NDIC v. BAYERO & ORS (2020)

NDIC v. BAYERO & ORS

(2020)LCN/14408(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, July 24, 2020

CA/A/317/2018

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

NIGERIA DEPOSIT INSURANCE CORPORATION APPELANT(S)

And

MR. TANKO MAZADU BAYERO 2. MRS. J.N. OLUMIDE 3. MRS. JULIANA ABBAH 4. MRS. V.I. CHIOBI 5. MRS. MARYROSE M. ASOYA 6. MRS. P. DAVIES EMIRI 7. HON. MINISTER OF LANDS AND HOUSING RESPONDENT(S)

RATIO

WHETHER OR NOT A PERSON WITHOUT TITLE TO A PARCEL OF LAND IN RESPECT TO WHICH THE C.OF.O WAS ISSUED, ACQUIRES NO RIGHT OF INTEREST

The law is trite that a person without title to a parcel of land in respect to which the C. of O., was issued acquires no right or interest which he does not have before the commencement of the suit. It is therefore clear that since title to the land in issue is in dispute, the lower Court cannot make an order stating that the 1st to 6th Respondents should be issued C. of O. without the lower Court first being satisfied that the said 1st to 6th Respondents have title to the property in issue. PER SANGA, J.C.A.

COMMENCEMENT OF AN ACTION BY ORIGINATING SUMMONS

The law is trite that Originating Summons is resorted to in commencing or initiating a suit when the law so provides or when the sole or principal question in issue is likely to be one of the construction of a written law or any instrument or of any deed, will, contract or other document or other question of law in circumstances where there is not likely to be any dispute as to the facts. In general terms it is, those actions where facts are not likely to be in dispute. In Hon. Muyiwa Inakoju & Ors. v. Hon. Abraham Adeolu Adeleke (Speaker) & Ors. (2007) LPELR – 1510 (SC), the Supreme Court while pronouncing on nature of Originating Summons held inter alia thus:
“The action was commenced in the High Court by Originating Summons. Commencement of action by Originating Summons is a procedure which is used in cases where the facts are not in dispute. Originating Summons is also reserved for issues like the determination of questions of construction and not matters of such controversy that the justice of the case could demand the setting of pleadings…In Famfa Oil Limited v. Attorney General of the Federation (2003) 18 NWLR (Pt. 852) 453, Belgore, JSC, (as he then was) said at page 467: “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 his interest…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 pleadings 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 where facts are in dispute or riotously so an Originating Summons Procedure will not avail a plaintiff who must come by way of Writ of Summons. See Oloyo v. Alagbe (1983) 2 SCNLR 35; Doherty v. Doherty (1967) 1 All NLR 245; Famfa Oil Limited v. Attorney General of the Federation (supra). In other words, an Originating Summons will not lie in favour of a Plaintiff where the proceedings are hostile in the sense of violent dispute…” Per Tobi, JSC, (of blessed memory). PER SANGA, J.C.A.

BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): The 1st to 6th Respondents as Plaintiffs filed Suit No: FHC/ABJ/CS/23/2017, before the Federal High Court Abuja Judicial Division, A.R. Mohammed J., presiding. The Suit was instituted via an Originating Summons on 26/01/2017 against the 7th Respondent as 1st Defendant, the Appellant as 2nd Defendant and the Hon. Attorney-General of the Federation as 3rd Defendant. The Plaintiffs claimed to be entitled to:
i. A Declaration that the Plaintiffs are entitled to be issued with the Certificate of Occupancy in respect of all that property known as 25A Glover Road, Ikoyi, Lagos.
ii. An Order directing the 1st Defendant to issue the Plaintiffs with the Certificate of Occupancy in respect of all that property situate and known as 25A Glover Road Ikoyi, Lagos.
iii. An Order restraining the 2nd Defendant from further pressurizing the 1st Defendant from issuing the Plaintiff with the Certificate of Occupancy in respect of all that property situate and known as 25A, Glover Road Ikoyi, Lagos.
iv. Such further or other consequential orders as the Hon. Court may deem necessary and expedient

to make in the circumstances of this case.
FOR DETERMINATION OF THE FOLLOWING QUESTIONS:
Whether the Plaintiffs are not entitled to be issued with the Certificate of Occupancy for the property known as 25A, Glover Road, Ikoyi, Lagos, in view of provisions of the Approved Guidelines for Lease of Federal Government property in Lagos?

The Summons was taken out by Kalu Onuoha Esq., of counsel to the Plaintiffs on 6th January, 2017.

Accompanying the Summons is a 21 paragraphs affidavit deposed to by one Ifunanya Oranuba, a legal practitioner in the law firm of Kalu Onuoha & Co., Solicitors to the Plaintiffs. The Plaintiffs filed a Written Address in support of the Summons. (Pages 3 to 14 of the record of appeal). The Plaintiffs also annexed several documents to their affidavit in support which are marked as Exhibits as follows:
1. The Presidential Implementation Committee Letter of Offer to the Plaintiffs of the Federal Governments Landed Property at No: 25A, Glover Road Flats 1 – 6 Ikoyi at price of N208,000,000.00 dated 24/10/2005, marked as Exhibit AA (pages 15 – 18 of the record).
2. Another letter by the

Presidential Implementation Committee addressed to the Plaintiffs dated 27/05/2015, revoking the lease and Certificate of Occupancy earlier leased to the Appellant and reinstating the interest in the property 25A, Glover Road, Ikoyi, Lagos to the said plaintiffs. Marked as Exhibit BB (page 19 of the records).
3. Exhibits CC is a copy of receipt issued to the Plaintiffs by the Presidential Implementation Committee evidencing payment of N218,400,000.00. It is dated 2/9/2015. (pages of the records).
4. Copy of the Approved Guidelines for the lease of Federal Government Property in Lagos, is attached to the affidavit and marked as Exhibit DD. (pages 22 – 24 of the records).
5. Exhibit EE is a copy of letter on letter headed paper of Okungbowa Adesina SAN & Co., dated 21/12/2015 addressed to the Secretary to the Government of the Federation. The letter was written and signed by J.O. Adesina SAN on behalf of the Plaintiffs (pages 25 – 290 of the records).
6. On pages 46 to 48 of the Records is a copy of a letter written by the Plaintiffs addressed to: The Hon. Minister, Federal Ministry of Power, Works and Housing dated 24th

August, 2016. It is marked as Exhibit FF.

