MINISTER, FCT & ANOR v. SOUTHLAND ASSOCIATES LTD (2020)

MINISTER, FCT & ANOR v. SOUTHLAND ASSOCIATES LTD

(2020)LCN/14648(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, October 20, 2020

CA/A/215/2019

RATIO

CLAIM: DUTY OF A CLAIMANT WHERE HE BELIEVES THERE IS NO DEFENCE TO HIS CLAIM

The said provision of the trial High Court Rules 2018 provides thus:
“where a claimant believes that there is no defence to his claim, he shall file with his originating process the statement of claim, the exhibits, the depositions of his witnesses and an application for summary Judgment which application shall be supported by an affidavit stating the grounds for his belief and a written brief in support of the Application.” PER NIMPAR, J.C.A.

PROCEDURE: MEANING AND NATURE OF SUMMARY JUDGMENT PROCEDURE

Summary judgment procedure was defined in the case of LEWIS V. UBA (2016) LPELR-40661(SC) thusly:
“The summary judgment procedure is for disposing of cases which are virtually uncontested with dispatch. It applies to cases where there can be no reasonable doubt that the plaintiff is entitled to judgment and where it is inexpedient to allow a defendant to defend for mere purposes of delay. It is for the plain and straight forward, not for the devious and crafty. See U.B.A. Plc Vs Jargaba (2007) 11 NWLR (Pt. 1045) 247 @ 270 F-H per I.T. Muhammad, JSC; Sodipo Vs Lemninkainen OY (1986) 1 NWLR (Pt. 15) 230: Adebisi Macgregor Ass. Ltd. Vs N.M.B. Ltd (1996) 2 NWLR (Pt. 431) 378; (1996) 2 SCNJ 72 @ 81.” Per KEKERE-EKUN, J.S.C.
The summary Judgment procedure which is similar to the undefended list procedure, is designed to enable a party obtain Judgment especially in liquidated demand cases, without the need for a full trial where the other party cannot satisfy the Court that it should be allowed to defend the action. Just like the procedure in undefended list, the Defendant is not expected to show that his defence would succeed but should raise a triable issue, what it is and how it is determined was discussed in OKOYE V. INTERNATIONAL TRUST BANK PLC (2007) LPELR-4441(CA) thusly:
“The pertinent question at this juncture would be whether the notice of intention to defend and the affidavit attached by the appellant established a triable issue. In determining whether a defendant has a good defence to the action brought against him or he has disclosed such facts as may be deemed sufficient to defend the action, it is not necessary for the trial Judge to consider at that stage whether the defence has been proved. What is required is simply to look at the facts deposed to in the affidavit attached to the notice of intention to defend and see if they can “Prima facie” afford a defence to the action. The defendant’s affidavit must condescend upon particulars and should as far as possible, deal specifically with the plaintiff’s claim and affidavit and state clearly and concisely what the defence is and what facts and documants are relied on to support it. The affidavit in support of the notice of intention to defend must of neccesity disclose facts which will, at least, throw some doubt on the Plaintiff’s case. See – Olubusola Stores v. Standard Trust Bank Nigeria Ltd (1975) 4 S.C. Page 51; Sanusi Brothers (Nig.) Ltd. v. Cotia Commercia Ex. S.A (2000)11 NWLR Part 679 at 566; United Bank for Africa Plc. & 1 other v. Alhaji Babangida Jargaba (supra).” Per BADA, J.C.A. PER NIMPAR, J.C.A.
JUDGMENT: PURPOSE OF UNDEFENDED LIST PROCEDURE

There is a unanimity of judicial opinions on the interpretation of the above rules to the effect that they provide for a straight forward procedure in the determination of simple and non-contentious claims in respect of specific or liquidated sums of money usually due and payable to a claimant either arising from out of a debt or money had and received from him, in other words, the claim must relate to a claim for a debt or liquidated money demand, SBN Plc. v. Kyentu (1998) 2 NWLR (Pt.536) 41; Kabiru v Ibrahim (2004) 2 NWLR (Pt.857) 326; Ndukwe v. Demsey Int Sales Corp (1991) 7 NWLR (Pt.206) 680. Where, therefore, the claim is steeped in controversy, the procedure is not applicable, G. M. O. Nworah and Sons Ltd. v. Afam Akputa (2010) 9 NWLR (Pt.1200) 443, 476 – 477; 478. The reasons for this is simple. Since the summary judgment and undefended list proceedings are not designed to shut out a defendant from contesting the suit, the Court should not, unduly, slaughter the defendant’s right to interrogate the plaintiff’s claim on an abattoir constructed for quick disposal of cases, or what may be loosely referred to as “cut and nail” justice in favour of the plaintiff, Jipreze v. Okonkwo (1987) 3 NWLR (Pt.620) 737; Ezuma v. Nkwo Market Community Bank Ltd (2000) 10 NWLR (Pt.676) 638; CCB (Nig) Plc v. Samad Investment Co. Ltd. (2000) 4 NWLR (Pt.651) 19; Egbe v. Adefarasin (1985) 1 NWLR (Pt.3) 549. To do otherwise would be to employ a procedure designed to obviate injustice to a deserving plaintiff as a vehicle for perpetrating injustice against a defendant, Nishizawa Ltd v. Jethwani (1984) 12 SC 234, 292. This would be a travesty of the whole purpose of the procedure. As was held in Macaulay v. NAL Merchant Bank Ltd (1990) 4 NWLR (Pt.144) 283, the intention of the procedure is not to foreclose the defence of the defendant or drive him away from the judgment seat before hearing. Put simply, the procedure is not intended to be adopted in proceedings where the facts or issues are contentious and will throw doubt on the claim of the plaintiff, per Onnoghen JSC in Imoniyame Holdings Ltd v. Soneb Ent Ltd., also, reported in (2010) 4 NWLR (Pt.1185) 561, 577.”Per NWEZE ,J.S.C.” PER NIMPAR, J.C.A.

