INC. TRUSTEES OF LIGHTHOUSE CHRISTIAN OUTREACH CENTER v. DIMARS IND. LTD (2021)

INC. TRUSTEES OF LIGHTHOUSE CHRISTIAN OUTREACH CENTER v. DIMARS IND. LTD

(2021)LCN/15098(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, March 04, 2021

CA/LAG/CV/476/2020

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

INCORPORATED TRUSTEES OF LIGHTHOUSE CHRISTIAN OUTREACH CENTER APPELANT(S)

And

DIMARS INDUSTRIES LIMITED RESPONDENT(S)

RATIO

POSITION OF THE LAW REGARDING THE DUTY OF THE TRIAL JUDGE WHERE AN ACTION IS BEGUN OR INITIATED BY MEANS OF AN ORIGINATING SUMMONS PROCEDURE

… the first duty of a trial Judge, where action are begun or initiated by means of an originating summons procedure, is to examine the claim before him, and then to ascertain whether the procedure in originating summons was suitable or appropriate to the action. This first step, is sine qua-non to his assuming jurisdiction on the matter. This Court, per Galadima J.C.A. [as he then was] now J.S.C. in KEYAMO VS. HOUSE OF ASSEMBLY, LAGOS STATE (2000) 11 W.R.N. 29 at 40, (2000) 12 NWLR (Pt. 680) 796 at 213 stated as follows: “I must state that the correct position of the law is that originating summons is used to commence an action where the issue involved is one of the construction of a written law or of any instrument made under a written law, or of any deed, contract or other document or some other question of law or where there is unlikely to be any substantial dispute of fact. This is the provision of Order 3 Rule 2 (2) of the Lagos State Civil Procedure (supra)” PER BALKISU BELLO ALIYU, J.C.A.

WHEN AN ORIGINATING SUMMONS PROCEDURE CANNOT BE APPROPRIATELY USED

This Court in ABEEB AYETOBI V OLUSOLA OSIADE TAIWO (supra) answered this question and held that the claim before this Court which is for the recovery of a piece or parcel of land, by its very nature, cannot be uncontentious or uncontroversial, and therefore originating summons cannot be appropriately used. In the instant appeal, the trial Court ought not to have allowed it to be employed. Again, this Court per Galadima J.C.A. (as he then was) now J.S.C. in the case of OBASANYA VS. BABAFEMI (2000) 23 WRN (Pt.689) 1 at 17 stated as follows: “Where the facts are controversial or contentious and cannot be ascertained without evidence being adduced, originating summons should not be appropriately used; and if used it should be discountenanced. See N. B. N. & ANOR VS. ALAKIJA (1978) 2 LRN 78 see also DOHERTY VS. DOHERTY (1964) N.M.L.R. 144, UNILAG VS. AIGORO (1991) 3 NWLR (Pt.179) 367; ANATOGU Vs. ANATOGU (1997) 9” PER BALKISU BELLO ALIYU, J.C.A.

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Lagos State (trial Court) delivered on the 30th January, 2020 in respect of Suit No: LD/3244GCM/19 issued by the Respondent as the Claimant, vide an originating summons filed on the 8th April, 2019 against the Appellant being the Defendant seeking for the determination of the following questions:
1. Whether having regards to the true construction of the clear and unambiguous terms of the unregistered Deed of Lease dated the 2nd day of October, 2013, between the Claimant and the Defendant over the parcel of land measuring 4995 square metres with bungalow situate at the back area of Plot 2/3 Kudirat Abiola Way, Oregun, Lagos, the occurrence of an agreed breach cumulating in the Claimant’s Notice of intention to recover possession of the premise on the Defendant, the Claimant is entitled at law to immediate possession of all that portion of land situate at Plot 2/3 Kudirat Abiola Way, Oregun, Lagos leased to the Defendant.
2. Whether having regards to the true construction of the clear and unambiguous terms of the unregistered Deed

