MR. OKEDINACHI NELSON-MOORE & ANOR v. MEDICINE PLUS LIMITED & ANOR (2014)

MR. OKEDINACHI NELSON-MOORE & ANOR v. MEDICINE PLUS LIMITED & ANOR

(2014)LCN/7454(CA)

In The Court of Appeal of Nigeria

On Friday, the 21st day of November, 2014

CA/L/486/2013

RATIO

APPEAL: ISSUES FOR DETERMINATION; THE EFFECT MULTIPLICITY OR DUPLICATION OF ISSUES FOR DETERMINATION HAS ON THE APPEAL AND WHAT CONSTITUTE ISSUES FOR DETERMINATION
It has been said time without number that multiplicity or duplication of issues for determination in most cases has a trifling effect on the appeal for the party crafting such multiple or duplicated issues which naturally have grave negative impact on the multiplying or duplicating party, few cogent and substantial issues for determination that are well framed researched and presented tend to have more positive effect on appeals than an army of trifling issues. Issues for determination in an appeal constitute the proposition of law or fact so cogent, weighty, and compelling, that a decision on them in favor of a party in an appeal will entitle him to judgment of the Court. per. TIJJANI ABUBAKAR, J.C.A.

PRACTICE AND PROCEDURE; MODE OF COMMENCEMENT OF AN ACTION; WHEN CAN AN ACTION BE COMMENCED BY ORIGINATING SUMMONS AND WHEN CAN AN ACTION BE COMMENCED BY WRIT OF SUMMONS
Generally where an action entails construction or interpretation of documents or interpretation of statutory provisions, it is safe and prudent to commence such action by originating summons, such mode of commencement ensures quick and speedy disposal of matters, but where there is seeming hostility in the proceedings, originating summons will not be available to the litigant as a vehicle for ventilating his grievance. See NATIONAL BANK OF NIGERIA v. ALAKIJA (1978) 9-10 & 11-12 SC, JEV v. IYORTYOM (2014) All FWLR (Pt. 747) 749, DOHERTY v. DOHERTY (1968) NMLR 241.
I think it is necessary to capture what Belgore (JSC) (as he then was) said in the decision of the Supreme Court in FAMFA OIL LIMITED v. A-G FEDERATION & NNPC, he said as follows:
“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 determination of any question of construction arising under the instrument for a declaration of interest (order 38 Rule 1 and order 44 rule 1L). 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 to the suit. In such a situation, there is no serious dispute as to 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. See, Doherty v. Doherty (1968) NMLR 241”.

Order 3 Rules 7 of the Lagos State High Court Civil Procedure Rules 2004 provides as follows:
“A judge shall not be bound to determine any such question of construction if in his opinion it ought not to be determined on originating summons but may make any such orders he deems fit”
From the above reproduced rules of Court, it appears clear to me that under the provisions of Order 3 Rule 7 of the Lagos High Court Civil Procedure Rules 2004 the lower Court has substantial discretion to refuse taking a matter filed before it by originating summons as commenced by a Claimant if the Court is of the opinion that there are contentious issues to be determined as in the instant case. Such exercise of discretion by the lower Court cannot be questioned by this Court unless it is shown that the lower Court failed to exercise such discretion judicially and judiciously, exercise of judicial discretion cannot be regulated by hard and fast rules, exercise of discretion in one case may only necessarily guide a court, but, it certainly cannot bind another Court in the exercise of discretion in the case before it. Exercise of discretion will depend on the peculiar facts and circumstances of a given case, See: AMAECHI v. OMEHIA (2013) 16 NWLR (Pt. 1381) 417 AT 435. The moment attempt is made to regulate exercise of discretion, that discretion is fettered, SEE: ANYA v. A.N.N. LTD (1992) NWLR (Pt. 247) 319.
In AJOMALE v. YADUAT (2) (1991) 5 NWLR (Pt. 191) 266, the Supreme Court of Nigeria said, per NNAEMAKA AGU (JSC):
“When it is an appeal, the question is not how the Appellate Court would have exercised it but whether the learned trial Judge whose discretion it was exercised it correctly, that is judicially and judiciously, bona fide in accord with justice and having regard to all necessary and relevant considerations” per. TIJJANI ABUBAKAR, J.C.A.

LAND LAW: A CLAIM FOR DECLARATION OF LAND; WHAT MUST BE ESTABLISHED IN A CLAIM FOR DECLARATION OF TITLE
The appellant is mainly seeking for declarations and declaration cannot be made without the claimant satisfying the court by cogent evidence. It cannot be made on admission nor default of pleadings, see the case of FAGBUNMI v. AGBE (1985) 3 SC 28 where the Supreme Court held as thus:
“A claim for declaration of title is not established by admissions as the plaintiff must satisfy the court by credible evidence that he is entitled to the declaration. The court does not grant declaration on admission of parties. It has to be satisfied that the plaintiff owns the title claimed.”
Therefore, the trial judge rightly exercised discretion by ordering pleadings in the case because the facts are disputed. The discretion of the trial judge cannot be interfered with in this regard and it is in the light of elaborate reasoning advanced in the lead judgment I also dismiss the appeal and abide by the consequential orders made therein. Per. YARGATA BYENCHIT NIMPAR, J.C.A.

