OJO LOCAL GOVERNMENT v. CHIKA ELILE & ANOR (2018)

OJO LOCAL GOVERNMENT v. CHIKA ELILE & ANOR

(2018)LCN/11859(CA)

In The Court of Appeal of Nigeria

On Thursday, the 5th day of July, 2018

CA/L/1021/2015

RATIO

COURT AND PROCEDURE: WHERE A GRANT IS NOT PLACED BEFORE THE COURT

“A Court of law, it must be reiterated, lacks the jurisdiction to make an order in respect of a matter not placed before it or grant a relief not claimed by a party before it. See Ativie V. Kabelmetal (Nig.) Ltd (2008) 10 NWLR (Pt. 1095) 399 @ p. 414; Okubule V. Oyagbola (1990) 4 NWLR (Pt. 147) 723 @ p. 744; Kalio V. Kalio (1975) 2 SC 15; Olurotimi V. Ige (1993) 8 NWLR (Pt. 311) 271; Union Beverages V. Owolabi (1988) 1 NWLR (Pt. 68) 128 @ p. 123; Nigerian Housing Development Society Ltd and Anor V. Mumuni (1977) 2 SC 57 @ p. 81; Nigeria Air Force V. Shekete (2002) 18 NWLR (Pt. 798) 129 @ p. 151; Ugo V Obiekwe (1989) 1 NWLR (Pt. 99) 566.” PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

COURT AND PROCEDURE: MEANS OF ORIGINATING SUMMONS

“Now, in determining whether a suit commenced by means of Originating Summon is proper or not, refraining from granting a claim whose determination, as the Court below found was for title to land and thus not suitable for Originating Summons, does not render such a suit commenced by means of Originating Summons proper as erroneously thought and held by the Court below. The issue is not whether a claim can be granted or not but whether a claim can be properly inquired into by the means of commencement employed by the Respondents vide an Originating Summons…” PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

FUNDAMENTAL RIGHT: RIGHT TO FAIR HEARING

“It is thus now firmly settled in law that a deliberate failure by a Court to consider all pertinent and relevant issues arising from and submitted by a party would readily and justifiably be characterized as amounting to a failure to perform its statutory duty and a breach of the right to fair hearing of the party. See AG Federation V. Nse (2016) LPELR- 40518 (CA). See also Adebayo V. AG of Ogun State (2008) 7 NWLR (Pt. 1085) 201; Dawodu V. National Population Commission (2000) 6 WRN 116 @ p. 118; Oyediran V. Amoo (1970) 1 ANLR 313 @ p. 317; Ojogbue V. Nnubia (1972) 6 SC 227; Atanda V. Ajani (1989) 13 NWLR (Pt. 111) 511 @ p. 539; Okonji V. Njokanma (1991) 7 NWLR (Pt. 202) 131 @ pp. 150 – 152; Katto V. CBN (1991) 9 NWLR (Pt. 214) 126 @ p. 49; Ovunwo V. Woko (2011) 17 NWLR (Pt. 1277) 522 @ pp. 546 – 547.” PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

JUSTICES

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

OJO LOCAL GOVERNMENT Appellant(s)

AND

1. CHIKA ELILE
2. CHIKA & SONS LTD Respondent(s)

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment):

This is an appeal against the Final Ruling of the High Court of Lagos State, Ikeja Judicial Division, Coram: E. A. Adebajo J., in Suit No. ID/557M/2005: Chika Elile & Anor V. Attorney General of Lagos State & Ors., delivered on 13/4/2008, in which the Court below made some orders in favor of the Respondents as Claimants against the Defendants, including the Appellant as 3rd Defendant.

The Appellant was peeved with the said decision and had appealed against it to this Court vide notice of appeal filed on 27/9/2011 at pages 767 – 769 of the record of appeal but was deemed properly filed on 3/3/2015. Subsequently, the Appellant with the leave of Court filed its amended notice of appeal filed on 8/7/2016 on six grounds. The record of appeal was compiled and transmitted to this Court on 15/10/2015 but deemed properly transmitted on 28/6/2016. The Appellant’s brief was filed on 9/8/2016. The Respondents’ brief was filed on 14/3/2017 but deemed properly filed on 17/1/2018. The Appellant’s reply brief was filed on 23/5/2017 but deemed properly filed on 17/1/2018.

At the hearing of this appeal on 20/6/2018, Chief G. N. Uwechue SAN, learned Senior Advocate for the Appellant, appearing with John Duru Esq., and G. Uwechue Esq., adopted the Appellant’s brief and urged the Court to allow the appeal and set aside the ruling of the Court below and to either dismiss the Respondents’ suit or to remit same to the Chief Judge of Lagos State for reassignment to another judge of the Court below for trial on pleadings. On his part, Phillip Adetona Esq., learned counsel for the Respondents adopted the Respondents’ brief and urged the Court to dismiss the appeal and affirm the ruling of the Court below and the Appeal was reserved for judgment on 6/7/2018.

The Respondents had commenced an action as Claimants before the Court below by means of an Originating Summons filed on 25/10/2005, claiming against the Appellant and some others as Defendant the following reliefs, namely:
1. A Declaration that the Lagos State Government and 3rd Defendant is not entitled to acquire the claimants land situate at OjoIgbode Road (now Ojo-Alaba Road) more particular described in survey Plan Nos: LAT/703/76, LAT/4249/LA/33 AND LAT/1518/Y/LA/84 which land is subject to litigation in Suit No. ID/2276/96. Between Chika Elile v. Salimonu Kasunmu & Oos; ID/1205/99 Between Ferdison Holdings Ltd &Anor v chika Elile; ID/2244/97 Between Chika Elile v. James Okwudili & Ors; ID/3131/92 Between Chika Elile v. Abideen Durosinmi & Ors. Among other, during the pendency of these suits.

2. Declaration that the acquisition, if any, made by the Lagos State Government on behalf of the 3rd Defendant at the prompting of the other Defendants herein of the said Claimants’ land which is subject of litigation during the pendency of the aforesaid suits in which they are parties is unconstitutional, null and void and of no effect having not followed due process.

3. Declaration that the 3rd Respondent is stopped from seeking/making acquisition of the said claimants’ piece of land for use as Motor Park, having by itself earlier granted the claimants license to use the aforesaid piece of land as Motor Park etc.

4. A Declaration that Government of Lagos State does not have the legal competence to acquire the aforesaid piece of land, same not being within urban area. ?

5. Perpetual Injunction restraining the Defendants from interfering in any way and/or under any guise whatsoever with the Claimants possession and use or enjoyment of the aforesaid piece of land.

6. An Order setting aside any acquisition order, if any made by the Lagos State Government for or on behalf of the 3rd Defendant for any purpose whatsoever during the pendency of suits relating to title of the said land.

The Respondents had by their Originating Summons submitted to the Court below the following questions for determination, namely:

1. Whether the Defendants, who are engaged in litigation with the Claimants over title to the land in dispute in this case, situate at Ojo – Igbede Road, now Ojo – Alaba Road, more particularly described in Survey Plans Nos: LAT/703/76; LAT/4249/83 and LAT/1518/Y/LA/84 can acquire the aforesaid land during the pendency of the actions?

2. Whether the 3rd Defendant having granted approval to the Claimants to build shops etc on the land in dispute and to use portions thereof as Motor Park can subsequently seek to acquire the said land for itself for similar purposes, particularly after the Claimants had spent enormous sums of money in sand – filling and developing the land?

3. Whether the 3rd Defendant who had allowed other persons to convert existing Motor Park in Ojo – Alaba International Market to other uses can now seek to acquire Claimants’ land for use as Motor Park after leading the Claimants to spend enormous sums of money in sand – filling and developing the land?

4. Whether the Claimants are not entitled to relief of injunction against the Defendants as prayed in this suit to prevent interference with their legal rights?

