NUNGSHAK YILJIPUT v. NDE PIWUS GOWBWOK
(2019)LCN/12636(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of February, 2019
CA/J/446/2017
RATIO
ORIGINATING SUMMONS: WHERE FACT IS IN DISPUTE
“For purposes of emphases I like to add that the Originating Summons procedure can only be adopted in cases where the facts are not in dispute or there is no likelihood of the facts being in dispute but where the principal questions in issues is, or are likely to be those directed at the construction of a written law, Constitution of any instrument or of any deed, will, contract or other documents or other questions of law or in a circumstance where there is not likely to be any dispute as to facts. It therefore, suffice to say that it is used for non-contentions actions or matters where facts are not likely to be in dispute. But where the facts are likely to be in dispute, like in the appeal at hand, it is improper to commence the action by originating Summons. See HON. MICHEAL DAPIANLONG & ORS V. CHIEF (DR) JOSHUA CHIBI DARIYE & ANOR (NO 2) (2007) 8 NWLR (PT 1036) 332, FEDERAL GOVERNMENT OF NIGERIA AND ORS V. ZEBRA ENERGY LIMITED (2002) 18 NWLR (PT. 798) 162, U.B.A. V. EKPO (2003) 12 NWLR (PT. 834) page 932 and SALEH V. MONGUNO (2003) 1 NWLR (PT.801) Pg. 221.” PER MUDASHIRU NASIRU ONIYANGI J.C.A.
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
NUNGSHAK YILJIPUT – Appellant(s)
AND
NDE PIWUS GOWBWOK
(The Magaji Ampang East, Kanke Local Government Area, Plateau State) – Respondent(s)
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment):
The herein decision is on the appeal against the judgment of the High Court of Plateau State sitting at Pankshin delivered on 17th October, 2017 in SUIT NO: PLD/P39/CV/2016, wherein the learned trial judge, N. J. Dadi, J. dismissed the Plaintiff’s suit in its entirety.
In an Amended Originating Summons filed on 17th February, 2017, the Appellant herein as Plaintiff raised the following 2 questions for the determination of the trial Court, the questions are thus:
1. Whether given the findings of the Court in Suit No. PLD/P21/2001 Exhibit ‘NY2’ the issue of none relationship between the Kunkung and Panwat is not settled
2. Whether the Defendant is right to refuse to give the staff of office to the stool of District Head of Ampang East to the Plaintiff’s candidate on the basis of his facts contained in Exhibit ‘NY3’ that there is dispute concerning relationship between the Plaintiff’s family and Kunkung family.
That upon the trial Court resolving the aforesaid 2 issues in favour of the Appellant, then he sought for the following reliefs against the Respondents, therein as Defendants. The said reliefs are as follows:
1. A declaration that given the findings in Exhibit ‘NY2’ there is no blood relationship between the Plaintiff?s family – Panwat (woksur) and Kunkung family to prevent the Defendant from giving the staff of office of District Head of Amapng East to the Plaintiff’s candidate.
2. An order of Court compelling or mandating the Defendant to give the staff of office to the candidate of the Plaintiff’s family to occupy the stool of District Head of Ampang East.
Upon being served with the Originating Summons, the Respondent instead of filing a Counter-affidavit, filed a Reply on point of law dated and filed on 27th April, 2017.
In the course of trial, the trial Court on the 6th June, 2017 raised an issue suo motu and invited the learned Counsel on both sides to address it on the propriety of the Court to hear and determine the question of jurisdiction of the Court raised by way of Originating Summons. On the 19th July, 2017, the date slated for the addresses, the learned Counsel for the Appellant conceded on the jurisdiction of the Court to interpret the judgment of a Court of coordinate jurisdiction. The learned Counsel for the Appellant then withdrew question 1 and relief No. 1 and the same were accordingly struck out by the Court, leaving only question 2 and relief No 2 as lone issue to be dealt with.