JUSTICES

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

Between

1. MR. OKEDINACHI NELSON-MOORE
2. MRS. OTUMINE-MOORE Appellant(s)

AND

1. MEDICINE PLUS LIMITED
2. DR. CYRIL IDEMUDIA ETOMI Respondent(s)

TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling delivered by Lufadeju J, of the Lagos State High Court on the 15th day of June 2007 directing parties to file pleadings. In brief the facts are that the Appellants in this appeal, commenced action at the lower by Originating Summons under Order 3 rule 5 of the Lagos State High Court Civil Procedure Rules 2004. The Appellants as Claimants submitted the following questions for determination:
1. Whether the area of that portion of Plot 1282 at Saka Tinubu Street, Victoria Island, otherwise known as No. 45, Saka Tinubu Street, Victoria Island, Lagos, measuring 618.105 square metres, stated in and assigned under the DEED OF ASSIGNMENT now, registered under Title No. LO 8580 at the Lagos State Land Registry had, by virtue of Plan No. LS/D/LA 1063, annexed to the DEED, which letter the area of the said portion as measuring 700.299 square metres, in law been modified, enlarged, extended or added to.
2. If the answer to QUESTION No. 1 is in the negative, whether the 1st Defendant is entitled in law and equity, using the instrumentality of Plan No. LS/D/LA 7063 and/or any enabling instrument from 2nd Defendant its Assignor (and the ASSIGNEE in the DEED registered under title No: LO 8580) to lay claims to, or continue further occupation of the frontage of the Claimants, own No.45A, Saka Tinubu Street, Victoria Island, Lagos (otherwise known as Plot 1282c) comprising the portion delineated by pillar numbers S 41255, S 41256 and 41257.
3. Whether Plan No. LS/D1672 has not superseded Plan No. LS/D1063 and consequently delineated the true, proper and contractual boundary of the sub-division of Plot 1282 into Plots 1282A (No. 45) and No. 45A at Saka Tinubu Street, Victoria Island, Lagos.
4. It the answer to QUESTION NO. 3 is in the affirmative, whether the Lagos State Land Registry shall not be rectified by withdrawing Plan No. LS/D/LA 1063, registered under title No. LO 8580 and substituting it with Plan No. LS/D/LA 1672 to align with the grants made by Chief BABATUNDE OROBIYI RHODES to the 2nd Defendant under the DEED registered under title No. LO 8580.
Upon answering the questions submitted for determination Appellants prayed the lower Court for the following:
1. A DECLARATION that, that portion of Plot 1282 at Saka Tinubu Street, Victoria Island, Lagos otherwise known as Plot 1282A (No. 45 Osaka Tinubu Street, Victoria Island) comprises an area of 618,105 square metres, as stated in and assigned under the DEED OF ASSIGNMENT now registered under Title No. 8580 at the Lagos State Land Registry.
2. A DECLARATION that Survey Plan No. LS/D/LA 1063 annexed to the DEED OF ASSIGNMENT now registered under Title No. LO 8580 did not and will not per se, modify, enlarge, extend or add to the grant of Plot 1282A (No. 45) at Osaka Tinubu Street, Victoria Island, and Lagos made under the said DEED OF ASSIGNMENT.
3. A DECLARATION that so much of the area of the projectile as drawn in Plan No. LS/D/LA 1063 bounded by pillar numbers S 41255, S 41256 and S 41257, delineated as plot 1282A, is an integral part of Plot 1282c (No. 45A) more particularly delineated in Plan No. LS/D/LA 1672,
4. A DECLARATION that the sub-division of Victoria Island Scheme, Plot 1282 in Lagos State Government Survey Plan No. LS/D/LA 1672, as between Plots 1282A and 1282C therein, supersedes and preponderates over, the subdivision in the, Lagos State Government Survey Plan No. LS/D/LA 1963.
5. A DECLARATION that true, proper and contractual boundary of the sub-division of Plot 1282, into Plots 1282A (No. 45) and 1282C (No. 43A) at Saka Tinubu Street, Victoria Island, Lagos is as traced and lettered in Plan No. LS/D/LA 1672.
6. AN ORDER of this honourable court enjoining the Registrar of title, Lagos State Land Registry to rectify the registry by withdrawing survey plans No. LA/D/1063 ATTACHED TO THE DEED OF ASSIGNMENT registered under title No. LO 8580 and substituting it with survey plan No. LS/D/LA 1672.
7. AN ORDER of this honorable court prohibiting the registrar of title Lagos State Land registry from registering in the registry the Deed with consents No. LU/GC/30307 to which Survey Plan No. LA/D/1063 was annexed or referred to save if the said deed has annexed or referred in it survey plan No. LS/D/LA 1672 delineating Plot 1281A (No. 45, Saka Tinubu Street, Victoria Island, Lagos) as measuring 618.141 square metres.
OR ALTERNATIVELY:
7(a) AN ORDER of this honourable court enjoining the 4th Defendant to further rectify the registry by withdrawing survey plans No. LA/D/1063 or any other survey plan whatsoever, attached to the DEED with consents NO. LU/GC/30307 and substituting it with Survey Plan No. LS/D/LA 1672, already before this honourable court.
OR ALTERNATIVELY
7(b) AN ORDER of this honourable court enjoining the 4th Defendant to further rectify the Registry by deleting from the DEED with consents No. LU/GC/30307, any reference to Survey Plan No. LA/D/1063 referring to plot 1282A (No. 45, Saka Tinubu Street) as an area comprising 700.299 square metres.
