MR. EMMANUEL MOSES V. MADAM AGNES NLERUNWO ERUWA & ORS
(2013)LCN/6093(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 10th day of April, 2013
CA/PH/397/2007
RATIO
“It is trite that originating summons is appropriate where there is no dispute on questions of fact or the likelihood of such disputes, like in a situation where the issue is to determine questions of construction. See the case of EJURA v. IDRIS (2006) 4 N.W.L.R. (pt.971) 538 at 560.” PER NWOSU-IHEME , J.C.A.
“Since originating summons is used when the facts of a case are not in controversy, a plaintiff applying its use must always accompany an originating summons with an affidavit in support, which authenticates the plaintiff’s case in clear terms; and a defendant, upon service of the processes of the plaintiff, may wish to file a counter-affidavit in opposition to the case presented. Furthermore, parties to an originating summons are not allowed to adduce oral testimonies in proof of their depositions in their respective affidavit and counter-affidavit unlike parties to a writ of summons who are allowed to adduce evidence in support of their pleadings. And since no oral testimony is allowed in respect of an originating summon, the demeanour of the parties and or their witnesses prays no part in the adjudication. All the court need do is to proceed to hear and determine the suit by deducing inferences from the affidavit evidence filed by the parties. (Director, S.S.S. v. Agbakoba (1999) 3 NWLR (pt.595) 314; Din v. A.G. Fed. (1986) 1 NWLR (Pt.17) 471; Keyamo v. House of Assembly, Lagos State (2002) 18 NWLR (Pt.799) 605; N.B.N. Ltd. v. Alakija (1978) 9-10 SC 59 referred to.) (Pp.405-406, paragraphs.” PER ADAH, J.C.A.
“originating summons as a process has its own peculiarities which are geared towards expeditious determination of the cause of the parties which cause is not burdened by facts that are likely to be in dispute. In the case of Dapianlong v. Dariye (2007) 8 NWLR (pt.1036) 332, cited in the lead judgment the supreme court held inter alia that originating summons is the method of commencing an Action where the facts are not in dispute, or where there is no likelihood of the facts being in dispute, and where the sole or principal question in issue is or is likely to be one directed construction at the of a written law, the constitution, or other document, or other question of law. In other words, originating summons is used for non-contentious actions or matter; that is, those actions where the facts are not likely to be in dispute. It is not meant to enlarge the jurisdiction of a court because it is merely a method of procedure. It is not a substitute for commencing contentious suits because the appropriate method for commencing such suits is a writ of summons in which what is alleged by the parties will be clearly defined in the pleadings and both sides will be at liberty to lead oral evidence in proof of the averments.” PER ADAH, J.C.A.
“It is also trite that when a suit is commenced by an originating Summons rather than writ of summons, the proper order to make is not one dismissing the suit, rather the Court should direct the parties to proceed with the filing of pleadings. See EMEZI v. OSUAGWU (2005) 12 N.W.L.R. (pt. 939) at 367. This was exactly what the learned trial Judge did, it was the proper directive to give in the circumstance.” PER NWOSU-IHEME , J.C.A.
JUSTICES
EJEMBI EKO Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
Between
MR. EMMANUEL MOSES Appellant(s)
AND
1. MADAM AGNES NLERUNWO ERUWA
2. MGBECHI CARO ATTEH (NEE ERUWA)
3. KENNETH CHUKWUMA ERUWA
4. MRS. EGO ERUWA
5. GIFT NWUOMANDA
6. AZUNDA ERUWA
7. EZIWHUO ERUWA
8. NGOZI ERUWA
9. BOMA ERUWA
10. WHUCHEGBULE ERUWA Respondent(s)
CHIOMA EGONDU NWOSU-IHEME , J.C.A.: (Delivering The Leading Judgment): The Appellant here was the Claimant while the Respondents were the defendants in an Originating Summons proceedings in Suit No. PHC/337/2006 in the Port Harcourt Division of the High Court of Rivers State.