The case of the Plaintiffs as reflected in their affidavit in support is that they are the legal sitting tenants who exercised their right of first refusal in respect of the property situate at 25A Glover Road Ikoyi, Lagos. The 1st Defendant by virtue of his office is also the Chairman of the Presidential Implementation Committee of the White Paper on the Commission of Inquiry into the Alienation of Federal Government Landed Property. The Plaintiffs were public servants employed by the Federal Government of Nigeria and were allotted the flats in No. 25 Glover Road Ikoyi, Lagos as their official residences. Pursuant to the Monetization Policy of the Federal Government and in furtherance of the Implementation of the White Paper of the Commission of Inquiry into the Alienation of Federal Government Landed Property, the Plaintiffs were accorded the opportunity to purchase the property they were occupying by being entitled to right of first refusal.

The Presidential Implementation Committee (PIC in short) offered to the Plaintiffs the said property in issue at the highest bid of N208,000,000.00 via a letter dated

24/10/2005. For reasons yet to be made known to the Plaintiffs, the said PIC offered the same property to wit; 25A, Glover Road, Ikoyi, Lagos, to the appellant on the same terms and conditions. The Plaintiffs made full payment of the purchase price of N208,000,000.00 plus N10,400,000.00, being 5% of the purchase price for processing of the Certificate of Occupancy of the property thus paying N218,400,000.00 which was receipted by the PIC and issued to the Plaintiffs. Unfortunately for the Plaintiffs they were never issued with a Certificate of Occupancy of the property by the PIC. They wrote letters to the Secretary to the Government of the Federation through their counsel and to the Appellant appealing for the release of the Certificate of Occupancy but to no avail. They then instituted this suit by Originating Summons in pursuit of their claim.

Upon being served with the Plaintiffs’ Originating Processes, the 7th Respondent and the Appellant filed a Notices of Preliminary Objection. However, in this appeal, it is only the processes filed by the Appellant and the 1st to 6th Respondents that will be countenanced since the 7th Respondent did not file

any process before this Court. The Appellants Amended Notice of Preliminary Objection and the affidavit in support are at pages 352 – 355 of the Records. The appellant’s objection urged the lower Court for an order dismissing and/or striking out the suit for being an abuse of Court process and for want of jurisdiction.

The grounds upon which the objection is based are:
1. There exist an earlier matter instituted and filed by the Plaintiffs/Respondents herein(Suit No: LD/2878GCMW/16: MR. TANKO MAZADU BAYERO & 5 ORS. V. NIGERIA DEPOSIT INSURANCE CORPORATION) against the 2nd Defendant/Applicant at No: 25A Glover Road Ikoyi, Lagos, the same subject property in this matter.
2. The question raised and formulated and the reliefs sought in this matter, as presently constituted can conveniently be subsumed and determined by the Court in the existing matter presently pending at the High Court of Lagos State.
3. This matter was initiated without due process of law and/or the non-fulfilment of the condition precedent to the exercise of this Court’s jurisdiction.
4. No pre-action notice was issued and served on the 2nd

Defendant/Applicant in compliance with Section 55(2) of the Nigeria Deposit Insurance Corporation Act, prior to the initiation and commencement of this matter.
5. The failure and refusal to issue and/or serve the pre-action notice on the 2nd Defendant/Applicant is a fundamental defect that goes to the root, base and foundation upon which the jurisdiction of the Court to adjudicate this matter rests.
6. The only order this Court can make in the circumstance of this matter is an order dismissing this matter for being an abuse of Court process and/or striking out this matter for want of competence.

The affidavit in support containing 9 paragraphs was deposed to by one Amina Kwon, a legal practitioner and employee of the Appellant. The deponent averred, inter alia that:
4. That the Plaintiffs/Respondents did not issue and/or serve on the 2nd Defendant/Applicant, a written notice of intention to commence this matter in compliance with the express provisions of the Nigeria Deposit Insurance Corporation Act.
5. That the Plaintiffs/Respondents had previously filed a matter at the High Court of Lagos State against the 2nd Defendant/Applicant

in respect of the same subject property, i.e property known as and situate at No. 25A, Glover Road Ikoyi Lagos in Suit No: LD/2878GCMW/16: Mr. Tanko Mazada & 5 Ors. v. Nigeria Deposit Insurance Corporation, presently before the Honourable Justice Onigbanjo sitting at Igbosere, Lagos. A certified true copy of the writ of Summons and Statement of Claim in the matter (Suit No: LD/2878GCMW/16) is herewith attached as Exhibit A.
6. That the earlier matter (Suit No. LD/2878GCMW/16: Mr. Tanko Mazadu & 5 Ors. v. Nigeria Deposit Insurance Corporation) was still pending before the High Court of Lagos State, as at the date of filing of this present matter.
7. That I know as a fact that the institution of two or more matters or action in two different Courts with the same parties in respect of the same subject property or matter amounts to and constitute an abuse of Court process.
8. That I also know as a fact that the questions formulated and reliefs sought in this matter can conveniently be raised and subsumed in the earlier matter (Suit No: LD/2878GCMW/16: Mr. Tanko Mazadu & 5 Ors. v. Nigeria Deposit Insurance Corporation) and duly determined

by the High Court of Lagos State. (Pages 73 to 77 of the Records).

Learned counsel to the Appellants also filed a Written Address in support of the Notice of Preliminary Objection.

The Appellant as 2nd Defendant filed a 32 paragraphs counter affidavit in opposition to the Originating Summons of the Plaintiffs on 11/03/2017 (pages 111 to 121 of the Records). The case of the Appellant as deposed to in the affidavit is:
9. That contrary to paragraph 3 of Ms Ifunanya Oranuba’s affidavit of 16th January, 2017, Mr. Tanko Mazadu Bayero, Mrs. J.N. Olumide, Mrs. Juliana Abbah, Mrs. V.I. Chiobi, Mrs. Maryrose M. Asoya and Mrs. P. Davies Emiri referred to as Plaintiffs in this suit did not exercise their right of first refusal in respect of No: 25A Glover Road, Ikoyi Lagos but rather caused two letters dated 27th June and 5th July, 2007, herewith attached as Exhibits ‘B and C’ respectively to be written to the 2nd Defendant requesting for financial assistance in the sum of N5,000,000.00 (Five Million Naira) to secure alternative accommodation and pleading for Six (6) months to enable them secure alternative accommodation respectively.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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That it is true that Mr. Tanko Mazadu Bayero, Mrs. J.N. Olumide, Mrs. Juliana Abba, Mrs. V.I. Chiobi, Mrs. Mary Rose M. Asoya and Mrs. P. Davies Emiri were jointly given the opportunity to purchase the property known as and situate at No. 25A Glover Road Ikoyi, Lagos, subject to a bidding process which they were not part of but they had a right of first refusal which they failed to utilize.
12. That contrary to paragraph 9 of Ms Oranuba’s affidavit of 16th January, 2017, the subject property was not erroneously offered to the 2nd Defendant, as the 2nd Defendant herein:
a) Fulfilled the pre-conditions and guidelines made by the Implementation Committee of Federal Government Landed Property as set out in the approved guidelines for the lease of Federal Government Landed Property in Lagos published in June 2005, herewith attached as Exhibit ‘D’.
b) Applied and paid the requisite qualification fees;
c) participated and competed with other prospective bidders in the sale carried out by the Implementation Committee on Federal Government Landed Property of the subject property.
13. The 2nd Defendant:
a) Made the