8. AN ORDER against the 1st Defendant, its agents, privies, assigns, tenants or occupiers of No. 45, Saka Tinubu Street, Victoria Island,Lagos to vacate and deliver up the occupation of so much of the area of the projectile as drawn in Plan No. LS/D/LA 1063 bounded by Pillar No. S 41255, S 41256 and S 41257, delineated as plot 1282A, but now traced and lettered as an integral part of Plot 1282C and more particularly delineated in Plan No. LS/D/LA 1672, or so much of the 1st Defendant’s burglar bar enclosing an electricity transformer and the generator house brazenly entrenched in the frontage of No. 45A and resting upon it into and to the pillar with the inscription “45A”
9. AN ORDER of this honourable court enjoining the 4th Defendant, subject to payment of applicable fees, to register in the Land registry at Alausa, Lagos State, the Claimants DEED with consent No.LUS/GC/38387 to which Plan No. LS/D/LA 1672 is attached.
10. GENERAL DAMAGES in the sum of N5 Million against the 1st and 2nd Defendants jointly or severally.
The 1st Respondent upon being served the originating summons filed a motion on Notice praying the lower Court to order pleadings. The 2nd Respondent filed counter affidavit and written address challenging the originating summons. The learned trial Judge took written addresses from parties and delivered ruling on the 15th day of June 2007, granting the prayer by the 1st Respondent, and consequently made an order directing parties to file pleadings, the ruling is at page 106-109 of the record of appeal. This ruling did not go down well with the Claimants, having felt aggrieved by the ruling, they applied for and obtained leave of Court to appeal against the ruling, on the 15th day of April 2013 Appellants therefore filed notice of appeal found at page 110-112 of the record of appeal, the grounds of appeal without their particulars are therefore reproduced as follows;
GROUND ONE
The learned trial Judge erred in law when he held “that in various State High Court Rules, suits can be commenced by Originating Summons where there is unlikely to be any substantial dispute of facts”.
GROUND TWO
The learned trial Judge erred in law when she held that proceedings can only be commenced by Originating Summons where there is unlikely to be any substantial dispute of fact.
GROUND THREE
The learned trial Judge erred in law when she held that “the process filed before this court is in controversy between the parties which I believe cannot be resolved by Originating Summons”
GROUND FOUR
The learned trial Judge in ordering the pleadings in exercise of her discretion erred in law in failing to consider the materials placed before her and so failed to exercise her discretion judicially and judiciously.
Learned Counsel Ogochukwu Mbamalu filed Appellants brief of argument on the 13th day of June 2013, Appellants identified three issues for determination, they are as follows:
1. Whether the proviso enacted under High Court Civil Procedure Rules of some States including the Federal Capital Territory Abuja, that originating summons ought not be used to initiate proceedings, where there is likely to be any substantial dispute of fact is in law capable of governing the claimants/Appellants originating summons taken out under the High Court of Lagos (civil procedure) Rules 2004, which latter rules has no such proviso.
2. Whether the discretionary powers of the learned trial Judge, (provided for under Order 3 Rule 7 of the High Court of Lagos State (civil procedure) Rules 2004 not to determine questions of construction of deed or other written instrument on Originating Summons can be judicially and judiciously exercised, in this case, without contraindicating the deed or other written instrument (see order 3 rule 5) which cannot co-subsist with the appellants originating summons.
3. Did the lower Courts discretion, exercised in this suit, pass the judicial and judicious test having regard to the materials placed before it?
Learned Counsel Olumuyiwa F. Owoturo, for the first Respondent, filed first Respondents brief of argument on the 11th day of July 2013, nominating two issues for determination, the issues are reproduced as follows:
1. Whether the Appellants were right in commencing the action at the High Court by way of originating summons bearing in mind the substance of the Appellants claim.
2. Whether the Hon. Justice E. A. Lufadeju was right in exercising the discretion conferred upon her by Order 3, Rule 7 when she granted the application of the 1st Respondent for the parties to file pleadings in the case.
It has been said time without number that multiplicity or duplication of issues for determination in most cases has a trifling effect on the appeal for the party crafting such multiple or duplicated issues which naturally have grave negative impact on the multiplying or duplicating party, few cogent and substantial issues for determination that are well framed researched and presented tend to have more positive effect on appeals than an army of trifling issues.