of Lease dated the 2nd day of October, 2013 between the Claimant and the Defendant over the parcel of land measuring 4995 square metres with bungalow situate at the back area of Plot 2/3 Kudirat Abiola Way, Oregun, Lagos, the occurrence of an agreed breach cumulating in the Claimant’s Notice of intention to recover possession of the premise on the Defendant, the Claimant is entitled at law to rent and/or proceeds of the use and occupation of the parcel of land at a pro-rated value in terms of the agreement consensually reached between the parties until vacant possession is delivered to the Claimant by the Defendant.
3. Whether having regards to the true construction of the clear and unambiguous terms of the unregistered Deed of Lease dated the 2nd day of October, 2013 between the Claimant and the Defendant, and all other instruments, the payment of the N5,000,000 (Five Million Naira) by the Defendant purportedly representing a deposit for lease commencing 1st February, 2019 to 31st January, 2024, in clear breach of the agreement between the parties, the Claimant is allowed at Law to place a lien on the said sums and refund all and or any outstanding

balance thereof (if any) to the Defendant at the determination of this case and or until vacant possession is fully delivered to the Claimant by the Defendant.

Upon the determination of the three questions (supra), the Respondent/Claimant sought for the following reliefs:
i. A declaration that having regard to the true construction of the clear and unambiguous terms of the unregistered Deed of Lease dated 2nd day October, 2013 between the Claimant and the Defendant over the parcel of land measuring 4995 square metres with bungalow situate at the back area of Plot 2/3 Kudirat Abiola Way, Oregun, the occurrence of an agreed breach cumulating in the determination of the said lease, and the issuance and service of the Claimant’s Notice of intention to recover possession of the premises on the Defendant, the Claimant is entitled at law to rent and or proceed of the use and occupation of the parcel of land at a pro-rated value in terms of the agreement consensually reached between parties until vacant possession is delivered to the Claimant by the Defendant.
ii. A declaration that having regard to the true construction of the clear and

unambiguous terms of the unregistered Deed of Lease dated 2nd day October, 2013 between the Claimant and the Defendant, and all other instruments, the payment of N5,000,000.00 (Five Million Naira) by the Defendant purportedly representing a deposit for the lease commencing 1st February, 2019 to 1st January, 2024 in clear breach of the agreement between the parties, the Claimant is allowed at law to place a lien on the said sums and refund all and or any outstanding balance thereof (if any) to the Defendant at the determination of this case and or until vacant possession is fully delivered to the Claimant by the Defendant.
iii. AN ORDER entering judgement in favour of the Claimant in the sum of N708,333.00 (Seven Hundred and Eight Thousand Naira) per month being the pro-rated monthly value as per the agreed rentals from the 1st February, 2019 until the determination of this case and or until vacant possession is fully delivered to the Claimant by the Defendant.
iv. AN ORDER directing the Claimant to refund the N5 Million Naira deposit made by the Defendant and or outstanding balance thereof (if any) that may be due to the Defendant after all deductions

of the pro-rated monthly rentals from 1st February, 2019, at the determination of this case and or until vacant possession is fully delivered to the Claimant by the Defendant.
v. AN ORDER directing the Defendant to surrender and yield immediate possession of all parcel of land situate at Plot 2/3 Kudirat Abiola Way, Oregun, Lagos to the Claimant.
vi. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendant by itself, members, trustees, Directors, Shareholders, Agents, Servants, Tenants, Occupiers from obstructing, preventing and/or hindering the Claimant from exercising all ownership and proprietary rights on the property situate and being at Plot 2/3 Kudirat Abiola Way, Oregun Lagos.
vii. AN ORDER directing the Inspector General of Police, Assistant Inspector General of Police Zone 2, Commissioner of Police Lagos State, their Deputies and all other Officers under them to assist in the enforcement of the Orders of this Honourable Court.
viii. AND FOR such further or other Orders as the Honourable Court may deem fit to make in the circumstances.