highest bid for the subject property;
b) was declared the winner of the auction sale;
c) was offered the right to purchase the subject property by a letter of offer No. IK/G/0233 of 24th October, 2005, herewith attached as Exhibit ‘E’ by the Implementation Committee of the Federal Government Landed Property;
d) accepted the offer to purchase the subject property;
e) made full payment of the sum of N208,000,000.00 (Two Hundred and Eight Million Naira) as purchase price for the subject property to the Implementation Committee on Federal Government Landed Property, by:
i) Central Bank of Nigeria (CBN) cheque No: 0126743 dated 28th August, 2005 for the sum of N20,800,000
ii) CBN cheque No: 026744 dated 28/08/2005 for the sum of N10,000 being non-refundable bidding fee;
iii) CBN cheque No: 00038354 dated 27/01/2006 for the sum of N10,400,000 – 5% of the bid price administrative fees for the subject property;
iv) CBN cheque No: 00038353 dated 27/01/2006 for the sum of N31,200,000 – being second payment for the subject property;
v) CBN cheque No: 00039073 dated 11/10/2006 for the sum of N156,000,000 – being

balance and final payment for the subject property;
vi) Letter dated 16/10/2006, notifying the Implementation Committee on Federal Government Landed Property.
14. That it is not true that the sum of N218,000,000 was accepted by any of the Defendants in this matter and the document marked as Exhibit ‘CC’ to Ms Oranuba’s affidavit of 16/01/2017 supporting the Originating Summons is an extraneous receipt that did not emanate from the Implementation Committee of the Federal Government Landed Property.
16. The document deposed further that after a successful bid and full payment of the purchase price, the Hon. Minister of Environment, Housing and Urban Development issued a Certificate of Occupancy to the Appellant No: 000846 dated 03/04/1007 in respect to the property in dispute. The appellant then proceeded to stamp and register the C of O as No. 33 at page 33 in Volume 108 of the Federal Lands Registry, Ikoyi, Lagos on 17/5/2007 and paid the sum of N305,600 as registration fees. That the Secretary, Presidential Implementation Committee caused a letter titled: NOTICE TO QUIT PREMISES dated 13/06/2002 to be written to the Plaintiffs

notifying them of the full payment of the purchase price by the Appellant and issuance of Certificate of Occupancy in favour of the said appellant. The Plaintiffs were given one-month notice to quit the premises of the property in dispute or the Committee would evict them and deliver vacant possession to the Appellant.

That upon receipt of the letter, the Plaintiffs wrote a letter to the appellant requesting for financial assistance of N5,000,000 to secure alternative accommodation and pleaded to be given six months to secure alternative accommodation. That the Plaintiffs also wrote another letter dated 6/7/2007 to the Chairman Implementation Committee requesting for three (3) months to enable them secure an alternative accommodation. The Secretary, Presidential Implementation Committee wrote a reply to the Plaintiffs on 20/7/2007 notifying them that an additional one-month grace period was given to them to vacate the property, failing which the Committee would evict them.

That in 2007, the Committee officially handed over and delivered vacant possession of the property to the appellant and it has been in exclusive possession of same as of right to

date. The appellant is continuously exercising maximum acts of ownership and possession without let or hindrance over the property in dispute by among other acts:
a) Building of security post;
b) Placing its agents and security men on the property in dispute;
c) Parking its motor vehicles in the vicinity of the property;
d) Painting a Caveat on the wall of the property.

That the Appellant paid N79,433,099, to the Lagos State Government for building approval which was granted by a letter dated 20/12/2010. A C of O was then issued by Lagos State Government No: 55/55/2012m dated 2/6/2013 which was stamped and registered at the Lagos Lands Registry. That the Plaintiffs then filed a suit before the Federal High Court No: FHC/L/CS/734/2007, to prevent the formal handover of the property to the Appellant. That the Suit was subsequently struck out for want of diligent prosecution on 16/1/2008. That subsequent to the purchase and acquisition of the property in dispute the Appellant incurred additional costs and expenses on the said property as follows:
1. N95,171,591.63, payment of statutory charges to Lagos State Government including Land

Use Charge, Building Plan etc., in respect of the property.
2. N1,016,280,013.44, for consultancy services for the development of the property.
3. On 18/03/2015, the Federal Executive Council held its meeting and approved the budget and contract for the building and construction of the Appellant’s Lagos Office on the property in dispute for the sum of N24,750, 358,137.50. A letter dated 28/04/2015 conveying the approval of the FEC by the Permanent Secretary Ministry of Finance was attached to the appellant’s affidavit and marked as Exhibit ‘T’.

That based on this approval the appellant conveyed same to the contractor, Sageto Limited vide a letter dated 13/05/2015. The appellant then disbursed to the contractor the sum of N3,223,262,890.02 on 3/8/2016 as mobilization fees for the construction of its Lagos Office on the site where the property in dispute was located at No. 25A Glover Road, Ikoyi, Lagos. That on 9/6/2015 there was a newspaper publication alleging that the Minister of Lands, Housing and Urban Development of the former regime revoked the Appellant’s Right of Occupancy on the property in dispute on

27/5/2015 which was the last working day of that regime before handing over to the incoming regime on 29/05/2015.

That on 26/10/2015, the Secretary to the Government of the Federation wrote letters to the Permanent Secretary, Federal Ministry of Lands, Housing and Urban Development and the Secretary Implementation Committee nullifying the purported revocation notice issued to the Appellant. The letter directed a reversal and immediate stay of further action in respect of the revocation notice.