The case is on the customary process of filling the vacant traditional stool of the District Head of Ampang East of Ampang District of Kanke Local Government of Plateau State, the former Occupant – Nde Nensok Gochin having died on 22nd November, 2015. The case of the Appellant is that Ampang District has 2 Ruling Houses namely: Dawok and Woksur; that it was the custom of the people that when a District Head dies, the next Ruling House produces a candidate who will be presented to the Magaji Ampang East, Kanke L.G.A, Plateau State. The Appellant?s family position is that with the demise of the immediate past District Head, it was their turn to present their candidate, and which they did, but the Respondent refused to recognize and present him with the staff of office. As a result they wrote him but he did not respond, whereupon they wrote the Kanke
Local Government; which in turn wrote him. He then responded to the Local Government via Exhibit ‘NY3′ wherein he stated that the Appellant?s family and Kunkung family have dispute over their relationship. That it was as a result of the Respondent?s failure to recognize and issue the staff of office to the Appellants’ candidate based on his opinion in Exhibit NY3, that the Appellant approached the trial Court.
The case of the Respondent on the other hand is that the traditional stool of District Head of Ampang East is a registered Chieftaincy. That the nomination and appointment of its successor to the vacant stool of the District Head is in accordance with the instrument known as ‘the PANKSHIN TRADITIONAL COUNCIL (Modification of Native Law and Custom Relating to the selection of the District Head of Ampang East District) ORDER 1979’, PSLGLN 2 of 1979 (Exhibit ‘NY1’).
It was also the case of the Respondent that the Ampang District undoubtedly had 2 Ruling Houses namely; ‘Dawok’ and ‘Woksur, but it also had 3 traditional selectors’ houses namely ‘the House of Chiroma Jalak’, ‘the House of Panwat Woksur’ and ‘the Magaji’. That ascension to the stool of District Head of Ampang East is solely governed by the modification law referred to above.
At the end of hearing, the learned trial Judge in his considered judgment dismissed the Appellant?s suit. Peeved with the judgment, the Appellant now appealed against the same vide a Notice and Grounds of Appeal filed on 18th October, 2017 containing 4 Grounds of Appeal. In compliance with the Rules of this Court, parties filed and exchanged their respective briefs of argument. When the appeal came up for hearing on 5th November, 2018, F.O. Shaibu Esq., adopted the Appellants’ brief dated and filed 10th January, 2018 in urging the Court of allow the appeal. While, Mr. C. D. Gotom Esq., adopted and relied on the Respondent’s brief which was dated and filed on 7th February, 2018 and urged the Court to dismiss the appeal with substantial cost.
In the Appellant’s brief settled by F. O. Shaibu Esq., the learned Counsel formulated (3) three issues for the determination of the Appeal. The three (3) issues are as follows:
1. Whether the learned trial Judge was not wrong to have dismissed the case of the Appellant instead of ordering pleadings (Ground 1)
2. Whether Exhibit NY3 does not support the case of the Appellant to entitle him to his reliefs in the absence of any denial of his case (Grounds 2 and 3).
3. Whether the lower Court had jurisdiction to determine the issue withdrawn by the Appellant and if not whether that has not affected the perception of the case of this Appellant by the lower Court.
Similarly, Mr. C. D. Gotom Esq., who prepared the Respondent’s brief also distilled 3 issues for determination. The three (3) issues formulated by the Respondent’s Counsel are as follows:
a. Whether or not the Order of dismissal by the trial judge was appositely made in the circumstance of this case?
b. Whether or not by virtue of the interpretation of the provisions of Exhibit NY1 does Exhibit NY3 have any nexus with the stool in question, which in legal parlance it supports the case of the Appellant in the absence of Respondent’s counter affidavit.
c. Whether or not the trial judge has jurisdiction to express his opinion on an issue which he lacks jurisdiction to hear and determine.
The 3 issues raised by the parties are akin but since the appeal is the discontent of the Appellant, I shall adopt issues 1 and 3 raised by the Appellant’s counsel and issue 2 of the Respondent and shall determine and resolve the appeal based on the 3 issues. As did the Respondent, I shall resolve issues 1 and 3 together as issue 1 and then issue 2 separately.