FAIR HEAING: DUTY OF COURT TO CONSIDER ISSUES BEFORE IT

On the other hand, the other issues raised by the parties cannot be determined as admonished by the Apex Court that all issues presented by parties before the Court must be determined, see GARBA V. MOHAMMED & ORS LPELR-40612(SC) where the Apex Court held thusly:
“The law is well settled that a Court of law, whether of first instance or in its appellate jurisdiction has a duty to consider and resolve all issues submitted to it for adjudication except in the clearest cases. Failure to consider all issues would amount to a denial of fair hearing where the parties have not been heard. The rationale for this, as held by this Court in Okonji v. Njokanma (1999) 14 NWLR (Pt. 638) 250 @ 270 E – F, is that a judgment of a Court of record must demonstrate a dispassionate consideration of all issues canvassed by the parties and in turn show the result of such exercise. See also: A.G. Leventis Nig. Plc. v. Akpu (2007) 17 NWLR (Pt. 1063) 416: Odetayo v. Bamidele (2007) 17 NWLR (Pt. 1062) 77; Kotoye v. CBN (1989) 1 NWLR (98) 419.” Per KEKERE-EKUN, J.S.C.
There are exceptions to the admonition that every issue be determined, see EDEM V. CANON BALLS LTD & ANOR (2005) LPELR-1007(SC)
“An intermediate Court as the Court below, does not have the liberty to decline a consideration of issues raised before it, unless it proposes to order a retrial and it is felt that a consideration of the issues raised may prejudice a fresh hearing before the trial Court. This is because a further appeal against the judgment of the Court of Appeal may unsettle the decision of the Court on the issues considered.” Per OGUNTADE, J.S.C.
When the Court is returning the suit back for trial de novo, the rule cannot apply. See the case BOLOU V. FEDERAL COLLEGE OF EDUCATION, OBUDU & ANOR (2019) LPELR-47465 (CA) where the Cort held thusly:
“Where a suit is remitted back for retrial, in order not prejudice the mind of the judge, the Court in such a situation avoid making a pronouncement on those issues that have to retried. So there are exceptions to the rule.” PER NIMPAR, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

MINISTER FEDERAL CAPITAL TERRITORY FEDERAL CAPITAL DEVELOPMENT AUTHORITY APPELANT(S)

And

SOUTHLAND ASSOCIATES LIMITED RESPONDENT(S)

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of the Federal Capital Territory sitting in Abuja delivered on the 6th July, 2018 wherein the Court below entered Judgment against the Appellants and declared title over a Plot of land known as Plot No. 767 Cadastral Zone A00 in the Central Business District, Abuja in a summary Judgment. Dissatisfied with the said decision, the Appellant filed a Notice of Appeal on the 28/08/2018 donating 5 grounds of Appeal.

The facts leading to this appeal are amenable to brief summary, the Respondent by way of writ of summons initiated a claim before the trial Court and sought the following reliefs:
a. A declaration that the Claimant is the beneficial owner and the person entitled to possession of all that piece of land known as plot 767 Cadastral Zone A00 of the Central Business District Abuja.
b. A declaration that the Claimant’s title and ownership of plot 767 Cadastral Zone A00 is still valid and subsisting same having not been revoked by the Defendants in accordance with the Land Use Act.
C. An order mandating the

Defendants to issue the Claimant the certificate of occupancy in respect of the plot.
d. An order of perpetual injunction restraining the Defendants, their agents, assigning, privies or anybody claiming for or through them or on their behalf from trespassing in any manner whatsoever or tampering with the Claimant’s quiet enjoyment or ownership of the plot.

The Respondent upon issues being joined by the pleadings also filed a motion and sought for summary judgment under Order 11 Rule (1) the High Court the Federal Capital Territory (Civil Procedure) Rules, 2018 seeking the following:
i. An order to enter summary judgment as per the reliefs claimed in the claimant’s/Applicant’s statement of claim.
ii. And for such order or other orders as this Honourable Court may deem fit to make in the circumstances.

It was supported by an affidavit which enumerated facts of its allocation with Plot 767 Cadastral Zone, Central Business District and as it was processing its Certificate of Occupancy, it was informed that there was an existing title and therefore the allocation was revoked. It claimed that it was not served with the

revocation notice, consequently, the claim.

The Appellant opposed the motion for summary judgment by filing a counter affidavit and raised a number of issues. The motion was taken and granted thus the appeal.