The deponent also deposed to the role played by one Mr. Jude Chinedu Oranuba, who claims to be the attorney of the plaintiffs wherein he:
a. forcibly entered and attempted to take possession of the premises.
b. painted off the Notice of Ownership/Caveat earlier placed on the wall of the property in dispute by the Appellant.
c. Intimidated and tried to coerce the appellant agents and staff to frighten them off the premises.
d. Tried to destroy the appellant’s structures on the land in dispute.
e. attempted to create a situation where the Appellant would be forced to abandon the property in dispute.

That the Appellant wrote a

petition against Mr. Oranuba to the Inspector General of Police, the Commissioner of Police Lagos State Command and the Divisional Police Officer of Glover Road Ikoyi, Lagos. That on 13/11/2015, the Police invited Mr. Oranuba and his agents to their office to hear his own side on the complaint by the Appellant. That Mr. Oranuba, thereafter rushed to file an action at the Federal High Court Lagos Division in Suit No: FHC/L/CS/1757/15: BARRISTER CHINEDU ORANUBA V. INSPECTOR GENERAL OF POLICE & ORS, to restrain the IGP and the Police from investigating him. The Police stayed action on investigating the Appellant’s complaint against Mr. Oranuba pending the hearing and determination of issues in the said Suit No: FHC/L/CS/1757/15. That Mr. Oranuba did not desist from his acts of trespass onto the land in dispute, so the appellant instituted a Suit No: LD/2393/2016: NIGERIA DEPOSIT INSURANCE CORPORATION V. MR. JUDE ORANUBA & ORS, before the High Court of Lagos State. That thereafter, one Ugo Ilechukwu Esq., filed Suit No: LD/2878GCMW/16, on behalf of the Plaintiffs against the Appellant with respect to No: 25A, Glover Road Ikoyi, Lagos which is still

pending before the High Court, Igbosere, Lagos. That in all the suits mentioned above, at no point in time did any of the plaintiffs appeared in person. Neither did they appear in any of the Police Stations mentioned above. That Mr. Jude Oranuba has been the sole witness in all the matters.

The appellant also filed a Written Address in opposition to the Plaintiffs’ Originating Summons at pages 177 to 187 of the record of appeal. The Plaintiffs then filed a Written Address in opposition to the Appellant’s Preliminary Objection at pages 506 to 509 of the record of appeal. Hearing commenced on 11/4/2017. On that day, the plaintiffs’ counsel applied to withdraw the suit against the 3rd Defendant, the Hon. Attorney-General of the Federation. A notice of discontinuance was filed to that effect. Learned counsel to the 1st and 2nd Defendants did not object and the lower Court struck out the names of the said 3rd Defendant. On 24/10/2017, learned counsel to the parties adopted their respective processes, to wit, the Originating Summons, affidavit in support and Written Addresses; the notices of preliminary objection by the 1st and 2nd Defendants;

affidavit and written addresses in support; Written Addresses by the plaintiffs in opposition to the Preliminary Objections; the counter affidavits in opposition to the Originating Summons; written addresses by the 1st and 2nd Defendants and the Written Addresses by the plaintiffs in reply to the Defendants’ Written Address. Upon adoption of these processes, the learned trial judge adjourned the matter for judgment to 6/12/2017. Judgment was delivered on 11th December, 2017. The judgment is at pages 536 to 571 of the record of appeal.

In his finding on the Notices of Preliminary Objection filed by the 7th Respondent as 1st Defendant and the Appellant as 2nd Defendant, the learned trial Judge dismissed the notices of preliminary objection. While dismissing the preliminary objection by the Appellant, the lower Court held thus:
“The above reliefs being claimed in Suit No: LD/2878/GCMW/16, are no doubt issues of trespass. Although, the plaintiffs have a relief seeking the High Court of Lagos to “declare that they are entitled to be granted with statutory right of occupancy but my humble view is that, this relief alone, could not inhibit

the institution of the present suit because of the following reasons:
1. The authority to be directed to issue the Plaintiffs with a statutory right of occupancy, that is the Hon. Minister of Lands is not a party to the suit before the High Court of Lagos.
2. Even if the relief succeed, it remains only a declaration as to the interest of the Plaintiffs on the property without any positive order directing that the plaintiffs be issued with the statutory right of occupancy. In this situation, it means the Plaintiffs must have to institute another separate action against the authority responsible for the issuance of the statutory right of occupancy to enforce any such declaration, if made by the High Court of Lagos.
In view of the above analysis, I am of the view that this suit is not the same with the suit pending at the High Court of Lagos, therefore, this suit is not an abuse of Court process. The first ground of the 2nd Defendant’s Preliminary Objection has failed.”

On the second ground of objection i.e failure by the plaintiffs to issue the 2nd Defendant/Appellant with pre-action notice the learned trial Judge held thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“I have read the whole of the 2nd Defendant’s counter affidavit which is the 2nd Defendant’s pleadings in this suit, but I am unable to find any deposition or allegation on the failure of the plaintiffs to issue pre-action notice on the 2nd Defendant. The effect of this is that having not pleaded the issue of non-service of a pre-action (sic) in its counter affidavit, the 2nd Defendant cannot raise the issue as it did, by Notice of Preliminary Objection. Ground two of the 2nd Defendant’s Preliminary Objection has also failed.
While pronouncing on the plaintiffs’ case, the learned trial Judge held thus:
“It is also to be noted that the Implementation Committee letters of offer of the subject property given to the Plaintiffs and the 2nd Defendant, both carry the date of 24th October, 2005. See Exhibit ‘AA’ attached to the Plaintiffs’ affidavit and Exhibit ‘E’ attached to the 2nd Defendant’s counter affidavit. Now, if it is agreed that the Plaintiffs are legal tenants on the subject property and they are entitled to right of first refusal, when and how have they been shown to have

exercised their right of first refusal before the subject property was offered to the 2nd Defendant on the same date that it was offered to the plaintiffs. In the absence of clear evidence showing that the same date that is 24th October, 2005 that, the subject property was offered to the Plaintiffs, was the same date they refused to accept the offer, the subsequent offer of the same subject property to the 2nd Defendant on that same 24th October, 2005 must be held to have been erroneously offered to the 2nd Defendant.”
Furthermore, it should also be noted that as the 2nd Defendant has admitted vide paragraph 18 of its counter affidavit that it’s right of occupancy was revoked by the Minister of Lands, Housing and Urban Development on 28th May, 2015 and the Plaintiffs’ interest in the subject property was reinstated, there is therefore, nothing for the Secretary to the Government of the Federation to nullify, since he has no power in the first place to issue right of occupancy over Federal Government Landed Property or withdraw any right of occupancy granted by the Minister of Lands and Housing. I said so, because, the decision of the

