V. Doherty (1968) NMLR (Pt. 2) 241; National Bank of Nigeria V. Lady Ayodele Alakija & Anor. (1978) 9 & 10 SC 59; (1978) 2 LRN 78; Peoples Democratic Party (PDP) and Ors. V. Alh. Atiku Abubakar (2007) 3 NWLR (Pt. 1022) 515 AT p. 540; Adeyelu ll V. Ajagungbabe Ill (2007) 14 NWLR (Pt. 1053) 14; Anatogu V. Anatogu (1997) 9 NWLR (Pt. 519) 49; Obasanya V. Babafemi (2000) 15 NWLR (Pt. 689) 1; Atago V. Nwuche (2013) NWLR (Pt. 1341) 337; Famfa Oil Ltd V. AG. Federation (2003) 18 NWLR (Pt. 852) 12; Dapialong V. Lalong (2007) 5 NWLR (Pt. 1026) 199.

It was also submitted that contrary to the perverse view held by the lower Court that the conflicts in the affidavit evidence adduced on both sides in this case could be resolved by mere examination or use of documents attached by the parties, in law such conflicts cannot be resolved mere examination or use of documents but by trial at plenary and contended that the lower Court was wrong in refusing to order pleadings and rather proceeding to hear and determine the Respondent’s suit on affidavits which were irreconcilably conflicting and urged the Court to so hold and to allow the appeal, set aside the perverse judgment of the lower Court and strike out the Respondent’s suit for being incompetent.

RESPONDENT’S COUNSEL SUBMISSIONS
In his submissions on his sole issue, which I have taken time to review, learned counsel for the Appellant had submitted inter alia that the Respondent’s suit was commenced in line with the prescription of the Rules of the lower Court for claims by a person who claims ownership interest in land for recovery of possession of land in occupation of a squatter as even conceded by the learned counsel for the Appellant and contended that the Respondent completely satisfied all the conditions for the commencement of an action for recovery of possession of land against squatters who were sued as Persons unknown, a fact not even denied by the Appellant and therefore, deemed admitted and urged the Court to hold that the Respondent’s suit was properly commenced as required by law and therefore, competent contrary to the misconceived submissions of learned counsel for the Appellant and to dismiss the appeal for being frivolous and lacking in merit and affirm the correct judgment of the lower Court since in law even if the Respondent’s suit had been commenced by the wrong mode of commencement of action it would still not had vitiated the proceedings as what is paramount in law is substantial justice. Counsel referred to Order 60 Rule 2 of the Federal Capital Territory High Court Civil Procedure Rules 2018, and relied on Hon. Sunday Kehinde V. Action Congress of Nigeria (2012) LPELR-14821 (CA); Danjuma Tanko V. Osita Echendu (2010) LPELR-3135 (SC); Achugwo & Ors V. Akalazu & Anor. (2021) LPELR-53273 (CA); National Electricity Liability Management Limited V. Emmanuel Sunday Omotusi & Ors. (2016) LPELR-41396 (CA) See also Rt. Honourble Ekperikpe Ekpo V. Independent Electoral Commission & Ors (2013) LPELR-20359 (CA); FGN V. Zebra Energy Ltd (2002) 18 NWLR (Pt. 798) 162; Saleh V. Monguno (2006) LPELR-2992 (SC); Jammal V. State (1996) LPELR-13977 (CA); Malam Tanko D. Usman V. Samuel Baba (2004) LPELR-5834 (CA).

It was also submitted that the Appellant having not been sued as a Defendant by the Respondent and having not obtained the order of the lower Court to be joined as a Defendant cannot in law file and/or rely on any counter-affidavit in his suit he was not a party to raise any issue of conflict in affidavit evidence and contended that the actions of the Appellant in filing a counter-affidavit in a suit in which he was not a party amounted clearly to an abuse of Court process and urged the Court to so hold and to discountenance the purported counter-affidavit the Appellant and to dismiss the appeal and affirm the sound judgment of the lower Court since the Respondent’s suit remained uncontested and was therefore, properly commenced by means of Originating Summons as prescribed by the Rules of the lower Court. Counsel referred to Order 60 Rule 2 of the Rules of the Federal Capital Territory High Court Civil Procedure Rules 2018, and relied on NEFCO Nig. Ltd & Ors V. Ekere & Ors. (2013) LPELR-20423 (CA).

