OBUDU L.G. COUNCIL v. MATINS (2020)

OBUDU L.G. COUNCIL v. MATINS

(2020)LCN/15348(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, July 08, 2020

CA/C/434/2018

RATIO

COMPETENCE OF COURT: RELEVANCE OF THE JURISDICTION OF COURT

Clearly, where as in the instant case a Court has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes an exercise in futility as the decision arrived at in such a case amounts to a nullity.
See UMANAH vs. ATTAH (2006) 17 NWLR (Pt. 1009) 503 SC; MADUKOLU vs. NKEMDILIM (1962) 1 ALL NLR 587 SC; SKENCONSULT vs. UKEY (1981) 1 SC 6; BENIN RUBBER PRODUCERS LTD. vs. OJO (1997) 9 NWLR (Pt. 521) 388 SC; MAGAJI vs. MATARI (2000) 5 SC 46; ALAO vs. AFRICAN CONTINENTAL BANK LTD. (2000) 6 SC (Pt. 1) 27; GALADIMA vs. TAMBAI(2000) 6 SC (Part 1) 196; ARAKA vs. EJEAGWU (2000) 12 SC (Pt. 1) 99. PER MOJEED ADEKUNLE OWOADE, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

OBUDU LOCAL GOVERNMENT COUNCIL APPELANT(S)

And

BARRISTER JERRY MATINS RESPONDENT(S)

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Obudu, Cross River State of Nigeria delivered on 22nd day of May, 2018 by the Hon. Justice Ofem I. Ofem.

The Respondents as Claimants in the Court below commenced the action by filing an originating summons on the 16th day of March, 2018 with the following reliefs:
A. Whether the Claimant’s Statutory Right of Occupancy No. OU/33/2007 of 26th February, 2009, subsists.
B. Whether by the provisions of the Land Use Act, 2004 (as amended), the defendant has any control over land situate in an Urban Area
AND FOR:
i. A consequential order perpetually restraining the defendants, their agents and or privies from further interfering with the Claimants possession and enjoyment of the land covered by a Statutory Right of Occupancy No. OU/33/2007 of 26th February, 2009.
ii. An order awarding damages in the sum of Fifty Million Naira (N50,000.00) being solicitors fees and general damages incurred by the Claimant by reasons of the Defendant’s acts of trespass and interference with the Claimants possession and occupation of the parcel of land covered by a statutory right of occupancy No. OU/33/2007 of 26th February, 2009.

The parties filed and exchanged affidavit evidence. Some of the averments in the affidavit and counter affidavit of the parties in this case are not just noteworthy but quite revealing. For example, paragraphs 8 and 9 of the affidavit in support of summons deposed to by one Frank Akomaye, the Respondent/Claimant deposed thus:
“8. In spite of the striking out of Suit No. HD/2/2011, the Defendant has persisted on its acts of trespass and unwarranted interference with the Claimant’s possession and peaceful occupation of the land covered by certificate of occupancy No. OU/33/2007 of 26th February, 2009
9. Consequent upon the unrelenting acts of trespass by the Defendant, the Claimants retained the legal services of Dan Kulo & Associates (Equity Chambers) to ventilate their legal right to the peaceful occupation or possession of the land aforementioned.”