Minister to revoke the right of occupancy of any holder of such right over a property is a quasi-judicial decision which is only actionable in Court at the instance of an aggrieved party. That is even the reason that the law has made adequate provision to challenge or seek the review of quasi-judicial and administrative actions of Government Institutions and Parastatals like the 1st Defendant in this suit. It is therefore clear that the Plaintiffs were not treated fairly in the matter pertaining to the offer and purchase of the subject property at No. 25A Glover Road, Ikoyi, Lagos. In fact, the Presidential Committee completely ignored and acted outside the content of the Approved Guidelines for the lease of the subject property in dispute. It is also my finding that when the Implementation Committee offered the subject property at No: 25A Glover Road Ikoyi, Lagos on 24th October, 2005 to the Plaintiffs, there was nothing else to offer the 2nd Defendant on the same 24th October, 2005 at No. 25A, Glover Road Ikoyi, Lagos.
In the final analysis, I find merit in the Plaintiffs’ case. In consequence of the above findings, I make the following orders:

Reliefs one and two on the Plaintiffs’ Amended Originating Summons are granted as prayed.
2. There is no order as to cost.
3. Judgment is for the Plaintiffs.”

This decision aggrieved the 2nd Defendant. It filed a Notice of Appeal containing 8 grounds of appeal on 9th March, 2018 at pages 573 to 579 of the Records. The Record of Appeal was compiled and transmitted to this Court on 10th April, 2018. The Appellant’s Brief of Argument was filed on 8th August, 2018 but deemed as properly filed and served on 21st January, 2019. It was prepared by Dr. V.J.O. Azinge, SAN. The 1st to 6th Respondents’ Brief of Argument was settled by Kalu Onuoha Esq., it was filed on 28th February, 2020. The 7th Respondent did not file any brief. The learned senior counsel to the Appellant filed a Reply Brief in respect to the 1st to 6th Respondents’ brief on 16th July, 2020 but deemed as properly filed and served on 17th July, 2020.

Learned senior counsel to the Appellant formulated 6 issues out of the 8 grounds of appeal as follows:
1. Did the lower Court have the requisite jurisdiction to hear and determine matters

pertaining to a declaration of title to land?
2. Whether non-service of pre-action notice on the appellant can be deemed to have been waived because it was only raised in an affidavit in support of a preliminary objection but not raised in the counter-affidavit to the 1st to 6th Respondents’ Originating Summons.
3. whether the lower Court was right in holding that the matter was not an abuse of Court process?
4. Whether the appropriate mode of commencing the action at the lower Court was by way of an Originating Summons instead of Writ of Summons?
5. Can the lower Court make any findings on issue(s) raised suo motu in the judgment without affording the parties the opportunity to address the Court on the issues(s)?
6. Whether the lower Court has a duty to make finding on every issue that is material to the determination of the matter?

Kalu Onuoha Esq., of counsel to the 1st to 6th Respondents also formulated six issues by reframing the issues canvassed by the appellant as follows:
1. Whether the Court below had the requisite jurisdiction to entertain and determine the 1st to 6th Respondents’ suit.

Whether the 1st to 6th Respondents’ suit constituted an abuse of Court process.
3. Whether the Court below was right when it held that the 1st to 6th Respondents’ suit was suitable for the Originating Summons procedure?
4. Whether non-service of pre-action notice raised by way of preliminary objection is such a jurisdictional issue that could vitiate the entire proceedings even as against the party not entitled to the notice?
5. Whether the Court below refused or neglected to determine any issue properly raised by the parties?
6. Whether the Court below raised and determined any issue that was not raised by the parties?

In view of the similarity of the issues canvassed by the parties, I will adopt the issues as formulated by the appellant in reaching my decision.
Issue 1 is:
Did the lower Court have the requisite jurisdiction to hear and determine matters pertaining to a declaration of title to land?

In his submission on this issue, learned senior counsel to the appellant stated the trite position of the law that jurisdiction is the sine qua non for any Court to hear and determine a matter. That jurisdiction is so

fundamental that it should be determined first by a Court before starting any proceedings. If a Court lacks jurisdiction, all proceedings, however well conducted amount to a nullity and the issue of jurisdiction can be raised at anytime by a party even on appeal before the Supreme Court. Cited: A.G. Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552, Ukwu v. Bunge (1997) 8 NWLR (Pt. 117) 517. That by the Originating Process filed before the lower Court the 1st to 6th Respondents’ case relates to land dispute between them and the Appellant. That anyone without title to a parcel of land in respect of which a C of O was issued acquires no right or interest which he did not have before. Cited: Ogunleye v. Oni (1990) 2 NWLR (Pt. 745) at 774.

That the lower Court cannot make an order stating that the 1st to 6th Respondents should be issued C. of O., and directing the issuance of a C. of O., to the 1st to 6th Respondents without satisfying itself first that they have title to the property in issue. Learned counsel cited and quoted paragraphs 9, 16 and 17 of the affidavit supporting the Originating Summons and the document annexed to their said affidavit

and marked as Exhibit ‘EE’. That the instant suit is clearly on a dispute on the right of the 1st to 6th Respondents to acquire and use the property at No. 25A, Glover Road Ikoyi Lagos. Therefore, Section 39(1) and (2) of the Land Use Act is applicable. That Section 251 of the 1999 Constitution prescribes the jurisdiction of the Federal High Court. That it does not specifically confer jurisdiction on the said Federal High Court in causes and matters concerning land. Cited: Adetayo v. Ademola (2010) All FWLR (Pt. 533) 1806 and A.G. Federation v. A.G. Anambra State (2018) 6 NWLR (Pt. 1615) 314. Learned counsel urged the Court to resolve this issue in favour of the Appellant.

In his submission on this issue, learned counsel to the 1st to 6th Respondents argued that the trite position of the law in determining jurisdiction of a Court is to carefully consider the claim(s) of the Plaintiffs endorsed on the Writ of Summons and Statement of Claim. Cited: Akanji v. F.M.L.H & U.D. (2016) LPELR – 41631 at pp. 34 – 35, N.P.A v. Aminu Ibrahim (2018) LPELR – 44464 (SC) 51, EcoBank v. Anchorage Leisures Ltd. (2018) LPELR – 45125 (SC) 36.