The Respondents’ Originating Summons was supported by an Affidavit of 6 Paragraphs deposed to by one Victor Edem, a Litigation Clerk in the Chambers of the Solicitors for the Respondents, annexed to which were some Exhibits. In response, the Appellant filed a Counter Affidavit of 13 paragraphs deposed to be one Mutiu Rufai an employee of the Appellant. The other Defendants also filed their respective counter affidavits. On 2/6/2007, the Court below duly heard the Originating Summon on the affidavit and counter affidavit evidence and written addresses of the parties and on 13/4/2008, it delivered its ruling in which it granted the claims of the Respondent and made some orders against the Appellant. See pages 1 – 3; 5 – 6; 149 – 161 and 283 – 303 of the record of appeal

BRIEF STATEMENT OF FACTS
The gist of the facts in this appeal is that the Respondents as Claimants alleged that they had acquired various portions of land of Ojo-Igbede Road, now Ojo – Alaba Road, between 1976 and 1984 and had been in occupation of the same even though the land has become the subject matter of various suits pending before the Ikeja Judicial Division of the Court below. In apprehension that some of the Defendants intend to use the instrumentality of the State Government to acquire the land and frustrate the on – going pending cases in Court, respondent had approached the Court below seeking the reliefs in the Originating Summons against the Defendants, including the Appellant as 3rd Defendant.

In the past, the Respondents and the Appellant have had transactions as it relate to the land and the Appellant had accepted various payments whereas the Respondents alleged they have committed substantial sums of money to projects on the land and thus complain against the Appellant for being persuaded by the 6th – 20th Defendants and agreeing with them to apply to the Lagos State Government to acquire the land belonging to the Respondents vide Exhibit G, which is a letter dated 15/2/2005 on the letter ”headed paper of the Appellant and addressed to the Executive Governor of Lagos, whose Chief Law Officer is the 1st Defendant. The 1st and 2nd Defendants filed a 20 paragraph counter-affidavit and alleged that the land of the Appellant differs in location from the land alleged to be in dispute vide Exhibit AG1 and that the Appellant manufactured the various receipts and the survey plans with a view to derailing the cause of justice and that land alleged to be in dispute is unascertainable and unidentifiable.

On the part of the Appellant as 3rd Defendant it alleged that sometime in 2005 a group of public spirited citizens of Nigeria gave some parcel of land to the Appellant to be used for public good via a deed of transfer and that these person also had their registered certificate of occupancy over the donated lands, by virtue of which the Appellant sought and got a certificate of occupancy dated 10/12/2005 and duly registered same. That the claim by the Respondents was in respect of only six acres of lands as against the nine acres of land of the Appellant situate at Ojo – Igbede and was only an attempt to mislead the Court with untruths.

ISSUES FOR DETERMINATION
In the Appellant’s brief, three issues were distilled as arising for determination from three of the six grounds of appeal, namely:
1. Whether the lower Court was not in fatal error in basing its ruling on the issue of Lis Pendens over the land in dispute, rather than the unfettered constitutional right of Lagos State Government to acquire any land for public purpose by virtue of the Land Use Act CAP L 60 LFN 1990, to which its attention was vigorously drawn? (Distilled from ground 1)

2. Whether the lower Court did not exceed its jurisdiction when it held (page 21 of the judgment page 303 of record): ”However it is to be noted that the C of O granted by the 3rd Defendant was made during the pendency of various suites mentioned earlier and it stands suspended and of no effect until a final determination of those suits” When no such relief was claimed by the Claimants?(Distilled from ground 5)

3. Whether the lower Court erred when it assumed jurisdiction over the matter brought by way of Originating Summons in which there are substantial disputes on issues of fact? (Distilled from ground 4)

In the Respondent’s brief, four issues were distilled as arising for determination in this appeal, namely:
1. Whether or not in the circumstances of this case, the lower Court did rightly determine the suit in favor of the 1st and 2nd Respondents as against the argument of the Appellant that the Lagos State Government had statutory right to acquire the subject matter? (Distilled from ground 1)

2. Whether or not the Ruling of the lower Court should be upheld in the light of the order of the Court that the Appellant be restrained from the property and desist from any further innovations or interfering with the land subject matter of various suits?

3. Whether or not the lower Court exceeded its jurisdiction by suspending the Certificate of Occupancy issued in favor of the Appellant on the ground that same was granted in the course of the pendency of the matter and other several suits in relation to the same subject matter. (Distilled from ground 5)

4. Whether or not the lower Court was wrong in assuming jurisdiction in this matter commenced by way of Originating Summons having considered the relief sought and evidence adduced by the Parties (Distilled from ground 4)

Having looked closely at the claims as endorsed on the Originating Summons and the questions submitted to the Court below for determination and having calmly reviewed the copious affidavit and counter affidavit evidence of the Appellant and the Respondents and the submissions of counsel in their respective briefs in the light of the findings in the ruling of the Court below, I think the proper issues for determination in this appeal are the three issues as distilled in the Appellant’s, which are hereby adopted and set down as the three issues for determination in this appeal, a consideration of which would, in my view, involve the due consideration of the Respondents’ issues one, three and four, since issue two as distilled in the Respondents’ brief does not seem to me to arise from any of the six grounds of appeal and thus incompetent and liable to be struck out.

In similar vein, the Appellant having not distilled any issue for determination from grounds 2, 3 and 6, they are deemed abandoned and thus also liable to be struck out. Consequently, grounds 2, 3 and 6 of the grounds of appeal in the Amended Notice of Appeal are hereby struck out for having been abandoned, while Respondents’ issue two is hereby struck out for being incompetent. SeeIyoho V. Effiong (2007) 11 NWLR (Pt. 1044) 31. See also Ikpuku V. Ikpuku (2000) 3 NWLR (Pt. 193) 57; Teriba V. Adeyemo (2010) 13 NWLR (Pt. 1211) 242; Ngilari V. Mothercat Ltd (1993) 8 NWLR (Pt. 311) 377.

ISSUE ONE
Whether the lower Court was not in fatal error in basing its ruling on the issue of Lis Pendens over the land in dispute, rather than the unfettered constitutional right of Lagos State Government to acquire any land for public purpose by virtue of the Land Use Act CAP L 60 LFN 1990, to which its attention was vigorously drawn?

APPELLANT’S COUNSEL SUBMISSIONS
The learned Senior Advocate for the Appellant had submitted that by the reliefs claimed before the Court below by the Respondents as Claimants they purport to challenge the powers of the Lagos State Government, the 2nd Defendant before the Court below, to compulsory acquire land in Lagos State merely because there are cases in Court over the said land and contended that this issue was raised aggressively by the Appellant in its written address before the Court below and several statutory and judicial authorities relied in support but the Court below in its ruling totally ignored these vigorous issues raised on the powers of the Governor of a State to acquire land for public purposes contrary to the position of the law that a Court has a duty to consider and resolve all issues placed before it by the parties, particularly serious issues of law and urged the Court to hold that the failure of the Court below to do so had occasioned a miscarriage of justice on the Appellant and to allow the appeal and set aside the judgment of the Court below. Counsel referred to Section 28 of the Land Use Act CAP L60 LFN, 1990 and relied on Odunukwe V. Ofomata (2010) 18 NWLR (Pt. 1225) 404.

It was further submitted that the grant of the land to the Appellant for public purpose of constructing a multi storey park to serve several functions is for the greater public good and interest than any grounds of complaint by the Respondents and contended that the right of the Government to compulsorily acquire property for public purpose on payment of compensation is constitutional and urged the Court to read and interpret the Land Use Act strict sensu. Counsel referred to S. 44 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and relied on Ikeja Hotels Plc V. LSBIR (2005) FWLR (Pt. 279) 1260 @ p. 1263; Osu V. Peugeot Automobiles Nig, Ltd (2002) FWLR (Pt. 122) 126; Goldmark (Nig) Ltd V. Ibafon Coal Ltd (2012) 10 NWLR (Pt. 1308) 291 @ p. 356; Elegushi V. Oseni (2005) 14 NWLR (Pt. 945) 348 @ p. 375; Titiloye V. Olupo (1991) 7 NWLR (Pt. 205) 519; Kokoro – Owo V. Lagos State Government (2001) 11 NWLR (Pt. 723) 237; Oviawe V. Integrated Rubber Products Ltd (1997) 3 NWLR (Pt. 492) 126; FGN V Akinde (2013) 7 NWLR (Pt. 1353) 349 @ p. 368.

