MRS. WASILATU DADA & ORS v. MR. TAOFEEK ALABI & ORS
(2019)LCN/13898(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of May, 2019
CA/L/80/2017
RATIO
COMMENCEMENT OF ACTION: ORIGINATING SUMMONS: WHAT ACTIONS ARE BEST SUITED FOR ORIGINATING SUMMONS
What type of action/case is Originating Summons Procedure best suited? I will commence by throwing more light on an Originating Summons Process. In the case of Hussaini Isa Zakirai vs. Salisu Dan Azumi Muhammad & Ors (2017) LPELR – 42349 (SC), this Court has this to say:
“In effect, Originating Summons is a procedure wherein the evidence is mainly by way of documents and there is no serious dispute as to their existence in the pleadings. It is usually heard on affidavit evidence and involves questions of law rather than issues of fact.”
By the above proposition, Originating Summons is best suited for cases where there are no substantial disputes of facts or likelihood of facts. In the case ofStandard Cleaning Services Company vs. the Council of Obafemi Awolowo University, Ile life (2011) 14 NWLR (Pt. 1269) 193 at 204 – 205, 213 the Court held that:
“Originating Summons should only be applicable in circumstances where there is no dispute on the question of facts or even the likelihood of such dispute. Application for initiating contentious issues of facts where the facts of the plaintiff leave the matter for conjecture…. PER TOBI EBIOWEI, J.C.A.
ORIGINATING SUMMONS: WHERE IT IS NOT APPROPRIATE
Originating Summons is not an appropriate procedure. Where it is obvious from the state of the affidavit that there would be an air of friction in the proceedings, then an Originating Summons is not appropriate. Originating Summons should be used only where the proceeding involves the question of law, rather than disputed facts, even where the facts are not in dispute, the Originating Summons should not be used, if the proceedings are hostile.”
In Alfa vs Attai & Ors (2017) LPELR 42579 (SC), the apex Court per Rhodes Vivour, JSC at pages 31-32 held:
?In Ejura vs. Idris (2006) 4 NWLR (Pt. 971) p. 538 As a judge of the Court of Appeal I said that: “Originating summons is the ideal process to commence proceedings where there is no dispute on questions of fact or the likelihood of such dispute, for example, where the issue is to determine questions of construction. The main advantage of the procedure by originating summons is the emphasis on simplicity resulting in the elimination of pleadings.: I went on to say that: “where it is obvious from the state of the affidavits that there would be an air of friction in the proceedings, then an originating summons is no longer appropriate. A writ of summons would suffice in such circumstances. See: Doherty v Doherty (1967) 1 ALL NLR p. 245, Osuagwu vs. Emezi(1998) 12 NWLR (Pt. 579) p. 640, Olumide vs. Ajayi (1997) 8 NWLR (Pt. 517) P.433. PER TOBI EBIOWEI, J.C.A.
AFFIDAVIT: WHEN AFFIDAVIT EVIDENCE WILL BE USED
The affidavit evidence with the Exhibits attached is relied upon but not to be used where the proceedings are hostile proceedings in which the facts are disputed. See: Doherty vs. Doherty (1964) NWLR 144: National Bank of Nigeria vs. Alakija (1978)9-10 SC 59: Famfa Oil Ltd vs. A.G. Federation (2003) 18 NWLR (Pt. 852); Director of State Security Service vs. Agbakoba (1999)3 NWLR (Pt. 595) 314. See also, ONYEAMA JSC in Akinsete vs. Akindutire (1966)1 All NLR 147@148 and the case of Government of Ashanti vs. Adjuah Korjortee 4 W.A.C.A 83 upholding the judgment of BANNERMAN. J. he also cited:
(1) The dictum of Sir Udo Udoma, J.S.C in Chief Uku & 4 Ors. Vs. D. E. Okumagba (1974)3 SC. 35@ 64-65
(2) The dictum of Irikefe J.S.C. (as he then was) in Eboh vs. Oki (1974)1 S.C. 179@ 189-190
(3) The dictum ofFatayi-Williams, J.S.C. (as he then was) in Olu Ibukun & Anor vs. Olu Ibukun & Anor, (1974)2 SC 41 @ 47-48
(4) The dictum of Fatayi-Williams J.S.C (as he then was) in Falobi vs. Falobi (1976) 9 & 10 S. C. @ 14-15
(5) The dictum of Nnamani, J.S.C in the State vs. Salihu Mohammed Gwonto & 4 Others (1983) 3 S.C. 62 @ 108-109?.