Learned counsel submitted further that in the instant appeal, the lone issue for determination as endorsed on the Originating Summons is:
Whether the Plaintiffs are not entitled to be issued with the Certificate of Occupancy for the property known as 25A, Glover Road, Ikoyi Lagos, in view of the provisions of paragraph 22 of the Approved Guidelines for Lease of Federal Government Property in Lagos.

Learned counsel to the 1st to 6th Respondents submitted further that the reliefs sought by his clients as contained in their Originating Summons was basically the issuance to them of the Certificate of Occupancy which is an administrative act. That it follows therefore, that their claim fall within the jurisdiction of the Federal High Court because they relate to administrative decisions and actions of the 7th Respondent who is an Officer or agent of the Federal Government. That the claim was not calling upon the lower Court to determine who had title to the land since issuance of C. of O., to a person who already holds title to land is an administrative duty.

That Section 39(1) of the Land Use Act did not oust the jurisdiction of the Federal High

Court to entertain matters relating to land as that Section is limited to statutory right of occupancy issued by the Governor or deemed issued by him. That the 1st to 6th Respondents’ statutory right of occupancy was not issued by the Governor pursuant to Section 5(1) of the Land Use Act neither was it deemed issued by the Governor pursuant to Section 34 of the Land Use Act. That the argument by the Appellant that this suit fall within the exclusive jurisdiction of the High Court cannot be sustained. That by the provisions of Sections 49 and 51 of the Land Use Act, the powers of the Governor over land do not extend to land held by the Federal Government or any of its agencies, since such powers are exercised only by the President or Minister in charge of Lands held by the Federal Government or its agencies. Learned counsel to the 1st to 6th Respondents distinguished the authorities relied upon by the appellant and urged the Court to resolve this issue in favour of the 1st to 6th Respondents.

Finding on Issue One:
I have carefully considered the declaratory relief contained in the Originating summons by the 1st to 6th Respondent to wit:

A declaration that, the Plaintiffs are entitled to be issued with C. of O. in respect of all that property known as 25A, Glover Road Ikoyi, Lagos.
A casual consideration of this declaratory relief gives the impression that the 1st to 6th Respondents are in possession of the land or property at 25A Glover Road, Ikoyi, Lagos, having fulfilled all legal requirements for purchasing the said property. All that remain to be done is to get the title documents, which is an executive or administrative action or decision by the Federal Government or any of its agencies. Thus, the Federal High Court has jurisdiction by virtue of Section 251(1) (r) of the 1999 Constitution (as amended). But a careful perusal and evaluation of the affidavit evidence in support of the Originating Summons reveal that the instant suit is a land dispute between the Appellant and the 1st to 6th Respondents. The party with superior title is the one that is entitled to be issued a C. of O. The Presidential Implementation Committee added to the confusion when it wrote a letter of offer for the lease of the property in dispute to both the 1st to 6th Respondents and the Appellants bearing the

same date i.e 24th October, 2005.
It is beyond conjecture therefore that the contention between the 1st to 6th Respondents and the Appellant is on the ownership of No: 25A Glover Road, Ikoyi, Lagos. While the 1st to 6th Respondents are claiming that they are entitled to the title deeds of the property as sitting tenants who had the right of first refusal, the Appellant is contending that the 1st to 6th Respondents were given the right of first refusal to purchase the property but they failed to fulfill a condition precedent for doing so, to wit; paying the purchase sum of N208,000,000.00, within the 14 days window as provided by paragraphs 9 and 10 of the Approved Guidelines for the Lease of Federal Government property in Lagos which provides thus:
“9. Within two weeks of the opening of the bids, the highest bids received will be offered to the legal sitting tenant which he may accept by paying the balance of the 10% bid value. Consequently, the highest bidder will receive a letter informing him that he is the reserve bidder at that point.”
10. If the legal sitting tenant fails to accept the offer within 14 days, then the offer will

be communicated to the highest bidder now in the capacity of reserve bidder in writing.”
Paragraphs 18 and 22 also provides as follows:
18. In the event that the winner of the bid whether sitting tenant or highest bidder fails to pay within the payment period his/her 10% deposit will be forfeited to the Federal Government and the property will be offered to the reserve bidder.”
22. Each purchaser shall be given vacant possession upon the completion of all prescribed payments. A Certificate of Occupancy shall be issued to each purchaser unless paragraph 23 below applies.”
Paragraph 23 applies to those who secure loans to pay for the property, in that case the C. of O., will be given to the financial institution that issued the loan pending payment of the amount borrowed.
In view of the contentious nature of this suit, it is obvious that commencing same by Originating Summons will not solve the problems between the parties. The 1st to 6th Respondents either by ingenuity of purpose or naivety commenced this suit via Originating Summons knowing fully well that the issues involved are contentious and the facts in the

contending claims are in dispute. The law is trite that Originating Summons is resorted to where there is no dispute as to the facts or even likelihood of such dispute. It should not be used where issues are contentious or where the affidavit of the plaintiff leaves matters for conjecture. In Oba Adegboyega Osunbade Adeyelu II & Ors. v. Oba Jimoh Oladunni Oyewumni & Ors. (2007) LPELR 167 (SC) the apex Court held thus:
“It is now firmly settled that an Originating Summons is an unusual method of commencing proceedings in the High Court and it is confined to cases where special statutory provisions exist for its application. It is not advisable to make use of this procedure for hostile proceedings where the facts are in dispute as in the instant case leading to this appeal. The cases of Doherty v. Doherty (supra) and the other two cases referred to by the Court below have put to rest any doubt as to when it is appropriate to institute an action by Originating Summons.” Per Ogbuagu, JSC.
I am not unaware of the issue 4 canvassed by the Appellants and issue 3 by the 1st to 6th Respondents on the propriety or otherwise of commencing

this suit by Originating Summons instead of Writ of Summons but the two issues are interrelated since they touch on the jurisdiction of the lower Court. The law is trite that a person without title to a parcel of land in respect to which the C. of O., was issued acquires no right or interest which he does not have before the commencement of the suit. It is therefore clear that since title to the land in issue is in dispute, the lower Court cannot make an order stating that the 1st to 6th Respondents should be issued C. of O. without the lower Court first being satisfied that the said 1st to 6th Respondents have title to the property in issue.
It is therefore obvious that in this suit there is a dispute between the right of the 1st to 6th Respondents to acquire and use the property in dispute No. 25A, Glover Road, Ikoyi Lagos and the competing right of the Appellant. Therefore, Section 39(1) of the Land Use Act is applicable to this case. It provides that:
“The High Court shall have exclusive originating jurisdiction in respect of the following proceedings:
a. Proceedings in respect of any land the subject of a statutory right of