Appellants’ brief settled by RAMALAN JIBRIN ABDULLAHI ESQ., is dated 8th day of June, 2020 filed on the same date and deemed on the 8th September, 2020 and distilled 3 issues for determination as follows:
1. Whether the judgment of the lower Court is not perverse and against the weight of evidence before the Court. (Distilled from ground 5).
2. Whether having regards to the statement of claim, the statement of defence, the affidavit in support and its annexures and the counter affidavit filed in opposition to the motion for summary judgment, the Appellant did not, prima facie, disclosed a good defence to the Respondent’s claim. (Distilled from ground 1 and 2).
3. Whether the learned trial judge was right when he entered Summary judgment in a suit that borders on declaration of title to land relying on photocopies of public documents that were neither original copies nor certified true copies. (Distilled from ground 4)

The Respondent’s Brief settled by OBINNA AJOKU, ESQ., is dated 19th June, 2020 filed on the 24th June, 2020 and deemed the 8th September, 2020. It formulated three issues thus:
1. Whether the judgment of the lower Court is not perverse and against the weight of evidence before the Court. (Ground 5).
2. Whether having regards to the statement of claim, the statement of defence, the affidavit in support and its annexures and the counter affidavit filed in opposition to the motion for summary judgment, the Appellant did not, prima facie, disclosed a good defence to the Respondent’s claim. (Distilled prom ground 1 and 2)
3. Whether the learned trial judge was right when he entered Summary judgment in suit that bothers on declaration of title to land relying on photocopies of public documents that were neither original copies nor certified true copies. (Distilled from ground 4).

APPELLANT’S SUBMISSIONS
ISSUE ONE
The Appellants in arguing this issue contended that the decision of the lower Court is perverse by taking into account what ought not to be taken into account or by a judge shutting his eyes to the

obvious or proved facts in favour of a party. He relied on the case of GOVT. AKWA IBOM STATE V. POLARIS BANK LTD (2019) 8 NWLR (PT. 1674) AT P. 363 where the Court held “that a perverse decision is when it runs counter to the evidence; or where it has been shown that the trial Court took into account matters which it ought not have taken into account or shut its eyes to the obvious; when it has occasioned a miscarriage of justice” to establish his argument.

The Appellants’ counsel states that the decision of the lower Court declaring title over the plot of land in issue to the Respondent under summary Judgment procedure is perverse and against the weight of evidence considering the clear evidence which shows that the third party interest has not been revoked and also the position of law in resolving conflict in Affidavit and priority of interest (double allocation) in land matters between two contending parties.

The Appellants submits that in law where parties claim and succeed in tracing their title in respect of the same piece of land to the same grantor, the later to obtain a grant cannot maintain an action against the first to obtain

because the grantor have divest himself of his title and has nothing left to convey to subsequent purchaser. A grantor can only convey what he has. The principle is Nemo dat quod non habet. He cited ADELAJA V. FANOIKI (1990) 2 NWLR (PT. 131) at P. 151.

The Appellants also submitted that from the pleadings filed by both parties, it is clearly shown that there is a case of double allocation of the plot between New Nigeria Development Company Limited and Southland Nigeria Limited. That when Exhibits A & C (P88-94 of the records) and E & H (37 & 50 of the records) are put side by side it shows that the said plot was first allocated to New Nigeria Development Company Limited before the allocation to Southland Nigeria Limited as seen in the old certificate of occupancy dated 8/02/1991 issued to New Nigeria Development Company Limited and a new Certificate of Occupancy (P 88, 90-94 of the records).

The learned Counsel to the Appellants states that the lower Court’s attention was duly drawn to this fact and notwithstanding, the learned trial Judge shut his eyes to this facts and evidence, proceeded and granted title in favour of the

Respondent. If the learned trial Judge had heeded and applied the law of resolving cases of double allocation and/or priority of title to land, the lower Court wouldn’t have arrived at the decision it reached on the subject matter. Since, it is obvious that the lower Court declared title in favour of the 2nd Allottee instead of the 1st Allottee whose title has not been revoked therefore the decision of the lower is perverse and against the weight of evidence. See the case of GBEDU V. ITIE (2020) 3 NWLR (PT. 1710) at P. 125.

The Appellants’ counsel also states that in any case which is began by Originating Processes, evidence may be given by affidavit evidence. See the case of NWOSU V. IMO STATE ENVIRON. SAN. AUTHOURITY (1990) 2 NWLR (PT. 135) at P. 715. It is also law that paragraphs of affidavit not specifically denied are deemed to be admitted, looking at deposition in paragraph 23(a-d) of the Appellants’ Counter Affidavit in Opposition to Motion for Summary Judgment (P 85-86 of records) indicates that the plot claimed by the Respondent was allocated to New Nigeria Development Company Limited were not denied, contradicted or controverted and

instead of the lower Court to deem it, admit and attached weight to it, decided to look the other way and held that “the defendants have raised the issue of a third party as a ploy to force this Court to conduct plenary hearing “.