It was also submitted that the Respondents whose alleged title has not been determined, cannot in law question any act of acquisition or nullification and a fortiori, revocation of a certificate of occupancy and contended that the doctrine of lis pendens heavily relied upon by the Respondents and applied in error by the Court below will only become relevant in determining who among the litigants in the pending cases is entitled to compensation or any other remedy following an acquisition but cannot diminish the power of a Governor to acquire land and urged the Court to hold that in law the doctrine of lis pendens merely operates to warn all persons that certain property is the subject matter of litigation and that any interest acquired during the pendency of the suit are subject to its outcome and to allow the appeal, set aside the ruling of the Court below and dismiss the Respondents’ suit for lacking in merit. Counsel referred to Blacks Law Dictionary, 8th Edition @ p. 950.

RESPONDENTS’ COUNSEL SUBMISSIONS
On his issue one, learned counsel for the Respondents had submitted that the Lagos State Government was utterly wrong to have taken over the subject matter belonging to the Respondents and giving same to the Appellant without due process of land acquisition as required by law and contended that every citizens of Nigeria has the constitutional right to own property and use same anywhere in Nigeria, though this right to own immovable property may not be absolute as same may be acquired for public purpose by the Government in line with due process of law requiring notice, payment of compensation and publication in a gazette and urged the Court to hold that any acquisition against the due process of law is liable to set aside by the Court at the instance of the person who has been deprived of his property. Counsel referred to Sections 43 and 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Sections 28 (1) and 29 of the Land Use Act 1978 and relied on Provost V. Edun (2004) 4 MJSC 94 @ pp. 116 – 117; Ibafon Co. Ltd V. Nigeria Port Authority (2000) 8 NWLR (Pt. 667) 86 : p. 101.

It was further submitted that from the Constitution and statutory provisions governing acquisition of private property by the Government, the Respondents? land, the subject matter of this appeal, was compulsorily but wrongfully taken over or acquired by the Lagos State Government without compliance with due process or procedure as laid down by the law and contended that there was no evidence showing any documentations of the procedural steps taken by the Government of Lagos State for a valid acquisition of the Respondents’ property as required by law and urged the Court to hold that the power of the Lagos State Government to acquire private property is not unfettered and must be done only in compliance with the due process of law and to affirm the ruling of the Court below setting aside the wrongful exercise of the power of acquisition over the Respondents’ property, even without any prior revocation of their rights as evidenced by a certificate of occupation, by the Government of Lagos State. Counsel referred to Section 5(2) and 28 of the Land Use Act LFN 2004 (as amended) and relied on Dantsoho V. Mohammed (2003) 6 NWLR (Pt. 817) 457; Provost V. Edun (Supra); CCS Bookshop Ltd V. Registered Trustees of Muslim Community in Rivers State (2006) 11 NWLR (PT. 992) 530 @ pp. 567-568.

It was also submitted that the application of the doctrine of lis pendens by the Court below was apt and it arrived at a just decision in the circumstances of the case by suspending the certificate of occupancy wrongfully issued to the Appellant while several suits are pending over the said property and contended that the doctrine of lis pendis is aimed at preserving the res, the subject matter of a pending suit to prevent any effective transfer of right in any such property or revocation of such right by the Government over a property which is the subject matter of an action pending in the Court and thus prevents the granting title to the opposing party or in the case of the Government by unwittingly revoking the rights of occupancy on the basis that title was divested before the decision of the Court is reached and urged the Court to affirm the ruling of the Court below and dismiss the appeal for lacking in merit. Counsel relied on Haruna V. Kogi State House of Assembly (2010) 7 NWLR (Pt. 1194) 604) @ p. 657.

It was also further submitted that going by the scope of the doctrine of lis pendens as denoting those principles which reinforces the operation of the common law maxim to the effect that nothing relating to the subject matter of a suit should be changed and contended that since the subject matter of this appeal was already a subject matter in other pending suits, there was need for the Court below as it did rightly to determine the suit on the application of the doctrine of lis pendens rather than relying on the provision of the Land Use Act which empowers the State Governor to revoke a right of occupancy subject to the provision of the Constitution and urged the Court to affirm the correct decision of the Court below and to dismiss the appeal for lacking in merit. Counsel referred to Sections 1 and 28 of the Land Use Act and Section 44 (1) of the Constitution of Nigeria 1999 (as amended) and relied on Haruna V. Kogi State House of Assembly (Supra); Dantsoho V. Mahummed (Supra).

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply on law, learned Senior Advocate for the Appellant submitted that in law it is as conceded by the Respondents’ counsel that the fundamental right of every citizen to own an immoveable property may not be absolute as the Government may truly have need to acquire a private land but in compliance with due process of law and contended that on the face of this serious issue of law raised by the Appellant, Court below fell into a grave error when it failed to consider and resolve it in its ruling appealed and urged the Court to set aside the ruling and allow the appeal. Counsel relied on Odunukwe V. Ofomata (2010) 18 NWLR (Pt. 1225) 404 @ p. 435.

It was further submitted that the Court below having found as fact that there was no acquisition of the property in dispute by the Government of Lagos State lacked the jurisdiction to make any order or finding against none existent acquisition other than to dismiss the Respondents? suit and contended that the Court below is bound by its finding that there was no acquisition and until it is set aside on appeal it remains binding on it and on the parties and urged the Court to allow the appeal and set aside the ruling of the Court below. Counsel relied on Okoli V. Morecab Finance (Nig) Ltd (2014) 17 NWLR (Pt. 1437) 499.

RESOLUTION OF ISSUE ONE
My Lords, issue one deals firstly with the once knotty but now well settled position of the law on the duty of Courts to consider and pronounce on all issues submitted before it by the parties for determination, and secondly with the scope of the operation of the doctrine of lis pendens in our civil jurisprudence.

The Respondents as Claimants had submitted before the Court below some questions for determination and claimed some reliefs against the Appellant as 3rd Defendant and some other Defendants, including the 1st and 2nd Defendants, who are the Attorney General of Lagos State and the Government of Lagos respectively. The parties filed and exchanged affidavits and counter affidavits and one of the issues raised principally by the Appellant and the 1st and 2nd Defendants before the Court below was the issue of the powers of the Government of Lagos State to compulsorily acquire upon compliance with due process of law a private property for public purposes under the Land Use Act 1978.

At the conclusion of hearing of the parties on the Originating Summons, and the affidavit and counter affidavit of the parties, the Court below found for the Respondents and held inter alia as follows:
” The main issue raised before this Court and which constitutes its essence is that of pendency of action. It is clear from the affidavits before the Court that there are at least five suits involve land at Ojo – Igbede Road (also known as Ojo – Alaba Road also known as Ojo – Alaba International Market Road). ”

Despite the monotony of digression into the realm of title as the premise upon which this suit rests, it is clear to me from the counter – affidavit of the Respondents that this suit is not in respect of title but is founded upon the legal principle of lis pendens….This Court has not been asked to determine title to the property in dispute. The main relief is for a declaration that the subject matter of various suits is lis pendens. I find and hold that there are five cases in Court over the property described by the Claimants and confirmed in the affidavit of the 7th, 8th and 9th Defendants. Lis pendens is the jurisdiction/power and/or control of the Court over property the subject matter of an action whilst the suit is pending. In short, a pending law suit. The dispute in respect of the land has been on since 1996. The earliest suit had been filed in 1992, none of these suits is as of today concluded. The effect is that the land in dispute has been under the jurisdiction, power or control of the courts since 1992 and any of the parties who dealt with it in any manner is an intermeddler and his action unlawful and wrongful.

For this reason, I make a declaration that the property described on survey plains: no LAT/703/76; LAT/4249/83 and LAT/1518/Y/LA/84 which land is the subject matter in Suits No. ID/3131/92; ID/2276/96. ID/2244/97 and ID/1205/99 are subject to the jurisdiction, power and control of the Court and are lis pendens. See pages 300 – 30 of the record of appeal.

The complaint of the Appellant here is that the Court below did not consider and or pronounce on this issue of the powers of the Government of Lagos State to compulsorily acquire a private property in line with due process of law as raised by the Appellant in its counter affidavit and written address before the Court below. Now, from the tenor of the submissions of the Respondents’ counsel to the effect that since the subject matter of the Respondents’ suit was also a subject matter in other pending suits, there was need for the Court below to determine the suit on the application of the doctrine of lis pendens rather than relying on the provision of the Land Use Act 1978, presupposes and concedes the position as alleged by the Appellant that the issue of the powers of the Government of Lagos State to acquire private property was neither considered nor pronounced upon by the Court below.

