MARCOPOLO BUS MANUFACTURING NIG. LTD. v. GOV OF LAGOS STATE & ANOR (2020)

MARCOPOLO BUS MANUFACTURING NIG. LTD. v. GOV OF LAGOS STATE & ANOR

(2020)LCN/14425(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Monday, July 27, 2020

CA/L/267/2017

Before Our Lordships:

Mohammed Lawal Garba Justice of the Court of Appeal

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

MARCOPOLO BUS MANUFACTURING NIG. LTD. APPELANT(S)

And

1. GOVERNOR OF LAGOS STATE 2. ATTORNEY GENERAL OF LAGOS STATE RESPONDENT(S)

RATIO

COMMENCEMENT OF ACTION BY ORIGINATING SUMMONS

Now, originating summons is one of the ways or modes by which actions may be commenced, initiated, filed or brought in or before the Lower Court by virtue of the provisions of Order 3, Rules 5 and 6 of the High Court of Lagos State Civil Procedure Rules, 2012. The provisions are as follows: –
“5. Any person claiming to be interest or claiming any legal or equitable right under a Deed, Will, enactment or other written instrument may apply by Originating Summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.
6. Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of an enactment, may apply by Originating Summons for the determination of such question of construction and for a declaration as to the right claimed.”
As may easily be discerned from the provision in Rule 6, in particular, Originating Summons may be used in actions/suits wherein, the claim of a right is predicated on the entitlement of the right which depends on the question of interpretation or construction of an enactment. The right and entitlement thereto are based primarily on the question of interpretation and application of the relevant enactment in question and so purely an issue of law and not of substantial facts which are or likely to be in dispute between a Claimant of the right and party against whom declarations and other reliefs in respect of the claimed right, are sought. As stated by the Apex Court in Famfa Oil Ltd. V. A. G. Federation (supra):
“The very nature of an Originating summons is to make things simpler for hearing. It is available to any person claiming interest under a deed, will or other written instrument whereby he will apply by originating summons for the declaration of any question of construction arising under the instrument for declaration of his interest … It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the dealings of the parties in the suit. In such a situation, there is no serious dispute as to the facts but what the plaintiff is claiming is the declaration of his rights. If there are serious disputes as to facts then a normal writ must be taken out and not an originating summons – Doherty v. Doherty (1968) NMLR 241.”PER GARBA, J.C.A.

WHETHER OR NOT IT IS PROPER FOR AN ACTION OR SUIT TO BE COMMENCED WHERE MATERIAL AND SUBSTANTIAL FACTS UPON WHICH THE ACTION IS PREDICTED ARE IN DISPUTE, CONTENTIOUS AND HOSTILE

From the established position of judicial authorities, it is not appropriate nor proper for an action or suit to be initiated or commenced where material and substantial facts upon which the action is predicated and to be relied on are or likely to be, not only in dispute, but also contentious and hostile in the proceedings such that other or further evidence; particularly parole or oral, will be necessary and/or required in the resolution of the material issues in the action or suit. However, as cautioned by Tobi, JSC in Pam v. Mohammed (supra): –
“It is not the law that once there is dispute on facts, the matter should be commenced by writ of summons. No, that is not the law. The law is that the dispute on facts must be substantial, material, affecting the live issues in the matter. Where disputes are peripheral, not material to the live issues, an action can be sustained by originating summons. After all, there can hardly be a case without facts. Facts make a case and it is the dispute in the facts that give rise to litigation.”
So it is not every dispute in the facts of an action, which is or may be minor, inconsequential, and infinitesimal to the live issues for determination in the action, that will render the use or employment of originating summons to inappropriate or improper to commence same. It is only where the dispute is serious and goes directly and frontally to the substantial facts upon which rights claimed are predicated such as to necessitate further evidence from the parties to be completely and conclusively resolved, that originating summons becomes inappropriate and improper for the commencement of an action. See NEPA v. Ugbaja(1998) 5 NWLR (Pt. 548) 106; Egbarin v. Aghoghobia (2003) 16 NWLR (Pt. 846) 380; Nwoko v. Ekerete (2010) 4 NWLR (Pt. 1183) 78 @ 88. PER GARBA, J.C.A.