The Appellant/Defendant by her Counter Affidavit of 7th May, 2018 on pages 22 – 24 of the Record Claims ownership of the dispute land. Paragraphs 6 – 15 of the Counter Affidavit deposed to by one Ferdinand Osang is instructive:
6. The Defendant has in 2004, granted a lease of part of the Primary Health Centre land towards her boundary with Mega Hilton Hotel for the construction of Airtel Mast Station and Airtel Limited pay rents to the Defendant till date
7. It is the portion of the Defendant’s Primary Health Centre Land, wherein, the uncompleted Doctor’s Quarters Hostel, Water well, as well as Placenta and sharp object pits are situated that 1st Claimant in 2009, without the knowledge of the Defendant, obtained a Certificate of Occupancy.
8. I am aware that the interest of the Defendant over the said portion of land was never revoked by His Excellency, Senator Liyel Imoke (the then Governor of Cross River Sate), before the grant of the certificate of Occupancy to the Claimant.
9. That I am equally aware that the Defendant has been on the subject matter of this suit since 1972, long before the coming into existence of the Land Use Act, in March, 1978.
10. That I am aware that in 2009, when the Governor granted a Certificate to the Claimant, the subject matter of this suit was not vacant as it was in the peaceful and quite possession of the Defendant, who had long built and occupy same for use as a Primary Health Centre for members of the public.
11. That I am aware that the 1st Claimant is the Chief Executive Officer of the 2nd Claimant, whose sole business is to loan money for private interest.
12. That I am equally aware that as at 2009, the 1st Claimant was the representative of Obudu Local Government Area in the State House of Assembly and used his position as such to acquire public properties for his private use.
13. That paragraph 1, 2 and 3 of the supporting affidavit are admitted. The Defendant states that the aforesaid grant of a Certificate of Occupancy was done in error, without notice to the Defendant, who had been in undisturbed possession of the land for over 40 years.
14. That paragraph 4 and 5 of the supporting affidavit are admitted only to the extent that the Claimant broke the Defendant back fence, entered the back of the Defendant’s Primary Health Care Centre, cleared the land, cause damage to the water well, placenta and sharp object pits and partly damage the uncompleted structures, drop sand and begun to mould concrete blocks. The Claimant never commenced the building of any office structure, or house to window level, as alleged or at all. The acts of the claimant’s agents were reported to the police and one Emma Azu. Titus Ogar and late Adie Betiang, were arrested by the Police upon the Defendant’s complaint. The 1st Claimant approached the Defendant for settlement and personally supervised the evacuation of his blocks.
15. That in 2001, the 1st Claimant and his agents return to the subject matter, thus prompting the institution of Suit No. HD/2/2011. Paragraph 6, 7 and 8 are only admitted to the extent that Suit No. HD/2/2011 was struck out. The said striking out order is the subject of Appeal now before the Court of Appeal. See Exhibit MOJ OBLG 1. Attached hereto.

The Respondent’s/Claimant’s company secretary, Frank Akomaye deposed to a further Affidavit in support of the summons. Paragraph 2 of the said further Affidavit on page 30 of the Records read thus:
2. I have read the counter affidavit filed on behalf of the Defendant. The contents of the said affidavit are a complete distortion of facts. C. S. Ijere Esq., informed me and I believed him as that:
A. Contrary to paragraph 3 of the Defendant’s counter affidavit, the Government of Cross River State passed a law designating Obudu town as an urban area. That the subject matter is within Obudu urban and therefore land within the control of the state Government.
B. Contrary to paragraph 4 of the Defendant’s counter affidavit the purported grant of land in Obudu urban to Airtel in 2004 by the Defendant is ultra vires the powers of the Defendant.
C. Contrary to paragraph 8, 9, 10 13 and 17 of the defendant’s counter affidavit the enactment of the Obudu Urban Designation Law is automatic revocation of the interest of the Defendant over all parcels of land situate in Obudu Urban Areas.