However, it was contended for the Respondents that there was no need for the Court below to have relied upon the Land Use Act 1978 since the issue of the operation of the doctrine of lis pendens sufficiently and adequately disposed off the issues under consideration in the Respondents? suit. This, to my mind, is the real crux of issue one!

It is settled law that a Court must consider and pronounce on all issues arising and properly submitted before it for determination by the contending parties. Generally therefore, or should I say usually, issues for determination are formulated by the parties and or the Court. Thus, a Court is at liberty and possesses the jurisdiction, to modify or reject all or any of the issues formulated by the parties, and frame its own issues or reframe the issues formulated by the parties, if in its view such issues will not lead to a proper determination of the case.

It is thus no longer in doubt that a Court is enjoined to pronounce, as a general rule, on all issues properly arising and placed before it for determination in order to arrive at the justice of the case and to afford the parties their right to have their issues submitted to the Court to be fairly considered and determined according to law. However, to every general rule there are exceptions and thus where the issue is subsumed in another issue or is found to be irrelevant or inapt or merely obfuscating the real issues for determination, it shall not be necessary for the Court to make separate pronouncement on either each of such subsumed issues or on irrelevant and inapt issues. See Sha (Jnr) V. Kwan (2000) 8 NWLR (Pt. 670) 685 @ pp. 691 – 692. See also Ogba V. Onwuzo (2005) 14 NWLR (Pt. 945) 331; Spring Bank Plc V. Dokkin Ventures Nigeria Limited (2012) LPELR 7983(CA); Uzuda & Ors V. Ebigah (2009) 8 – 9 NMLR 409 @ p. 422; Akpan V. The State (1992) 6 NWLR (Pt. 248) 431; Brawal Shipping Ltd. V. Onwadike (2000) 6 SCNJ 508 @ p. 522; Orji V. PDP (2009) 14 NWLR (Pt. 1161) 310 @ p. 408; Karibo V. Grend (1992) 3 NWLR (Pt.230) 426 @ p. 441; Osasona V Ajayi (2004) 14 NWLR (Pt. 894) 527 @ p. 549; Okonkwo V. Udoh (1997) 9 NWLR (Pt. 579) 16 @ p. 20.

It is thus now firmly settled in law that a deliberate failure by a Court to consider all pertinent and relevant issues arising from and submitted by a party would readily and justifiably be characterized as amounting to a failure to perform its statutory duty and a breach of the right to fair hearing of the party. See AG Federation V. Nse (2016) LPELR- 40518 (CA). See also Adebayo V. AG of Ogun State (2008) 7 NWLR (Pt. 1085) 201; Dawodu V. National Population Commission (2000) 6 WRN 116 @ p. 118; Oyediran V. Amoo (1970) 1 ANLR 313 @ p. 317; Ojogbue V. Nnubia (1972) 6 SC 227; Atanda V. Ajani (1989) 13 NWLR (Pt. 111) 511 @ p. 539; Okonji V. Njokanma (1991) 7 NWLR (Pt. 202) 131 @ pp. 150 ? 152; Katto V. CBN (1991) 9 NWLR (Pt. 214) 126 @ p. 49; Ovunwo V. Woko (2011) 17 NWLR (Pt. 1277) 522 @ pp. 546 – 547.

My Lords, I am aware that in law there is no specific format for Judges to follow in writing their rulings and judgments as they are each entitled to adopt their individual style in writing their rulings and judgments so long as such a ruling or judgment contains the issues or questions to be decided in the case; the essential facts of the case of each party and the evidence led in support; the resolution of the issues of fact and law raised or submitted by the parties; the conclusion or general inference drawn from facts and law as resolved; and the verdict and orders made by the Court, it is a good ruling or judgment. Indeed some judges write in flowery languages while others write in simple languages but in all, notwithstanding the style employed, once the constituents of a good ruling or judgment are manifest the judge has discharged his duty of writing a good ruling or judgment and once the decision reached by the trial Court is correct and in conformity with laid down principles, the facts and the dictates of justice of the case, then the style adopted in writing the ruling or judgment ceases to be of any significance or importance. See Eyo V. Inyang (2001) 1 NWLR (Pt. 715) 1, where it was reiterated inter alia thus:
”A trial Court is entitled to follow its own method of considering or weighing the totality of the evidence before it provided the final decision arrived at by whatever method conform with principles laid down in the case and the justice of the case.”

See also Jekpe V. Alokwe (2001) 8 NWLR (Pt. 715) 252, where Ogwuegbu JSC., had opined inter alia thus:

“It must be emphasized that there is no set style which must be followed by trial Courts when writing judgments. Judges must no doubt differ in the procedure and style, which they adopt in their consideration of the entire evidence. It is not very material whether the Judge starts with the consideration of the defendant’s case before that of the plaintiff and vice versa. What is important is that he should first of all put the whole evidence led by the parties on that imaginary scale. He will put the evidence adduce by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier by the quality or probative value of the testimony as against the quality or number of the witnesses. After this, the judge applies the law, if any, before he comes to his final conclusion based on the accepted evidence.”

I have taken a calm look at the ruling of the Court below as touching on the complaint of the Appellant over the non consideration and pronouncement on the issue of the effect of the Land Use Act 1978 on the claims of the Respondents and it does appear to me that the Court below in its zeal to whip the Appellant and the other Defendants into line, at the instance of the Respondents over the subject matter of the suit which was already the subject matter of other pending several suits, overzealously but gravely failed to and brushed aside the issue of the effect of land use Act 1978 in the entire gamut of its ruling. See Section 28 of the Land Use Act CAP L60 LFN, 1990. See also Section 44 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See further Ikeja Hotels Plc V. LSBIR (2005) FWLR (Pt. 279) 1260 @ p. 1263; Osu V. Peugeot Automobiles Nig, Ltd (2002) FWLR (Pt. 122) 126; Goldmark (Nig) Ltd V. Ibafon Coal Ltd (2012) 10 NWLR (Pt. 1308) 291 @ p. 356; Elegushi V. Oseni (2005) 14 NWLR (Pt. 945) 348 @ p. 375; Titiloye V. Olupo (1991) 7 NWLR (Pt. 205) 519; Kokoro – Owo V. Lagos State Government (2001) 11 NWLR (Pt. 723) 237; Oviawe V. Integrated Rubber Products Ltd (1997) 3 NWLR (Pt. 492) 126; FGN V Akinde (2013) 7 NWLR (Pt. 1353) 349 @ p. 368.

Now, whether the issue raised by the Appellant that the Government of Lagos State has the power to compulsorily acquire the subject matter of the Respondents’ suit while the suit was pending has merit or not is not the issue in contention in this appeal but that the Court below was under a duty, indeed an obligation, to consider and pronounce on the issue since it is not in any way irrelevant or subsumed in the issue of doctrine of lis pendens raised by the Respondents. In law, a failure by a Court to consider and pronounce upon relevant and pertinent issue properly submitted to it for consideration and determination by the parties or either of them would amount to a failure to discharge its duty and in deserving cases can lead to a miscarriage of justice rendering such a decision liable to be set aside on appeal as is the case in the instant appeal.

Consequently, I hold that the failure of the Court below to consider and pronounce on the issue raised by the Appellant as touching on the powers of the Government of Lagos State under the Land Use Act 1978 to compulsorily acquire private property in compliance with due process of law is fatal to the decision of the Court below and had indeed occasioned a miscarriage of justice to the Appellant. See Odunukwe V. Oformata (2010)18 NWLR (Pt. 1225) 404 @ p. 435.

Let me now proceed to consider the second aspect of issue one which deals with the scope of operation of the doctrine of lis pendens and which was heavily relied upon by the Court below in finding for the Respondents in its ruling appealed against to this Court by the Appellant in this appeal.

My Lords, I think the time is coming and now is the time when the finer principles of the doctrine of lis pendens need to be properly explained and illustrated to guide trial Courts of its application. Firstly, it is not to be used as a sword to give rise to a distinct cause of action but rather it is a shield by which a successful party in litigation could without the necessity of instituting a fresh action in another Court against a third party who had purchased the subject matter of the pending suit can have such a purchase nullified. Let me explain and illustrate the operation of the doctrine of lis pendens as I understand it!

If A and B, are in Court litigating over the ownership of property C and while the suit is pending B purports to convey the said property to D. By the operation of the doctrine of lis pendens D would take the property C sold to him by B, a party to the pending litigation, subject to the outcome of the pending suit. Thus, if B loses in the pending suit, D would have nothing in the subject matter of the suit then adjudged to belong to A.