Issues for determination in an appeal constitute the proposition of law or fact so cogent, weighty, and compelling, that a decision on them in favor of a party in an appeal will entitle him to judgment of the Court. In this appeal I find Respondents issues encapsulating substantially all the issues in controversy between the parties in this appeal, resolution of same will therefore determine the appeal one way or the other, I therefore adopt the issues as the issues to resolve in this appeal. I will take Appellants issues first.
Appellants said the action by the Claimants at the lower Court was commenced pursuant to Order 3 Rule 5 of the High Court of Lagos Civil Procedure Rules 2004, which provides for commencement of actions by originating summons. Learned Counsel further submitted on behalf of the Appellants that, an action may be commenced by originating summons if any person claiming to be interested under a will, deed, enactment, or other written instrument applies for determination of question of construction arising under the instrument and for declaration of rights of the person interested. Appellants said their claim is for determination of construction of the respective grants derived from common instrument at page 68-70 and made separately in the deed of assignment at pages 18-23 and 12-17, which eventually gave birth to the deed of assignment at pages 72-76.
Appellant said survey plan LS/D/LA/1063 at page 17 and LS/D/LA/1672 at page 21 showed contradictory sub-division of plot 1282 Victoria Island Scheme. That the instruments harbor Appellants interest in the said plot, and the action commenced at the lower Court is purely to determine questions of construction arising from the instruments and declaration of the rights of the Claimants. Learned Counsel for the Appellants therefore urged this Court to hold that Appellants originating summons accords with the provisions of Order 3 Rule 5 of the Lagos High Court Civil Procedure Rules 2004. Appellant relied on NATIONAL BANK OF NIGERIA v. ALAKIJA (1978) 2 LRN 78 at 84. Learned Counsel said the fact in dispute proviso is not applicable in the case of the appellants claimant, that the facts in dispute proviso does not apply under the 2004 Rules, he therefore urged this Court to hold that the facts in dispute proviso is not part of the 2004 Rules. Appellants Counsel also urged this Court to give the 2004 Rules their true correct natural and ordinary interpretation that it is improper to add or subtract from the meaning of the provisions, that extraneous matters should not be imported into the statute, Counsel relied on OJUKWU v. OBASANJO (2005) All FWLR (Pt. 222) 1666 at 1701, A-G ABIA STATE v. A-G FEDERATION (2005) All FWLR (Pt. 275) 414 at 450.
On Appellants issue number two, Counsel referred to Order 3 Rule 7 of the Lagos High Court Civil Procedure Rules 2004 and said the trial Court must in applying discretion make reference to the deed or written instrument which cannot be determined by originating summons, unless this is done the trial Court will not be seen to be exercising its discretion judiciously. That a good judgment must appraise the law and the facts applicable to the issues that a decision based on wrongful exercise of discretion cannot stand. Appellant relied on ARFUROL TRADING NIGERIA LIMITED v. DAILY CHINA INTERNATIONAL LIMITED CA/L/615/2005.
Appellant submitted that the originating summons taken out by the Claimant does not suffer such fatal defects as to justify setting it aside because it was accompanied by affidavit setting out the facts relied upon, all relevant exhibits sought to be relied on and written address in support of the application, Appellant referred this Court to pages 6-10, 11-39 and 40-47 of the record of appeal and urged that the relevant materials be considered by this Court and hold that the decision of the lower court rejecting the originating summons is arbitrary because no slightest consideration was given to the deed or the written instruments accompanying the originating summons. Counsel said it is not sufficient for the lower Court to just state that there are substantial disputes of fact to be resolved, the court must go further to give reasons for the decision, he relied on NARUMAL & SONS NIG LTD v. NIGER BENUE TRANSPORT CO. LTD (1989) 2 NWLR (Pt. 106) 731 at 745.
Learned Counsel said Counsel for the 1st Respondent at page 84 of the record of appeal and 2nd Respondents Counsel at page 100 of the record of appeal submitted that facts are in dispute thereby disqualifying originating summons as an initiating process, Appellant said Counsel’s submission cannot be regarded as evidence playing the role of filling the gap in the affidavit of the Respondents, he relied on CHUKWUJEKWU v. OLALERE (1992) 2 NWLR (Pt. 221) 86 at 93. Appellant urged this Court to hold that the exercise of discretion by the lower court to order pleadings was arbitrary.
Appellants issue number three is a reincarnation of issue two, Counsel therefore adopted appellant’s argument on issue two with a slight adjustment that the exercise of discretion by the lower Court was overwhelmingly based on private whims, and was therefore not a judicious and judicial exercise of discretion, he relied on AKANINWO v. NSIRIM (2008) 20 WRN 99 at 126 and urged this Court to interfere with the exercise of discretion by the lower Court, as it was arbitrary and mala fide. Appellant finally urged that this appeal be allowed, the ruling of the lower Court delivered by Lufadeju J, ordering pleadings be set aside.
The First Respondent filed brief of argument and submitted issues for determination. In the argument submitted by learned Counsel, First Respondent said Appellants claim at the lower Court was commenced under Order 3 Rule 5 of the Lagos State High Court civil procedure Rules 2004. Counsel said for a party to institute action under the said order, the party must show that he is a person interested under a deed, will, enactment or other written instrument. Respondents Counsel said the Appellants couldn’t claim to be persons interested in the Deed of Assignment dated 28th December 1999 executed by Chief Babasola Rhodes in favor of the 2nd Respondent Dr. Cyril Etomi, that Appellants are not parties to the deed, and the deed conferred no right or benefit on the Appellants. That Appellants claim at the lower Court relates to declaration of title to a portion of the property number 45, Saka Tinubu Street Victoria Island and the portion is in possession of the 1st Respondent, and Appellants are seeking for delivery of possession of the portion of land to them. Counsel said the Appellants seek for rectification of plan LS/D/LA/1063, which will reduce the size of the property assigned to the 2nd Respondent and eventual delivery of possession of the portion to the Appellants. Respondents Counsel relied on CLINTON WOZOGO ORIANWO v. WOZOGO ORIANWO & 28 ORS (2001) 5 NWLR (Pt. 707) 516.