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): By way of Originating Summons filed before the High Court of Lagos State, sitting at Ikeja (Lower Court) against the Respondents, the Appellant sought the determination of the following questions:-
“1. Whether the 1st Defendant in the exercise of its powers under Section 28 of the Land Use Act 1978 can validly revoke the Claimant’s Certificate of Occupancy (Exhibit ABK 1) with Exhibit ABK 2 (notice of revocation) for an alleged breach of a covenant contained in Exhibit ABK1 without first serving on the Claimant a notice of the alleged breach of the terms of the covenant in the said Certificate of Occupancy and also without giving the Claimant an opportunity to remedy the alleged breach?
2. Whether the issuance and service of Exhibit ABK 2 – the notice of revocation upon the Claimant, without the requisite pre-revocation notice, amounts to a violation of the Claimant’s right to fair hearing and right to property as enshrined in Sections 36 and 43 of the Constitution of the Federal Republic of Nigeria 1999 as Amended?
3. Was the notice of revocation

properly served on the Claimant in the manner provided for under Section 44 of the Land Use Act?
4. Even if (which is not admitted), the Certificate of Occupancy of the Claimant could be revoke without complying with the conditions stated in Issues 1 and 2 above, can the Defendants legally repossess the property from the Claimant in the manner it did without following the procedure laid down by the law?

In the event that the questions were answered in its favour, the Appellant prayed for reliefs from the Lower Court as follows: –
“I. A DECLARATION that the revocation, cancellation or withdrawal of the Claimant’s Certificate of Occupancy No. 63/63/2007 dated 9th January, 2007 over land located between Agege Motor Road and Fatai Atere Way, LSTC Yard, Cappa in Mushin Area of Lagos State as contained in a notice under the hand of the Governor of Lagos State dated 3rd March 2016 is illegal, unconstitutional, null and void.
II. AN ORDER setting aside the revocation notice under the hand of the Governor of Lagos State dated the 3rd March, 2016.
III. A DECLARATION that the taking over, possession and occupation of the

Claimant’s land located between Agege Motor Road and Fatai Atere Way, LSTC Yard, Cappa in Mushin Area of Lagos State and covered by Certificate of Occupancy dated 9th January, 2007 by the Defendants is illegal and unlawful in the manner it was done.
IV. AN ORDER directing the Defendants to vacate forthwith their illegal occupation of the claimant’s premises located between Agege Motor Road and Fatai Atere Way LSTC Yard, Cappa in Mushin Area of Lagos State.
V. AN INJUNCTION restraining the Defendants, it privies, agents, assigns or any third party whosoever from acting or relying howsoever upon the purported Notice of Revocation above stated to deny the Claimant access thereto or prevent the Claimant from exercising all lawful rights vested in it over the land granted to it by virtue of the Certificate of Occupancy.
VI. General damages for trespass against the Defendants in the sum of N10m (Ten Million Naira) only.
VII. Exemplary damages against the Defendants in the sum of N50m (Fifty Million Naira) only.
VIII. Cost of the action including Solicitor’s fees in the sum of N15m (Fifteen Million Naira) or any sum as may

be assessed by the Court.”

The summons was supported by an Affidavit deposed to by a Workshop Operations Manager in the Appellant; one Mr. Abel Abejoye and a Written Address dated 11th, but filed on 12th of April, 2016.

For the Respondents, a Counter Affidavit was filed on 24th of June, 2016 in reaction to the summons, and in response thereto, the Appellant filed a Reply Affidavit on the 28th of July, 2016. Expectedly, the Respondents filed a Further and better Counter Affidavit, dated 5th of October, 2016.

One of the issues raised and canvassed in the Addresses filed by the parties before the Lower Court was whether the action was one which could or should have been brought by use of originating summons in view of the facts in the Affidavits of the parties. While the Appellant’s Learned SAN argued that there were no contentious or disputed facts that require oral evidence to resolve and so originating summons was proper to commence the action, the Respondents contended that there are substantial facts that are contentious and disputed by the parties in their Affidavits such that oral evidence was necessary in order to resolve them.