By the said originating Summons filed on the 4th of April, 2006, the Appellant sought for the interpretation and construction of the Judgment in Suit No. PHC/153/90 delivered by Daniel-Kalio J, (as he then was) on the 8th of March, 2001. On interpreting the said judgment, the Appellant (claimant therein) seeks the following reliefs:
“1. Whether the Claimant herein is the person entitled to succeed to his late father’s position as the head of Eruwa family, being the eldest and only surviving male child of his said father and the only surviving legitimate son of the Eruwa lineage?
2. If question No.1 is answered in the affirmative, whether the Claimant as head of Eruwa family is the person entitled to the custody and management of Eruwa family land including the residence and Obi/Obiri of his late father Alfred Wogunka Eruwa which he built on his mother’s Akaogba.
3. Whether the Claimant is the person entitled to the inheritance of the portion of land and “Akaogba” built for his grandmother, which said Akaogba is presently occupied by the Defendant and her children and the children of the 2nd wife Isaac Eruwa.
Or
Whether the claimant is entitled, in view of the holding at page 18 of the judgment to the land/house partitioned and/or built for his grandmother by his polygamous grandfather.
4. If questions 1, 2 and 3 above are answered in the affirmative, then a declaration that as the eldest and only surviving son of his father and the only legitimate son of Eruwa, the claimant is the person entitled to the headship of Eruwa family and as such, further entitled to the custody and management of Eruwa family land, including the place of residence and Obi/Obiri of his late father together with the portion of land and Akaogba built for his late grandmother by his late grandfather.
5. And an order of injunction restraining the Defendants jointly and/or severally from their continued trespass on the Claimant’s father’s Obi/Obiri together with the adjoining land thereto, and on the Claimant’s grandmother’s Akaogba and its adjoining land”.
Accompanying the originating summons was an affidavit of 20 paragraphs setting out the facts relied upon.
The Respondents (Defendants at the lower court) filed a 20 paragraph joint counter affidavit in opposition to the originating summons.
A Summary of the case presented by the Appellant in the court below was that he was the eldest and only surviving son of late Mr. Alfred Wogunka Eruwa and the only surviving legitimate son of the Eruwa lineage. The said Mr. Alfred Wogunka Eruwa took out an action in PHC/153/90 in the High Court of Rivers state against the 1st – 3rd Defendants (Respondents) wherein certain declarations were made in his favour. It is that Judgment that the Appellant herein asked the court below to interpret, construct and grant the reliefs claimed.
The Respondents case in the court below was that the issues raised in the originating summons are not the same as the issues decided in PHC/153/90 and the parties are not the same. Consequent upon that, the Respondents contended that the questions and declarations sought cannot be determined by the interpretation and construction of Suit No.PHC/15/90 and that there was need to call oral evidence.
In a considered Ruling delivered on the 12/1/2007, the learned trial Judge held that this was not a proper action to be commenced by originating summons but by writ of summons and directed both parties to proceed with the filing of pleadings. Aggrieved by that Ruling, the Appellant had brought this appeal vide a Notice and Grounds of Appeal dated and filed on 8/2/2007.
Learned Counsel for the Appellant E. G. Iwediba Esq. distilled three issues for determination:
7. Whether in the circumstances of this case, oral evidence is in fact required to interprete and /or place construction on the Judgment of the High Court of Rivers State in suit No.PHC/153/90?
2. Whether question number one (No.7) in the Originating summons is one capable of being answered affirmatively, in view of the findings by Hon. Justice Daniel-Kalio in Suit No. PHC/153/90 (at page 36 of the Records); together with the depositions in paragraph 73 of the claimant’s Affidavit in support of the originating; summons and paragraph 72 of the Defendants’ Affidavit in opposition?
3. Whether answers (in the affirmative) to questions raised in on Originating summons automatically entitles the claimant to the relief claimed?
The Respondents did not file Respondents brief. On the 22/1/2013 when this appeal came up for hearing, even though Counsel for the Respondents F. C. Ikehi was in Court, he did not file Respondents’ brief and in an application dated and filed on the 7th of June 2011 which was granted on 13/3/2012, Counsel for the Appellant sought leave of court to argue the substantive appeal on the Appellant’s brief alone. This application was served on the Respondents’ Counsel through one Tunde a Lawyer in his Chambers. The court Ruled that it was satisfied that the Respondents were served with the said application and therefore proceeded to hear the appeal on the Appellant’s brief alone.