SUBMISSIONS ON ISSUE NO. 1
Mr. F.O. Shaibu for the Appellant referred to page 66 lines 12-15 and page 68 lines 20-24 of the record to contend that the trial Court having observed that the issue of Customary law and/or practice require strict proof through oral evidence and not affidavit evidence and that if the Plaintiff has a cause of action such a cause of action cannot be addressed by way of Originating Summons; then he submitted that the trial Court was wrong to have dismissed the case as the proper order to be made in the circumstance was to order for pleadings where parties call oral evidence. He cited: EKASA V. ALSCON PLC (2014) 16 NWLR (PT. 1434) 542 AT 561 PARAS. A-B.
On issue No. 3, the learned Counsel for the Appellant referred to page 47 lines 1-3 and page 60 ? 62 lines 1-3 where the learned Counsel for the Appellant withdrew question No. 1 and relief No. 1 and where the trial Court struck out the withdrawn issue. He contended that the trial Court having struck out the issue, it became funtus officio concerning the said issue and same was no longer before the trial Court to determine.
The learned Counsel conceded that the struck out issue may not affect the fortunes of the appeal, but contended that the determination of it had affected the perception of the learned trial Court negatively against the Appellant’s case, as a result of which the trial Court did not refer to Exhibit NY2 which also formed part of the evidence before the trial Court. He contended that it led to miscarriage of justice.
The learned Counsel urged the Court to resolve the issue in favour of the Appellant.
In his response, the learned Counsel for the Respondent answered the poser in the affirmative, stressing that considering the nature of the only relief sought, the Appellant chose to commence the action under Order 1 Rule 2 of the Plateau State High Court (Civil Procedure) Rules 1987, conceding that the action is not contentious in nature as it requires no evidence, but that was because the entire process for filling the vacant stool of District Head of Ampang East has been codified in Exhibit NY1. He submitted that where a statute stipulates a particular method of performing a duty such as in Exhibit NY1, it is only the prescribed method and no other method that must be followed in performing such duty. He cited: MAL SIYAKA O. LAWAL & ORS V. ALH. IBRAHIM OHIDA & ORS (2009) LPELR CA/A/181/06; to say that Exhibit NY1 is a subsidiary legislation setting out the method of selection and presentation of candidate to the appropriate authorities to fill in the vacant stool in other to avoid any ambiguity in the customary law and practice of Ampang East District and the Court is bound by the wordings of Exhibit NY1 such as it does not require the strenuous customary evidence as enshrined in Section 16 of the Evidence Act, 2011.
He referred to: JEJE OLADELE V. OBA ADEKUNLE AROMOLARAN II & 4 ORS (1996) LPELR SC 284.
The learned counsel for the Respondent in opposing the Appellant’s prayers in urging the Court to remit the suit for retrial so that pleadings could be filed, contended that the Appellant’s lone issue/relief sought is significant in determining whether or not calling for witnesses is necessary as the Appellant did not seek for declaration as alternative, but only sought for an Order compelling the Respondent to give the Appellant’s candidate a staff of office to occupy the vacant stool of Ampang East District. He submitted therefore that this case is distinguishable from the case of EKASA V. ALSCON PLC (supra) cited by the Appellant’s Counsel. He referred to INAKOJU V. ADELEKE (2007) 4 NWLR (PT. 1025) 423 and urged the Court to so hold.
It was further contended on behalf of the Respondent that even as the provision of Exhibit NY1 is self-executing as it laid down sufficient provisions by means of which the purpose it intends to accomplish may be determined and achieved even without the aid of judicial interpretation, yet the said Exhibit NY1 did not stipulate or specify who will present the staff of office to an elected/appointed District Head of Ampang East, much less to an unknown candidate of the Appellant.
He argued that the contention of the learned Counsel for the Appellant that the Respondent’s duty is to give staff of office to their unknown candidate is rather a misconception. He submitted that the trial Court cannot go on voyage of discovery in search of the Appellant’s speculated candidate and that by virtue of Section 7 of Exhibit NY1, the presentation of staff of office in most chieftaincy matters is done after confirmation of candidate by the appropriate authority, but not before the confirmation of unknown candidate, as such since Exhibit NY1 is silence over the issue of presentation of staff of office, the Court therefore lacks the jurisdiction to compel the respondent to give what he does not have to an unknown candidate.