That the action should have been brought by Writ of Summons and not originating summons.

In a Ruling delivered on 13th of January, 2017, the Lower Court noted and decided that: –
“I have looked closely at the claimant’s originating summons and the question that the claimant is praying this Court to determine as well as the reliefs sought. The defendants have filed their response. The relevant provisions of the law in this case have to be applied to the facts in a bid to do justice to this. Whether indeed the revocation of the certificate of occupancy was illegally carried out or not and whether it is indeed in effect null and void are issues that can only be determined after the Court has fully resolved contentious facts tabled before it by both parties. In other words the Court after taking evidence will evaluate the evidence led before it.
In the light of the above fact, I am of the firm view that this is not a matter that should be commenced by originating summons but rather by a writ of summons followed by the filing of pleadings by both parties.”

In consequence of this position, the action was converted in to a writ

of summons and parties directed to file their respective pleadings. It is against the decision by Lower Court to convert the originating summons filed by the Appellant, to writ of summons that this appeal was brought on behalf of the Appellant via the Notice of Appeal dated the 23rd of January, 2017 on four (4) grounds.

Two (2) Issues are said to arise for decision by the Court in the Appellant’s brief filed on the 29th of March, 2017 in the following terms: –
“I. Whether the trial Judge was right to holding that the Appellant’s Originating Summons and the relief sought cannot be determined except by way of oral evidence. (Distilled from grounds two and three in the Notice of Appeal).
II. Whether from the Affidavit evidence filed for and against the Appellant’s Originating Summons before the trial Court, this Honourable Court can resolve the issues for determination between the Parties. (Distilled from ground four in the Notice of Appeal).”

The issues formulated in the Respondents’ unpaginated brief filed on the 28th of June, 2018, deemed on 27th of February, 2019 for determination in the appeal are: -<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“Issue 1. Whether the Learned Trial Judge was not right in holding that the Appellant’s Originating Summons and relief sought cannot be determined except by way of oral evidence.
Issue 2. Whether the terms and conditions of the grant of the certificate of occupancy registered as number 63 at page 63 in volume 2007 at the Lands Registry Ikeja have been complied with by the Appellant.”

Looking at the grounds of the appeal, the crucial issue which requires and calls for decision by the Court in the appeal is simply: –
“Whether the Lower Court is right in law that the action of the Appellant was not properly commenced by way of originating summons.”

On the authority of, inter alia, Sha v. Kwan (2000) 8 NWLR (Pt. 670) 685 @ 700; Onochie v. Odogwu (2006) 6 NWLR (Pt. 975) 65; Chabasaya v. Anwasi (2010) 10 NWLR (Pt. 1201) 163 @ 181 and Tarzoor v. Ioraer (2016) 3 NWLR (Pt. 1500) 463 @ 506, the appeal will be decided on the basis of this sole issue which is the same as Issue One (1) each, of the parties.

Appellant’s Submissions:
It is submitted that it is the nature of the claim that determines whether

or not an action is one which can be determined by way of originating summons. According to the Learned Counsel, the Issues raised in the originating summons are specified acts of illegality which were admitted by the Respondents in their counter Affidavits to the effect that the powers of a Governor of a State to revoke a Certificate of Occupancy (CO) in respect of a piece of land under Section 28 of the Land Use Act, can only be exercised within the limits of the rights of the citizens in Sections 36 and 43 of the 1999 Constitution. Obikoya & Sons Ltd. V. Gov., Lagos State (1987) 1 NWLR (Pt. 50) 384; N. E, W. Ltd v. Denap Ltd (2001) 18 NWLR (Pt. 746) 726 and Osho v. LSDPC (1991) 4 NWLR (Pt. 184) 157 are cited for the submission and it is further contended, on the authority of these cases, that there must be pre-revocation notice given to the holder of the Certificate of Occupancy clearly indicating the breach alleged and an opportunity to remedy same. Exhibits ABK 1 and ABK 2 are said to show that the provision of Section 28 of the Land Use Act (LUA) was not complied with and that the Respondents did not make any effort to deny the non-compliance. In

further argument, Learned Counsel said that on the basis of the admitted facts in the Affidavits of the parties, the legality of the revocation of the Appellant’s Certificate of Occupancy could have been decided without the need to take any other or further evidence by way of oral testimony since originating summons procedure is adopted where the sole or principal question or issue is or likely to be that of construction a written law or any instrument made thereunder, of any deed, will, contract, 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, as stated in Ezeigwe v. Nwawulu (2010) 4 NWLR (Pt. 1183) 159 @ 173; Famfa Oil Ltd v. A. G. Federation (2003) 18 NWLR (Pt. 852) 453 @ 461.