The facts that gave rise to the suit are stated in the 42- paragraphed affidavit in support of the originating summons copied in pages 27-50 of the record of appeal. That on the 2nd October, 2013, the parties entered a lease agreement in respect of a parcel of land measuring 4,995 square meters with bungalow situate at Plot 2/3 Kudirat Abiola Way, Oregun (the property). The lease agreement was for ten years commencing 1st February, 2014 and expiring 31st January, 2024. It is however agreed by the parties that the rent was payable in two tranches. The first rent payment of N35,000,000.00 for the first five years was to be in full and in advance at the commencement of the lease, at N7,000,000.00 per annum covering the period from 1st February, 2014 to 31st January, 2019. The second tranche for the second term of five years, i.e. 1st February, 2019, to 31st January, 2024, was agreed to be by the parties to be paid on or before 15th January, 2018, and whatever was agreed shall be paid in full and in advance on or before 31st January, 2018.

The Appellant made the initial payment of N35,000,000.00 for the first tranche as agreed. With regards to the second tranche, the parties engaged in negotiations and ultimately agreed at N8,500,000.00 per annum,

i.e. N42,500,000 for the second lease term commencing 1st February, 2019 to 31st January, 2024 and to be paid in full and in advance on or before 31st January, 2018.

However, the Appellant could not meet the deadline, and this prompted the Respondent to issue a Notice of Breach of Lease dated 26th February, 2018, but immediately after receiving the notice, the Appellant rushed and made a payment of N5,000,000.00, which they claimed to be part-payment of the second tranche. However, regardless of the payment, on 16th March 2018 the Respondent served a termination of lease letter on the Appellant. But several months later, on the 18th December, 2018, the Appellant sent a lease renewal request to the Respondent, along with two cheques of N12,000,000.00 each, and affirming that it was committed to paying the remaining balance of N25,500,000.00 to the Respondent, but the Respondent flatly rejected the two cheques and returned them via their letter dated 20th December, 2018 and reminded the Appellant that the lease had since been terminated as a result of the Appellant’s default. In the Respondent’s earlier letter of 19th December, 2018, they

assured the Appellant that the N 5,000,000.00 they paid in February, 2018 would be refunded to them upon delivery of vacant possession of the property to the Respondent at the end of first term of five years.

On 1st February, 2019, Respondent served a Notice of Owners Intention to Recover Possession on the Appellant followed by reminder letters dated 21st February, 2019 and 5th March, 2019. Because of the refusal of the Appellant to vacate the property the Respondent placed a lien on the N5,000, 000.00 as security for any damages to the property. The Respondent finally instituted this action before the trial Court seeking the determination of the supra questions and reliefs. Its case before the trial Court was that the term of the lease was certain for 10 years commencing from February, 2014 to 31st January, 2024 and same cannot be determined by a notice to quit issued by the Respondent. As such the notice of owner’s intention to recover property served on the Appellant was invalid.

The Respondent’s case on the other hand was that, the lease agreement between the parties was that the rent payable for the 2nd term of the lease commencing 1st

February, 2019 to 31st January, 2024, shall be agreed by both parties on or before the 15th January, 2018 based on the market value of the property at the time of the demised hereditament. The parties further agreed that any rent they agreed upon for the second term of the lease shall be paid in full and not by installments on or before the 31st January, 2018. After several negotiations the parties agreed on the rent at N8.5million per annum to cover the 2nd term of the lease and to be paid in full on or before the 31st January, 2024. The Appellant’s failure to pay this rent prompted the Respondent to issue it with quit notice on 26th February, 2018, for breach of rent agreement as already stated supra. It was because of the non-hostile nature of the matter that the Respondent adopted originating summons to commence this suit

In its judgment, the trial Court held that the Respondent has complied with the terms of the lease agreement and the provisions of the Lagos State Tenancy Law, and that since the notice of intention to recover the premises was served on the Appellant, the Respondent was entitled to recover the property. It therefore answered the three

questions in the affirmative in favour of the Respondent and granted reliefs 1 to 7 and refused relief 8 on the originating summons.
The Appellant was aggrieved by the judgment and filed notice of appeal against it on the 18th February, 2020 relying on six grounds of appeal to pray that the appeal be allowed and the judgment of the trial Court set aside.