The learned Counsel for the Respondent referred to and reproduced paras. 3 (d-k) of the Appellant’s Affidavit to contend that the said paragraphs contradicted the provisions of Exhibit NY1 as there is nowhere the Exhibit mentioned the word ‘Rotate or rotation’ or the stool of Ampang East District should be ‘rotated’ between ‘Dawok & Woksur’ Ruling Houses.
He cited: MACFOY V. UAC (1962) A.C.158; APARI V. HOSE & ORS (1999) LPELR CCN/1/13/99. He further reproduced Sections 2, 3, 4 and 7 of Exhibit NY1 to contend that neither Pankshin, nor Kanke L.G.A has any function or duty to perform in Exhibit NY1 and urged the Court to disregard any submission canvassed in respect of Exhibit NY3 and to consider any communication between the Respondent and Kanke L.G.A as officious. He further argued that the trial Court lacked the jurisdiction to go outside Exhibit NY1 and order for pleadings merely because it had expressed its opinion on calling for oral evidence in the discharge of the Appellant?s customary evidence to substantiate his case. He submitted that Exhibit NY1 is the extant law for the ascension or succession to the stool in question. He cited: ADEFULU & ORS V. OYESILE & ORS (1989) LPELR- SC5/1988 AT 39 PARAS. B-C, OBALA V. ADESINA (1999) 2 SCNJ AT 19-20. He further referred to Order 1 Rule 2 of the High Court (Civil Procedure) Rules 1987; ORU ANAM L.G. V. DANIEL JOHN NTIE IKPA & ORS; A.G. BENDEL STATE V. A.G. FED (1983) LPELR ?SC 108/1982 to say that the rules of Court are made to help the cause of justice and not defeat justice.
The learned Counsel finally submitted on this issue that where a Plaintiff fails to prove his case, his case stands dismissed as an order for retrial will only aid him to re-litigate the action. He cited: FAGUNWA & ANOR V. ADIBI & ORS (2004) 17 NWLR (PT. 902) 544 AT 570.
The learned Counsel urged the Court to hold that the wordings of Exhibits NY1 and NY3, visa-a-vis the contradicting affidavit of the Appellant, the prayers sought by the Appellant to file and exchange pleadings will not suffice to order for a retrial. He finally urged the Court to resolve the issue in favour of the Respondent.
RESOLUTION OF ISSUES NO. 1
In resolving this issue, let me note that the Appellant by withdrawing his question 1 and relief 1 before the trial Court on 19th July, 2017 as seen at pages 44 to 45 of the record, the only question and relief left before the trial Court were:
QUESTION:
Whether the defendant is right to refuse to give the staff of office to the stool of District Head Ampang East to the plaintiff’s candidate on the basis of his facts contained in Exhibit ‘NY3’ that there is dispute concerning relationship between the plaintiff’s family and Kunkung family.?
RELIEF:
And Order of Court compelling or mandating the defendant to give the staff of office to the candidate of the plaintiff’s family to occupy the stool of District Head of Ampang East.
The question the Court was asked to answer was simple and which is: whether having regard to Exhibit NY3 the defendant had the right to refuse to give the staff of office to the stool of District Head Ampang East to the plaintiff’s candidate. This called for the interpretation of Exhibit NY3 vis-a-vis the defendant’s refusal to give the staff of office to the stool of District Head Ampang East to the plaintiff’s candidate.
On the contentions and submissions of counsel with regards to the question 1 and relief 1 that were struck out, it is settled that the striking out of any question or issue or relief that has been withdrawn in a proceedings puts an end to its existence.IKPEAZU V. OTTI & ORS. (2016) LPELR 40055 (SC). Where as in this case, a Court had struck out a question, relief or issue before it, but goes ahead to consider the same and there from made a finding or a decision; such finding or decision is incompetent as the said Court no longer has the power to pronounce on the struck out question or issue unless where it has been re-instated as life issue before it. The trial Court by considering the question and relief it had earlier struck out merely wasted judicial energy as both the consideration, findings and decision made on the non-existing issue 1 and relief 1 are of no moment. I hold that the trial Court had no competence to consider the question he had struck out having been withdrawn without objection as that will amount to considering a question not raised before it.