Order 3, Rules 5 and 6 of the Lower Court’s Civil Procedure Rules, 2012 are referred to and it is maintained that there are no substantial facts in dispute in suit before the Lower Court as the Respondents have admitted the substantial facts of the Appellant.

For the above reasons, it is submitted that the decision by the Lower Court that

the summons could not be decided on the Affidavit evidence before it, is perverse and the Court is urged to resolve the issue in Appellant’s favour.

Respondents’ Submissions:
The submissions are that the Lower Court is right to hold the originating summons filed by the Appellant could not be determined on the Affidavit alone and to have converted it to a writ of summons. Citing Famfa Oil Ltd v. A. G. Federation (supra), Dapianlong v. Dariye 4 FWLR (Pt. 390 @ 6105-6; Osunbade v. Oyewunmi (2007) 4-5 SC, 98 @ 112 and Pam v. Mohammed (2008) 5-6 SC @ 162 on the nature of and when originating summons may be appropriately made to commence an action, it is argued that the Affidavit evidence before the Lower Court shows facts which are highly contentious on the procedural illegality or otherwise of the revocation of the Certificate of Occupancy, taking over and occupation of the property in question and cannot be decided on the Affidavits alone.
The Court is urged to so hold and resolved the issues in Respondent’s favour.

Resolution:
In order to fully appreciate the substantial facts in the Affidavits of the parties, it is

expedient to set out the material portions thereof.

For the Appellant, the relevant facts contained in the initial Affidavit in support of the summons are in paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 16, 18 and 19 which say that: –
“7. That I am aware the 1st Defendant issued a Certificate of Occupancy in favour of the Claimant dated the 3oth of July, 2007. It is hereby attached and marked as Exhibit ABK 1.
8. That the said land is located between Agege Motor Road and Fatai Atere Way, LSTC Yard, Cappa in Mushin Area of Lagos State.
9. That the Claimant was immediately put in possession of the said land, erected structures on it and has been carrying on repair works on the vehicles brought to it.
10. That I was on the premises of the Claimant on duty at the above premises on the 4th of March, 2016.
11. That on the said 4th March, 2016, a group of men led by an officer who claimed to have come from the office of the Defendants came in with armed uniform policemen and thugs and invaded the premises of the Claimant and asked us to vacate the premises stating that they had instructions from the Defendants to chase us out of the

premises.
12. That I refused to yield to the instructions of the gentleman who led the team to invade our office who later gave his name as Mr. Salaam and who also threatened that the armed police officers will shoot at us if we did not vacate the premise as directed by him.
13. That prior to the time of the incident referred to in paragraphs’ 10 and 11, I was not shown or given any letter as to why the invasion on the property was authorized.
14. That as a result of the threat made to my life and that of those on the premises, we vacated the premises and locked the main gate to the premises and Mr. Taiwo Salaam double locked the premises with padlocks brought with him.
15. That I was informed by Mr. Tayo Adesanya, Chairman of the Claimant Company that on Monday, 7th March 2016 at about 10. Am in his residence at Parkview Estate, Ikoyi and I verily believe the same to be true, that on Saturday 5th March, 2016 an official from the Defendants dropped a Notice of Acquisition of right of occupancy dated 3rd of March, 2016 with the security officer at his residence who handed the same document to him.
16. That the notice referred to

in paragraph 15 above is attached herewith and marked Exhibit ABK 2
18. That Mr. Tayo Adesanya informed me on the said 7th March, 2016 at the same time at his residence and I verily believe him, that prior to the delivery of Exhibit ABK 2 no notice of any alleged breach of the covenant in Exhibit ABK 1 was ever issued to the Claimant Company nor was it given any opportunity to remedy the said alleged breach.
19. That the Claimant was not given any opportunity to remove any of its equipment and other personal properties belonging to it when it was chased out of the property.”