The Appellant’s brief of argument settled by Adedayo Adebayo Esq. was filed on the 12th August 2020 wherein he proposed four issues for determination, thus:
i. Whether the trial Court was right when it held that this suit could be effectively determined by Originating Summons Procedure.
ii. Whether the trial Court was right to assume jurisdiction of this suit whose claims were founded on recovery of possession when the lease agreement of the demised premises was for a term certain commencing from the 1st day of February, 2014 and expiring on the 31st January, 2024 and same was not determined by a notice to quit and also, a valid Notice of Owner’s intention to Recover Possession was not issued by the Respondent or served on the Appellant.
iii. Whether the trial Court was

right when it held that the Respondent had complied with the provisions of the Tenancy Law of Lagos State, 2011, particularly those provision relating to proof of grounds of possession and facts to entitle the Respondent recover possession of the demised premises from the Appellant.
iv. Whether the trial Court was right when it held that the Appellant did not proffer any submissions either for or against the main claim, which is not the right legal procedure.

In opposing the appeal, the Respondent filed its brief of argument prepared by Olamide Balogun Esq. wherein he raised the following three issues for determination:
i. Considering the facts of this case and the nature of the evidence adduced by both parties, whether the trial Court was right when it held that the Originating Summons procedure can be employed to determine the Respondent’s claim.
ii. Whether the Respondent did issue requisite notices to the Appellant in compliance with the law to warrant the lower Court exercising jurisdiction to countenance the Respondent’s action and granting it reliefs.
iii. Whether the trial Court was right when it held that the

Appellant did not canvass any argument either for or against the Respondent’s claim, and in so doing, applied the wrong standard of proof in reaching its conclusion.

APPELLANT’S SUBMISSIONS
On its issue one, the learned counsel for the Appellant the reliefs sought by the Respondent on the originating summons related to tenancy agreement and the recovery of premises, which is governed by the Lagos State Tenancy Law 2011. By the provisions of Section 24 of the said law, the procedure for recovery of the possession against a tenant who refused to quit and deliver possession was by way of summons as in form TL6A and B of the law. This is a condition precedent to the assumption of jurisdiction by the trial Court on the matter, but that contrary to the said provision, the learned trial Judge held that the suit could be determined by originating summons. He relied on the cases of NDIC VS. OKEM ENTERPRISES LTD (2004) LPELR-1999 (SC), NWABUEZE VS. OKOYE (1988) 4 NWLR (PT. 91) 664, KANKARA VS. COP (2002) 13 NWLR (PT. 785) 596 AND MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341, to submit that the trial Court should have declined jurisdiction to hear and determine this case. The Court was urged to so hold.

On issue two, the Appellant submitted that assuming that the trial Court has jurisdiction to hear this suit vide originating summons which it did not concede, still the Court would have no jurisdiction in view of the fact that the period of the lease has not expired by effluxion of time and the Respondent did not issue or serve on the Appellant a Notice to quit to determine the demised premises as provided by Section 26 of the Tenancy Law. This failure of the Respondent to serve quit notice in accordance with the law robbed the trial Court of jurisdiction to determine this suit vide the cases of IHENACHO VS. UZOCHUKWU (1997) 2 NWLR (PT. 487) 258, SULE VS. NIGERIAN COTTON BOARD (1985) 2 NWLR (PT. 5) 17 and PAN ASIAN LTD VS. NICON LTD (1982) 13 NSCC 293 in support.

On its issue three, the Appellant relied on Sections 25 and 27 of the Tenancy Law which provide for proof of grounds of possession by facts provided in respect thereof, and submitted that originating summons is not the proper procedure in cases under the Law and the trial Court had no discretion to dispense with the statutory

provisions concerning proof of facts by written depositions or oral evidence or a combination of both provided by Section 27 of the law.