The Learned trial judge upheld the claims of the Respondents/Claimants. In reaching his conclusion, he held first at pages 41 – 42 of the Records that:
I have deeply examined the Claimants’ Exhibit A attached to the summons herein and I am satisfied that it is a C of O in respect of the land in dispute issued in favour of the 2nd Claimant herein (Mutual Alliance Savings & Loans Ltd) on the 26th February, 2009 by the then Governor of the State – Senator Liyel Imoke. The Claimants have by this acquired a statutory right of occupancy in respect of the said land. The survey plan therein accompanying Exhibit A shows boundary neighbours as Primary School, Primary Health Centre, Celtel existing road, etc, and it’s a blank land, unencumbered.
On his part, the Defendant deposed that the land is bounded by banana park, through a food path leading from Calabar road to Council hall road, former Mercantile Bank Ltd (now FBN Plc), Mega Hilton Hotel and Calabar road and contains uncompleted doctor’s quarters, hostel, water well, as well as placenta and sharp object pit. Paragraph 4 and 7 of counter affidavit of Defendant refers. The above information is diametrically opposed to or in contradiction with the survey plan supra tendered by the Claimants. The only reasonable inference or question that may arise from the foregoing is whether or not both parties are ad idem on the actual piece of land in dispute. This is moreso, when the features of the land as described by both parties are different in all material particulars.
The Defendant’s counter affidavit contains 20 paragraphs. It must be pointed out, however that no one single paragraph of the said counter affidavit joined issue with the Claimants’ survey plan specifically neither did he impeach that survey plan. He did not plead nor file his own plan putting the accuracy of the survey plan of the Claimants in issue. The implication therefore is that the survey plan of the Claimants is correct is correct to the extent that it is bare and empty land granted the Claimants in Exhibit A as opposed to the Defendant’s land which has uncompleted doctor’s quarters, hostel, water well etc. the pith and substance of the foregoing is that to successfully impeach the Claimants survey plan, the Defendant ought to plead and file his own survey plan and not only rely on the mere ipse dixit of his depositions on the counter affidavit. See ADESANYA VS. ADERONMU & ORS. (2000) LPELR – 145 (SC).
Judging from the foregoing, it is clear to me that the Claimants obtained a C of O in respect of a vacant land i.e. undeveloped land. Exhibit A (particularly the survey plan) presented to the Governor, with which he granted the C of O shows a bare, vacant and undeveloped land. By virtue of Section 34 (5) & (6) Land Use Act, the Governor has the power to administer such land and allocate to another person without recourse to the former holder as same is deemed to have extinguished automatically. This is different from Section 34 (2) Land Use Act which deals exclusively with developed land simpliciter.
Second at page 42 of the Records that:
I think and hold that the above position is what the Supreme Court envisaged in the case of ADOLE VS. GWAR (Supra) cited by learned counsel to the Defendant when it held that; “Section 34 of the Land Use Act, as it were, recognizes the title of persons who were on the land before 1978 when the Act came into being. If the land was developed by such persons, they are deemed holders of statutory right of Occupancies issued by the Governor by virtue of Section 34 (2) and (3) Land Use Act.” (underlining mine for emphasis).
What the foregoing presupposes is that where land is not developed, like the one in issue, the deemed statutory right of occupancy will not apply to stop the Governor from granting same to another person neither will the Governor required to revoke same before allocating to another person. I dare say therefore that ADOLE VS. GWAR Supra as highlighted above rather supports the Claimant’s case. What this portends is that Section 28 Land Use Act does not apply to the Governors grant of Exhibit A in this case as heavily canvassed by the learned counsel to the Defendant.
I am therefore satisfied and I hold that the Claimants were duly and satisfactorily granted Exhibit A in accordance with the law and that due process was followed accordingly. The Claimants are therefore, by this the holders of the statutory right of occupancy in respect of the land in issue and I so hold.
Third, the learned trial judge continued at pages 44 -45 of the Records that:
“…At paragraph 14 of the counter affidavit, the Defendant had admitted that he reported the Claimants’ agents met on the land in dispute to the police, which resulted in their arrest. He has equally admitted filling a suit against the Claimants in HD/2/2001 regarding their perceived trespass to this land. And that they caused the Claimants to remove their blocks on the land. Having shown that the Claimants got this land duly from the Governor and are therefore holders of the statutory right of occupancy in respect thereof, I am satisfied that they have established damage by the admission of the Defendant and are therefore entitled to damages including the professional fees paid to their counsel and cost of action generally. However, Exhibit A (particularly the survey plan did not show that alleged damage to any building erected by the Claimants. Like I said earlier, it is bare and vacant land I saw without more. Same is therefore not proved by the Claimant and I so hold.
He concluded on page 45 of the Record, that:
On the whole, I am of the firm view and I hold that the Claimants’ case is meritorious and therefore successful. Concomitantly, I hereby make the following orders in favour of the Claimants against the Defendant thus:
1. That the claimants statutory right of occupancy No. OU/33/2007 of the 26th February, 2009 subsists.
2. That the use of police to disrupt the claimants from building on the land as well as causing them to remove their blocks there from amounts to acts of trespass.
3. Defendant, her agents and or privies are perpetually restrained from further acts of trespass or interference with the Claimants’ possession and enjoyment of the land covered by a statutory right of occupancy No. OU/33/2007 of the 26th February, 2009.
4. And that the Defendant shall pay damages to the Claimants for trespass to the land and cost of action including professional fees as follow:
a) Acts of trespass – N1,000,000
b) Professional fess – N2,700,000
Total amount – N3,700,000
That is the order of this Court.”