In reaction to these depositions, the Respondents in paragraphs 6, 7, 10, 11, 12, 13, 14, 15, 19 and 20 of the Counter Affidavit dated 27th of June, 2016 deposed that: –
“6. A Joint Venture Agreement dated 18/7/2005 was also entered into between the Lagos State Government and the Consortium comprising of BHL Investments & Technology (Overseas) SA and Marcopolo S. A. (Brazil).
7. Pursuant to the said Joint Venture Agreement, Lagos State Government (“LASG”), as part of its equity contribution to the Joint Venture, transferred possession of

landed properties at Cappa Oshodi and at Epe, to Marcopolo Bus Manufacturing Nigeria Limited, the special purpose company and Certificates of Occupancy dated 9th January, 2007 and registered as No. 63, page 63 Vol. 2007 and dated 30th July, 2007 and registered as No. 15 page 15 Vol. 2007Y respectively, were issued accordingly in the name of the Claimant, Marcopolo Bus manufacturing Nigeria Limited.
10. The Claimant defaulted by failing to adhere to the terms of the Certificate of Occupancy and as a result the Lagos State Government revoked the Certificate of Occupancy issued with respect to the implementation of the project, on the 3rd day of March, 2016.
11. In response to paragraph 11 and 12 of the Affidavit in support of the Claimant’s Originating Summons, I am aware that, Mr. Taiwo Salaam, a representative of the Lagos State Government, as a joint owner visited the landed property at Cappa Oshodi on the 4/4/2016 to identify some of the physical facilities on ground after the Government’s exit.
12. That the said Mr. Taiwo Salaam informed me on the 7/3/2016 in the office of the Director, Commercial Law of the Lagos State

Ministry of Justice at about 12.30pm and I verily believe him, that he and some other person never invaded the landed property at Cappa Oshodi on the 4/3/2016 with thus and did not chase out any person whatsoever, including the deponent to the Affidavit in support of the Claimant’s Originating Summons.
13. I state further that the said Mr. Taiwo Salaam also informed me on the same day, place and time, and I verily believe him, that he nor other persons with him ever threatened that the armed police officer will shoot at any person if they refused to vacate the said landed property at Cappa Oshodi.
14. After the exit from the Contract, the Lagos State Ministry of Justice invited BHL Investment and Technology Ltd to carry out a joint inventory of what items/properties still remaining on the landed property at Lagos State Transportation Corporation Yard, Cappa, Agege Motor Road and Fatai Atere Way, Lagos State, and for removal of whatever is agreed to belong to it as of right.
15. That BHL Investment & Technology Limited refused, neglected and/or failed to honour all the invitations sent to it till date but rather continue to evade the

joint inspection/inventory and handover the vacant possession of the aforesaid landed property to the Claimant.
19. The Revocation Notice dated 3/3/2016 was served by the Permanent Secretary of the Lands Bureau himself on the Claimant.
20. The address given by the Claimant on its Certificate of Occupancy as its registered office has never been located for service of any document by the Defendants and except the said Revocation Notice, all correspondences have been through his Solicitors.”

The Appellant responded to the Respondents’ Counter Affidavit by the Reply dated 28th of July, 2016 in paragraphs 5, 6, 7 and 10 that: –
“5. That I am further informed by Prof. A. B. Kasunmu, SAN and I verily believe him that there is nothing in the Joint Venture Agreement as deposed to in paragraphs 4-9 of the Defendants’ Counter-Affidavit where it was stated that the grant of the land which is the subject-matter of this litigation is a contribution by Lagos State Government as part of its equity to the Project between the Claimant and Lagos State and it is for this reason that the Defendants have deliberately decided not to