The Appellant contended that the fact the trial Court considered the question it had struck out influenced its final decision as such wrong approach informed the learned trial Judge’s failure to make reference to Exhibit NY2 which was part of the evidence before him. Let me reiterate that the suit at the trial Court was commenced by Originating Summons wherein two questions and two reliefs were originally raised.
Question 1 struck out was for the interpretation of Suit No. PLD/P21/2001 – Exhibit ‘NY2’. The said Exhibit has nexus with question 2 which was interpreted by the trial Court in its judgment. See: Paragraphs 3 (k), 4, 5, 6, 9 and 10 of the affidavit in support of the Originating Summons at pages 6 and 7 of the record. I agree with the learned counsel for the Respondent to the extent that, since Question 1 had been struck out Exhibit ‘NY2’ could not be interpreted by the trial Court. Although Exhibit ‘NY2’ did not form part of the document for interpretation required of the Court to answer in Question 2, however, by virtue of the paragraphs of the affidavit in support of the Originating Summons I listed above, the Court had the right to make reference to Suit No. PLD/P21/2001 – Exhibit ‘NY2’ while interpreting question 2 being part of the affidavit evidence before it which it must consider for the proper determination of the question before it. From the affidavit evidence, Question 2 could not be properly interpreted without reference to Exhibit ‘NY2’ because the affidavit evidence deposed to facts relating to Exhibit ‘NY2’ relevant and material to the question for determination. Accordingly, I hold that the learned trial Judge was wrong not to refer to Exhibit ‘NY2’ in his decision, and that such failure did occasion a miscarriage of justice.
On whether the trial Court was right to dismiss the suit rather than order for pleadings. The procedure of Originating Summons is invoked in a friendly action between parties who are substantially ad idem on the facts and who, without the need for pleadings, merely want, for example, a directive of the Court on the point of law involved. The procedure is not meant to be invoked in a hostile action between parties and in which the parties concerned need know before-hand the issue which they are called upon to contend with from the pleadings. There can be disputed facts which originating summons procedure could resolve, but where the disputed facts are substantial, the proper mode of commencing such an action is by writ of summons so that pleadings can be filed. In other words, originating summons procedure is appropriate where there is no substantial dispute of facts between the parties or likelihood of such dispute.
See: EZEIGWE V. NWAWULU & ORS (2010) LPELR 1201 (SC); ALFA V. ATTAI & ORS. (2017) LPELR 42579 (SC); NATIONAL BANK OF NIGERIA LTD. & ANOR V. ALAKIJA & ANOR. (1978) LPELR 1949 (SC); DOHERTY VS DOHERTY (1968) NMLR 241; OLOYO V. ALEGBE (1983) 2 SCNLR 35 AT 67 ANDUNILAG V. AIGORO (1991) 3 NWLR (PT. 170) 376. Order 1 Rule 2 of the Plateau State High Court (Civil Procedure) Rules 1987. Another instance is as enunciated by the Apex Court in OSUNBADE V. OYEWUNMI (2007) ALL FWLR (PT. 368) 1004;INAKOJU V. ADELEKE(2007) 4 NWLR (PT. 1025) 423; which is, where any statute specifically directs that the action shall be commenced by Originating Summons.
In the case leading to this appeal, the question sought to be answered was whether the defendant was right to refuse to give the staff of office to the stool of District Head Ampang East to the plaintiff’s candidate based on the facts contained in Exhibit ‘NY3’ that there is dispute concerning relationship between the plaintiff’s family and Kunkung family. Both parties agreed and relied on Exhibit ‘NY1’ –
The Pankshin Traditional Council (Modification of Native Law and Custom Relating to the selection of District Head of Ampang East) Order 1979; as the codified customs relating to the selection and appointment of District Head of Ampang East. The Appellant contended that by the provisions of the Modification Order (supra), and Exhibit ?NY2?, the alleged dispute concerning relationship between the plaintiff?s family and Kunkung family, cannot stop the Respondent from giving the staff of office to the stool of District Head Ampang East to the plaintiff?s candidate as such dispute does not exist in the first place.