Furthermore, the Appellants’ Counsel submitted that the lower Court was wrong not to have deemed the deposition in the said paragraph 23 of the Counter Affidavit and also refusal to attached weight to both aforesaid paragraph of the Counter Affidavit and Exhibits A & C attached thereto is contrary to the settled position of law same having not specifically denied is a gross miscarriage of Justice and therefore perverse. The lower Court holding that “in my view there is no third party laying a parallel claim. The Defendants have raised the issue of a third party as a ploy to force this Court to conduct plenary hearing” is a misconception of law because at this stage the issue is not whether the third party exist or not, rather the issue was whether there is sufficient evidence to warrant a third party whose interest was disclosed to be joined to defend its interest. The lower Court ought to have

ordered sue (sic) motu the joinder of the said third party pursuant to the rules of Court to determine its existence. The issue of the non existence of the third party by the Court was raised suo motu without given the parties the opportunity to address the Court on its existence. The lower Court was wrong and acted contrary to the settled position of law that where a trial Court raise issue suo motu it ought to give the parties the opportunity to address it.

Finally, Appellants’ counsel submits that an Appellate Court will interfere with findings of fact where such finding are perverse, that is, persistent in error, different from what is reasonable or required, against weight of evidence. See JIBRIN V. F.R.N 4 NWLR (PT. 17140) at p. 344 some exceptional circumstances that might justify an Appellate Court to interfere with the finding of facts by the trial Court would be:
a. Where the decision is not based on a proper and dispassionate appraisal of the evidence.
b. where the findings are perverse in that the Court took extraneous matters into consideration of failed to take into account relevant matters; or
c. where the Court has

drawn wrong conclusions from accepted credible evidence; or
d. where the findings are not as a result of proper exercise of judicial discretion.
See ABDULLAHI V. ADETUTU (2020) 3 NWLR (PT. 1711) at p. 369. They urge this Honourable Court to interfere and resolve this issue in favour of the Appellants.

ISSUE TWO
On the second issue, the learned Counsel to the Appellants submitted that this issue seeks to determine the propriety of the learned trial Court decision when it entered Judgment in a suit that bothers on declaration of title to land, under summary Judgment procedure pursuant to Order 11 Rule (1) of the High Court of the Federal Capital Territory (Civil Procedure) Rules 2018. He also stated that the lower Court held that “in view of my findings, I hold the view that the Defendants do not have a defence so that it will be a waste of time to go into trial of this suit. Consequently, final judgment is hereby entered for the plaintiff unconditionally but on the following terms… “(P125 of the records)

The learned counsel to the Appellants’ also submitted that there is evidence before the trial Court that reveals

triable issue and a good defence in law raised by the Appellants. Firstly, in action for declaration of title to land, the burden of proof is purely on the Claimant to succeed on the strength of his case and not on the weakness of the Defendant. The Plaintiff must convince the Court by credible evidence even where there is no defence. He also said that declaration of title in land cannot be determined under the summary judgment procedure. Secondly, summary Judgment procedure is usually for liquidated money demand. See U.B.N PLC V. GAP CONSULTANT LTD (2017) 11 NWLR (PT. 1577) P. 369; CARLING INT’L (NIG.) LTD V. KEYSTONE BANK LTD (2017) 9 NWLR (PT. 1571) P. 363.

The learned counsel further states that it is the duty of the Court where a Defendant files a counter affidavit to the motion for summary Judgment, to look carefully at the affidavit evidence to see what the particulars and details of the defence are, whether they are specifically controverted the particulars claims in such a manner as to raise triable issues. At that stage, the law does not require the defence to be complete or likely to succeed at trial and so the Court would embark on the

assessment of whether the defence would succeed or not if there was a trial. See CARLING INT’L (NIG.) LTD V. KEYSTONE BANK LTD(SUPRA).

He submitted that the Appellants filed a robust counter affidavit which discloses triable issue and a good defence which were neither contradicted nor controverted. The Appellant raised the issue of a prior existing interest of a third party that was allocated the subject plot and whose title was never revoked and the Certified True Copy of the title document of the first allottee still subsist. They urge this Honourable Court to resolve this issue in favour of the Appellants.

ISSUE THREE
With respect to issue three, the Learned Counsel submitted that the learned trial Judge attached weight to photocopies of public documents disclosed as exhibits attached to affidavit in support of the motion for summary Judgment and declared title in favour of the Respondent.

The counsel contended that the lower Court was wrong to have attached weight to photocopies of public documents instead of the originals or the Certified True Copies. He also stated that the position law concerning proving the execution and

contents of documents whether public or private document as defined in Section 102 and 103 of the Evidence Act, 2011 are to production of the original document which are primary evidence for inspection and examination by the Court. However, proof of contents of a document may be given by secondary evidence, if the document is a public document and the secondary evidence permitted by the combined effects of Section 89 (e) and 90 (1) (c) of the Act, 2011 is a Certified True Copy of such document. See VEE V. WALFEM (SUPRA) PAGE 356, PARAS, A-C.