The issues raised by Counsel for the Appellant can conveniently be compressed into one straight forward issue of narrow compass. It is:
“Whether in the circumstances of this case, oral evidence is in fact required to interprete and or place construction on the judgment in suit No.PH/153/90”
In his brief of argument, learned Counsel for the Appellant, Mr. Iwediba, contended that the lower court was asked to interprete an existing judgment in Suit No. PHC/153/90 and to use the result of such interpretation in granting or refusing all or some of the reliefs sought, the judgment having not been appealed against. That the Appellant having based his right to a declaration and injunction of an existing judgment, an originating Summons was the most suitable way to commence the action. He cited AG ADAMAWA STATE & 21 ORS v. AG OF THE FEDERATION & 8 ORS (2005) 18 NWLR. pt. 958, 581 at 620 – 621. DAPIAN LONG & 5 ORS v. DARIYE & ANOR (2007) 4 SC (pt.111) 118 at pages 167-168. OSUNBADE & 4 ORS v. OYEWUNMI & 2 ORS (2007) 4 – 5 SC 90 at pages 112-114. Counsel argued further that in an originating Summons proceeding, the court is only invited to use the result of answers given to questions posed therein to grant or refuse the reliefs asked for. That giving answers to questions raised in an originating summons simplicita is distinct and different from granting and or refusing the reliefs claimed therein, as questions posed in an originating summons could be answered and yet reliefs claimed therein refused or granted wholly or in part.
He urged the Court to allow the appeal in line with the above arguments and to give answers to questions posed in the originating summons and grant the reliefs claimed.
The sole issue in this appeal as I stated earlier in this judgment is simple and very straight forward and that is, whether the lower court could determine the action before it properly by originating summons and without recause to oral evidence.
It is trite that originating summons is appropriate where there is no dispute on questions of fact or the likelihood of such disputes, like in a situation where the issue is to determine questions of construction. See the case of EJURA v. IDRIS (2006) 4 N.W.L.R. (pt.971) 538 at 560.The Appellant in the court below in suit No.PHC/337/2006 did not stop at just asking for the construction and interpretation of the Judgment in PHC/153/90, the Appellant went further to claim that he was entitled to some rights and reliefs based on the said judgment of which the Respondents say he was not in any way entitled to such rights and reliefs.
In Exhibit, EM4 (suit No. PHC/153/90) Daniel-Kalio J. (as he then was) now a Justice of the court of Appeal, found that the oldest surviving son, of Eruwa was automatically the head of Eruwa family. Consequent upon that finding, the Appellant prayed the Court below to declare that as the eldest and only surviving son of his father and the only legitimate son of Eruwa family, he Appellant was the person entitled to the headship of Eruwa family among other reliefs.
It is also noteworthy that the finding of Justice Daniel – Kalio in the said Exhibit EM 4 is not on the Claimant’s father’s line of Eruwa family, but the entire Eruwa family in which the Appellant says he is the only legitimate son. The Respondents disputed this. They claimed that according to the Ikwerre native Law and Custom, the 5th – 8th Respondents (Defendants in the lower Court) were the legitimate children of Eruwa. The question is I could the lower court have determined these issues by originating summons, and without resorting to oral evidence? I do not think the trial court could do so by an originating summons.
Also in the same judgment Exhibit EM 4, Justice Daniel -Kalio held that the Appellant’s father was entitled to the Akaogba built for his mother by inheritance. The Appellant as the only son of his father claimed at the court below to be entitled to the said Akaogba by inheritance. He exhibited a Deed of grant at the lower court. The Appellant went further to claim that the Obi/Obiri of his father was on the said Akaogba and that the Respondents particularly the 4th – 10th Respondents were disturbing his occupation of same. The Respondents disputed this at the trial Court. They claimed that the Obi/Obiri was built by their own father Isaac Eruwa on the land apportioned to their said father and not on the Akaogba of the Appellant’s grandmother, that the Deed of Grant was made Malafide.