With regards to issue four, the Appellant submitted that the trial Court was wrong to hold that Appellant/defendant did not proffer any submissions either for or against claims, which the Court held was not a proper procedure. Learned Appellant’s counsel referred us to the case of ABEEB AYETOBI VS.OLUSOLA TAIWO (YEAR?)-22560 where this Court held that originating summons is not a proper procedure to recover and the default of appearance of the defendant to answer the originating summons is immaterial, because any proceedings or decision of a Court without jurisdiction to adjudicate on the matter is a nullity. Upon his argument the learned Counsel urged the Court to allow the appeal and set aside the judgment of the trial Court.

RESPONDENT’S SUBMISSIONS:
On the Respondent’s proposed issue one, its learned counsel submitted that from the way the principal reliefs sought by the Respondent were couched vide its originating summons, it is clear that the Respondent was only inviting the trial

Court to interpret the clear and unambiguous provisions of the unregistered deed of lease dated 2nd October, 2013, which governs the relationship between the parties. That, the case of the Respondent was not a mere tenancy agreement because it presented three questions for the determination of the lower Court, and the reliefs sought arose logically from those three questions. He relied on the provisions of Order 5 Rule 4(1) and (2) of the High Court of Lagos Civil Procedure Rules 2019, which provide that originating summons procedure can be employed where what was in issue is the interpretation of a deed, enactment, will or other written instruments.

In that regard all the authorities cited by the Appellant in its brief, particularly the case OSSAI VS. ISAAC WAKWAH & ORS (supra) actually supports the Respondent’s case on the procedure. He also relied on the cases of PAM VS. MOHAMMED (2008) 16 NWLR (PT. 1112) 1 and ALAMIEYESEIGHA VS. IGONIWARI (NO. 2) (2007) 7 NWLR (PT. 1034) 524, for support. More so that the law is clear that oral evidence cannot be called to vary content of document which in this case is deed of lease as was held by the Apex Court

in ASHAKA CEMENT PLC VS. A. M. INV. LTD (2019) 5 NWLR (PT. 1666) 447 at 459-460 and others. He also referred to the holding of the trial Court that there was no conflict in the facts of this case which cannot be resolved by documentary evidence placed before the Court. This Court was urged to discountenance the argument of the Appellant on issue one supra and resolve it in favour of the Respondent.

With regards to its issue two, the Respondent argued that the Appellant in relying on Sections 25, 26 and 27 of the Tenancy Laws of Lagos State misconstrued or misapprehend the import of the Respondent’s case. That it is the claim of the plaintiff that vests jurisdiction on a Court and in this case, the trial Court acted on a sound principle of law when it found that the questions for determination and declaratory orders sought are in respect of the construction of a lease agreement and consequential thereto. In response to the contention of the Appellant that the lease agreement between the parties was for ten years certain and has not expired, the Respondent contended that the Respondent’s case was hinged on breach of contract arising from the

fact that the Appellant undermined the provisions of the lease agreement for failure to pay the rent agreed to by the parties as shown on the affidavit evidence of the Respondent. It was submitted that the trial Court was right not to go through the arduous and difficult tasks of hearing oral evidence and testing the veracity of witnesses when it is clear that documentary evidence can be used to dispense with the matter. The Court was urged to disregard the argument of the Appellant on this issue.

On the Respondent’s issue 3 upon which he respondent to the Appellant’s submissions on its issue 4, it was submitted that the trial Court rightly held that did nothing to contest the Respondent’s claim of breach of contract before the trial Court. That was why the trial Court rightly observed that, but still proceeded to rigorously evaluate all the evidence presented to it before reaching its decision. In the circumstance, this Court was urged to resolve this issue in favour of the Respondent and dismiss the appeal.

RESOLUTION
The issues identified for determination by the parties share a lot in common, as such I will adopt the

issues formulated by the Appellant. The issues will be determined in their numerical orders.