Counsel for the Respondent referred to the address by learned Counsel for the appellants that under the 1994 Lagos High Court Civil procedure Rules there was specific provision of “facts in dispute” which is not provided for under the 2004 Rules. Respondents Counsel said mere absence of the facts in dispute provision alone couldn’t change the fact that hostile proceedings involving substantial issues of fact cannot be commenced by Originating Summons. Counsel relied on UNIVERSITY OF LAGOS v. M. I. AIGORO (1991) 3 NWLR (Pt. 179) 376. Where the provisions of Order 44 of the High Court of Lagos Civil Procedure Rules 1972 was considered, and learned Counsel said the provisions are substantially similar to Order 3 Rules 5 and 6 of the Lagos High Court Civil Procedure Rules 2004.
That in paragraphs 15, 21, 28, 29, 30, 31, and 32 of Appellants originating summons, Appellant made allegation of encroachment against the 1st Respondent, and this shows that Appellants claim has to do with trespass to land. That one of the reliefs sought by the Appellant is for an order compelling the 1st Respondent to deliver possession of portion of land, the claim is therefore for declaration of title to land and trespass and such claims are therefore contentious and require proof of better title Respondent relied on HON. MUYIWA INAKOJU & ORS v. HON. ABRAHAM ADEOLU ADELEKE (2007) 4 NWLR (Pt. 1025) 427 at 571.
Making further submissions on likelyhood of substantial dispute of facts learned counsel said the 5th defendant in the action at the lower court prepared two conflicting survey plans LS/D/LA/1672 and LS/D/LA/1063 that this conflict alone raises questions that cannot be resolved by originating summons, since the 1st Respondent would require an opportunity to examine or cross examine the 5th Defendant to obtain explanation for preparing two conflicting survey plans on the same subject matter. Learned Counsel therefore urged this court to hold that the decision of the lower Court is right and that the Appellants/Claimants were wrong to have commenced the action by originating summons.
On whether the lower Court was right in exercising discretion in favor of the Respondents by ordering pleadings, Counsel referred to Order 3 Rule 7 of the Lagos State High Court Civil Procedure Rules 2004 and said the learned trial fudge is vested with very wide discretion under Order 3 Rule 7 to decline to hear a matter initiated by originating summons if it appears to him that there are substantial issues in dispute between the parties in litigation.
The 1st Respondent extracted several areas of conflict in Appellants claim, which learned Counsel, said must as of necessity compel hearing. The 1st Respondent said the deed of assignment was executed on 1st September 2004, but Governors consent was not obtained until 2nd may 2006 as shown at page 23 of the record of appeal. That at page 67 of the record of appeal Commit Nig. Ltd offered Appellants property to 1st Respondent, the offer is dated 8th October, 2004 about one month later than when Chief Shola Rhodes purportedly executed the deed of assignment Exhibit ON2 in favor of the Appellants, and Chief Shola Rhodes died on the 8th of October 2004. Learned Counsel said all these facts are sufficient to sustain the decision of the lower Court that there were substantial issues of dispute to necessitate pleadings. That where an action is commenced by originating summons and same ought to have been commenced by writ of summons, the Court will be right in making an order that pleadings be filed, Counsel relied on PDP v. ABUBAKAR (2007) 3 NWLR (Pt. 1022) 515, and C & C CONSTRUCTION COMPANY LIMITED v. OKHAI (2003) 18 NWLR (Pt. 851) 79 at 104.
Learned Counsel for the 1st Respondent finally urged that this appeal be dismissed and the decision of the lower Court delivered on the 15th day of June 2007 by Lufadeju I, be affirmed.
On the 26th day of July 2013, Appellants Counsel filed reply to 1st Respondents brief of argument relying on the decision in OLLEY v. TUNJI (2013) All FWLR (Pt. 687) page 625 at 660 to submit that claims in originating summons are determined conjunctively by looking at the questions for determination and the declaratory reliefs sought by the claimant. That once it is found that existence of facts substantially in dispute is not visible from the processes; originating summons remains the only available means of initiating litigation. That Appellants Claim before the lower Court is purely for the purpose of construction of documents. Learned Counsel said Appellants claim number 8 for trespass is an auxiliary relief tied to Appellants principal claim for declaratory relief he relied on TUKUR v. GOVERNMENT OF TARABA STATE (1997) 6 NWLR (Pt. 510) 549 at 582, and TUKUR v. GOVERNMENT OF GONGOLA STATE. (2) (1989) 4 NWLR (Pt. 117) 517 at 548. Learned Counsel for the Appellant urged this Court to allow the appeal and set aside the ruling of the lower Court.
The first issue to resolve in this appeal is whether the Claimant was right in commencing the action at the lower Court pursuant to order 3 Rule 5 of the Lagos High Court Civil Procedure Rules 2004 by originating summons.
Generally where an action entails construction or interpretation of documents or interpretation of statutory provisions, it is safe and prudent to commence such action by originating summons, such mode of commencement ensures quick and speedy disposal of matters, but where there is seeming hostility in the proceedings, originating summons will not be available to the litigant as a vehicle for ventilating his grievance. See NATIONAL BANK OF NIGERIA v. ALAKIJA (1978) 9-10 & 11-12 SC, JEV v. IYORTYOM (2014) All FWLR (Pt. 747) 749, DOHERTY v. DOHERTY (1968) NMLR 241.
I think it is necessary to capture what Belgore (JSC) (as he then was) said in the decision of the Supreme Court in FAMFA OIL LIMITED v. A-G FEDERATION & NNPC, he said as follows:
“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 determination of any question of construction arising under the instrument for a declaration of interest (order 38 Rule 1 and order 44 rule 1L). 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 to the suit. In such a situation, there is no serious dispute as to 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. See, Doherty v. Doherty (1968) NMLR 241”.