occupancy granted by the Governor or deemed to be granted by him under this Act; and for the purposes of this paragraph proceedings include proceedings for a declaration of title to a statutory right of occupancy.
b. Proceedings to determine any question as to the persons entitled to compensation payable for improvements on the land under this Act.
I have considered the submissions by learned counsel to the 1st to 6th Respondents that the land or property in dispute does not belong to the Lagos State Government but to the Federal Government and only the Federal Government can issue a C. of O., and that by virtue of Section 251 (1) (r) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the Federal High Court had jurisdiction to hear and determine this suit. The said Section 251 (r) provides thus:
“(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.”
The fact in dispute between the 1st to 6th Respondents and the Appellant in this suit cannot by any stretch of the imagination

be narrowed or whittled down to the “validity of any executive or administrative action or decision of the Federal Government or any of its agencies”. As I stated above, the issues between the parties in this suit are contentious and beyond a declaration or injunction affecting the validity of any executive or administrative decision. Because this is a land dispute and Section 251 (1) (r) of the 1999 Constitution (as amended) cannot resolve the dispute therefore, it is not applicable. The issue of the exclusive jurisdiction of the High Court of a State over matters relating to land was laid to rest by the apex Court in A.G. of the Federation v. A.G. of Anambra State (supra) where it held that in a dispute between the Federal Ministry of Lands, Housing and Urban Development and Anambra State Government, the High Court is properly seized with and has the jurisdiction to hear and determine the dispute in respect to the land in dispute between the parties (page 349). I also noted that the Appellant after obtaining the C. of O., granted by the Federal Ministry of Lands also applied to the Lagos State Government for the regularization of the Federal

Property in respect of 25A, Glover Road Ikoyi, Lagos. The application was granted on 17th June, 2010 subject to payment of N79,433,099.00. After full payment, the Governor of Lagos State issued a Certificate of Occupancy under his hand on 2nd June, 2013 to the Appellant as reflected at pages 426 to 437 of the record of appeal.
It is therefore, my decision on this issue that Section 251(1) (r) of the 1999 Constitution (as amended) does not confer on the lower Court, the requisite jurisdiction to hear and determine matters pertaining to a declaration of title to land. I resolve this issue in favour of the Appellant.

The next issue I will consider which is closely related to issue one above is issue 4, which reads thus:
Whether the appropriate mode of commencing the action at the lower Court was by way of an Originating Summons instead of Writ of Summons.

The learned counsel to the 1st to 6th Respondents reframed the issue as follows:
Whether the Court below was right when it held that the 1st to 6th Respondents’ suit was suitable for the Originating Summons procedure?

In his submission while arguing this issue, learned counsel to

the Appellant submitted that it is trite law that Originating Summons is issued to commence actions with regards to construction of statutes, documents and wills where there is no likelihood of dispute with regards to the facts. Cited: Wakwa v. Ossai (2002) 2 NWLR (Pt. 752) 548 at 561 – 562. That notwithstanding the provision of Order 3 Rule 6 of the Federal High Court (Civil Procedure) Rules, Order 3 Rule 8 of the said Rules has given the Court the discretion to refuse to determine a claim brought by way of Originating Summons. Learned counsel quoted the two Rules. That the law is clear that such discretion must be exercised judicially and judiciously. Cited: Aladetoyinbo v. Ukaegbu (2005) All FWLR (Pt. 288) 1165. That in their respective preliminary objections and counter affidavits before the lower Court both the Appellant and 7th Respondent presented adequate materials to convince the said lower Court to strike out this suit for being incompetent. That the allegations of facts required oral evidence to clarify, particularly the evidence of the members of the Presidential Implementation Committee to testify as to who is the rightful owner of the

property in dispute. Cited: Oba Adegboyega Osunbade & Ors v. Oba Jimoh Oladunni Oyewunmi (unreported) Appeal No: SC/79/2002.

Learned counsel urged the Court to resolve this issue in favour of the Appellant.

In his submission while arguing this issue, learned counsel to the 1st to 6th Respondents stated that this suit was commenced by his clients by way of Originating Summons pursuant to Order 3 Rules 6 and 7 of the Federal High Court (Civil Procedure) Rules 2009. Learned counsel quoted the provisions of that law and the question for determination posed by the said 1st to 6th Respondents as Plaintiffs. That the reliefs sought in the Originating Summons by the 1st – 6th Respondents were predicated on resolution of the construction of paragraph 22 of the Guidelines by the lower Court. Cited and quoted the authorities of Keyamo v. House of Assembly Lagos State (2002) LPELR – 1689 P. 8, Zakirai v. Mohammed (2017) LPELR – 42349 (SC) PP. 64 – 66, PDP v. Sebastine (2014) LPELR – 24364 (CA) PP 24 – 25.

That neither the Appellant nor the 7th Respondent challenged the mode of commencement of the proceedings before

the lower Court. That commencement of a suit by Originating Summons rather than Writ of Summons does not raise a jurisdictional issue that can vitiate the entire proceedings and which can be raised at anytime even for the first time at the appellate stage by the parties. That the lower Court was right in holding that the issue before it was that of interpretation and application of the relevant provisions of the Approved Guidelines and that the suit was suitable for the Originating Summons Procedure. He urged the Court to resolve this issue in favour of the 1st to 6th Respondents.

Finding on Issue 4:
The law is trite that Originating Summons is resorted to in commencing or initiating a suit when the law so provides or when the sole or principal question in issue is likely to be one of the construction of a written law or any instrument or of any deed, will, contract or other document or other question of law in circumstances where there is not likely to be any dispute as to the facts. In general terms it is, those actions where facts are not likely to be in dispute. In Hon. Muyiwa Inakoju & Ors. v. Hon. Abraham Adeolu Adeleke (Speaker) & Ors.