However, should B win the pending suit then the sale to D would be valid. It follows therefore, unless and until the pending suit is determined one way or the other and the ownership of the property by one of the parties is determined, none of the party to the ligation can secure an order nullifying a transaction made lis pendens, as to do so would clearly, in my view, presupposes that the party has been determined the owner of the property in dispute even before the determination of the pending suit over the subject matter. Thus, the legal effect of the doctrine of lis pendens is most aptly described in the warning ”buyer beware”, as it is the buyer who truly stands to lose everything should the party who had conveyed to him the subject matter of a pending suit turns out to lose the suit at the end of the day. See Blacks Law Dictionary 8th Edition @ p. 950.

The above recreated or illustrated scenario is akin to what played out in the celebrated case of Amaechi V. INEC (Supra). In that case, if the doctrine of lis pendens were to operate as a sword to nullify transactions touching on the subject matter of a pending suit before the determination of the suit, then the Election of the then Governor of Rivers State, Sir Celestine Omehia, would have been nullified even before the final determination of the pending matter instituted by Rt. Hon Chibuike Rotimi Amaechi challenging his wrongful substitution by the PDP, since the Governorship Election had proceeded to hold while the said suit was pending. Thus, it was only on the final determination of the suit and the confirmation of the right of Rt. Hon Chibuike Rotimi Amaechi to fly the Governorship ticket of the PDP rather than the then Governor, Sir Celestine Omehia, that the Supreme Court, in its supreme wisdom, consequentially declared Rt. Hon Chibuike Rotimi Amaechi as the person who had contested the Governorship Election and ought to be sworn in as the Governor of Rivers State and he was consequently so sworn in as the duly elected Governor of Rivers State.

Now, care must be taken to distinguish between the doctrine of lis pendens and the operation of mandatory orders geared towards restoring parties to the status quo when a precipitate action has been taken by one party over the subject matter of a pending suit. In the latter case, that is mandatory order, which appears to be what the Court below made by suspending the Certificate of Occupancy issued to the Appellant by the Governor of Lagos State during the pendency of the several suits over the ownership of the subject matter of this suit, a party who enters upon land, the subject matter of a pending suit to carry out activities thereon, with or without a formal order of injunction, while an application for injunction was pending, could have whatever activities he had carried out on the land, the subject matter of the pending suit, removed by an order of mandatory injunction by the Court seised of the matter. See the decision of the Court of Appeal of England in Daniel v. Ferguson (1891) 2 CH.D 27, cited with approval by this Court in Ojukwu V. Governor of Lagos State (1985) 2 NWLR (Pt. 10) 806 @ p. 523. See also Vaswani Trading Co. V. Savalakh & Co. (1972) 1 All NLR 483 @ (P. 487); Ezegbu V. FATB Ltd (1992) 1 NWLR (Pt. 220) 696; AG. Anambra State V. Okafor (1992) 2 NWLR (Pt. 224) 396 @ p. 426.

In Sunday & Ors V. Bank PHB & Ors (2016) LPELR ? 41466 (CA) @ pp. 24 – 25, I had in my contribution to the lead judgment opined inter alia thus:
”It is true that generally it is not permissible for a party to an action pending before the Court to take precipitated action aimed at destroying or changing the ownership status of the subject matter of a pending suit and thereby not only stealing a match on the other party but also pre-empting the yet to be given decision of the Court in the pending suit.”

Again in General Telephone and Electronics Limited V. Asset Management Corporation of Nigeria (2017) LPELR 43558 (CA) @ pp. 15 -16, I had addressed the issue of lis pendens inter alia thus:
”I thought I should state right away that the doctrine of lispendens’ in law it neither renders the transaction illegal, null and void?.but rather it makes whatever interest allegedly acquired in the subject matter of a pending suit subject to the outcome of the suit, such that if the party who carried out the transaction or sale with the none party loses the suit, then the transaction or sale is rendered a nullity but in the event that the party succeeds in the suit, then the transaction or sale is validated and takes effect between the parties that had duly entered into it.”

See also Amaechi V. INEC (2008) 5 NWLR (Pt. 1080) 227; Military Governor of Lagos State V. Ojukwu (2007) 39 WRN 155; Obi V. INEC (2007) 9 MJSC 1.

I can hardly envisage even in such scenario how the party affected by the adverse activities of the other party to the suit would, as done by the Respondents in this appeal, approach another Court of coordinate jurisdiction to institute a fresh suit to restore or preserve the subject matter of a suit pending before another Court. It is clearly preposterous so to do! The Court below was thus in grave error when, without the due determination of the ownership of the subject matter of the suit, which is already the subject matter of several suits pending before other Courts of coordinate jurisdiction, it proceeded to so erroneously applied the inapplicable doctrine of lis pendens to suspend and or nullify the Certificate of Occupancy issued in favour of the Appellant at a time when the right of the Respondents over the subject matter of the suit was yet to be determined by the Courts before which those cases were then still pending.

It appears to me to be a precipitate and premature determination of the right of ownership of the subject matter of the suit in favour of the Respondents when the rights of the parties to the said subject matter was still pending in several suits before other Courts of coordinate jurisdiction to the Court below. In the light of all I have stated and found above, I hereby resolve issue one in favor of the Appellant against the Respondents.

ISSUE TWO
Whether the lower Court did not exceed its jurisdiction when it held thus: ”However it is to be noted that the C of O granted by the 3rd Defendant was made during the pendency of various suites mentioned earlier and it stands suspended and of no effect until a final determination of those suites’ when no such relief was claimed by the Claimants”

APPELLANT’S COUNSEL SUBMISSIONS
Learned Senior Advocate for the Appellant had submitted that the Court below was in error when going by the reliefs claimed by the Respondents it granted a relief not claimed by the Respondents by making an order suspending the certificate of occupancy granted to the Appellant by the Lagos State Government and declaring it to be of no effect until the determination of some suits pending over some lands and contended that in law the Court below not being a ”Father Christmas” and having refused relief number six lacked the jurisdiction to make an order in respect of a matter not placed before it or a relief not claimed by the Respondents and urged the Court to allow the appeal and set aside such an erroneous order made by the Court below without jurisdiction. Counsel relied on Ativie V. Kabelmetal (Nig.) Ltd (2008) 10 NWLR (Pt. 1095) 399 @ p. 414; Okubule V. Oyagbola (1990) 4 NWLR (Pt. 147) 723 @ p. 744; Kalio V. Kalio (1975) 2 SC 15; Olurotimi V. Ige (1993) 8 NWLR (Pt. 311) 271; Union Beverages v. Owolabi (1988) 1 NWLR (Pt. 68) 128 @ p. 123; Nigerian Housing Development Society Ltd and Anor V. Mumuni (1977) 2 SC 57 @ p. 81; Nigeria Air Force V. Shekete (2002) 18 NWLR (Pt. 798) 129 @ p. 151; Ugo V Obiekwe (1989) 1 NWLR (Pt. 99) 566.

RESPONDENTS’ COUNSEL SUBMISSIONS
On his issue three, which is similar to Appellant’s issue two, learned counsel for the Respondents had submitted that Court below having decided the suit before it on the principle on lis pendens as necessitated by the surrounding circumstances was right in law to have suspended the certificate of occupancy granted to the Appellant by the 2nd Defendant before the Court below as same was granted and obtained in the pendency of the suit before the Court below and the parties ought to have maintained status quo and urged the Court to affirm the order made by the Court below and to dismiss the appeal for lacking in merit. Counsel relied on Oronti V. Onigbanjo (2012) 5-7 MJSC (Pt. 111) 56 @ p. 84;

It was further submitted that the suit before the Court below was commenced by means of an Originating Summons and the Appellant was a party to the suit at the time and yet applied and obtained a subsequent certificate of occupancy dated 10/12/2005 on the subject matter in dispute even when it had actual notice of the matter pending in Court in which itself was a party and contended that in law the Appellant ought to have maintained the status quo ante bellum as it is contemplated under the doctrine of lis pendens pending the determination of the suit and urged the Court to hold that the doctrine of lis pendens operates to prevent the effective transfer of title as well as rendering the certificate of occupancy unlawfully obtained during the pendency of the suit liable to be set aside or suspended as was rightly done by the Court below in the exercise of its jurisdiction to hear and determine the matter as a consequential order, which would eventually restrain the 3rd Defendant and to affirm the said consequential order of the Court below and dismiss the appeal for lacking in merit.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply on law, learned Senior Advocate for the Appellant submitted that the making of an order suspending the certificate of occupancy granted to the Appellant by the Governor of Lagos State was not one of the six reliefs claimed or issues placed by the Respondents before the Court below and since the law the Court below lacked the jurisdiction to grant a relief not claimed, the Court below was in error to make such an order not asked for the Respondents and urged the Court to set aside such an order made against the Appellant without jurisdiction by the Court below and to allow the appeal. Counsel relied on I. S. I. E. C V. Ehirin (2013) 5 NWLR (Pt. 1340) 169 @ p. 183; Okubule V. Oyagbola (1990) 4 NWLR (Pt. 147) 723 @p. 744; Olurotimi V. Ige (1993) 8 WLR (Pt. 311) 271.