The Counsel to the Appellants also states that Exhibits A, B, C, D, E, F, G, H & H1 attached to the affidavit in support of the motion for summary Judgment filed by the Respondent which are heavily relied upon by the Learned trial Judge are photocopies of a public documents as defined in Section 102 and 103 of the Evidence Act, 2011 and as provided bySection 89 (e) and 90 (1) (c) of the Act 2011 are required to be Certified True Copy and no other secondary evidence is admissible. See ITEOGU V. L.P.D.C (2009) 17 NWLR (PT. 1171) 614. He further states that a public document which is not certified is inadmissible

in law and an uncertified public document should not be countenanced for any reason whatsoever. See NWAOGU V. ATUMA (2013) 11 NWLR (PT. 1364) @ P. 137, PARAS, C – D.

The Appellant Counsel further contended that the Respondent who had the burden proof did not provide admissible evidence to prove its assertion and claim for declaration of title as Exhibits A, B, C, D, E, F, G, H & H1 attached to the affidavit in support of the motion for summary Judgment are photocopies of a public document which are not admissible in evidence. See Section 135, 136 and 137 of the Evidence Act and the case of ALI V. OBANDE (1999) 9 NWLR (PT. 620) 563. Admissibility of evidence does not simply depend entirely on relevance but there are factors which may render it inadmissible even if its relevant.

Furthermore, the Appellants counsel stated that Exhibits A, B, C, D, E, F, G, H & H1 are clearly photocopies and being secondary evidence are public documents which as demonstrated above requires certification to be admissible in proof of the contents thereof. They apparently do not carry the certification as stipulated in Section 104 & 105 of the Evidence Act and so

prima facie inadmissible in evidence to prove the contents thereof. He also stated that the law is settled that a Court of law can only admit and rely on legally admissible evidence for its decision or any finding in respect of issues of fact in dispute between the parties in a case. Where a trial Court admitted an inadmissible evidence an relied on it for its decision, an Appellant Court has the duty to interfere with such a decision for it because a perverse evidence and the Appellate Court is to expunge the said inadmissible evidence wrongly or erroneously admitted by the trial Court. See VESE V WAIFEM (SUPRA) P1360 AT PARAS A-B.

They urge this Honourable Court to uphold this Appeal, set aside the Judgment of the lower Court.

RESPONDENT’S SUBMISSION
ISSUE ONE
Whether the judgment of the lower Court is not perverse and against the weight of evidence before the Court. (Ground 5).

The Respondent under issue one of its Brief of Argument submitted that they conceded that the following authorities GOVT. AKWA IBOM STATE V. POLARIS BANK LTD (2019) 8 NWLR (PT. 1674) P. 363, ABDULLAHI V. ADETUTU (2020) 3 NWLR (1777) P. 359, JIBRIN V. F.R.N

(2020) 4 NWLR (PT.1714) P. 344 AND GBEDU V. ITIE (2020) 3 NWLR (PT. 1710) P. 125 enumerated factors that make judgment perverse but the above authorities are not in all fours with the facts of the instant Appeal. The Respondent counsel states that the Appellants’ counsel has a duty to show the perverseness of the Judgment as he argued that the learned trial Judge was perverse in his judgment for the following reasons:
a. There was a third party interest.
b. That the third party interest was brought to the attention of the learned trial judge.
c. That the existence of the third party interest was not controverted by the Respondent.

The Respondent also submit that the learned trial judge gave a dispassionate consideration of the affidavit evidence in resolving all the issues by holding that there was no third party laying claim in the plot reason being that “If it is true that NNDC was granted the land since 1985, why did they not react when the plaintiff started to work on the plot. If truly the Defendants are true in their claim that the said third party is the a (sic) valid title holder granted to him by them, why have

they not filed to join this action.”

The Respondent argued that the contention of the Appellant’s counsel that the existence of the 3rd party was not controverted by the Respondent so the trial Court ought to deem it as admitted is totally misconceived because the Court is entitled to evaluate affidavit evidence in order to ensure its veracity and/or authenticity. He stated that the learned trial Judge evaluated the affidavit evidence and came to the conclusion that had there been any third party interest, the third party would have challenged the Respondent. See the cases of OKOYE V. CENTRE POINT MERCHANT BANK (2008) ALL FWLR (441) 810 AT 834; IFEANYICHUKWU OKONKWO V. FEDERAL REPUBLIC OF NIGERIA & ANOR (2011) LPELR 4723(CA). He also states that the Appellants made heavy weather on the trial Court’s failure to suo motu join the third party but by virtue of Order 13 Rule 4 of the High Court of the Federal Capital Territory Abuja Civil Procedure Rules, 2018 the Respondent joined only parties against whom its right to relief exist. The case of the Respondent against the Appellant is on the revocation of its titled without following due

process.

He contended that it is not mandatory for a trial Court to join any person mentioned in Court process since operative word in Order 13 Rule 18 of the High Court of the Federal Capital Territory Civil Procedure Rules, 2018 is MAY and when used in a legislation it is discretionary as stated in BRITISH AMERICAN TOBACCO INVESTMENTS LTD V. THE ATTORNEY OF LAGOS STATE & ORS (2014) LPELR- 23200 that the word MAY when used implies permissive, optional or discretional and not mandatory action or conduct. By this, it behoves on the Appellant to apply for joinder of the third party if its presence is necessary to the determination of the suit. He also submit that the non-joinder if the third party will not defeat the proceedings. Order 13 Rule 18(1) the High Court of Federal Capital Territory Civil Procedure Rules, 2018 and the case of CHIEF ABUSI DAVID GREEN V. CHIEF DR. E.T. DUBLIN GREEN (1987) LPELR- 1338 where the Court states that this non-joinder will not be taken as a ground for defeating the action.