PER TOBI EBIOWEI, J.C.A.
JUSTICES
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
1. MRS. WASILATU DADA
2. MR. ABIODUN BADMUS MOROUNDIYA
3. ALHAJI NOJEEM AGORO
(for and on behalf of the entire Members of Balogun Omotosho family, Ojo)
-CLAIMANTS/APPELLANTS Appellant(s)
AND
1. MR. TAOFEEK ALABI
2. MR. BADMUS KOLAWOLE
3. MR. ADERIBIGBE SIKIRU
(for themselves & on behalf of the Market Men & Women of Igangbara Market Lagos/ Badagry Expressway, Ojo)
4. PERSONS UNKNOWN/ OCCUPIERS
-DEFENDANTS/RESPONDENTS Respondent(s)
TOBI EBIOWEI, J.C.A. (Delivering the Leading Judgment):The Appellants are the Defendants in the lower Court in the action commenced by originating summons by the Respondent who was a claimant in the lower Court. The main relief in the claim is for the recovery of possession of the property which the Claimant lay claim to as owners. The Appellant (Defendant) filed a preliminary objection to the action basically on the premise that the action was wrongly commenced by originating summons. This objection is firmed on the ground that the facts and the circumstances of the case show that there is so many disputes on the facts before the Court and as such, the action can only be properly commenced by a writ of summons and not by originating summons. The lower Court relying on Order 53 of the Lagos State High Court (Civil Procedure) Rules 2012 held that the summary procedure is applicable in the circumstance since the action is for recovery of possession. The judgment of the lower Court is contained in pages 134-146 of the records. This is a 13 pagejudgment. The trial judge in pages 6 and 8 of the judgment contained in pages 139 and 141 of the records held as follows:
Order 53 of the High Court of Lagos State (Civil Procedure) Rules 2012 contains provisions on Summary Proceedings for possession of landed property occupied by squatters or without the owner?s consentThe Claimant maintains the Applicants are unknown to them and not being the tenants they are in occupation without their consent. Where a party alleges that persons who are in possession of land entered into or remained in occupation without licence or consent of the person in possession or of any possessor of his, he can commence an action by originating summons to summarily recover possession. See Persons Name Unknown vs. Sahins International Ltd (2006) 8 NWLR. This is what the Claimant has done in this matter. The use of originating summons in commencing this suit is proper not by reason of whether or not there are disputes on the facts in the suit but because it is the Rules of Court stipulated.?
The Court?s decision is therefore not based on the facts that there is no dispute in material facts over the land but rather that by Order 53 of the High Court Rules, this action can be commenced by originating summons. Ittherefore, follows that the main thrust of the decision of the Court is Order 53 of the Lagos State High Court Rules. If Itherefore, agree that the said order applies, I may agree with the trial Court but if on the other hand, I do not agree then the notice of preliminary objection will succeed. It is not in doubt that even the lower Court acknowledges that there is a dispute of material facts in the matter. This is clear from the facts relied upon the lower Court and the Courts finding on the disputed facts in pages 7-11 of the judgment which is pages 140-145 of the records. It stands to reason that the filing of counter affidavit shows dispute in facts. I do not agree with the submission of Respondent?s counsel submission in the Respondent?s brief that the disputes on the facts are not material. The facts which are disputed are material as they relate to the ownership of the land. In spite of this, the lower Court held in pages 12-13 of the judgment found in pages 145-146 of the record as follows:
?In view of the above, I believe the Applicants did not give consent to the Respondents, therefore, they are not the tenants to the Applicants. They are therefore squatters and trespassers and I do not have any reason whatsoever to call oral evidence in this instance case as they have not put before the Court any material particular to exercise the dispute of the Court in their favour.”