Where there are disputed facts, certainly the proper mode of commencement of action shall be by writ of summons since originating summons is reserved for determination of short questions of construction, see B. A. ELEGBE, SPEAKER BENDEL HOUSE OF ASSEMBLY v. M. O. OLOGO (1983) 7 SC 85, 215-216.
I have already reproduced the Claim before the lower Court. To determine whether there are elements of hostility in the proceedings or not, the Court considers the facts in support of the originating summons just to determine if they disclose disputed facts.
Appellant submitted that there are no hostile issues in the claim, but the 1st Respondent contended that, Appellants claim contains substantial issues that are contentious and would therefore necessitate filing of pleadings as rightly held by the lower Court. Appellants question number three will be reproduced again as follows:
“Whether plan No. LS/D/1672 has not super ceded plan No.LS/D/1063 and consequently delineated the true, proper and contractual boundary of the sub-division of plot 1282 into plots 1282A (No. 45) and 1282c (No. 45A) at Saka Tinubu Street, Victoria Island Lagos.”
Upon the determination of the questions submitted to the lower Court Appellant also asked for an order as follows:
“AN ORDER against the 1st Defendant, its agents privies assigns tenants or occupiers of No. 45, Saka Tinubu Street, Victoria Island Lagos to vacate and deliver up the occupation of so much of the area of the projectile as drawn in Plan No. LS/D/LA/1063 bounded by pillar No. S 41255, S 41256, and S 41257, delineated as plot 1282A, but now traced and lettered as an integral part of plot 1282C, and more particularly delineated in plan No. LS/D/LA/1672, or so much of the 1st Defendants burglar bar enclosing an electricity transformer and, the generator house brazenly entrenched in the frontage of No. 45A and resting upon it, into and to the pillar with the inscription 45A.”
The affidavit in support of the originating summons is the evidence or facts in support of the Claim, it is therefore necessary to consider the facts deposed to in the affidavit in support of the originating summons, this is just to determine whether there are disputed or contentious issues arising from the claim. I read through the entire affidavit in support and find the following paragraphs relevant, 1. 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28, 29, 30, 31, 32, 33, 34. I will therefore proceed to reproduce the paragraphs as follows:
“1. That I am the 1st Claimant in this suit by virtue of which I am conversant with the facts herein deposed.
15. That desirous of effecting structural alteration on the property at No. 45A Saka Tinubu Street, I sought approval from the physical planning authority which approval could not go through because of the encroachment on the required statutory set back by the 1st Defendants continued occupation of the frontage of the property.
16. That further to the perfection of the transaction under exhibit “ON1” I made application No. LU/GC/38387, for the consent of the Governor of Lagos State to the transaction.
17. That pursuant to our application No. LU/GC/38387 and in fulfillment of statutory obligation, the office of the 5th Defendant sub divided plot 1282, following letter Ref No. LU/GC/38387. ASSIGN dated 12/9/05, attached hereto and marked Exhibit “ON2”.
18. That in the Course of effectuating Exhibit “ON2” the 5th Defendant became aware of the mistake and error, committed in the sub division of plot 1282 in plans No. LA/D/1063.
79. That the 5th Defendant subsequently sub-divided plot No. 1282 and produced survey plans No. LS/D/LA/1672, wherein plan No. LA/D/1063 registered under title No.LA8580 was endorsed, as having been supersede by plan No. LS/D/LA1672.
20. That all entreaties made to the 1st Defendant to withdraw its occupation of the portion of No. 45A, Saka Tinubu Street, armed with plan No. LS/D/1063 was rebuffed by it.
27. That I formally wrote a petition to the 3rd Defendant, complaining of the encroachment on No. 45A, Saka Tinubu Street, Victoria Island Lagos by the 1st Defendant.
22. That the 3rd Defendants office after consideration of the petition wrote to me attaching the reaction of the 1st Defendant through its solicitors to my petition.
23. That the recommendation of the 3rd Defendants office on my petition and reply thereto was sent to the 4th Defendant by a letter dated 9/8/05.
24. That through my solicitors letter dated 12/9/05, I applied to the 4th Defendant to rectify the register in order to bring the statutory sub division of plot 1282 in plan NO. LS/D/LA/1672 to confirm with the subsequent transactions on plot 1282 as evidenced on the various DEEDS (Exhibit “ON” and Exhibit “ONI”).
25. That the 4th Defendant replied by letter dated 16/9/05 insisting that the rectification of the register will abide a Court order to that effect.
26. That herewith annexed are the following correspondence/documents.
I. Plan No. LS/D/LA 1672, sub-dividing plots 1282 and superseding plan No. LA/D/1063 and marked Exhibit “ON3′.
II. My petition to the 3rd Defendant dated 9/5/05 and marked Exhibit “ON4”.
III. Reply from the 3rd Defendant dated 11/8/05 and marked Exhibit “ON5”.
IV. Reply to Exhibit ON4 by Messrs.’ Muyiwa Owoturo & Co. 1st Defendants solicitors, sent to and copied to me by the 3rd Defendant and marked Exhibit “ON6”.
V. Copy of the recommendation from the 3rd Defendants office to the 4th Defendant and marked Exhibit “ON7”.
VI. My solicitor’s letter dated 12/9/05 to the 4th Defendant applying for the rectification of the register, and marked Exhibit “ON8”.
VII. The 4th Defendants letter dated 16/9/05 declining to rectify the register absent a Court order, and marked Exhibit “ON9”.
28. That the 1st Defendant has held tenaciously to the faulty survey plan No. LS/D/LA/1063 and therewith constructed a generator house across the frontage of No. 45A, Saka Tinubu Street, thus stalling the registration at the lands registry of the transaction involving No. 45A and the restructuring plans thereon.
29. That the portion of No. 45A encroached upon by the 1st Defendant is so much in area of the projectile as drawn in plan No. LS/D/LA 1063, bounded by pillar No. S 41255, S 41256 and S 41257 delineated as plot 1282A, but now traced and lettered as an integral part of plot 1282C and more perfectly and particularly delineated in plan No. LS/D/LA 1672.
30. That attached and marked Exhibit “ON10″ is a photograph of Nos. 45 & 45A, Saka Tinubu Street, showing the 1st Defendants burglar bar, caging an electricity transformer and the generator house coloured ivory which overarched our own No.45A.
31. That the 1st Defendants encroachment on No. 45A has diminished the value of the property, stalling its redevelopment and the lease by prospective tenants to the economic detriment of the 2nd claimant and I.
32. That unless an order is made by this Honorable Court to that effect the 4th Defendant will not rectify the register to remedy the situation thrust upon plot 1282, and diverse interests thereon by faulty plan No. LS/D/LA1063.
