MR. JONATHAN OLUFUNMI OGUNDEYI & ANOR v. MR. SMART UGBOHNI
(2019)LCN/13455(CA)
In The Court of Appeal of Nigeria
On Monday, the 10th day of June, 2019
CA/IB/195/2013
RATIO
ORIGINATING SUMMONS: WHERE IT IS USED
It is a settled position of the law that Originating Summons Procedures is a means of commencement of an action in cases where the facts are not in dispute. It is used for non-contentious actions. Where facts are in dispute, an Originating Summons procedure will not be appropriate. The Plaintiff/Claimant will come by ways of Writ of Summons, where the proceedings are hostile in the sense that there are serious disputes of facts, an Originating Summons should not be used by a Plaintiff to commence his suit. See the following cases:-
– INAKOJU VS. ADELEKE (2007) 4 NWLR PART 1025 PAGE 423.
– OSUNBADE VS. OYEWUMI (2007) ALL FWLR PART 368 PAGE 1004.
Other influencing factors when an action may be commenced by Originating Summons include among others where:
(a). The sole issue is one of construction of a statute or a written law, or deed or will, or contract, or an instrument made under any statute or written law or other documents or other question of law.
(b). Where a statute or any written law provides for a right but does not specify means by which application may be brought under the same statute for example, actions for prerogative order of Certiorari, Mandamus, Prohibition, Habeas Corpus, Judicial Review and certain actions under the companies proceeding Rules 1992. It may be used also where a statute has not provided for it. See the following cases:-
– BALONWU VS. OBI (2007) 5 NWLR PART 1028 PAGE 488.
– AKUNNIA VS. ATTORNEY GENERAL ANAMBRA (1977) 5 SC PAGE 16.
– DOHERTY VS. DOHERTY (1964) NMLR PAGE 144.
(c). Where the Rules of Court, or any statute or written law specifically provides that such actions are required to be commenced by Originating Summons for example the fundamental right (enforcement procedure Rules 1979 and certain applications under the companies proceeding Rules 1992).PER JIMI OLUKAYODE BADA, J.C.A.
MERE ISSUANCE OF CERTIFICATE OF OCCUPANCY DOES NOT CONFER TITLE
In -BOYE INDUSTRIES LTD VS. SOWEMIMO (2009) 2 FWLR PART 473 PAGE 4441 AT 4454 PARAGRAPHS F-H. It was held among others thus:-
It is trite that mere issuance or acquisition of a Certificate of Occupancy does not and cannot confer title in respect of a parcel of land it purports to cover where no such title either existed or was available to be transferred. It is clear from the provisions of Section 34 of the Land Use Act that any person without title to a parcel of land in respect of which a Certificate of Occupancy is issued acquire no right or interest which he did not have before the Certificate. KYARI VS. ALKALI (2001) S.C. PART 11 PAGE 192, – OGUNLEYE VS. ONI (1990) 2 NWLR PART 135 PAGE 745.PER JIMI OLUKAYODE BADA, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria
Between
1. MR. JONATHAN OLUFUNMI OGUNDEYI
2. GEFF PRODUCTION COMPANY NIGERIA LTD Appellant(s)
AND
MR. SMART UGBOHNI Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Judgment of High Court of Justice, Ilaro Judicial Division of Ogun State in suit NO: M/83/2011 BETWEEN:- (1). MR. JONATHAN OLUFUNMI OGUNDEYI (2). GEFF PRODUCTION COMPANY NIG. LTD. AND MR. SMART UGHOHNI delivered on the 9th day of February 2012.
Briefly the facts of the case are that the Appellants who were Claimants before the High Court of Justice, Ilaro Judicial Division filed an Originating Summons on the 2nd day of September 2011 pursuant to Order 53 of the High Court of Ogun State (Civil Procedure) Rules 2008 and sought for the following relief:-
An order for the recovery of possession of ? All that piece or parcel of land at Ogundeyi Estate and particularly behind Apostolic Church, Ogijo Shagamu Local Government Area of Ogun State which part was formerly developed into poultry houses but now demolished by the Defendant who is now constructing a dwelling house and which land totally measuring approximately 2.430 Acres and more particularly delineated and verged RED on Survey Plan No. IVP 62A dated 28th August 1972 and
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annexed to the Certificate of Occupancy dated 12th day of March 1983 and registered as No. 46 at page 46 in Volume 224 of the Lands Registry, in the office at Abeokuta, Ogun State on the ground that the Defendant is a person in occupation without their licence or consent.?