ISSUE ONE (1)
In this issue the Appellant questioned the competence of the suit and by extension the jurisdiction of the trial Court to determine it having been commenced by originating summons. This is in view of the fact that it is tenancy agreement governed by the Tenancy Law of Lagos State, 2011 that specifically provides the mode of commencement of action in tenancy claims in Section 24 relied upon by the Appellant. For guidance, Section 24 of the said law provides that:
Upon the expiration of the time stated in the notice as in Form TL4, if the tenant neglects or refuses to quit and deliver possession, the landlord may file a claim by way of summons as in Form TL6A and B for recovery of possession either against the tenant or against such person so neglecting or refusing in the magistrate District or High Court Division where the premises is situated.
This is specific provision of the law that supersedes the Rules of Court in the commencement of action regarding tenancy claims. The relationship of the Appellant and the Respondent was based

on the tenancy agreement in respect of the named property and the dispute arose from the said agreement, as shown supra. It is incorrect as the Respondent contended that the claim was not tenancy related. It was, and its claims are governed by the relevant Tenancy law of Lagos State. The commencement of the proceedings by originating summons was therefore a wrong procedure, which means that the case was not before the trial Court by due process of law. It has no jurisdiction to decide same, vide MADOKOLU VS. NKEMDILIM (supra) and others cited by the Appellant.

It is noteworthy that this issue was earlier raised at the trial level, and the trial Court held that Originating Summons is used in cases where construction of document is involved and does not observe any major conflict in the fact this case which could not have been resolved by documentary evidence that has been placed before the Court.
The trial Court’s duty when faced with situation as in the suit before it is captured in the case of ABEEB AYETOBI V OLUSOLA OSIADE TAIWO CA/L/905/09 before this Honourable Court delivered on the 27th February, 2014:

From the above therefore, the first duty of a trial Judge, where action are begun or initiated by means of an originating summons procedure, is to examine the claim before him, and then to ascertain whether the procedure in originating summons was suitable or appropriate to the action. This first step, is sine qua-non to his assuming jurisdiction on the matter. This Court, per Galadima J.C.A. [as he then was] now J.S.C. in KEYAMO VS. HOUSE OF ASSEMBLY, LAGOS STATE (2000) 11 W.R.N. 29 at 40, (2000) 12 NWLR (Pt. 680) 796 at 213 stated as follows:
“I must state that the correct position of the law is that originating summons is used to commence an action where the issue involved is one of the construction of a written law or of any instrument made under a written law, or of any deed, contract or other document or some other question of law or where there is unlikely to be any substantial dispute of fact. This is the provision of Order 3 Rule 2 (2) of the Lagos State Civil Procedure (supra)”

The trial Court as cited above had taken time to ascertain this but can cases involving recovery of possession be said to be uncontested or not likely to be disputed even where some facts were

disputed by the Appellant. This Court in ABEEB AYETOBI V OLUSOLA OSIADE TAIWO (supra) answered this question and held that the claim before this Court which is for the recovery of a piece or parcel of land, by its very nature, cannot be uncontentious or uncontroversial, and therefore originating summons cannot be appropriately used. In the instant appeal, the trial Court ought not to have allowed it to be employed. Again, this Court per Galadima J.C.A. (as he then was) now J.S.C. in the case of OBASANYA VS. BABAFEMI (2000) 23 WRN (Pt.689) 1 at 17 stated as follows: “Where the facts are controversial or contentious and cannot be ascertained without evidence being adduced, originating summons should not be appropriately used; and if used it should be discountenanced. See N. B. N. & ANOR VS. ALAKIJA (1978) 2 LRN 78 see also DOHERTY VS. DOHERTY (1964) N.M.L.R. 144, UNILAG VS. AIGORO (1991) 3 NWLR (Pt.179) 367; ANATOGU Vs. ANATOGU (1997) 9”
Thus, even aside from the Tenancy law providing for the mode of commencement of this type of claim, the Appellant in their counter affidavit had contested many facts deposed to in the affidavit in support of the

Originating Summons, service of exhibits DL11, DL 16 and DL16B (see pp.65-69) and indeed many depositions in the affidavit in support. Obviously, originating summons procedure cannot be an appropriate mode of initiating an action where the parties are desirous to contest the facts or there is the likelihood of that contest. In the instant case, they even contested the facts in the affidavit in support. That proposition of law is only applicable where there is no specific statutory provisions as in this case. With due respect, the learned trial Judge fell into error to apply that principle of law to the claims of the Respondent in this case. Issue one is resolved in favour of the Appellant.