Dissatisfied with this judgment, the Appellant filed a Notice of Appeal containing four (4) grounds of Appeal in this Court on 30th May, 2018. This appeal was first heard on 28th May, 2020 when the parties adopted their briefs of Argument and the case was adjourned for hearing. The parties through their counsel were later called upon to address this honourable Court on:
“Whether the Appellant ground of Appeal (No. 4) to wit:
“The learned trial judge erred in law in not transferring the suit hereof to the general cause list and proceeded to consider same under originating summons” is not a ground of jurisdiction.”

By 4th June, 2020, when the matter was re-fixed for hearing, the panel of the Court has changed and the parties, who had filed the further written addresses as directed on the question posed by the Court, re-adopted their briefs of Argument along with the further Addresses on the question posed by the Court:
1. Appellant’s Brief of Argument was filed on 4th December, 2018. It is settled by F. I. Ititim Esq., Director Ministry of Justice, Cross River State.
2. Respondent’s Brief of Argument was filed on 21st May, 2019 but was deemed filed on 19th March, 2020.
3. Further Address in the Appellant’s Brief of Argument was filed on 4th June, 2020.
4. Respondent further Address was filed on 3rd June, 2020.

In his further address, learned counsel for the Appellant submitted that the argument canvassed in respect of issue No. 1 raised by the Appellant is contained in page 5 – 9 of the Appellant’s Brief of Argument. That in reaction to that issue, the Respondents reacted as follows:
“Whether the Appellant can be heard on a fresh point of law without first seeking and obtaining the leave of Court and argued that on page 2 – 7 of their brief.”

In arguing the issues in their brief, Respondents contended that Appellant raised fresh point of law in this Court which was not raised and canvassed in the Court below; accordingly leave of this Court ought to have been first sought and obtained before raising it.

Learned Counsel for the Appellant then submitted that in raising issue No. 1 distilled from ground four of the Appellant’s grounds of appeal, the Appellant wittingly attacked the competence nay the jurisdiction of the trial Court to hear and determine the proceeding at the trial Court by originating summons when facts in the affidavit were irreconcilable. That what the Appellant did was to question the jurisdiction of the trial Court by alleging that the lower Court was not properly constituted. He referred to the cases of Madukolu vs. Nkemdilim (1962) 2 SCNLR 341 and Ohakim vs. Agbaso (2010) 19 NWLR (pt. 1226) 172 at 216 – 217 re-stating the conditions to be fulfilled in coming to a conclusion that a Court is properly constituted and has jurisdiction to hear a case.

He emphasized that one of the principal attributes of jurisdiction as decided in the case of Madukolu vs. Nkemdilim (Supra) is that the matter must have been brought in Court by due process of law. He submitted that Appellant’s contention in arguing issue No. 1 distilled from ground four was/is that the proceedings at the Court below was wrongly commenced and maintained by originating summons in the face of irreconcilable disputes in the affidavits thus that Court was not properly constituted and the matter was not commenced by due process of Law. In the circumstance, jurisdiction was challenged.

He submitted that since jurisdiction is a fundamental issue in adjudication the law is now trite and firmly settled that it can be raised at any stage even in the Supreme Court for the first time. On this, Appellant’s counsel referred to the cases of F.H.A. vs. Kalejaiye (2010) 9 NWLR (pt. 1226) 147 at 164, Usman Dan Fodio University vs. Kraus Thompson Organization Ltd. (2011) NWLR (pt. 736) 306.

He submitted that even though the issue of the wrong commencement of proceeding was not canvassed in the trial Court but being an issue that bothers on jurisdiction, it was properly raised by the Appellant on appeal. He referred to the case of A. I. C. vs. NNPC (2005) 5 SC (pt. 11) 60 at 68 and urge us to hold that issue No. 1 based on ground four of the Notice of Appeal is an issue of jurisdiction and was properly raised for the first time in this Court.