A look at suit No: PHC/153/90 Exhibit EM4 delivered by Justice Daniel-Kalio on the 8th of March 2001 shows clearly that parties in the said Exhibit EM4 4 are different from parties in Suit No.PHC/337/2006 which gave rise to the present appeal. While suit No.PHC/153/90 had as parties:
“Suit No. PHC/153/90
BETWEEN:
ALFRED WOGUNKA ERUWA – PLAINTIFF
AND
1. MADAM AGNES NLERUNWO ERUWA
2. MGBECHI CAROT ERUWA – DEFENDANTS
3. KENNETH CHUKWUMA ERUWA
Suit No. PHC/337/2006 which gave rise to this appeal had as parties:
“MR. EMMANUEL MOSES – CLAIMANT
AND
1. MADAM AGNES NTERUNWO ERUWA
2. MGBECHI CARO ATTEH (NEE ERUWA)
3. KENNETH CHUKWUMA ERUWA
4. MRS. EGO ERUWA
5. GIFT NWUOMANDA – DEFENDANTS
6. AZUNDA ERUWA
7. EZIWHUO ERUWA
8. NGOZI ERUWA
9. BOMA ERUWA
10. WHUCHEGBULE ERUWA
It is again very clear to me that the issues raised in suit No. PHC/337/2006 are not the same as the issues decided in PHC/153/90 Exhibit EM4.
For the above reasons, the questions and declarations sought in my humbly but firm view cannot be determined simply by the interpretation and construction of Suit No. PHC/153/90. There was therefore need to call oral evidence. See OGBOHON v. AG EDO STATE (1997) 5 SCNJ 163.
CLAY INDUSTRIES NIGERIA LTD v. AINA (1977) SCNJ page. 491. COKER v. OGUNTOLA (1985) 2 N.W.L.R. 87.
The learned trial Judge was therefore right to hold that this action ought to have been brought by writ of Summons and not originating Summons. That is a clear and succinct position of the law and five no reason or justification to distort or reverse same.
It is also trite that when a suit is commenced by an originating Summons rather than writ of summons, the proper order to make is not one dismissing the suit, rather the Court should direct the parties to proceed with the filing of pleadings. See EMEZI v. OSUAGWU (2005) 12 N.W.L.R. (pt. 939) at 367. This was exactly what the learned trial Judge did, it was the proper directive to give in the circumstance.In the final result the sole issue is resolved in favour of the Respondents against the Appellant. The grounds of appeal fail. This appeal is bereft of merit, it is accordingly dismissed. The ruling of E. N. Thompson J and the consequential directive are hereby affirmed. I make no order as to costs.
EJEMBI EKO, J.C.A.: By the originating summons filed on 4th April, 2006 the present Appellant, as the Claimant, sought from the court below the interpretation of the judgment in the suit no. PHC/153/90 delivered by Daniel-Kalio, J. (as he then was) on 8th March, 2001. The respondent filed a 20 paragraph counter affidavit wherein he joined issues with the Claimant on some material and contentious issues in the suit, and thereupon contended that the questions and reliefs sought by the Claimant could not be determined on originating Summons without oral evidence. The court below agreed that the action ought to be heard on pleadings. It accordingly directed that pleadings be filed and exchanged. Hence this appeal.
The parties and the issues raised in the suit no.PHC/130/90, Exhibit EM. 4 decided by Daniel-Kalio J. on 8th March, 2001 and the instant suit are clearly not the same. I therefore agree with my learned brother, C. E. NWOSU-IHEME, JCA, in the judgment just delivered in this appeal, that the Appellant’s suit ought to have been brought on the writ of summons, and not originating summons as the Appellant did. There is, therefore, no merit in this appeal, which I hereby dismiss.
The decision appealed was handed down on 12th January, 2007. I daresay that but for this frivolous and vexatious exercise of the right of appeal by the Appellant, his suit by now would have been finally determined. This frivolous interlocutory appeal had only congested this court as well as the court below. If the Appellant had invoked order 16 of the court of Appeal Rules, 2011 a lot would have been achieved by all concerned in terms of time economy and other resources. I will, certainly not cheer the Appellant’s Counsel in this frivolity that has wasted every body’s time and resources.