They urge this Honourable Court to resolve issue one against the Appellants.

ISSUE TWO
Whether having regards to the statement of

claim, the statement of defence, the affidavit in support and its annexures and the counter affidavit filed in opposition to the motion for summary judgment, the Appellant did not, prima facie, disclosed a good defence to the Respondent’s claim. (Distilled from ground 1 and 2)

The Respondent submit that under Order 11 Rule 1 of the High Court of the Federal Capital Territory Civil Procedure Rules, 2018 summary judgment applied to all causes of action where the Claimant believes that there is no defence to his claim. See the case of A. A MACAULAY V. NAL MERCHANT BANK LTD (1990) LPELR- 1801. He states that the Appellant’s counsel argument that a declaration of title cannot be determined vide summary judgment is totally misconceived because Order 11 did not exclude suit on declaration of title to land. He also states that the Counter Affidavit of the Appellant did not disclose a bonafide defence on the merit as stated in THOR LIMITED V FIRST CITY MERCHANT BANK LTD (2005) LPELR- 3242 as a ground to satisfy the Court.

The Respondent further stated that the case of the Respondent gleaned from the grounds that it was earlier granted plot 752 Central

Business District by the Appellants, that later revoke it due to overriding public purpose and allocated it plot 767 cadastral Zone A00 central area as alternative. The Respondent accepted the allocation by signing the development lease agreement and later obtained building plan approval from the Appellant and commenced construction on the plot. They were in undisturbed possession of the plot when its staff noticed that its file at the Appellants’ office has been closed because its titled was revoked without service of revocation notice on it. The Appellants’ defence was that there was a prior third party interest on the land which did not controvert the Respondents’ affidavit evidence that it’s titled was purportedly revoked without service of revocation notice stipulated by the Land Use Act. He also states that it informed the Appellant of the mistake made in its name and requested for correction and it has been in undisturbed possession of the plot since 2005. The Appellant’s defence was a sham because the purported existence of third party which they failed to join cannot defeat the case of the Respondent.

They urge this Honourable Court to resolve issue 2 against the Appellant.

ISSUE THREE
Whether the learned trial judge was right when he entered Summary judgment in a suit that bothers on declaration of title to land relying on photocopies of public documents that were neither original copies nor certified true copies.(Distilled from ground 4).

The Respondent argued that Order 11 Rule 1 of the High Court of Federal Capital Territory Abuja Civil Procedure Rules, 2018 permits summary judgment procedure in all cases including declaration of title to land and Section 102 and 103 Evidence Act, 2011 does not apply to summary Judgment procedure. As seen in Order 11 Rule 1 and Order 43 (1) of the High Court of Federal Capital Territory Abuja Civil Procedure Rules, 2018 Summary Judgment application procedure not an originating process but made during the pendency of a suit through motion on notice supported by an affidavit.Section 102 and 103 Evidence Act, 2011 is inapplicable to documents annexed to the affidavit in support of an application during the pendency of a suit, moreso the Appellant conceded issuing the documents but their grouse is that the documents

are not Certified True Copies. See the case of DIRECTOR GENERAL DEFENCE INDUCTRIES CORPORATION OF NIG. & ANOR V. MR. MONDAY DINWABOR & OR (2016) LPELR- 41316 (CA) which restated the position of law.
They urge the Court to resolve issue three against the Appellants.

RESOLUTION
I have considered the Notice of Appeal, the Records of Appeal and respective Briefs of both sides adopted at the hearing of the Appeal. I am of the considered view that it would be expedient to adopt the 3 issues donated by the Appellants because the Respondent merely reproduced the Appellant’s issues for determination. Resolving the Appellants’ issues would enable the Court to deal with all areas of complaint. In doing so, the Court shall resolve the 3 issues seamlessly to avoid repetition and because the Appellants listed issues and argued them in different order.

The claim of the Respondent was highlighted earlier in this Judgment and it consists of two declarations, an order for issuance of certificate and an order for injunction. The two none declaratory reliefs are dependent on the declaratory reliefs. The argument of the Appellants is

whether the procedure provided under Order 11 Rule 1 is applicable to declaratory reliefs. The said provision of the trial High Court Rules 2018 provides thus:
“where a claimant believes that there is no defence to his claim, he shall file with his originating process the statement of claim, the exhibits, the depositions of his witnesses and an application for summary Judgment which application shall be supported by an affidavit stating the grounds for his belief and a written brief in support of the Application.”