At the conclusion of trial at the lower Court, the learned trial Judge held that the Originating Summons failed and the suit was dismissed.
The learned Counsel for the Appellants who is miffed by the Judgment delivered by the trial Judge appealed to this Court.
He formulated a sole issue for the determination of this appeal. The said issue is reproduced as follows:-
?Whether the 1st Appellant?s Certificate of Occupancy does not raise a presumption that the 1st Appellant is the owner in Exclusive possession of the land, if answered in the affirmative, whether such a certificate does not also raise a presumption that at the time it was issued there was not in existence a customary owner whose title has not been revoked.? (Distilled from Grounds 1,2,3 and 4).
The learned Counsel for the Respondent submitted that it is trite that an issue for
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determination must be discernible from the Grounds of appeal. Though the Respondent did not cross-appeal but for the purpose of this appeal, the Respondent shall state that the germane issue is
?Whether in the circumstance of this case it is an action that can be brought under Order 53 of the High Court of Ogun State (Civil Procedure) Rules 2008? ? Summary Proceedings for possession of landed property occupied by squatters or without owner?s consent.?
The learned Counsel for the Respondent nonetheless adopted the sole issue formulated on behalf of the Appellants for the determination of this appeal.
At the hearing of this appeal on the 2nd day of May 2019, the learned Counsel for the Appellants stated that the appeal is against the Judgment of High Court of Justice, Ilaro Judicial Division in Ogun State of Nigeria. The Judgment was delivered on 9th day of February 2012.
The Notice of Appeal was filed on 3rd day of May 2012. The record of appeal was transmitted on 4th day of June 2013 and it was deemed as properly transmitted on the 27th day of February 2018.
The Appellants? Brief of Argument
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was filed on 5th day of August, 2013. The learned Counsel for the Appellants adopted and relied upon the said Appellants? brief as her argument in urging that the appeal be allowed.
On the other hand, the learned Counsel for the Respondent referred to the Respondent?s Brief of Argument filed on 30th day of April 2019, which was deemed as properly filed and served on 2nd day of May 2019. She adopted and relied on the said brief as her argument in urging that this appeal be dismissed.
The learned Counsel for the Respondent adopted the sole issue formulated for the determination of this appeal on behalf of the Appellants. I will therefore rely on the said issue formulated on behalf of the Appellants for the determination of this appeal.
ISSUE FOR THE DETERMINATION OF THE APPEAL
Whether the 1st Appellants? Certificate of Occupancy does not raise a presumption that the 1st Appellant is the owner in exclusive possession of the land, if answered in the affirmative whether such a certificate does not also raise a presumption that at the time it was issued there was not in existence a customary owner whose title has not been
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revoked.? (Distilled from Grounds 1, 2, 3 and 4).
The learned Counsel for the Appellants contended that the lower Court in determining this suit considered two issues viz:-
(i). Whether from the averments in the affidavits of both parties, the action can be decided under Order 53 of the Rules.
(ii). Whether the Appellants then the Claimants were in possession of the land.
The learned Counsel for the Appellants submitted that the Respondent is not a tenant or a tenant holding over after termination of his tenancy, or a licencee of the owner or person entitled to possession, or a person who had consent of the predecessor in title of the person who is entitle to possession. He referred to pages 24-25 of the record of appeal where the lower Court defined possession thus:-
Possession of a parcel of land means the occupation or physical control of the land either personally or through an agent.
He also referred to Blacks Law Dictionary 8th Edition Page 1201 on the definition of possession. He relied on the case of – LADIPO VS. AJANI (1997) 8 NWLR PART 517 PAGE 356 AT 367 PARAGRAPH ?A? where it was defined
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as;
Possession in law means exclusive possession.
He stated that the Court held further that
Possession of a predecessor in title is in law also deemed to be continued by his successor.?