Having resolved the issue of jurisdiction in favor of the Appellant with the resultant effect that the trial Court lacked jurisdiction to determine the suit, being incompetent effectively affected this Court’s jurisdiction to proceed to determine the other issues. Without jurisdiction the Court will only labour in vain. The appeal succeeds on the issue of jurisdiction and it is allowed. The judgment of the trial Court is hereby set aside and the Respondent’s originating summons is hereby struck out.

IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading in advance. the draft judgment of my learned brother, HON. JUSTICE BALKISU BELLO ALIYU, J.C.A. and I am in complete agreement with his reasoning and conclusion on the issue of jurisdiction canvassed by the parties.

Where a Court has no jurisdiction on some issues, the best course of action is to decline jurisdiction and to further hold that the claims were not initiated by due process upon the fulfillment of all conditions precedent and the proper order is to strike out the application or suit. Jurisdiction must be vested in a Court before the rights of the parties may be determined. Where a Court has no jurisdiction, it cannot make binding orders. See Madukolu & Ors. vs. Nkemdilim (1962) 1 All NLR 587 at 595; Laniyan vs. Dadeowo & Ors. (1971) All NLR 169 at 172-173; Niger Leather Works Ltd. vs. Voss (1977) NNLR 220; Ajayi vs. Oduasi (1959) 4 FSC 189 and Fasakin vs. Shosanya (2006) 4 SCNJ 229 at 240.

Originating summons is the ideal process to commence proceedings where there is no dispute on questions of fact or the likelihood

of such dispute e.g., where the issue is to determine questions of construction. The main advantage of the procedure by originating summons is the emphasis on simplicity resulting from the elimination of pleadings. See Doherty vs. Doherty (1967) 1 All NLR page 245; Osuagwu vs. Emezi (1998) 12 NWLR (Pt. 579) page 640; Olumide vs. Ajayi (1997) 8 NWLR (Pt. 517) page 443. Where it is obvious from the state of the affidavits that there would be an air of friction in the proceedings, then an originating summons is no longer appropriate. A writ of summons would suffice in such circumstances.
Originating summons should be resorted to where time is of the essence and the relevant documents are placed before the lower Court. SeeEzeigwe vs. Nwawulu (2010) 4 NWLR (Pt. 1183) 159.
In Ezeigwe vs. Nwawulu (2010) Vol. 2 MJSC. 20; the Supreme Court held at page 48 paragraphs per Onnoghen, J.S.C. (as he then was) and page 79 paragraphs per Adekeye, J.S.C. as follows: –
“It is settled law that Originating Summons procedure is adopted where the sole or principal question at issue is, or is likely to be that of the construction of a written law or of any

instrument made under any written law or of any deed, will, contract or other document or some other question of law, or where there is likely to be no or any substantial dispute of fact relevant to the determination of the issue in controversy. See National Bank of Nigeria Ltd. vs. Alakija (1978) 9-10 SC 59…
The procedure of originating summons is meant to be invoked in a friendly action between parties who are substantially ad idem on the facts and who, without the need for pleadings, merely want, for example, a directive of the Court on the point of law involved. The procedure is not meant to be invoked in a hostile action between parties and in which the parties concerned need to know before hand the issue which they are called upon to contend with from the pleadings. There can be disputed facts which originating summons procedure could resolve, but, where the disputed facts are substantial, the proper mode of commencing such an action is by writ of summons so that pleadings can be filed. In other words, originating summons procedure is appropriate where there is no substantial dispute of facts between the parties or likelihood of such dispute. See

Jimoh vs. Olawoye (2003) 10 NWLR (Pt. 828) page 307; Ogunsola vs. A.P.P. (2003) 9 NWLR (Pt. 826) page 462; Olumide vs. Ajayi (1997) 8 NWLR (Pt. 517) page 433; Unilag vs. Aigoro (1991) 3 NWLR (Pt. 179) page 376; Adeyemo vs. Beyioku (1999) 13 NWLR (Pt. 635) page 472; Kankara vs. C.O.P. (2002) 13 NWLR (Pt. 785) page 596.”