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply submissions, which I have taken time to review, learned counsel for the Appellant had virtually rehashed and reiterated his earlier submissions and basically re-argued his appeal under the guise of a reply brief. The reply brief, it must be reiterated is not and cannot be an avenue for an Appellant to re-argue his appeal or merely to have a second bite at the cherry. The Reply brief is for the serious business of answering to new points or fresh issues raised in the Respondent’s brief, which were not covered by the submissions in the Appellant’s brief. It need not and ought not to be filed just as a matter of course even where there is nothing new or fresh in the Respondent’s brief to respond to by the Appellant. See Order 19 Rules 5 (1) of the Court of Appeal Rules 2021. See also Edo State House of Assembly & Ors V. Mr. Johnson Obasogie Igbinedion & Ors (2021) LPELR-55990 (CA) per Sir Biobele Abraham Georgewill JCA; Ikine V. Edjerode (2001) 12 SC (Pt. 11) 94; Longe V. FBN (2010) 2-3 SC 61.

However, having stated as above, let me for the purpose of completeness in this judgment proceed to review the submissions of the Appellants’ reply brief devoid of the repetitions. It was submitted inter alia that the reliance on Order 60 Rule 2 of the Rules of the lower Court by the Respondent in commencing the suit does not envisage a situation where title is in issue and contended that in law where ownership is in issue, as in where the parties are setting up rival or adverse claims to the affected property, complying with the prescription of Order 60 Rule 2 of the Rules of the lower Court is not enough and urged the Court to hold that it behoves the parties to prove their title to determine who between the Appellant and the Respondent is the true owner of the property and to allow the appeal, set aside the perverse judgment of the lower Court and strike out the Respondent’s suit for being incompetent. Counsel relied on Dada V. Alabi (2020) 5 NWLR (Pt. 1718) 429.

RESOLUTION OF ISSUES ONE AND TWO
My lords, issues one and two, are issues dealing with an admixture of jurisdictional matters, ranging from whether the Respondent’s suit was competent having been commenced by means of Originating Summons and whether the lower Court was right to have refused to order the parties to file and exchange pleadings but rather proceeding to determine the Respondent’s suit under the Originating Summons without ordering the filing of pleadings?

In law, jurisdiction is the authority a Court has to entertain an action or matter brought before it. It is fundamental to adjudication and without it a Court would lack the power to entertain a suit over which it had not the requisite jurisdiction, since to do so would amount to a nullity, no matter how well conducted the proceedings might be or how sound the resultant judgment or decision might be. Generally, it is the claim of the Claimant that determines the jurisdiction of the Court and therefore, once the claim of a Claimant is outside the jurisdiction of the Court, it is incompetent and must be put or brought to an end. See Madukolu V Nkemdilim (1962) 1 All NLR 58 AT p. 595. See also Western Steel Works Ltd. V. Iron & Steel Workers Union (1987) 1 NWLR (Pt. 49) 284; Andrew V. Oshoakpemhe & Ors (2021) LPELR-53228 (CA) per Sir Biobele Abraham Georgewill JCA.

Now, in support of the Originating Summons, the Respondent filed an affidavit of 16 paragraphs deposed to by one Olayinka David, a manager in the Law Firm of the Respondent’s Solicitors. I had earlier set out in details the case of the Respondent as Claimant before the lower Court as in the Record of Appeal. The Respondent claimed ownership of Plot No.3561 Cadastral Zone A05, Maitama Abuja by virtue of allocation from the Ministry for Federal Capital Territory and a Certificate of Occupancy granted to her by the Honourable Minister of Federal Capital Territory on 7/4/2003. She annexed several documents as Exhibits A – F, showing an irrevocable power of attorney granted by her to her attorney as well as payments made for the said Plot, out of which Exhibit F, is the Certificate of Occupancy dated 15/5/2019.

I have already held that the Appellant was not a party to the Respondent’s suit having neither been sued as a Defendant by the Respondent nor joined as a Defendant by an order of the lower Court, and therefore his purported counter-affidavit was invalid and amounted to no process at all before the lower Court. However, for whatever it is worth, the case of the Appellant. which I had also earlier set out in details in this judgment was that the said Plot belonged to his son upon the approval of his application for same by the Federal Housing Authority in 1991 and that he has been in possession thereon and paying all the necessary charges to the relevant authorities. He annexed several documents as Exhibits AA1-AA3, out of which Exhibit AA1, is a letter of allocation dated 10/9/1991.