Learned Counsel for the Appellants submitted that the evidence of possession of the Appellants include cultivation of a piece of land and erection of a building or fence on the land. He referred to page 3 paragraph 6, page 4 paragraphs 7 and 8 and page 10 of the record.
He also referred to the case of MOGAJI VS. CADBURY FRY EXPORT LTD (1972) 2 SC PAGE 97.
– ALATISHE VS. SANYAOLU (1964) 1 ALL NLR PART 1 PAGE 398.
It was submitted further on behalf of the Appellants that the lower Court misconstrued the law when it held on page 54 paragraph 3 line 16-19 that the parties have joined issues on title to the piece of land which the Claimants are praying for possession and therefore refused to go into the issue of proof of title. He relied on Order 53 Rule 3 of the High Court (Civil Procedure) Rules. Learned Counsel for the Appellants relied on the following cases:-
– OLUKOYA VS. ASHIRU (2006) ALL
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FWLR PART 322 PAGE 1479 AT 1510 PARAGRAPHS B-D.
– IBANGA VS. USANGA (1973) 5 SC PAGE 103 AT 120.
– AMAKOR VS. OBIEFUNA (1974) 1 ALL NLR PAGE 119.
– AJANI & ANOTHER VS. LADIPO & ORS (1986) 3 NWLR PART 28 PAGE 276 AT 283.
– PROVOST LAGOS STATE COLLEGE OF EDUCATION VS. DR. EDUN & ORS (2004) ALL FWLR PART 201 PAGE 1688.
– OGBU VS. ANI (1994) 7 NWLR PART 355 PAGE 128.
He submitted that in resolving conflicting claims to possession of land that the law ascribes possession to the person that can prove better title to the land.
The Deed of Conveyance and Certificate of Occupancy in favour of the 1st Appellant were relied upon as raising the presumption that the holder is the owner in exclusive possession of the land.
He relied on the following cases:-
– EZEANAH VS. ATTA (2004) ALL FWLR PART 202 PAGE 1858 RATIO 8.
– OSAZUWA VS. OJO (1999) 13 NWLR PART 634 PAGE 286.
– ATTA VS. EZENNA (2001) FWLR PART 49 PAGE 1489.
– EKE VS. ELUWA (2000) 14 NWLR PART 688 PAGE 560.
– SHOGO VS. ADEBAYO (2000) 14 NWLR PART 686 PAGE 121.
– UNION BANK OF NIGERIA VS. PROF. OZIGI
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(1994) 3 NWLR PART 333 PAGE 385.
– CHIROMA VS. SUWA (1986) 1 NWLR PART 19 PAGE 751.
The learned Counsel for the Appellants submitted that the action was properly commenced by originating summons.
He relied on the -Photocopy of Certified True Copy of Deed of Conveyance dated 15 June 1973 in favour of 1st Appellant and -Photocopy of Certified True Copy of the Certificate of Occupancy of the 1st Appellant dated the 1st January 1983. See pages 26-32, 33-38 of the record of appeal.
He finally urged this Court to allow this appeal and set aside the Judgment of the lower Court.
The learned Counsel for the Respondent in his response to the learned Counsel for the Appellants? submission submitted that in this case the lower Court applied the Affidavit evidence of the Appellants to determine whether possession was established.
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He contended that a careful perusal of the Affidavit of the Appellants as can be gleaned from pages 3, 4, 24 and 25 of the record of appeal did not establish that the Respondent is not a tenant or a tenant holding over after termination of his tenancy, a licencee of the owner or person entitled to
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possession or a person who had the consent of the predecessor in title of the person entitled to possession.
Learned Counsel for the Respondent submitted that Appellant?s Counsel?s submission in paragraph 4.01 of the Brief that ? the Respondent does not fall within the category of person named in -Order 53 Rule 1(1) a-d will not suffice in the absence of cogent evidence to that effect.
It was submitted that the Appellants failed to establish by evidence that their case falls within the province of Order 53 of the High Court of Ogun State (Civil Procedure) Rules.
It was contended on behalf of the Respondent that from the Affidavit evidence in this case that both 1st and 2nd Appellants abandoned their purported land therefore that no possession can be attributed to them.
Respondents Counsel