In Okoye vs. Nigeria Construction & Furniture Co. Ltd. (1991) 7 SCNJ (Pt. 2) 365, Akpata, J.S.C. held at pages 381-382 as follows:
“The true legal position which learned Counsel, with respect, did not advert his mind to is that, if the Court of Appeal is right in holding that the trial Court had no jurisdiction to entertain the plaintiffs/appellants’ claims, other issues arising from the Grounds of Appeal will be secondary and perhaps irrelevant, and will not affect the decision that the Trial Court had no jurisdiction. This is so because, if indeed a Court has no jurisdiction but has advanced wrong reasons for saying so or said what he should not have said, the judgment will not be set aside.”
The Supreme Court and indeed this Court had variously held that jurisdiction is the life blood to the adjudication of any action

before a Court of law without which, like an animal, that has been drained of its blood it will cease to live and any attempt to resuscitate it without infusing blood into it will be an exercise in futility. See Utih vs. Onoyivwe (1991) All NWLR (Pt. 166) 166; Mobil Producing (Nig.) Unltd. vs. L.A.S.E.P.A. (2002) 18 NWLR (Pt. 798) 1. Owing to the fundamental and threshold nature of jurisdiction, it can be raised as an issue at any time and even on Appeal before the Supreme Court or Court of Appeal for the first time.
It is also trite and as has been held in a plethora of authorities that jurisdiction is generally a creature of statute, Constitution or otherwise and that since the jurisdiction to entertain and determine a case either at the Trial Court or Appellate Court are donated by statute, failure to comply with any statutory or constitutional provisions or the required prescription that the relevant laws or other Rules by which a Suit or Claim or an Appeal may be brought, may render such a Claim or Appeal incompetent and deprive such a Court of its jurisdiction to adjudicate upon the matter.

In the same vein, jurisdiction cannot be conferred or donated to the Court or by the parties or by their consent, for jurisdiction cannot be circumvented as it is always conferred by either statute or the Constitution. See Osi vs. Accord Party (2017) 3 NWLR (Pt. 1553) 387 at 403 paras. D-F per Sanusi, J.S.C. citing Dangana & Anor. vs. Usman 4 Ors. (2013) 6 NWLR (Pt. 1349) 50; NURTW & Anor. vs. R.T.E.A.N (2012) 1 SC (Pt. 1) 119; A-G. Lagos vs. A-G. Federation (2014) 9 NWLR (Pt. 1412) 217 at 254.
Courts are creatures of statutes and it is the statute that creates a particular Court that confers jurisdiction on it, and jurisdiction can only be extended by the legislature. However, where the jurisdiction of a Court is a matter of procedural law, failure to comply with certain aspect of the procedure is a mere irregularity, which does not render the action incompetent.

Accordingly, this Appeal has merit and is hereby allowed. The Judgment of the Trial Court is hereby set aside while Respondent’s Originating Summons initiated in the Lower Court is struck out.

SAIDU TANKO HUSSAINI, J.C.A.: I am in complete agreement with the reasoning and conclusions contained in the lead judgment prepared and delivered by my lord, BALKISU BELLO ALIYU, J.C.A.

Actions commenced by way of Originating Summons is not the appropriate procedure if, from the record or processes placed before the Court, the facts giving rise to the case indicate that the suit is being hotly contested by the parties thereto. The procedure by way of Originating Summons should be employed only in cases for the construction of statutes and interpretation of documents, such simple contracts which are not in contention. Actions such as the one before us, founded on disputed facts should be commenced by way of Writ of Summons, otherwise, those actions are rendered incompetent. I am in agreement with my Lord in the lead judgment that the case before the trial Court should be struck out for want of jurisdiction. Ordered accordingly.

Appearances:

ADEREMI O. ADEBAYO, ESQ. For Appellant(s)

OLAMIDE BALOGUN,ESQ. For Respondent(s)