Learned Counsel for the Respondent in his further address submitted that ground four in the Notice and grounds of appeal does not constitute a jurisdictional ground of appeal. The trial Court, said counsel have jurisdiction whether in the originating summons or by the ordinary writ of summons. The law is that form of commencement of an action does not affect its competence. After referring to the case of Atago vs. Nwuche (2013) 3 NWLR (pt. 1314) 331 on the above proposition of law, he submitted further that assuming (without conceding) that the use of originating summons is irregular, it will still not amount to an issue that will oust the jurisdiction of the trial Court to hear the matter. It is a procedural issue and the Appellant having not objected to the same procedure, it is deemed in law to have waived same. It has been established by plethora of authorities that the appropriate time which a party to proceedings of Court objects to procedural irregularities is at the commencement of the proceedings. The issue on whether to treat a matter under the general cause list or under originating summons is squarely rooted in the rules of Court. Therefore, from its origin, it is a matter which has to do with the procedure for entertaining matters in the High Court. It has nothing to do with the powers of the Court to hear the matter.

He submitted that it is the claim of the Plaintiff that determines the jurisdiction of the Court which entertains the claim. He concluded that the Appellant has not shown how the procedure adopted led to a denial of fair hearing since the matter was initiated under the due process of law. The due process said counsel is the writ that was taken.

It seems to me that the question whether Appellant’s ground 4 or the Notice and grounds of appeal on which Appellant’s issue No. 1 was based is a jurisdictional ground relates to and dovetails to the said issue No. 1 itself as to whether the Respondents proceedings was rightly commenced and maintained under the originating summons procedure.
In this respect, even the learned counsel for the Respondents has rightly made the point that it is the claim of the Plaintiff that determines the jurisdiction of the Court.
The claim of the Claimant in this case is amongst others:
A. Whether the Claimant‘s statutory right of occupancy No. OU/33/2007 of 27th February, 2009 subsists.
AND FOR
(i) A consequential order perpetually restraining the Defendants, their agents and or privies from further interfering with the Claimant’s possession and enjoyment of land covered by a statutory right of occupancy No. OU/33/2007 of 26th February, 2009.
The fact that the Respondents claim is for a declaration of title, a trespass to land and injunction in the garb of interpretation of a statutory instrument would be easily seen on account of the fact whether or not a Claimant’s statutory right of occupancy to land subsists or not calls into question the title to the land in question that must be determined by evidence and not merely by glancing the paper worth of the said statutory right of occupancy. Still on a perusal of the Respondents claims, paragraphs 8 and 9 of the Respondent’s Affidavit are quite revealing.
8. In spite of the striking out of Suit No. HD/2/2011, the Defendant has persisted on its acts of trespass and unwarranted interference with the Claimant’s possession and peaceful occupation of the land covered by certificate of occupancy No. OU/33/2007 of 26th February, 2009.
9. Consequent upon the unrelenting acts of trespass by the Defendant, the Claimants retained the legal services of Dan Kulo and Associates (Equity Chambers) of ventilate their legal right to the peaceful occupation or possession of their land aforementioned.
Meanwhile by Order 7 Rules (5) and (6) of the High Court of Cross River State (Civil Procedure) Rules, 2008, it is only construction of written instruments and/or enactments that could attract proceedings by originating summons. Order 7 Rules (5), (6) and (7) read thus:
5) “Any person claiming to be interested under a Deed, Will, Enactment or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.
6) Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of an enactment, may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed and there is not likely to be any substantial dispute of fact.
7) A Judge shall not be bound to determine any such question of construction if in his opinion it ought not to be determined on an originating summons but may make any such order as it deems fit.”
Two situations are envisaged under the above provisions. The first is that the jurisdiction of the Court to entertain a suit under the originating summons will not be activated at all or perhaps ab initio if as in the instant case, the claims of the Plaintiff do not relate to or go beyond the construction of a written instrument and/or enactment.
It is my considered opinion that a claim of declaration of title, trespass and injunction as revealed in the instant case, under the guise of the construction of a written instrument and/or enactment cannot be entertained by the Court under the originating summons procedure. This is simply because the originating summons procedure is meant only for construction of written instruments and/or enactments simpliciter.
The second situation, still under the originating summons procedure is in the realm of procedural jurisdiction rather than substantive jurisdiction. Thus, if again as in the instant case where facts are in dispute or riotously so, an originating summons procedure will not avail a Plaintiff and he must come by way of writ of summons. See Inakoju vs. Adeleke (2007) 4 NWLR (pt. 1025) 423 (SC), Osunbade vs. Oyewunmi (2007) ALL FWLR (pt. 368) 1004 SC.
The reference by the learned counsel for the Respondents herein to the case of Atago vs. Nwuche (2013) 3 NWLR (pt. 1341) 337 as authority for the proposition that the form of action does not necessarily make it incompetent. That It does not matter whether the action was begun by writ of summons or by originating summons. That what is most important is the question of justice, assumes that in the instant case, as it was in the case of Atago vs. Nwuche (Supra) the trial Court was merely faced with irreconcilable conflicts in the affidavit of parties under the originating summons procedure. This is not so. The facts and circumstance of the Supreme Court decision in the case of Atago vs. Nwuche are easily distinguishable from the instant case.
The main relief sought in the case of Atago vs. Nwuche (Supra) is:
“A declaration that the 1st Defendant is not a qualified registered member of PDP as required by the Constitution of the party and it guideline for conduct of Primary Election into the Rivers State House of Assembly notwithstanding his purported registration as such.”
From the relief sought in the originating summons and affidavit in support of the claims in the case of Atago vs. Nwuche (Supra), the facts are in dispute and are hostile substantially which cannot be resolved on affidavit in the originating summons. See Doherty vs. Doherty (1968) NMLR 241 (1967) SCNLR 408. The question was whether the trial Court and the Court of Appeal were right in holding that the Appellant’s case being a pre-election matter cannot he heard and determined on pleadings before the election and therefore may become a dead issue after election? The answer to this question of course is in the negative. This is because in the absence of time limit for hearing pre-election matters under 1999 Constitution and Electoral Act 2010 (as amended) the trial Court having found that the case ought not to have been began by originating summons, should have ordered the parties to file pleadings and hear the case all the same, the time the case could be heard and concluded is of no moment to affect the hearing on the merit. The case of Atago vs. Nwuche (Supra) would ordinarily have been heard under the originating summons procedure. The Supreme Court then insisted that the trial Court would not have withheld his discretion to transfer the case to be heard under the general cause list when issues of irreconcilable affidavit evidence arose.
In the instant case, ever before the issue of irreconcilable affidavit evidence arose, the commencement of the Respondents/Claimants claim itself under the originating summons procedure was defective. The originating summons procedure could not accommodate claims for declaration of title, trespass and injunction in the guise of construction of instrument and/or enactment as shown in the Respondents originating claim on page (ii) of the Record of Appeal to wit:
“Claim:
1) Whether the Claimant’s right of occupancy with OU/33/2007 of 26th February, 2009 subsists and whether Defendant has control over the land.
2) Order restraining Defendant his agents, etc from the land.
3) Order of N50 Million being solicitor’s fee and general damages.”
The Respondents/Claimants originating claim is incompetent as it could not be accommodated under the originating summons procedure.