33. That unless an enjoining order is made by this Court, the 1st Defendant will continue to lay claim and occupy with impunity the frontage of No. 45A, Saka Tinubu Street to the perpetual detriment of the 2nd claimant I.
34. That the property (No. 45A) has up till date remained in disuse, as a result of the 1st Defendants encroachment which has put in abeyance the obtaining of redevelopment approval and the registration of our title in the lands registry.”
The learned trial Judge after considering the application by the 1st Defendant Respondent gave ruling found at page 106 of the record of appeal. At page 109 of the record of appeal the learned trial fudge said as follows:
“… The processes filed before this Court show that there are issues in controversy between the parties which I believe cannot be resolved by originating summons.
See:
1. Jimoh v. Olawoye (supra)
2. Ogunsola v. A.P.P. (2003) 9 NWLR (Pt. 826) 462. It is my view that Justice can only be done in this case when the parties file pleadings and issues in controversy are determined between them.
Consequently, the 1st Defendant/Applicants application succeeds and my orders are as prayed.
HON. JUSTICE E. A LUFADEJU (MRS.) JUDGE
15/06/07.”
Appellants question for determination number three, discloses the existence of two survey plans, and the lower Court is called upon to pronounce on the two conflicting survey plans. The order sought to be made by the Court under prayer number 8 is for the 1st Defendant, Appellant herein to vacate and deliver possession. These facts alone appear to show that there are two survey plans suggesting disputed facts, and the 1st Defendant is staying put, prompting prayer for the 1st Defendant to vacate and hand over possession of the premises subject of litigation, this also appears to me to suggest that there is dispute, and “dispute” is defined as “A conflict or controversy especially one that has given rise to a particular law suit” see, BLACKS LAW DICTIONARY 8TH EDITION PAGE 505.
The affidavit in support of the originating summons sworn to by the 1st Appellant especially paragraph 20 shows that, 1st Defendant refused to vacate the portion of No.45A despite all entreaties, sticking to plan No. LS/D/1063. At paragraph 19 of the affidavit in support, Appellant said plan LS/D/1063 has been superseded by plan LS/D/1672. From the depositions in paragraph 19 and 20 of the affidavit in support it is very clear to me that appellants are holding on to LS/D/LA 1672, while the 1st Respondent is holding on LS/D/1063. At paragraph 28 Appellant said
“That the 1st Defendant has held tenaciously to the faulty survey plan No. LS/D/LA 1063……”
From the foregoing it is sufficient for both the lower and this court to conclude that there are substantial contentious issues in the action filed by the Claimants, and whenever there is challenge to commencement of action by originating summons, the Court has a duty to consider the entire contents of the originating summons, the relief sought and the affidavit in support to determine if such suit qualifies to be commenced by originating summons, if there is unlikelihood of substantial dispute of facts from the depositions in the affidavit in support or the dispute of fact is peripheral and not material to the live issues sought to be resolved by the Court such suit shall qualify for commencement by originating summons, but where substantial facts are likely to be in dispute, the procedure of originating summons cannot be used. SEE: PAM v. MOHAMMED (2008) 16 NWLR (Pt. 1112) 1 SC.
In the instant case it is clear from the materials filed by the Appellant/Claimant that the dispute giving rise to the action is substantial and material to the live issue sought to be determined by the lower Court, Appellant was therefore clearly wrong to have initiated the action at the lower court by originating summons.
This issue is resolved in favor of the Respondents against the Appellants.
The next issue is whether the lower Court was right in exercising discretion in favor of the 1st Respondent. The facts grounding the exercise of such discretion by the lower Court have been clearly set out while resolving issue number one, it is therefore not necessary to repeat the facts again.
Order 3 Rules 7 of the Lagos State High Court Civil Procedure Rules 2004 provides as follows:
“A judge shall not be bound to determine any such question of construction if in his opinion it ought not to be determined on originating summons but may make any such orders he deems fit”
From the above reproduced rules of Court, it appears clear to me that under the provisions of Order 3 Rule 7 of the Lagos High Court Civil Procedure Rules 2004 the lower Court has substantial discretion to refuse taking a matter filed before it by originating summons as commenced by a Claimant if the Court is of the opinion that there are contentious issues to be determined as in the instant case. Such exercise of discretion by the lower Court cannot be questioned by this Court unless it is shown that the lower Court failed to exercise such discretion judicially and judiciously, exercise of judicial discretion cannot be regulated by hard and fast rules, exercise of discretion in one case may only necessarily guide a court, but, it certainly cannot bind another Court in the exercise of discretion in the case before it. Exercise of discretion will depend on the peculiar facts and circumstances of a given case, See: AMAECHI v. OMEHIA (2013) 16 NWLR (Pt. 1381) 417 AT 435. The moment attempt is made to regulate exercise of discretion, that discretion is fettered, SEE: ANYA v. A.N.N. LTD (1992) NWLR (Pt. 247) 319.
In AJOMALE v. YADUAT (2) (1991) 5 NWLR (Pt. 191) 266, the Supreme Court of Nigeria said, per NNAEMAKA AGU (JSC):
“When it is an appeal, the question is not how the Appellate Court would have exercised it but whether the learned trial Judge whose discretion it was exercised it correctly, that is judicially and judiciously, bona fide in accord with justice and having regard to all necessary and relevant considerations”
In the instant appeal, the learned trial judge in my humble view properly exercised his discretion to order pleadings after hearing the parties, and becoming satisfied that the facts in controversy between the litigating parties disclosed substantial dispute of facts, sufficient to justify the order for pleadings. I also share the same views with the learned trial fudge and hold that the exercise of discretion was just and proper. This issue is also resolved in favor of the Respondents against the Appellants.
Having resolved all issues in favor of the Respondents against the Appellants, it is my conclusion that the appeal is bereft of merit and must be dismissed. It is hereby dismissed. I affirm the ruling delivered by Lufadeju I of the Lagos State High Court delivered on 15th June, 2007. There is no order as to costs.