Generally, the procedure for selection and appointment of a chief or District Head is governed by customs or customary law, but where there is a codification of such custom or customary law, it becomes the recognized procedure or customary law for making selection and appointment. See: TIMOTHY ADEILO ADEFULU & ORS V. BELLO OYESILE & ORS (1989) LPELR SC; OBALA V. ADESINA (1999) 2 SCNJ 1. Importantly, by Exhibit ‘NY1’, the selection and appointment of District Head of Ampang East, has been codified which ordinarily will mean there will no longer be the requirement of proof of customary usage or customary law in that regard, but not withstanding this, it does appear that Exhibit ‘NY1’ is not all embracing as there are some important aspects of the customs relating to selection and appointment of District Head of Ampang East, that did not form part of the codification.
The Respondent’s counsel in the Respondent’s brief at page 6 paragraph 4.04 stated thus:
‘We submit further that by the community reading of Exhibit ‘NY1′, the statute did not stipulate or specify who will present the staff of office to an elected and/appointed District Head of Ampang East’.
Also at paragraph 4.05 of the Respondent?s brief still at page 6, the Respondent?s counsel went again:
‘We further submit that, since the statute (Exhibit ‘NY1′) is silent over the presentation of staff of office, it cannot by syllogism be logically inferred and the Court lacks the impetus and jurisdiction to build the bridge or dilute the acid with alkaline. No amount of judicial intimidation would have constrained the judge to have compelled the Respondent to give what he does not have.’
From the above paragraph 4.05, the last line of the quote, the Respondent puts it forth that he does not have the right to present the staff of office as alleged by the Appellant. It is also distinctively clear that Exhibit ‘NY1’ is not comprehensive on the customs and customary law for the selection and appointment of the District Head of Ampang East. I do agree further with the Respondent’s counsel that the Court cannot build a bridge of customary law where and when the modification order – Exhibit ‘NY1’ is silent, as the Court certainly lacks the jurisdiction to so do. The question then therefore is, how would the aspects of customs and customary law not codified in the Modification Order (Exhibit ‘NY1’) be established as custom requires proof through evidence. I figure the learned trial Judge observed the inconclusiveness of Exhibit ‘NY1’ when he at page 68 lines 12 – 15 of the record, held thus:
The depositions in paragraph 3 (C-J) of the supporting affidavit is in respect of customary practices and procedure. Issue of customary law and/or practice require strict proof through evidence and not through affidavit evidence …
Then again at page 70 lines 20 to 24 of the record, the learned trial Judge held:
‘If the plaintiff has a cause of action, such a cause of action in the circumstance cannot and should not be addressed by way of Originating Summons. There is need therefore for oral evidence to be adduced in order to resolve some issues which could not be determined by way of affidavit.’
From the excerpts of the learned counsel for the Respondent, there is an obvious dispute or uncertainty as to who hands over the staff of office to the stool of District Head Ampang East to any elected District Head. Since Exhibit ‘NY2’ is silent on that, the issue of who by custom is entitled to hand over the staff of office can only be established through customary evidence which the trial Court itself held cannot be proved by affidavit evidence. I agree with the learned trial Judge that there is need for oral evidence to be adduced in order to resolve some issues which is not addressed by the modification Order and cannot be determined by way of affidavit evidence. Therefore since the Originating Summons by which originating process the suit at the trial Court was instituted does not allow oral evidence; Question No 2 for interpretation by the trial Court which has been shown above to be incapable of proper absolute interpretation relying on Exhibit ‘NY1’ alone devoid of oral evidence; makes Originating Summons a wrong initiating process for the action subject of this appeal.