It was on the strength of the affidavit and counter-affidavit as well as documentary Exhibits as above, that the lower Court after hearing the Respondent’s suit proceeded to enter its judgment on 17/1/2020 for the Respondent and granted possession of the said Plot to the Respondent. See pages 40-44 of the Record of Appeal

The crux of this appeal is whether the sole claim of the Respondent based on the facts presented before the lower Court was such as could or should not be commenced and determined by means of an Originating Summons? I have looked closely at the sole relief and the affidavit on which it was based. I have also looked at the facts relied upon by the Appellant in his counter-affidavit. I bear in mind that I had earlier in this judgment, whilst considering the preliminary objection, held that the parties on record before the lower Court were the Respondent as Claimant and ‘Person Unknown’ as Defendants. There was in the Record of Appeal no time when the Appellant was granted leave to join the Respondent’s suit as a Defendant in place of or in addition to the ‘Person Unknown’. It follows therefore, in law that the Appellant lacked the power to merely on his own and without any Order of the lower Court just jump into a pending suit as he did before a superior Court of Record to file processes claiming to be a Defendant without any Order of joinder, and any consequent amended and/or alteration of the parties to reflect the joinder of the Appellant as a party on record to the suit before the lower Court.

In the circumstances therefore, the only admissible evidence before the lower Court was simply the affidavit evidence of the Respondent, which were not in any way challenged by the only Defendants on record, the ‘Persons Unknown.’ In law, facts deposed to in an affidavit by one party if not denied by the adverse party are deemed to be admitted and thus would require no further proof, unless such facts are in themselves palpably false. See Anuket Emerald V. Federal Republic of Nigeria (2017) LPELR-42895(CA) per Sir Biobele Abraham Georgewill, JCA. See also MTN Nigeria Communications Limited V. Mundra Ventures (Nig) Ltd. (2016) LPELR-40343 (CA) per Sir Biobele Abraham Georgewill JCA; Badejo V. Fed Ministry of Education (1996) 8 NWLR (Pt. 464) 15 LPELR-704 (SC); Adekola Alagbe V. His Highness Samuel Abimbola & Ors. (1978) 2 SC 39.

Now by Order 60 Rule 2 of the Rules of the Federal Capital Territory High Court Civil Procedure Rules 2018, it is provided as follows:
“Where a person claims possession of land which he alleges is occupied solely by a person not listed in Sub-rule 1 above, Proceedings may be brought by Originating Summons in accordance with provisions of this order”. The Sub-Rule 1 above mentioned had this to say; This order shall not apply where the person in occupation of land is a. A tenant or; b A tenant holding over after termination of tenancy; A licensee of the owner or person entitled to possession or; A person who had the consent of the predecessor; in title of the person who is entitled to possession.”
The Respondent had in compliance with the prescription of the above Rules of the lower Court commenced her action by means of Originating Summons against ‘Person Unknown’ who having no claim to the title to the said Plot are squatters on the said Plot using same to sell and serve tea etc. and claiming the sole relief of recovery of possession against the ‘Persons Unknown’. In law, as prescribed by the Rules of the lower Court, an action for recovery of possession shall be commenced by means of Originating Summons. Thus, the claim of the Respondent was commenced strictly in line with and as prescribed by the Rules of the lower Court.

What then is the purpose of Order 60 Rule 2 of the Rules of the lower Court, and was it put there just for the fun of it or to be resorted to and applied in deserving cases? In Dr. Paul Nnodi V. Thanks Investment Ltd. (2005) 11 NWLR (PT. 935) 29 AT p. 50, this Court per Onnoghen, JCA, (as he then was but later CJN) had stated inter alia thus:
“It is trite law that the procedure under Order 59 offers an Applicant a summary procedure for recovery of possession of land wrongfully occupied by a trespasser or trespassers whose or some of whose names the Applicant or Plaintiff does not know. This is contrary to possession of land in which the person in possession should be made a Defendant so that he would be bound by the order for possession, when made by Court. In a case where the Landlord does not know the names of the illegal occupiers of his land or cannot even physically identify all of them, the requirement that the person be made Defendants to the action would result in great injustice and hardship to the Landlord or Landowner….”
Thus, under this special procedure, a Claimant can commence an action by means of Originating Summons without any requirement of acknowledgment of service of the summons by the person unlawfully occupying the land. Such a Claimant is required to file in support, an affidavit stating his interest in the land, the circumstances in which the land has been occupied without licence or consent and in which his claim to possession arises, and that he does not know the name of any person occupying the land who is not named in the summons. This special procedure under Order 60 Rule 2 of the Rules of the lower Court enables a Land owner whose land is in the occupation of a squatter(s) or a person(s) occupying the land without his consent, to commence summary proceedings against the squatter for possession of the land. It offers a Claimant the opportunity to recover possession of land wrongfully occupied by unknown persons. See Persons, Names Unknown V. Sahris International Ltd (2006) 8 NWLR (Pt. 982) 255 AT p. 265; Emeka Okoli & Ors. V. Alhaji Ibrahim Gaya (2014) LPELR-23067 (CA).