SIDI DAUDA BAGE, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother TIJJANI ABUBAKAR, J.C.A., and I have nothing extra to add.
My learned brother TIJJANI ABUBAKAR, J.C.A., dealt with the issues in this appeal thoroughly and well, and left no space for further contribution, for the above reasons and the more detailed reasons given in the lead judgment, I too join my learned brother in holding that this issue is also resolved in favour of the Respondents against the Appellants.
Having resolved ail issues in favour of the Respondents against the Appellants, the appeal is bereft of merit and must be dismissed. It is also hereby dismissed by me. I too affirm the ruling delivered by Lufadeju J. of the Lagos state High Court delivered on 15th June, 2007.
There is no order as to costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was privileged to read in advance the judgment just delivered by my learned brother, TIJJANI ABUBAKAR, JCA.
I agree with the reasoning and conclusion arrived at in the lead judgment. On whether to order pleadings in a matter commenced by Originating Summons, the discretion is that of the judge as allowed by the rules of court when facts seem to be disputed. The originating summons procedure is meant for situations where facts are not disputed or there is no likelihood of their being in dispute like interpretation of statutes, documents and deeds. It is also to make hearing simpler as decided by the Supreme Court in the case of FAMFA OIL LIMITED v. ATTORNEY-GENERAL OF THE FEDERATION & ANOR (2003) 18 NWLR (Pt. 852) 453 as follows:
“The very nature of Originating Summons is to make things simpler for hearing. It is available to any person claiming interest under a deed, will or written instrument whereby he will apply by Originating Summons for the determination of any question of construction arising under the instrument for declaration of his interest.”
The appellant is mainly seeking for declarations and declaration cannot be made without the claimant satisfying the court by cogent evidence. It cannot be made on admission nor default of pleadings, see the case of FAGBUNMI v. AGBE (1985) 3 SC 28 where the Supreme Court held as thus:
“A claim for declaration of title is not established by admissions as the plaintiff must satisfy the court by credible evidence that he is entitled to the declaration. The court does not grant declaration on admission of parties. It has to be satisfied that the plaintiff owns the title claimed.”
Therefore, the trial judge rightly exercised discretion by ordering pleadings in the case because the facts are disputed. The discretion of the trial judge cannot be interfered with in this regard and it is in the light of elaborate reasoning advanced in the lead judgment I also dismiss the appeal and abide by the consequential orders made therein.

Appearances

J. O. Mbamalu with F. J. Ayemere & O. Emodi – AppellantFor Appellant

AND

O. F. Owoturo with Elo Aqwa (Miss) – 1st Respondent, 2nd Respondent was Sanni on 19/9/14For Respondent