exhibit the said Joint Venture Agreement or any document to establish this point.
6. That I am also informed by Prof. A. B. Kasunmu, SAN and I verily believe him that Exhibit ABK 1 (Certificate of Occupancy) is also silent on this point.
7. That I am also informed by Prof. A. B. Kasunmu SAN and I verily believe him that paragraph 10 of the Defendants’ Counter-Affidavit is incorrect as the revocation of the Certificates of Occupancy by Exhibit ABK 2 (Notice of Revocation) has nothing to do with the failure of the Project but with the non-payment of ground rent by the Claimant and this is evident on the face of Exhibit ABK 2.”
10. That contrary to the denial of Mr. Salaam as contained in paragraphs 12-13 of the Defendants’ Counter-Affidavit of any forcible entry, Exhibits ABK 3 – ABK 5 attached to the Affidavit in support of the Claimant’s Originating Summons which Exhibits were not replied to by the Defendants prove conclusively that the denial is an afterthought.”

The Respondents in the Further and Better Affidavit of 5th of October, 2016 deposed, in answer to the Reply to the Counter Affidavit, in

paragraphs 5, 6, 7, 8 and 9 that: –
“5. The Company’s registered Office as indicated on the Certificates of Occupancy could not be located after several efforts.
6. I was on a Team assigned to carry out alternative means of service of the Revocation Notices on the Claimant.
7. The Revocation Notice was sent by Courier, DHL to the Claimant at its registered Office as indicated in the Certificate of Occupancy. Attached herewith and marked Exhibit LASG 2 is The DHL Courier Waybill.
8. Also, I pasted on the Claimant’s fence the said Revocation Notice. Attached herewith and marked Exhibit LASG 3 is the pictorial evidence of pasting.
9. After this was done the Claimant wrote the letter dated 9th March, 2016 wherein he noted the effect of the Revocation Notice. Attached herewith and marked Exhibit LASG 4 is the letter dated 9th March, 2016.”

are as follows: –
“5. Any person claiming to be interest or claiming any legal or equitable right under a Deed, Will, enactment or other written instrument may apply by Originating Summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.
6. Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of an enactment, may apply by Originating Summons for the determination of such question of construction and for a declaration as to the right claimed.”
As may easily be discerned from the provision in Rule 6, in particular, Originating Summons may be used in actions/suits wherein, the claim of a right is predicated on the entitlement of the right which depends on the question of interpretation or construction of an enactment. The right and entitlement thereto are based primarily on the question of interpretation and application of the relevant enactment in question and so purely an issue of law and not of substantial facts which

are or likely to be in dispute between a Claimant of the right and party against whom declarations and other reliefs in respect of the claimed right, are sought. As stated by the Apex Court in Famfa Oil Ltd. V. A. G. Federation (supra):
“The very nature of an Originating summons is to make things simpler for hearing. It is available to any person claiming interest under a deed, will or other written instrument whereby he will apply by originating summons for the declaration of any question of construction arising under the instrument for declaration of his interest … It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the dealings of the parties in the suit. In such a situation, there is no serious dispute as to the facts but what the plaintiff is claiming is the declaration of his rights. If there are serious disputes as to facts then a normal writ must be taken out and not an originating summons – Doherty v. Doherty (1968) NMLR 241.”
All the judicial authorities cited (supra) on the principle by the Learned Counsel for the parties and a galaxy of

others, restated and affirmed the above nature of originating summons as a mode of initiating or commencing an action and when its use or employment will be appropriate or in appropriate, as the case may be. See also Univ. of Lagos v. Aigoro (1991) 3 NWLR (Pt. 179) 376; A. G. Adamawa State v. A. G. Federation (2005) 12 SC (Pt. II) 132; Ejura v. Idres (2006) ALL FWLR (Pt. 318) 646; Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423; Balonwu v. Obi (2007) 5 NWLR (Pt. 1028) 488; Anyanwoko v. Okoye (2010) 5 NWLR (Pt. 1188) 497.
From the established position of judicial authorities, it is not appropriate nor proper for an action or suit to be initiated or commenced where material and substantial facts upon which the action is predicated and to be relied on are or likely to be, not only in dispute, but also contentious and hostile in the proceedings such that other or further evidence; particularly parole or oral, will be necessary and/or required in the resolution of the material issues in the action or suit. However, as cautioned by Tobi, JSC in Pam v. Mohammed (supra): –
“It is not the law that once there is dispute on facts, the matter should be