My lords, it is almost inconceivable that parties would go to Court to litigate over issues in which there are no disputes at all between them perhaps just for the fun of it. In other words, every suit would involve some form of dispute or even a disagreement, and if it were not so what then would be the basis of the litigation? Thus, even Originating Summons would involve the resolution of some form of dispute, since even in the construction of documents there is a disagreement as to its meaning or scope or purport, hence the resort to the Court. What is prohibited therefore, in an Originating Summons generally even under Order 2 Rule 3 of the Rules of the lower Court are substantial disputes as to facts. This is so because in law Originating Summons is usually used when what is in dispute is the mere construction of documents or interpretation of law in respect of which pleadings and oral evidence at plenary hearings are unnecessary or where there are no real disputes as to facts between the parties. It would therefore, be improper to commence civil proceedings by means of Originating Summons where the facts are likely to be in substantial disputes. It follows therefore, civil proceedings for which it is used would usually involve questions of law rather than disputed issue of facts. See Hon Olayide Adewale Akinremi & Anor V. Muttaka Bala Suleiman & 17,916 08 Ors (2022) LPELR-56903(CA) per Sir Biobele Abraham Georgewill JCA.
However, in the instant appeal, it is the Rules of the lower Court, which by virtue of Order 60 Rules 2 thereof, prescribed the use of Originating Summons as the mode of commencement of action for recovery of possession of land from persons who have no colour of interest in the land sought to be recovered but are nevertheless in occupation thereon without the license or leave of the Claimant/Owner. The parties are ad idem that it is the Rules of the lower Court that provides for the modes and means of commencement of actions before the lower Court. I think therefore, and I so hold, that once a Claimant had complied with the prescriptions of the Rules of the lower Court as to the modes and/or means of commencement of his claim, there can be no reason in law why such a claim commenced strictly in line with the prescriptions of the Rules of the lower Court should be considered incompetent by reason of a Claimant having complied with the provision of the Rules of the lower Court. It is for this reason, I am unable to accede to the contentions of learned counsel for the Appellant that although the Respondent’s suit was commenced in line with the provisions of Order 60 Rule 2 of the Rules of the lower Court and therefore, competent but it ceased to be competent because the Appellant filed a counter-affidavit raising rival title to the said Plot on his supposedly violently conflicting affidavit evidence. I do not and cannot see how the Respondent who had rather obeyed the Rules of the lower Court should suffer any disadvantage for pursuing a course of commencement of action as prescribed by the very Rules of the lower Court.
In law, it is not every seeming conflict arising from affidavit evidence that would warrant the calling of or resort to oral evidence for its resolution. It is only where the issues of facts are so contentious and irreconcilable as to facts that a Court would, or rather should, be wary of rushing to determine such a claim on affidavit evidence only in an Originating Summons. Indeed, such a claim would be more suited and proper for determination on the pleadings and evidence of the parties under proceedings begun by means of a Writ of Summons. Generally, the Originating Summons procedure is limited in its scope of use and should not be adopted in civil proceedings in which there are substantial disputes of facts. It should never be resorted to in cases where there are controversies and a lot of disputed facts between the parties. In such cases, a Claimant should approach the Court by way of a Writ of Summons, which will allow each side to file pleadings and sort out the issues in dispute between them at full trial. See Hon Olayide Adewale Akinremi & Anor V. Muttaka Bala Suleiman & 17,916 08 Ors (2022) LPELR- 56903(CA) per Sir Biobele Abraham Georgewill JCA. See also Johnson & Ors V. Mobil Producing Nigeria Unlimited & Ors. (2009) LPELR-8280 (CA). See also Pam V. Mohammed (2008) 16 N.W.L.R (pt. 112) I at p. 88; Esezoobo V. Nsitf & Ors. (2012) LPELR-9282 (CA); Ossai V. Isaac F. Wakwah (2006) 4 NWLR (Pt. 969) 208; AG. Adamawa V. AG. Federation (2005) 18 NWLR (Pt. 958) 581.
However, where Originating Summons is the permitted and/or prescribed mode for the commencement of any specific claim or action by the Rules of the affected Court, a Claimant is under a duty to comply with the Rules of the Court he seeks to approach to ventilate his claim in accordance with the prescription of the Rules that govern proceedings in such a Court. This was exactly all that the Respondent did and I see nothing either irregular or improper or incompetent in the Respondent’s use of the means of Originating Summons, the very prescribed mode under the Rules of the lower Court, in the commencement of the action for recovery of possession from ‘Persons Unknown’ as required by law.