(2007) LPELR – 1510 (SC), the Supreme Court while pronouncing on nature of Originating Summons held inter alia thus:
“The action was commenced in the High Court by Originating Summons. Commencement of action by Originating Summons is a procedure which is used in cases where the facts are not in dispute. Originating Summons is also reserved for issues like the determination of questions of construction and not matters of such controversy that the justice of the case could demand the setting of pleadings…In Famfa Oil Limited v. Attorney General of the Federation (2003) 18 NWLR (Pt. 852) 453, Belgore, JSC, (as he then was) said at page 467: “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 his interest…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 pleadings 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 where facts are in dispute or riotously so an Originating Summons Procedure will not avail a plaintiff who must come by way of Writ of Summons. See Oloyo v. Alagbe (1983) 2 SCNLR 35; Doherty v. Doherty (1967) 1 All NLR 245; Famfa Oil Limited v. Attorney General of the Federation (supra). In other words, an Originating Summons will not lie in favour of a Plaintiff where the proceedings are hostile in the sense of violent dispute…” Per Tobi, JSC, (of blessed memory).
Upon a careful consideration of the claim by the 1st to 6th Respondents in their Originating Summons and the reaction by the 7th Respondent and the Appellant vide their preliminary objection and counter affidavits, can it be said that the facts are not in dispute or there is no likelihood of their being a dispute? The obvious answer is in the negative. The 1st – 6th Respondents by their Originating Summons are claiming that they were entitled to be issued with a Certificate of Occupancy in respect of the property at No: 25A,

Glover Road, Ikoyi, Lagos. To support their claim, they asserted that the said property in dispute was erroneously given to the Appellant but the offer was later withdrawn and revoked while their interest was reinstated. They tendered several documents in support of this claim as shown at pages 15 to 48 of the record; some of which were marked as Exhibits ‘AA’ to ‘FF’.
The claim by the 1st to 6th Respondents was vehemently denied, controverted and countered by the Appellants in their preliminary objection and counter affidavit to the said Originating Summons. The Appellant also exhibited a plethora of documents in countering the 1st to 6th Respondents’ claim as can be seen at pages 333 – 351, 378 – 505 of the record of appeal. In countering the Originating Summons, the appellant categorically stated that the 1st to 6th Respondents did not exercise their right of first refusal and the Appellant made the highest bid on the property in dispute and was declared the winner of the auction. These assertions by the Appellant was buttressed by documentary evidence. It is my finding that the claim of ownership of the

property in dispute by the 1st to 6th Respondents was a question of fact which was disputed and vehemently contested by the Appellant who established a similar interest in the property. These allegations of fact required oral evidence to clarify, particularly by the officials of the Presidential Implementation Committee to resolve who the actual owner of the property at No. 25A, Glover Road, Ikoyi, Lagos is.
In Inakoju & Ors. Adeleke & Ors. (supra), the Supreme Court while pronouncing on question of facts in Originating Summons held thus:
“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…”

The learned Law Lord concluded by stating that:
“All I want to highlight or bring to the fore is the inconsequential status of facts in an action commenced by Originating Summons…”
I have already stated the position of this suit that it is based principally on facts and facts alone which must be determined by calling evidence in support of those facts particularly by the Presidential Implementation Committee who issued Letters of Offer for the lease of Federal Government Landed Property at No. 25A, Glover, Road, Ikoyi, Lagos to the 1st to 6th Respondent and the Appellants. Both offers are dated 24th October, 2005. It is therefore obvious in the circumstance of this suit, that proceedings at the lower Court is bound to be contentious and hostile since question of ownership of No. 25A, Glover Road, Ikoyi, Lagos can only be resolved by calling oral evidence in order to resolve the conflict of facts and I so hold. Commencing this suit by Originating Summons by the 1st to 6th Respondents is fundamentally flawed and the lower Court did not exercise its discretion judicially and judiciously when it held that the contentious issues between the 1st to 6th Respondents and the Appellants can be resolved by

just considering the Approve Guidelines to determine whether the plaintiffs are entitled to be issued with a Certificate of Occupancy. Both parties exhibited the Approved Guidelines in support of their claim and no mention of the relevant paragraph(s) of the said Approved Guidelines was made by the lower Court that can show that it favoured only the 1st to 6th Respondents.
Therefore, the decision by the lower Court to hear and determine this suit by Originating Summons is liable to be and is hereby set aside by me.

In my holding in issue one above, I held that the lower Court lacks jurisdiction to hear and determine this suit because it is a matter within the exclusive preserve of a High Court of a State pursuant to Section 39(1) and (2) of the Land Use Act and that Section 251 (1) (r) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is not applicable. Jurisdiction being a sine qua non or an indispensable requirement for a Court to adjudicate over a matter where it is lacking then, the proceedings no matter how well conducted are null and void ab initio. Since the lower Court lacks the jurisdiction over this suit, it follows

that this Court also lacks jurisdiction to determine the issues between the parties. In Chief (Mrs.) Olufunke Victoria Ehuwa v. Ondo State Independent Electoral Commission & Ors. (2006) LPELR – 1056 (SC), the apex Court held thus:
“…it is settled law that an appellate Court cannot exercise jurisdiction in a matter once the lower Court or the Court below is without jurisdiction. An appellate Court can only exercise its appellate jurisdiction to correct the errors of the lower Court or the Court below. Thus, or consequently, once an appellate Court has decided that the lower Court or the Court below had no jurisdiction, it has no appellate jurisdiction of its own to exercise…” (Per Ogbuagu, JSC, at page 19 paragraphs D – F).

Therefore, having declared that the lower Court had no jurisdiction to hear and determine this suit, pursuant to Section 39(1) and (2) of the Land Use Act and upon declaring that this suit was not properly commenced by Originating Summons and even if the lower Court had jurisdiction, the proper procedure is to institute this suit vide Writ of Summons and Statement of Claim, it is obvious

that the other issues formulated by learned counsel to the parties in their respective briefs cannot be considered as that would tantamount to a mere academic exercise. It is therefore, my holding that this appeal is meritorious; it is hereby allowed. The judgment delivered by the lower Court on 11th December, 2017 in Suit No: FHC/ABJ/CS/23/2017, is hereby set aside.
I make no order as to costs.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, BITRUS GYARAZAMA SANGA, JCA and I agree totally with the reasoning and conclusion contained therein. I have nothing useful to add by way of contribution.
Accordingly, I too allow the appeal and abide by the other orders made in the lead judgment.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I read before now the lead judgment just delivered by my learned brother BITRUS GYARAZAMA SANGA JCA.
I agree entirely with the reasoning and conclusion therein reached, that the appeal is meritorious and should be allowed.
I also allow the appeal and abide by the consequential orders contained therein.

Appearances:

V.J.O. Azinge, Esq., (SAN) with him, U.K. Obioha, Esq., A.O. Agu and S.I.O. Okpuno For Appellant(s)

Kalu Onuoha, Esq., with him, M. Nworie, Esq. for the 1st – 6th Respondents

B.G. Abba, Esq. for the 7th Respondents For Respondent(s)