commenced by writ of summons. No, that is not the law. The law is that the dispute on facts must be substantial, material, affecting the live issues in the matter. Where disputes are peripheral, not material to the live issues, an action can be sustained by originating summons. After all, there can hardly be a case without facts. Facts make a case and it is the dispute in the facts that give rise to litigation.”
So it is not every dispute in the facts of an action, which is or may be minor, inconsequential, and infinitesimal to the live issues for determination in the action, that will render the use or employment of originating summons to inappropriate or improper to commence same. It is only where the dispute is serious and goes directly and frontally to the substantial facts upon which rights claimed are predicated such as to necessitate further evidence from the parties to be completely and conclusively resolved, that originating summons becomes inappropriate and improper for the commencement of an action. See NEPA v. Ugbaja(1998) 5 NWLR (Pt. 548) 106; Egbarin v. Aghoghobia (2003) 16 NWLR (Pt. 846) 380; Nwoko v. Ekerete (2010) 4 NWLR (Pt. 1183)

78 @ 88.
Learned Counsel for the Appellant is right that in the determination of whether originating summons is appropriate and proper in commencing an action, it is the nature of the facts put forward in the Affidavit(s) of the Claimant that are the material and relevant for consideration by the Court even without a Counter Affidavit from the defendant. In the case of Ossai v. Wakwah (2006) ALL FWLR (Pt. 303) 239, 256; Mohammed, JSC, stated the position thus: –
“It must be emphasized that it is not the filing of a counter affidavit to oppose claims in an originating summons that makes such proceedings contentious or results in disputed facts. Even where no counter affidavit was filed or where counter affidavit was filed, the nature of the claims and the facts deposed in the affidavit in support of the originating summons are enough to disclose dispute in facts and the hostile nature of the proceedings.”
A calm perusal of the Appellant’s Affidavits discloses that the live issue and the substantial facts supporting it relate to the alleged wrongful revocation of the Certificate of Occupancy, taking over and occupation of the

property in question, by the Respondents.
On their part, the Respondents have directly, frontally and effectively deposed to facts denying and disputing the assertions by the Appellant on the revocation of the Certificate of Occupancy, forceful take over and occupation of the property in question. The Respondents have therefore seriously disputed the substantial facts of the Appellant’s claim on the live and real issues to be resolved and decided by the Lower Court in the action before it. The judicious resolution of the issues, particularly as to the facts in the Respondents’ Counter-Affidavits and the Appellant’s two (2) Counter-Affidavits, will call for and require other and/or further evidence from the parties, outside of and in addition to the substantially disputed facts contained in the Affidavits before the Lower Court.
In the above premises, the Lower Court is right that the originating summons filed by the Appellant could not be determined on the Affidavit evidence alone and so it is an inappropriate and improper mode to commence the action. The order converting the summons to writ of summons and for parties to file

pleadings was proper and on firm terrain of the law. I am unable to find cogent reason to warrant interference with the decision by the Lower Court.

Before ending this short judgement, I would like to say that the above finding on Issue 1 has effectually overtaken the Issue 2 raised, respectively, by the Learned Counsel for the parties.

In the final result, I find no merit in the appeal and it is dismissed.
The decision by the Lower Court contained in the Ruling delivered on 13th of January, 2017 is affirmed and Parties shall bear their respective costs of prosecuting the appeal.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Mohammed Lawal Garba, J.C.A., (Hon. P.J.), which I have had the advantage of reading in print.

BALKISU BELLO ALIYU, J.C.A.: I have had the privilege of reading before now the judgment of my learned brother MOHAMMED LAWAL GARBA, JCA just delivered.

I agree with him that there is no merit in this Appeal and it deserves a dismissal. I too dismiss the appeal in its entirely and I affirm the Ruling of the lower Court delivered on the 13/1/2012. Appeal dismissed.

Appearances:

A. Adesanmi For Appellant(s)

Apena, S. S. C., Ministry of Justice, Lagos State For Respondent(s)