RESOLUTION OF ISSUE TWO
My Lords, issue two deals with the well settled position of the law that while a Court of law has the jurisdiction and power to grant either what was asked for or less than what was asked for by a party, it has no jurisdiction or power whatsoever to grant either more than what was asked for or what was not asked for at all by a party.

In the Originating Summons, the Respondents as Claimants were very clear and unequivocal as to the reliefs they claimed against the Defendants, including the Appellant, upon the determination of the four questions posed by them to the Court below. The reliefs, which had earlier been set out in this judgment, are hereunder reproduced to keep them in proper focus and to aid proper analysis. They are as follows:

1. A Declaration that the Lagos State Government and 3rd Defendant is not entitled to acquire the claimants land situate at OjoIgbode Road (now Ojo-Alaba Road) more particular described in survey Plan Nos: LAT/703/76, LAT/4249/LA/33 AND LAT/1518/Y/LA/84 which land is subject to litigation in Suit No. ID/2276/96. Between Chika Elile v. Salimonu Kasunmu & Ors; ID/1205/99 Between Ferdison Holdings Ltd &Anor v/ chika Elile; ID/2244/97 Between Chika Elile v. James Okwudili Ors; ID/3131/92 Between Chika Elile v. Abideen Durosinmi & Ors. Among other, during the pendency of these suits.

4. A Declaration that Government of Lagos State does not have the legal competence to acquire the aforesaid piece of land, same not being within urban area.

5. Perpetual Injunction restraining the Defendants from interfering in any way and/or under any guise whatsoever with the Claimants possession and use or enjoyment of the aforesaid piece of land.

The four questions posed by the Respondents for determination by the Court below, have also been earlier set out in this judgment but, are hereby again reproduced for proper focus as follows:
1. Whether the Defendants, who are engaged in litigation with the Claimants over title to the land in dispute in this case, situate at Ojo – Igbede Road, now Ojo – Alaba Road, more particularly described in Survey Plans Nos: LAT/703/76; LAT/4249/83 and LAT/1518/Y/LA/84 can acquire the aforesaid land during the pendency of the actions?

3. Whether the 3rd Defendant who had allowed other persons to convert existing Motor Park in Ojo – Alaba International Market to other uses can now seek to acquire Claimants? land for use as Motor Park after leading the Claimants to spend enormous sums of money in sand – filling and developing the land?

4. Whether the Claimants are not entitled to relief of injunction against the Defendants as prayed in this suit to prevent interference with their legal rights?

It was on the strength of the above four questions for determination and the reliefs sought by the Respondents that the parties joined issues in their affidavits and counter affidavits evidence before the Court below. In its ruling, the Court in finding for the Respondents against the Defendants, including the Appellants had held and ordered inter alia as follows:

”The 1st and 2nd Respondents have denied making an acquisition and this is confirmed by Exhibit AG2 which is a letter of the Claimants’ solicitors. There is no proof of an acquisition by the Lagos State Government and the second relief sought is thus refused. However, I would and do make a declaration that the Lagos State Government is stopped from seeking/making acquisition of the property in dispute for any purpose whatsoever as it runs contrary to the principle of lis pendens that any novation should be introduce into a matter that is pending before a Court.

The Claimants have failed to put before the Court any law or legal authority that excludes non-urban areas from the power of the state to acquire land. The fourth relief claimed is thus refused.

This suit has been fought on the legal doctrine of lis pendens and not on title to land. I do hereby grant an order of injunction restraining the Defendants in this suit particularly the 3rd Defendant from further introducing any novation or interfering with the land the subject matter of various disputes from the date of this order. The sixth relief being sought is the setting aside of the acquisition order if any. Counsel for the Claimants has not shown any acquisition notice and he is himself unsure that there is an acquisition notice thus his use of the phase ”if any”.

The Court will not make an order based on a mere speculation. This leg of the reliefs is also refused. However it is to be noted that the C of O granted by the 3rd Defendant was made during the pendency of the various suits mentioned earlier and its stands suspended and of no effect until the final determination of those suits.” See pages 301 – 302 of the record of appeal.

Now, it is in the light of the above findings and orders made by the Court below that the Appellant had under issue two raised the question of absence of jurisdiction and powers in the Court below to grant or make an order suspending the Certificate of Occupancy issued to the Appellant by the 1st and 2nd Defendants, which it contended amounted to the granting of a relief not asked for by the Respondents against any of the Defendants, including the Appellant and had urged the Court to set aside such an order made without jurisdiction by the Court below.

In response, it was contended for the Respondents that the Court below had the jurisdiction and was thus in order when it made the order suspending the Certificate of Occupancy granted to the Appellant by the 1st and 2nd Defendants while the several suits over the said subject matter were pending in Courts under the apt application of the doctrine of lis pendens as consequential order to give effect to its decision.

My Lords, generally and I think it is now settled law that except for consequential orders made to give effect to a ruling or judgment of a Court, no Court has the jurisdiction or power to grant a relief not claimed by a party. So, was the order by the Court below suspending the Certificate of Occupancy issued to the Appellant by the Government of Lagos State, during the pendency of several suits over the subject matter and declaring it to be of no effect until the determination of those suits pending over the land in dispute, one of the six reliefs claimed by the Respondents against the Defendants, including the Appellant or does it amount to a consequential order to give effect to the decision of the Court below? A Court of law, it must be reiterated, lacks the jurisdiction to make an order in respect of a matter not placed before it or grant a relief not claimed by a party before it. See Ativie V. Kabelmetal (Nig.) Ltd (2008) 10 NWLR (Pt. 1095) 399 @ p. 414; Okubule V. Oyagbola (1990) 4 NWLR (Pt. 147) 723 @ p. 744; Kalio V. Kalio (1975) 2 SC 15; Olurotimi V. Ige (1993) 8 NWLR (Pt. 311) 271; Union Beverages V. Owolabi (1988) 1 NWLR (Pt. 68) 128 @ p. 123; Nigerian Housing Development Society Ltd and Anor V. Mumuni (1977) 2 SC 57 @ p. 81; Nigeria Air Force V. Shekete (2002) 18 NWLR (Pt. 798) 129 @ p. 151; Ugo V Obiekwe (1989) 1 NWLR (Pt. 99) 566.

In Garuba V. KIC Ltd (2005) 5 NWLR (Pt. 917) 160 @ p. 170, the Supreme Court per Oguntade JSC., had opined inter alia thus:
”It is the law generally that a Court not being a charitable institution would not grant to a party a relief not claimed from Court? Even if the trial Court had been minded to grant the Plaintiff an award, there was no claim before it upon which to hinge such an award. It is trite that an appellate Court cannot grant a party a relief which that party has not sought from the court of trial.”

However, in Amaechi V. INEC (2008) 5 NWLR (Pt. 1080) 227 @ p. 235, the Supreme Court per Musdapher JSC., had reiterated the power of a Court to make consequential order, which need not be specifically claimed by a party, stating inter alia thus:
”It is the law even where a person has not specifically asked for a relief from a Court, the Court has the power to grant such a relief as a consequential relief. A consequential order must be one made giving effect to the judgment which it follows. It is not an order made subsequent to a judgment?It is settled law that Court can order an injunction even if it not specifically claimed but appears incidentally necessary to protect established rights.”