The lower Court did not only dismiss the preliminary objection but also granted the reliefs of the claimant. The Defendant in the lower Court, now Appellant dissatisfied with the judgment filed a notice of appeal of 4 grounds contained in pages 147-149 of the records. In arguing the appeal, the Appellant filed the Appellant?s brief on 17/4/18. The brief was adopted on 25/2/19 by Appellant?s counsel Oluwole Kehinde Esq., He formulated 3 issues for determination from the grounds of appeal. The issues for determination formulated by the Appellant in their brief are as follows:
i. Whether the trial Court was right when it proceeded to entertain the suit which was commenced by originating summons under Order 53 of the High Court of Lagos State (Civil Procedure) Rules, 2012, when issues pertaining to title were joined in the suit by the parties (Grounds 1 and 4, Grounds of Appeal)
ii. Whether the Respondents were not caught by the statute of limitation and the equitable doctrine of laches and acquiescence having slept over their rights without disrobing the Appellants in the occupation of the land for a reasonable length of time (Ground 2, Grounds of Appeal)
iii. Whether the trial Court was right in granting possession of the land to the Respondents despite the evidence of government acquisition of the land (Ground 3, Grounds of Appeal).
The Appellant in the brief argued issues 1 & 3 together. It is the submission of counsel relying on Alfa vs. Atai (2018)5 NWLR (Pt.1611) 59; Inakoju vs. Adeleke (2007)4 NWLR (Pt.1025) 432; Amazike Trading & Fidelity Corporation vs. NNPC (2010) 13 NWLR (2211) 337 and Olley vs. Tunji (2013) 10 NWLR (Pt.1362) 275 @ 283; Adedipe vs. Theophilus (2005) 16 NWLR (pt 951) 250 @ 265; Ogunbiyi (1996) 4 NWLR (Pt.442) 332 @ 344that the action cannot be commenced by originating summons since the facts of the case before the lower Court shows dispute as to the facts. To buttress this, counsel referred to paragraphs 4,5 & 8 (a)-(l) of the affidavit in support and paragraphs 4-20 of the counter affidavit. It is counsel’s further submission that Order 53 of the Lagos State High Court (Civil Procedure) Rules 2012 does not apply to this case in view of the dispute as to ownership of the land.
It is the further submission of counsel that the land having been acquired by the State Government has lost title to the State and that if the original person has any suit on the land; the State Government needs to be made a party as a necessary party. He referred to Akiboye vs. Adeko (2011)6 NWLR (Pt.1244) 415; Adegbite vs Amosu (2016) 15 NWLR (Pt.1536) 405 @ 431-432; Farajoye vs. Hassan (2006) 16 NWLR (Pt.1006) 463 @ 469; MobilOil (Nig.) Ltd vs. Nabsons Ltd (1995) 7 NWLR (Pt.407) 3254; Elegushi vs. Oseni (2005) 14 NWLR (Pt.945) 348; Ezeaku vs. Okonkwo (2012) 4 NWLR (Pt.1291) 171; W.A.C. Ltd vs. Yankara (2008) 4 NWLR (Pt.1077) 323.
On issue 2, it is the submission of counsel that by the provision of Section 12 Limitation Law, Cap 67, Laws of Lagos State, 2003, the action is statute barred as it was instituted 14 years after the cause of action arose instead of 12 years. It is also submitted that the doctrine of laches and acquiescence applies. He referred toMulima vs. Usman (2014) 16 NWLR (pt 1432) 160; Williams vs. Williams (2008) 10 NWLR (Pt.1095) 364; Buremoh vs. Akenda (2017) 7 NWLR (Pt.1563) 74; Ajibona vs. Kol