I find therefore, as fact that the Respondent’s suit, which was commenced in line with the prescription of the Rules of the lower Court for claims by a person who claims ownership interest in land for recovery of possession of land in occupation of a squatter, as even conceded by the learned counsel for the Appellant, is in law competent having completely satisfied all the conditions precedent for the commencement of an action for recovery of possession of land against squatters by virtue of Order 60 Rule 2 of the Rules of the lower Court.

At any rate, in law even if the Respondent’s suit had been commenced improperly by Originating Summons, which is not the case in the instant appeal, but ought to have been properly commenced by means of Writ of Summons, that alone would not have vitiated the entire proceedings and nullify both the Respondent’s suit and the resultant judgment. See National Electricity Liability Management Limited V. Emmanuel Sunday Omotusi & Ors. (2016) LPELR-41396 (CA), where this Court per Tijani Abubakar, JCA (as he then was but now JSC) had stated inter alia thus:
“I must state at once that correctness of an action, or adoption of wrong mode of commencement of an action is mere irregularity and does not render the entire proceedings as a nullity”
See also Hon. Sunday Kehinde V. Action Congress of Nigeria (2012) LPELR-14821 (CA); Danjuma Tanko V. Osita Echendu (2010) LPELR-3135 (SC).
The reason for the above position of the law is not far fetched. It is simply that the most paramount consideration in such circumstances, where an action is commenced by a mode other than the mode that is most appropriate, would be the interest of justice, in the sense of rendering substantial, and not technical, justice to the parties. Nowadays, substantial justice is king! See African Songs Limited & Anor V. King Sunday Adeniyi Adegeye (2018) LPELR-46184 (CA). Achugwo & Ors V. Akalazu & Anor. (2021) LPELR-53273 (CA); National Electricity Liability Management Limited V. Emmanuel Sunday Omotusi & ors. (2016) LPELR-41396 (CA).

Now, having held firmly that the Respondent’s suit was properly commenced and therefore, competent, let me now consider whether the lower Court was wrong to have determined the claim of the Respondent without ordering the filing of pleadings by the parties on record to the Respondent’s suit? The only proper and admissible evidence before the lower Court was the affidavit of the Respondent, which was not in any way challenged and/or controverted by the only Defendant on record, the ‘Persons Unknown’, since the counter-affidavit of the Appellant was not properly before the lower Court. In the circumstances therefore, the Respondent’s suit remained uncontested and thus, devoid of any conflicts in affidavit as was erroneously thought and so submitted by the learned senior counsel for the Appellant. The facts relied upon by the Respondent clearly showed that the Respondent has the undisputed title to the said Plot by virtue of Exhibit F, the Certificate of Occupancy duly signed by the Hon. Minister of the Federal Capital Territory as required by law. It is dated 15/5/2019. Under the Rules of the lower Court and considering the unchallenged nature of the affidavit and documentary evidence of the Respondent can it be said that the Respondent was not entitled to the relief of order of possession of the said Plot against the Defendants on record, ‘Person Unknown’? I think not. So, was the lower Court right when it granted the claim of the Respondent and ordered possession to the Respondent of the said Plot? I think and firmly hold so! See Order 60 Rule 2 of the Rules of the Federal Capital Territory High Court Civil Procedure Rules, 2018.