See also Atolagbe V. Shorun (1985) 1 NWLR (Pt. 2) 360; Okupe V. FBIR (1974) I NMLR 422; Liman V. Mohammed (1999) 9 NWLR (Pt. 617) 116.

In law, the claim of a party is circumscribed by the reliefs claimed and thus the duty of a Claimant, as well as a Counter Claimant, is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. He may, at the end of the day obtain all the reliefs claimed or less but he will never get more than he claimed or obtain reliefs not claimed by him. See Ativie v. Kabelmetal (Nig.) Ltd (2008) 10 NWLR (Pt. 1095) 399 @ p. 414. See also Okubule V Oyagbola (1990) 4 NWLR (Pt. 147) 723 @ p. 744; Kalio V. Kalio (1975) 2 SC 15; Olurotimi V. Ige (1993) 8 NWLR (Pt. 311) 271; Union Beverages V. Owolabi (1988) 1 NWLR (Pt. 68) 128 @ p. 123; Nigerian Housing Development Society Ltd and Anor V. Mumuni (1977) 2 SC 57 @ p. 81; Ugo V Obiekwe (1989) 1 NWLR (Pt. 99)566.

In Nigeria Air Force V. Shekete (2002) 18 NWLR (Pt. 798) 129 @ p. 151, the Supreme Court per Tobi JSC (God bless his soul) had state succinctly on this issue inter alia thus:
”It is elementary law that a Court of law cannot grant a party relief not sought. A Court of law cannot grant as applicant prayer not sought. A Court of law can only grant a relief or prayer sought. The moment a Court of law grants a relief or prayer not sought by the party, it expands the boundaries of the litigation and unnecessarily instigates more litigation to the detriment of the parties, and for no reason at all. The litigation is for the parties and not the Court. Therefore the Court has no jurisdiction to extend or expand the boundaries of the litigation beyond what the parties have indicated to it. In other words, the Court has no jurisdiction to set up a different or new case for the parties.”

Having sufficiently averted my mind to the succinct principles of law as above and having taken time to calmly scrutinize the entire six reliefs claimed by the Respondents against all the Defendants before the Court below, including the Appellant, coupled with the four questions posed by the Respondents for the determination of the Court below and the entire gamut of the affidavits evidence of the Respondents, I find and I so hold that there was nowhere the Respondents claimed any relief of suspension of the Certificate of Occupancy of the Appellant until the pending suits over the land in dispute are finally determined as ordered by the Court below in the ruling appealed against. I also hold, and very firmly too, that looking and considering the six reliefs claimed and the affidavit evidence of the Respondents, the order made by the Court below suspending the Certificate of Occupancy of the Appellant is not and cannot be a consequential order as it is clearly a substantive relief not claimed by the Respondents. In the circumstances therefore, I hold that the Court below lacked the jurisdiction and power to make the order not sought by the Respondents against the Appellant and in law such an order made by the Court below without jurisdiction is a nullity and thus liable to be set aside. Consequently, issue two is hereby resolved in favor of the Appellant against the Respondent.

ISSUE THREE
Whether the lower Court erred when it assumed jurisdiction over the matter brought by way of Originating Summons in which there are substantial disputes on issues of facts?

APPELLANT’S COUNSEL SUBMISSIONS
Learned Senior Advocate for the Appellant had submitted that the Court below in arriving at the finding that the Respondents’ suit was properly commenced by means of Originating Summons was in error as such a finding failed to properly consider the conflicting issues of fact placed before it by the various parties amounting to 24 parties and the numerous conflicting affidavits and counter affidavit and contended that for an Originating Summons supported by a 6 paragraph affidavit and of which paragraph 3 sub – paragraphs a – q and various exhibits coupled with a 20 paragraphs counter affidavit by the 1st and 2nd Defendants before the Court below and another counter affidavit of 13 paragraphs by the Appellant, and in which the Respondents as Claimants had sought to prove their right to ownership of the land in dispute, the Originating Summons procedure was most unsuitable and improper contrary to the erroneous decision of the Court below and urged the Court to hold that the Respondents’ suit was incompetent to be determined upon an Originating Summons and ought to have been commenced by means of Writ of Summons and determined on the pleadings and evidence thereon of the parties and to allow the appeal and set aside the ruling of the Court below. Counsel relied on Famfa Oil Ltd V A.G Federation (2003) 18 NWLR (Pt. 852) 453 @ p. 467; Jev V. Iyortyom (2014) 14 NWLR (Pt. 1428) 575 @ p. 615; Nwosu V. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688.

RESPONDENTS’ COUNSEL SUBMISSIONS
On his issue four, which is similar to Appellant’s issue three, learned counsel for the Respondents had submitted that the contention by the Appellant that the Court below ought to have assumed jurisdiction over the claims of the Respondents commenced by means of Originating Summons was misconceived in that the jurisdiction of a Court in Originating Summons is not ousted by mere allegation of likelihood of dispute as to documents beings relied upon except it is established that there is serious disputes as to their existences in the dealings of the parties and contended that in law, it is the claims of the Claimant that determines the jurisdiction of the Court and thus the relevant materials to be considered by the Court in determining the issue of jurisdiction are the facts deposed to in the affidavits, the writ of summons and the Statement of claim, where one has been filed and served and not the statement of Defense, which is not one of the relevant materials to be considered by the Court at that stage. Counsel relied onUsman V. Baba (2005) 5 NWLR (Pt. 917) 143; Egbuziem V. Egbuziem (2005) 4 NWLR (Pt. 916) 488; Governor of Kwara State V. Lafiagi (2005) 5 NWLR (Pt. 917) 139; Famfa Oil Ltd. V. Attorney General. (Supra).

It was further submitted that the Court below was right in its approach to the materials placed before it by the parties and its findings which reveal that it was called upon to expound the position of the law on as it relates to the various pending suits in various Courts on titles to parcels of land in dispute and not to make pronouncement on the titles to the disputed properties and contended that the main issue raised before the Court below and which constitutes its essence is that of the pendency of several suits over the said property and the precipitate actions taken by the Appellant and the 1st and 2nd Defendants before the Court below and urged the Court to hold that the Respondents’ suit was properly commenced by the Respondents and validly determined by the Court below since the Originating Summons procedure is one designed for the expeditious disposal of matter, which does not involve any substantial dispute as to facts and to dismiss the appeal for lacking in merit. Counsel relied on Hon. Muyiwa Inakoju, Ibadan East & S. E. & Ors V. Hon. Abraham A. Adeleke (Speaker) & Ors. (2007) 1 SCNJ 1; Hon. Justice Raliat Elelu – Habeeb (Chief Judge of Kwara State) & Anor. V. Hon. Attorney-General of the Federation & Ors (2012) 2 SC (Pt. 1) 145.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply on law, learned Senior Advocate for the Appellant had submitted that there were 24 Defendants and each had its own defense based on copious affidavits and counter affidavits with numerous exhibits and contended that in such complex circumstances the Court below had a duty to order pleadings so as to give the numerous parties the opportunity to lead oral evidence and be subjected to cross-examination before determining the rights of the parties and urged the Court to hold that the determination of the suit by the Court below under the Originating Summons procedure was improper and the ruling reached thereon without the benefit of oral evidence tested under cross examination be set aside and the appeal be allowed. Counsel relied on Famfa Oil Ltd V. AG. Federation (2003) 18 NWLR (Pt. 852) 453 @ p. 467.

RESOLUTION OF ISSUE THREE
The crux of issue three is whether the claims of the Respondents were such as could be commenced and determined by means of an Originating Summons and if not then what is the proper order the Court should make concerning the claims of the Respondents. I have looked closely at the questions for determination, the six reliefs sought and the depositions in the supporting affidavit to the Respondents’ Originating Summons.