In the circumstance therefore, I agree with the Appellant’s counsel that when the trial Court found ‘There is need therefore for oral evidence to be adduced in order to resolve some issues which could not be determined by way of affidavit.? He would have gone ahead to order for pleadings by the parties rather than continue to interpret Question No. 2 that was before him relying on the incomprehensive Exhibit ‘NY1’ and to dismiss the Appellant’s suit. The Respondent rightly contended that no Court could compel the Respondent to give what he does not possess since Exhibit ‘NY1’ did not specify that he is to hand over the staff of office to any elected District head. Meanwhile from the affidavit evidence, it was the Appellant’s stand that by custom it was the Respondent that was to hand over the staff of office which he failed to do, there was necessarily the need for oral evidence to settle the dispute.
When a suit is commenced by Originating Summons other than Writ of Summons, and the Court discovers that oral evidence is necessary for the just determination of the case, the right order to make is not order dismissing the suit thereby foreclosing the Claimant from leading oral evidence to prove his case and from filing fresh suit as he will be barred by estoppels. There is a great deal of miscarriage of justice when the use of Originating Summons as an initiating process is employed where there is need for the parties through pleadings and oral evidence to contest their grievances through Writ of Summons. The appropriate order for a trial Court to make in such circumstance is to direct the suit to proceed with the filing of pleadings. See:EKASA V. ALSCON PLC (2014) 16 NWLR (PT. 1434) 542. I hold therefore that the trial Court was wrong in dismissing the Appellant’s suit, the right order he should have made in the circumstance of the case is to direct the parties to file their pleadings.
Consequent upon what I have said above, I resolve issue 1 in favour of the Appellant.
Having resolved the issue in favor of the Appellant majorly on the ground that the trial Court ought to have ordered for the filing of pleadings in the circumstance of the case, I shall not proceed to the merits of the case by resolving issue 2. In the circumstance, I hold that the appeal has merits. Based on the success of the appeal, I allow the same. I set aside the decision of the High Court of Plateau State delivered on 17th October, 2017 by N. D. Dadi, J. dismissing Suit No. PLD/P39CV/2016.
I make order for pleadings in Suit No. PLD/P39CV/2016 before another Judge of the High Court of Plateau State, to be assigned by the Chief Judge of the High Court of Plateau State.
Parties to bear their costs.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Uchechukwu Onyemenam, JCA.
His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusion reached therein. I do not see any need to add to the deliberations contained in the lead judgment.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the benefit of reading before now in draft the lead judgment of my learned brother UCHECHUKWU ONYEMENAM JCA just delivered.
I agree with the reasoning and conclusion reached. For purposes of emphases I like to add that the Originating Summons procedure can only be adopted in cases where the facts are not in dispute or there is no likelihood of the facts being in dispute but where the principal questions in issues is, or are likely to be those directed at the construction of a written law, Constitution of any instrument or of any deed, will, contract or other documents or other questions of law or in a circumstance where there is not likely to be any dispute as to facts. It therefore, suffice to say that it is used for non-contentions actions or matters where facts are not likely to be in dispute. But where the facts are likely to be in dispute, like in the appeal at hand, it is improper to commence the action by originating Summons. See HON. MICHEAL DAPIANLONG & ORS V. CHIEF (DR) JOSHUA CHIBI DARIYE & ANOR (NO 2) (2007) 8 NWLR (PT 1036) 332, FEDERAL GOVERNMENT OF NIGERIA AND ORS V. ZEBRA ENERGY LIMITED (2002) 18 NWLR (PT. 798) 162, U.B.A. V. EKPO (2003) 12 NWLR (PT. 834) page 932 and SALEH V. MONGUNO (2003) 1 NWLR (PT.801) Pg. 221.
In the light of the foregoing and the more elaborate reasoning in the lead judgment which has exposed the merit of this appeal and which I adopt, I also allow the appeal and abide by the consequential orders therein.
Appearances:
F. O. Shuaibu, Esq. with him, Bala Akor, Esq. and P. D. Mann, EsqFor Appellant(s)
C. D. Gotom, Esq. For Respondent(s)