STEPHEN JONAH ADAH, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother Nwosu-Iheme, JCA and I am in agreement with her reasoning and conclusion that this appeal is bereft of merit.
The issue in this case has to do with the mode of commencement of the suit before the lower court. The action was originated by an originating summons but the learned trial Judge after due consideration discovered that the action could not effectively be decided by means of originating summons he therefore converted the process into that of a writ of summons and directed the parties to file the necessary pleadings as is peculiar with the writ of summon under the Rules of court, This is a directive that was harmless to the interest of justice in the matter. Instead of flowing with that the Appellant who was the claimant at the lower court decided to appeal to this Court.
originating summons as a process has its own peculiarities which are geared towards expeditious determination of the cause of the parties which cause is not burdened by facts that are likely to be in dispute. In the case of Dapianlong v. Dariye (2007) 8 NWLR (pt.1036) 332, cited in the lead judgment the supreme court held inter alia that originating summons is the method of commencing an Action where the facts are not in dispute, or where there is no likelihood of the facts being in dispute, and where the sole or principal question in issue is or is likely to be one directed construction at the of a written law, the constitution, or other document, or other question of law. In other words, originating summons is used for non-contentious actions or matter; that is, those actions where the facts are not likely to be in dispute. It is not meant to enlarge the jurisdiction of a court because it is merely a method of procedure. It is not a substitute for commencing contentious suits because the appropriate method for commencing such suits is a writ of summons in which what is alleged by the parties will be clearly defined in the pleadings and both sides will be at liberty to lead oral evidence in proof of the averments.
Since originating summons is used when the facts of a case are not in controversy, a plaintiff applying its use must always accompany an originating summons with an affidavit in support, which authenticates the plaintiff’s case in clear terms; and a defendant, upon service of the processes of the plaintiff, may wish to file a counter-affidavit in opposition to the case presented. Furthermore, parties to an originating summons are not allowed to adduce oral testimonies in proof of their depositions in their respective affidavit and counter-affidavit unlike parties to a writ of summons who are allowed to adduce evidence in support of their pleadings. And since no oral testimony is allowed in respect of an originating summon, the demeanour of the parties and or their witnesses prays no part in the adjudication. All the court need do is to proceed to hear and determine the suit by deducing inferences from the affidavit evidence filed by the parties. (Director, S.S.S. v. Agbakoba (1999) 3 NWLR (pt.595) 314; Din v. A.G. Fed. (1986) 1 NWLR (Pt.17) 471; Keyamo v. House of Assembly, Lagos State (2002) 18 NWLR (Pt.799) 605; N.B.N. Ltd. v. Alakija (1978) 9-10 SC 59 referred to.) (Pp.405-406, paragraphs.Similarly in the case of Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) 424 the Supreme Court considering and contrasting between action commenced by originating summons and that commenced by a writ of summons held that:-
In originating summons, facts do not have a pride of place in the proceedings. The cynosure is the applicable law and its construction by the Court. The situation is different in a trial commenced by writ of summons where the facts are regarded as holding a pride of place and the fountain head of the law, in the sense that the facts lead to a legal decision on the matter. That is not the position in proceedings commenced by originating summons where facts do not play a central role but an infinitesimal role, if at all. (pp. 571-572 paragraphs H-B).
In the instant appeal the complaint of the Appellant is not that he was not allowed to maintain his Lis, but that the directive of the Court for him to continue by converting the process into a writ of summons and file in necessary processes was an error. The Appellant here was lucky for the learned trial Judge to have exercised his discretion to convert the process filed by the Appellant to a writ of summons. It was apparently done to save the life of the Appellant’s cause.
The Appellant ought to have grabbed that opportunity with two hands instead of engaging in this dilatory tactics of appealing to this Court over that exercise alone. The Appellant here does not sound like someone who is interested in the speedy determination of his suit. His appeal is not only lacking in merit, it is frivolous. For this reason and the fuller reasons advanced by my learned brother Nwosu-Iheme, JCA I also dismiss this appeal. The ruling of the learned trial Judge is also affirmed by me.
Appearances
E. G. IwedibaFor Appellant
AND
F. C. Ikehi Esq.For Respondent