The jurisdictional issue in this appeal turns out to be the determinant issue. For this reason, I will not determine any other issue raised in the appeal. The appeal is meritorious and it is allowed.

The judgment and orders of O. I. Ofem .J. of the High Court of Cross River State sitting at Obudu in Suit No. HD/17/2018 are hereby set aside.

The consequence of resolving issue No. 1 on account of the incompetence of the Appellant’s originating claim over and above the irreconcilable conflicts in the affidavit evidence of the parties is that the Appellant’s originating claim and Suit No. HD/17/2018 based on it are struck out.
Parties to this appeal are to bear their respective costs.

HAMMA AKAWU BARKA, J.C.A.: I was availed a copy of the judgment just read in draft before now.
Having critically examined the issues agitated upon, the conclusion by my learned brother Mojeed Adekunle Owoade, JCA, that the writ of summons was improperly commence and thereby incompetent is agreeable to me. I also strike out the writ of summons as being incompetent thus denying the Court below the vires to have entertained the case.

MUHAMMED LAWAL SHUAIBU, J.C.A.: My learned brother, Mojeed A. Owoade, JCA has afforded with opportunity of previewing the lead judgment just delivered.

I agree entirely, that on the apparent irreconcilable affidavit evidence, the commencement of respondent’s claim below the lower Court was most inappropriate. The originating of summons procedure could not accommodate claims for declaration of title, trespass and injunction.

For this and the further reasons, contained in the lead judgment, I too allow the appeal. I accordingly set aside the judgment of the lower Court and struck out the defective Originating summons in suit No. HD/17/2018.

Appearances:

I. ITITIM, ESQ. For Appellant(s)

DAN O. KULO, ESQ. For Respondent(s)