Now, even assuming, but without so deciding, that the counter-affidavit of the Appellant was properly before the lower Court and ought to be countenanced, I do not see any much conflicts in the affidavit of the parties as would warrant the ordering of filing of pleadings by the lower Court in the light of the settled position of the law that the ultimate authority which can issue a valid grant of land by means of a Certificate of Occupancy to any person or institution in the Federal Capital Territory, Abuja is the Hon Minister of the Federal Capital Territory as delegated to him by the President and Commander in Chief of the Federal Republic of Nigeria, and none other. See Ona V. Atenda (2000) 5 NWLR (Pt. 656) 244 @ p. 248.
In the instant appeal, whilst the Respondent had relied on Exhibit F, which is a Certificate of Occupancy dated 15/5/2019 in respect of the said Plot and duly signed by the Hon Minister of the Federal Capital Territory, who is the appropriate ultimate authority authorized to issue valid grant of land in the Federal Capital Territory. Abuja, the Appellant had relied on Exhibit AA1, which is a mere letter of allocation signed by the Federal Housing Authority and dated 10/9/1991. In law, whilst a Certificate of Occupancy is prima facie evidence of title to land, a mere letter of allocation is not. Thus, the production in evidence by the Respondent of a Certificate of Occupancy signed by the appropriate authority, the Hon Minister of the Federal Capital Territory, far more supersedes the mere letter of allocation signed by the Federal Housing Authority as produced by the Appellant. See Madu V. Madu (2008) 6 NWLR (Pt. 1083) 1.
In my finding therefore, the lower Court was perfectly right when it found it impossible to rate the mere letter of allocation issued by the Federal Housing Authority to the Appellant above the Certificate of Occupancy issued by the Hon Minister of the Federal Capital Territory to the Respondent. Indeed, it is now settled law that as far as the Federal Capital Territory is concerned only the Hon Minister of the Federal Capital Territory has the power to allocate land and that power which he derived from the President and Commander in Chief cannot be delegated to another person or authority. Thus, the lower Court was perfectly in order and a very sound and sure footing when it held that it would be acting rascally if on the face of the decisions of appellate Courts in the land it would proceed to agree that a letter of allocation by General Manager of Federal Housing Authority as flaunted by the Appellant supersedes the Certificate of Occupancy issued by the Honourable Minister of Federal Capital Territory as relied upon by the Respondent.

I find it rather strange when it was argued for the Appellant, in one breadth, that the Respondent’s action ought to have been commenced in strict compliance with the provisions of the Rules of the lower Court, which is true and which the Respondent strictly complied with, but in another breadth, which clearly seems to me a 360 degree summersault, it was also argued for the Appellant that the mode of commencement of action for recovery of possession, which it must be observed is by means of an Originating Summons under Order 60 Rule 2 of the Rules of the lower Court, was not a competent way of commencing the Respondent’s action, simply because the Appellant, believes, though quite erroneously, that by his counter-affidavit, which I have held firmly was one filed by a non-party, a complete stranger and meddlesome interloper to the proceedings before the lower Court, that serious and contentious issues of facts were raised which ought to be determined on pleadings and trial at plenary by the lower Court.

Honestly, I find the posture of the Appellant as utterly inconsistent and baseless and thus, incapable of attracting any favourable consideration by this Court. In law, a party must at all times endeavour to be consistent if he must enjoy the favourable consideration of the Court. The Appellant cannot be seen to do and be allowed to do as he is doing in this appeal to be contending at the same time two opposing positions and/or situations as correct and representing the law. The Appellant cannot in one breadth submit under issue one that the Respondent was under a duty to obey the Rules of the lower Court, and when he finds out that the Respondent had obeyed the Rules of the lower Court, then turn a 360 degree summersault to contend under issue two that the means of commencement of action as prescribed by the Rules of the lower Court, and which the Respondent had scrupulously complied with, is now no longer a competent way of commencement of the action of the Respondent. What indeed, does the Appellant really want the Respondent to do in law if I may ask? To have commenced the action before the lower Court contrary to the clear prescriptions of Order 60 Rule 2 of the High Court of the FCT (Civil Procedure) Rules 2018? I find all these summersaults as clear evidence of the Appellant’s lack of faith in his appeal as well as the absence of any iota of merit in this appeal filed by the Appellant. Indeed, in law consistency is one of the hallmarks of truth! See Governor of Lagos State & Ors V. Ohaigo Nigeria Limited & Anor (2018) LPELR-45552 (CA) per Sir Biobele Abraham Georgewill, JCA.

In the light of all I have stated and found as above, issues one and two are hereby resolved against the Appellant in favour of the Respondent.