The Appellants filed a statement of defence to the writ of summons taken out by the Respondent, so the suit was contested even at that point. The motion for summary judgment was also challenged by a counter affidavit wherein they alleged certain facts, particularly, the fact that there was an earlier allocation to a third party (as contained in page 88 of the Record of Appeal) which informed the revocation of the earlier allocation to the Respondent. Another fact averred was that the Appellants had dealings with Southland Nigeria Ltd and not Southland Associates, The Respondents and the title was granted to Southland Nigeria Ltd. The

Respondent confirmed this development by its application that the name on the allocation be changed to Southland Associates instead of Southland Nigeria Ltd which was allocated Plot 767. The Judgment was founded on affidavit evidence. This the trial Judge rationalized that the Appellants depositions were not convincing and proceeded to enter Judgment against the Appellants.

the undefended list procedure, is designed to enable a party obtain Judgment especially in liquidated demand cases, without the need for a full trial where the other party cannot satisfy the Court that it should be allowed to defend the action. Just like the procedure in undefended list, the Defendant is not expected to show that his defence would succeed but should raise a triable issue, what it is and how it is determined was discussed in OKOYE V. INTERNATIONAL TRUST BANK PLC (2007) LPELR-4441(CA) thusly:
“The pertinent question at this juncture would be whether the notice of intention to defend and the affidavit attached by the appellant established a triable issue. In determining whether a defendant has a good defence to the action brought against him or he has disclosed such facts as may be deemed sufficient to defend the action, it is not necessary for the trial Judge to consider at that stage whether the defence has been proved. What is required is simply to look at the facts deposed to in the affidavit attached to the notice of intention to defend and see if they can “Prima facie” afford a defence to the action. The defendant’s

affidavit must condescend upon particulars and should as far as possible, deal specifically with the plaintiff’s claim and affidavit and state clearly and concisely what the defence is and what facts and documants are relied on to support it. The affidavit in support of the notice of intention to defend must of neccesity disclose facts which will, at least, throw some doubt on the Plaintiff’s case. See – Olubusola Stores v. Standard Trust Bank Nigeria Ltd (1975) 4 S.C. Page 51; Sanusi Brothers (Nig.) Ltd. v. Cotia Commercia Ex. S.A (2000)11 NWLR Part 679 at 566; United Bank for Africa Plc. & 1 other v. Alhaji Babangida Jargaba (supra).” Per BADA, J.C.A.
The Appellants herein, disclosed facts that should convince the Court in setting down the claim for full trial. The fact of an earlier allocation to a third party is a serious legal point that must be thrashed in a full trial because of its implication. At that stage, it is not open to the Judge to discountenance the deposition and waive off as unconvincing. The Court in the case of UBAH & ANOR V. FIDELITY BANK PLC (2013) LPELR-20657(CA)
“ I, entirely, agree with my Lord that the

summary judgment procedure under Order 11 of the Lagos State High Court (Civil Procedure) Rules, 2004, with minor procedural variations, is akin to what obtains under the undefended list procedure in the various rules of the other jurisdiction in Nigeria. In my recent leading judgment in Usman v. Munga (2012) LPELR – CA/J/121/06, I explained that this provision is similarly worded like other provisions of the Rules of the Courts of the various jurisdictions which have received judicial restatement. The cases are, simply, legion: they are many. Only a handful will be cited here, see, for example, Nkwo Market Community Bank (Nig) Ltd v. Obi (2010) All FWLR (Pt.529) 1094, 1104 [which interpreted the similarly worded Anambra State High Court (Civil Procedure) Rules, Order 20 Rule 1 (1) and (2), then applicable in the said State; Imoniyame Holdings Ltd. v. Soneb Ent Ltd (2010) All FWLR (pt.517) 627, 639 [which interpreted the Cross River State High Court (Civil Procedure) Rules, 1987, Order 23 Rules (1) and (3)]; Denton-West v. Muoma (2010) 2 NWLR (Pt.1177) 19, 38 [in which Order 11 Rules 8(1) and 2 and Order 11 Rules 10(1); (2) and

(11) of the High Court of RiversState (Civil Procedure) Rules, 2006 fell for interpretation] NC/CE (NPL) v. Mabol Asso Ltd (2010) 2 NWLR (Pt.1179) 612, 630 (interpreting Order 21 Rules 3(1) and (4) of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004] Others include: Okoli Morecab Finance (Nig) Ltd (2007) 14 NWLR (Pt.1053) 37; Intercity Bank Plc v FTA Ltd (2006) 4 NWLR (Pt.971) 504; Mbahi v. Fixity Investment Ent. Co. Ltd (2005) 3 NWLR (Pt.912) 384; Adebisi Macgregor Ass Ltd v. NMB Ltd (1996) 2 NWLR (Pt.431) 378. What emerges from an exploration of all the provisions dealing with this special procedure is that the rule is designed to enable a plaintiff to obtain summary judgment without trial in those cases where his case is unassailable and the defendant cannot show a defence which will lead to a trial of the case on its merits, Okoli v. Morecab Finance (Nig.) Ltd (2007) 14 NWLR (Pt.1053) 37. As a corollary, therefore, it is the duty of the plaintiff to furnish the Court with sufficient facts supported by an affidavit from which the Court can ascertain whether there is a good reason to believe that the case is suitable for placement and trial under the