My Lords, I have earlier set out the six reliefs claimed by the Respondents, including relief five seeking an order for perpetual injunction as follows:
5. Perpetual Injunction restraining the Defendants from interfering in any way and/or under any guise whatsoever with the Claimants possession and use or enjoyment of the aforesaid piece of land.
Again, there were about 24 Defendants in the Originating Summons before the Court below and the resultant cacophony of affidavits and counter affidavits from several of the parties. The Court below seemed conscious of the legal implication of the claim of the Respondents for declarations coupled with an order for perpetual injunction when it stated that such a relief would involve issue of title to the land in dispute and thus refrained from granting it and held inter alia thus:

”The fifth relief being claimed by the Claimants is for a perpetual injunction restraining the Defendants from interfering in any way and/or under any guise whatsoever with the Claimants’ possession and use or enjoyment of the aforesaid piece of land. The grant of this relief will be tantamount to a declaration of title over the disputed land, it is a relief that is ancillary to a declaration of title and it has no place in this suit?. Arguments were made as to the competence of this suit. Respondents’ counsels were of one voice that it is not a suit that should have been commend by way of originating summons. Great reliance was put on the interpretation and delimitation of Order 3 Rules (5) of the High Court of Lagos State (Civil Procedure) Rules 2004. In respect of this the Claimants filed a written submission. I find that the action is not one where oral evidence needs be taken and this Court would not allow itself to be harnessed by the straight-jacket which the Respondents seek to robe it in. Order 3 Rule 5 is indicative rather than restrictive and where the circumstance of the case allows, surely the Courts would not frown at parties using the most expeditious means in resolving issues. This suit is without doubt competent and hence this somewhat involved ruling.” See pages 302 – 303 of the record of appeal.

Now, it is true and it is almost inconceivable that parties would go to Court to litigate over issues in which there are no disputes at all between them, perhaps just of the fun of it. In other words, every suit would involve a dispute or a disagreement, for if it were not so then what would be the basis of the Litigation? Originating summons also involves resolution of dispute, for even in construction of documents there may be disagreement as to its meaning, scope or purport, hence the resort to the Court. However, what is prohibited in Originating Summons is substantial dispute at to facts. It is thus well settled that Originating Summons is usually used when what is in dispute is the mere construction of documents or interpretation of law in respect of which pleadings are unnecessary or where there are no real dispute as to facts between the parties. It is therefore, improper to commence civil proceeding by Originating Summons where the facts are likely to be in substantial dispute.

In law, the Originating Summons procedure is limited in its scope of use and should not be adopted in proceedings in which there are substantial disputes of facts. It should never be resorted to in cases where there are controversies and a lot of disputed facts between the parties, including claims relating to title to land in dispute. In such cases, a Claimant should approach the court by way of a Writ of Summons, which will allow each side to file pleadings and sort out the issues in dispute between them at full trial on oral and or documentary evidence. See Johnson & Ors. V. Mobil Producing Nigeria Unlimited & Ors. (2009) LPELR- 8280 (CA).

In Pam V. Mohammed (2008)16 N.W.L.R (Pt. 1112) 1 @ p. 88, Niki Tobi JSC., (God bless his soul), had put this issue so succinctly in its proper perspective thus:
”Where the issues are in dispute or are contentious, an originating summons procedure will not lie in such a situation, the party must initiate the action by a writ of summons, a procedure which accommodates pleadings of facts. An action could be brought by originating summons where the sole or principal question in issue is or likely to be one of construction of a statute, or of any instrument made under a statute, or of any deed, will, contract, or other document or some other questions of law.”
See also Esezoobo V. NSITF & Ors. (2012) LPELR- 9282 (CA). See also Ossai V. Isaac F. Wakwah (2006) 4 NWLR (Pt. 969) 208; AG. Adamawa V. AG. Federation (2005) 18 NWLR (Pt. 958) 581.

What then are the facts in this appeal? The facts are not to be found in the submissions of counsel but in the affidavit evidence of the Respondents and counter affidavit evidence of the Appellant and the other Defendants as can be gleaned from the record of appeal. I have earlier given a gist of these facts in this judgment and it would appear that even on Respondents? own showing alone the issues between the parties, particularly bordering on reliefs of perpetual injunction which clearly raises the issue of title to the land in dispute, as correctly observed by the Court below in its ruling, coupled with the cacophony of violently conflicting affidavits and counter affidavits, including but not limited to issues of the identity of land in dispute and ownership thereof, all of which involved contentious issues and substantial dispute as to facts so materially crucial, should in my finding necessitate the ordering of filing of pleadings and adducing of oral evidence by the parties.

I am aware that it is not every seeming conflicts arising from affidavit and counter affidavit evidence that would warrant the calling of or resort to oral evidence for its resolution but where the issues of facts are so contentious and borders on several allegations of impropriety, it calls for caution on the path of the Court below from rushing to determine such a claim on affidavit evidence alone in an Originating Summons, as such a case is, in my view, one more suited and proper for determination on the pleadings and evidence of the parties by means of a Writ of Summons.

Now, in determining whether a suit commenced by means of Originating Summon is proper or not, refraining from granting a claim whose determination, as the Court below found was for title to land and thus not suitable for Originating Summons, does not render such a suit commenced by means of Originating Summons proper as erroneously thought and held by the Court below. The issue is not whether a claim can be granted or not but whether a claim can be properly inquired into by the means of commencement employed by the Respondents vide an Originating Summons.

A suit which gives rise to issue of title to land, as found by the Court below of the relief of perpetual injunction claimed by the Respondents, is one which out rightly cannot be commenced by means of Originating Summons. It can only be commenced by means of a Writ of Summons. Thus, to refrain from granting that relief, as was done by the Court below in its ruling, does not and cannot render the Originating Summons as proper as was erroneously held by the Court below, which ought to have ordered pleadings once it came to the finding that the relief of perpetual injunction raised the issue of title to the land in dispute. It therefore, with due deference, cannot hide under the guise of applying the doctrine of lis pendens to entertain a claim raising issue of title to land under an Originating Summons. It is indefensible and utterly perverse so to do as was done by the Court below.

In the circumstances therefore, I hold that there were substantial dispute of facts coupled with a claim for perpetual injunction and the declarations sought gave rise to the issue of title to the land in dispute, which claim cannot be inquired into in a proceedings commenced by means of Originating Summons as was erroneously held by the Court below but by means of a Writ of Summons. Thus, the Originating Summon procedure by which the suit was commenced by the Respondents was completely and irredeemably improper. Consequently, issue three is hereby resolved in favor of the Appellant against the Respondents. See Famfa Oil Ltd V A.G Federation (2003) 18 NWLR (Pt. 852) 453 @ p. 467; Jev V. Iyortyom (2014) 14 NWLR (Pt. 1428) 575 @ p. 615; Nwosu V. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688.

My Lords, having held that the Respondents’ suit ought to have been commenced by means of a Writ of Summons, ordinarily the proper order to have been made if this issue, that is issue three, was the only issue for determination in this appeal would have been an order remitting the suit to the Court below for it to be reassigned by the Chief Judge of Lagos State to another judge for hearing and determination on pleadings and oral evidence of the parties.

However, since issues one and two have already been resolved touching on the lack of merit of the claims of the Respondents, which by the way is an attempt by the Respondent to in a premature manner determine the issue of ownership of the subject matter of several pending suits between the parties, and the pervasive errors in the ruling of the court below, the appeal has merit. On the whole therefore, having resolved all the three issues for determination in favor of the Appellant against the Respondents, I hold that the appeal has merit and ought to be allowed. Consequently, it is hereby so allowed.

In the result, the Final Ruling of the High Court of Lagos State, Ikeja Judicial Division; Coram E. A. Adebajo J., in Suit No. ID/557M/2005: Chika Elile & Anor V. Attorney General of Lagos State & Ors., delivered on 13/4/2008, in which the Court below made some orders in favor of the Respondents as Claimants against the Appellant as 3rd Defendant, is hereby set aside.]

In its stead, Suit No. Suit No. ID/557M/2005: Chika Elile & Anor V. Attorney General of Lagos State & Ors., is hereby dismissed for lacking in merit.

There shall be no order as to cost.

TIJJANI ABUBAKAR, J.C.A.: My Lord and learned brother BIOBELE ABRAHAM GEORGEWILL J.C.A., granted me the privilege of having access before now to the leading Judgment in this appeal. I am in full agreement with the reasoning and conclusion and adopt the Judgment as my own. I have nothing extra to add.

JAMILU YAMMAMA TUKUR, J.C.A.: I have read in draft the lead judgment just delivered by my learned brother BIOBELE ABRAHAM GREOGEWILL J.C.A. I agree with the reasoning and conclusion contained therein. I adopt the judgment as mine with nothing further to add.

Appearances:

Chief G.N. Uwechue, SAN with him, John Duru, Esq. and G. Uwechue, Esq.For Appellant(s)

Phillip Adetona,Esq.For Respondent(s)