On the whole therefore, having resolved issues one and two against the Appellant in favour of the Respondent, I hold that this appeal lacks merit and is liable to be dismissed. Consequently, it is hereby dismissed in its entirety for lacking in merit.

In the result, the judgment of the High Court of Federal Capital Territory, Abuja, Coram: Bello Kawu J, in Suit No. FCT/HC/3020/2019: Hasiva K. Liman (Suing Through Her Lawful Attorney, Monkas Gas Nigeria Ltd) V. Persons Unknown (Mohammed Munir Ilassan sued as persons unknown in occupation of Property), delivered on 17/1/2020 granting the possession of Plot No 3561, Cadastral Zone A05 Maitama District, Abuja to the Respondent. is hereby affirmed.

There shall be cost of N300,000.00 against the Appellant in favour of the Respondent.

STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft, the judgment just delivered by my learned brother, Sir, Biobele Abraham Georgewill, JCA.

The issues raised in this appeal are very clear. Firstly, it must be noted that an appeal is not a fresh suit.
By Order 7 Rule 2(1) of the Rules of this Court 2021:
(1) All appeal shall be by way of rehearing and shall be brought by notice (hereinafter called “the Notice of Appeal”) to be filed physically or electronically in the Registry of the lower Court, which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the lower Court is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for on such parties.
By this, an appeal pre-supposes that there was in existence a case well composed with parties and the issues at the Court of trial before an appeal can emerge from decision(s) at that trial.
By this, there is a pre-supposition of a case well composed with parties and issues at the Court of trial. In the instant case, the only known party at the trial Court is the Respondent who sued persons unknown. The Appellant was not named as a defendant.
The Originating Summons by which the instant case was originated at the trial Court indicated expressly that “Any person occupying the premises who is not named as defendant by this Summons may apply to the Court personally or by legal practitioner to be joined as defendant.” Order 13 of the FCT High Court Rules, 2018 deals with all levels of parties to a suit. From the Record of Appeal in the instant case, the Appellant was not one of the parties named in the proceedings of the trial Court. He was sued as a person unknown. The position here is similar to that in the case of Persons Names Unknown v. Sahris International Ltd (2019) LPELR-49006 (SC). In that case, the Supreme Court, Per Galinje, JSC, held as follows:
“The Respondent sued those he termed as unknown persons, because it was not possible for it to know those who had put structures on its land. Those who are appealing as unknown persons cannot claim that they do not know themselves. The right thing for them to do, immediately the suit was filed, was for them to disclose themselves, and then apply to join as interested defendants, but this they failed to do. The Court of Appeal at page 83 of the record of appeal had this to say: “It is well settled that a person unknown cannot appeal unless he identifies himself by name and seeks leave to appeal as a person interested in the matter. There is nothing in the record to show that the appellants (persons unknown) have identified themselves or made any attempt to show their interest in the matter at the trial Court, neither have they sought for leave to appeal, obtaining leave is a precondition to be satisfied before the appeal can be said to be properly before the Court. Failure to obtain leave as in this case renders the appeal incompetent”. I entirely agree with the lower Court in its conclusion as reproduced hereinabove. I also agree that a party to a suit who feels comfortable remaining faceless can never obtain relief from a Court of law”.
The position of the law is therefore, very clear. The Appellant whose name was not on the process at the trial Court can only appeal under Section 243 of the Constitution as an interested party with Leave of this Court. Since no Leave was sought and obtained, this appeal was dead on arrival. It is for this and the fuller detailed reasons in the lead judgment of my learned brother, which I totally agree with, that I also hold and believe that this appeal is incompetent and must be and it is hereby struck out.

On the merit of the appeal, I entirely concur with my learned brother’s well-reasoned lead judgment and hold also that the appeal is lacking in merit. I therefore, adopt his conclusion as mine and dismiss the appeal. I abide by the consequential Orders inclusive of Order as to cost as made in the lead judgment.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege of reading in draft, the lead judgment of my learned brother, Sir Biobele Abraham Georgewill, JCA. I am in agreement with the reasoning and conclusion reached therein.

I therefore also find the appeal lacking in merit and it is hereby dismissed. I affirm the judgment of the High Court of the Federal Capital Territory Abuja Coram: Bello Kawu J. in Suit No. FCT/HC/3020/2019 delivered on 17/01/2020.
I make no order as to costs.