Undefended list, Kwara Hotels Ltd. v. Ishola (2002) 9 NWLR (Pt.713) 604; Agueze v P.A.B. Ltd (1992) 4 NWLR (Pt.233) 76. There is a unanimity of judicial opinions on the interpretation of the above rules to the effect that they provide for a straight forward procedure in the determination of simple and non-contentious claims in respect of specific or liquidated sums of money usually due and payable to a claimant either arising from out of a debt or money had and received from him, in other words, the claim must relate to a claim for a debt or liquidated money demand, SBN Plc. v. Kyentu (1998) 2 NWLR (Pt.536) 41; Kabiru v Ibrahim (2004) 2 NWLR (Pt.857) 326; Ndukwe v. Demsey Int Sales Corp (1991) 7 NWLR (Pt.206) 680. Where, therefore, the claim is steeped in controversy, the procedure is not applicable, G. M. O. Nworah and Sons Ltd. v. Afam Akputa (2010) 9 NWLR (Pt.1200) 443, 476 – 477; 478. The reasons for this is simple. Since the summary judgment and undefended list proceedings are not designed to shut out a defendant from contesting the suit, the Court should not, unduly, slaughter the defendant’s right to interrogate the plaintiff’s claim on an

abattoir constructed for quick disposal of cases, or what may be loosely referred to as “cut and nail” justice in favour of the plaintiff, Jipreze v. Okonkwo (1987) 3 NWLR (Pt.620) 737; Ezuma v. Nkwo Market Community Bank Ltd (2000) 10 NWLR (Pt.676) 638; CCB (Nig) Plc v. Samad Investment Co. Ltd. (2000) 4 NWLR (Pt.651) 19; Egbe v. Adefarasin (1985) 1 NWLR (Pt.3) 549. To do otherwise would be to employ a procedure designed to obviate injustice to a deserving plaintiff as a vehicle for perpetrating injustice against a defendant, Nishizawa Ltd v. Jethwani (1984) 12 SC 234, 292. This would be a travesty of the whole purpose of the procedure. As was held in Macaulay v. NAL Merchant Bank Ltd (1990) 4 NWLR (Pt.144) 283, the intention of the procedure is not to foreclose the defence of the defendant or drive him away from the judgment seat before hearing. Put simply, the procedure is not intended to be adopted in proceedings where the facts or issues are contentious and will throw doubt on the claim of the plaintiff, per Onnoghen JSC in Imoniyame Holdings Ltd v. Soneb Ent Ltd., also, reported in (2010) 4 NWLR (Pt.1185) 561, 577.”Per NWEZE ,J.S.C.”

I must say that the trial Judge in this case foreclosed the Appellants and drove them away from Justice without a hearing. The legal implications of the issues raised by the Appellants deserve to be determined in a full trial.
It is therefore necessary to set aside the Judgment appealed against and return parties to the trial Court for determination of the claim in a full hearing.

consideration of all issues canvassed by the parties and in turn show the result of such exercise. See also: A.G. Leventis Nig. Plc. v. Akpu (2007) 17 NWLR (Pt. 1063) 416: Odetayo v. Bamidele (2007) 17 NWLR (Pt. 1062) 77; Kotoye v. CBN (1989) 1 NWLR (98) 419.” Per KEKERE-EKUN, J.S.C.
There are exceptions to the admonition that every issue be determined, see EDEM V. CANON BALLS LTD & ANOR (2005) LPELR-1007(SC)
“An intermediate Court as the Court below, does not have the liberty to decline a consideration of issues raised before it, unless it proposes to order a retrial and it is felt that a consideration of the issues raised may prejudice a fresh hearing before the trial Court. This is because a further appeal against the judgment of the Court of Appeal may unsettle the decision of the Court on the issues considered.” Per OGUNTADE, J.S.C.
When the Court is returning the suit back for trial de novo, the rule cannot apply. See the case BOLOU V. FEDERAL COLLEGE OF EDUCATION, OBUDU & ANOR (2019) LPELR-47465 (CA) where the Cort held thusly:
“Where a suit is remitted back for retrial, in order not prejudice the mind of the judge,

the Court in such a situation avoid making a pronouncement on those issues that have to retried. So there are exceptions to the rule.”

Flowing from above, the Ruling of the trial Court delivered on the 6th July, 2018 is hereby set aside and the suit is returned to the Chief Judge of the High Court of the Federal Capital Territory to be reassigned to another Judge for trial on the merit.
Each party to bear its cost.

STEPHEN JONAH ADAH, J.C.A.: I was availed a draft copy of the judgment just delivered in Court by my learned brother, Yargata Byenchit Nimpar, JCA.

I agree with his reasoning and conclusion that this appeal is meritorious and that it be allowed. I too, do allow the appeal and set aside the judgment of the lower Court delivered on the 6th July, 2018, in Suit No: FCT/HC/CV/1180/2018.

I abide by the order of retrial as consequentially made by my learned brother.

MOHAMMED BABA IDRIS, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, YARGATA BYENCHIT NIMPAR, JCA and I agree with the reasoning contained therein and the conclusion arrived thereat.

My brother has adequately

considered the issues formulated for determination in this Appeal. I have nothing useful to add. For the same reasoning advanced in the lead Judgment which I adopt as mine, this Appeal is allowed.

I abide by the other orders made therein the lead Judgment.

Appearances:

RAMALAN JIBOH ABDULLAHI ESQ. For Appellant(s)

OBINNA AJOKU ESQ., with him, EZEKIEL EGBE ESQ. For Respondent(s)