PRINCE ADEMOLA SAMUEL SHONIBARE v. CHIEF SAMINU AYINLA AJAKAYE & ORS
(2019)LCN/13608(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 2nd day of July, 2019
CA/L/242/2013
RATIO
ORIGINATION SUMMONS: THE EFFECT OF COMMENCING AN ACTION WITH THE WRONG ORIGINATING PROCESS
Straight off the reel, the question of whether the action was properly commenced by an Originating Summons raises a threshold issue of competence of this action. In the oft-cited case of MADUKOLU vs. NKEMDILIM (1962) 1 ALL NLR 587, the apex Court, inter alia, held that a Court is competent when the action has been initiated by due process of law. The contention that the action was not suited for the Originating Summons procedure is therefore a contention that the Court is not competent to entertain the action since it had not been initiated by due process of law. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
ORIGINATING SUMMONS: WHEN IT CAN BE USED TO COMMENCE AN ACTION
In NATIONAL BANK OF NIGERIA vs. ALAKIJA (1978) 9-10 SC 39 at 71, Eso, JSC stated:
In other words, it is our considered view that Originating Summons should only be applicable in such circumstances as where there is no dispute on question of facts or the likelihood of such dispute. Where for instance, the issue is to determine short questions of construction and not matters of such controversy that the justice of the case would demand the settling of pleadings, Originating Summons could be applicable.
See also DOHERTY vs. DOHERTY (1964) 1 ALL NLR 299, OLUMIDE vs. AJAYI (1997) 8 NWLR (PT 517) 433 at 442-443, ANATOGU vs. ANATOGU (1997) 9 NWLR (PT 519) 49 at 70-71 and EZEIGWE vs. NWAWULU (supra) at 191. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
ORIGINATING SUMMONS: WHEN IT WONT BE PROPER TO COMMENCE AN ACTION USING ORIGINATING SUMMONS
In other words, where the facts in issue between the parties involve matters of serious controversy that the justice of the case would demand the settling of pleadings, Originating Summons cannot be applicable: PAM vs. MOHAMMED (2008) 16 NWLR (PT 1112) 1 at 15, MICHAEL vs. MIMA PROJECTS VENTURES LTD (2002) 24 WRN 71 at 81 and OSSAI vs. WAKWAH (2006) ALL FWLR (PT 303) 239 at 254-255. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
HOW TO RESOLVE CONFLICTS IN AFFIDAVITS
It is no doubt the law that where there are conflicts in the affidavits the same is to be resolved by taking oral evidence: PHARMACISTS BOARD vs. ADEBESIN (1978) 5 SC 43 and NATIONAL BANK vs. ARE BROS (NIG) LTD (1977) 6 SC 97. However, where there exists documentary evidence on which the conflict can be resolved then such documentary evidence outside the conflicting affidavit evidence will be used and there will be no need to take oral evidence.See IKPEAZU vs. EKEAGARA (supra) and LIJADU vs. LIJADU (1991) 1 NWLR (PT 169) 627 at 649. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
PRINCE ADEMOLA SAMUEL SHONIBARE Appellant(s)
AND
1. CHIEF SAMINU AYINLA AJAKAYE
2. CHIEF SHUYITTI ALADE AGORO
3. CHIEF MUYINU YUSUF
4. ELDER ODU AKOGUN
{For themselves and on behalf of the Oju-Agboroko family of Iba Town, Ojo, Lagos State] Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): In 1974, the Federal Government of Nigeria compulsory acquired a large expanse of land for the establishment of a Military Cantonment at Ojo, Lagos State. It is the base of the 81 Division of the Nigerian Army. The entire land which was acquired was not utilized by the Government. Consequently, the land owning family, the Oju Agboroko Family applied for the unutilised portion to be released to them. Their request was granted and 46.36 hectares of land was released to the Family. The Family thereafter gave a revocable Power of Attorney to the Appellant herein to, inter alia, manage and superintend the management of the land. Later, dissatisfied with the manner in which the Appellant was exercising the powers under the Power of Attorney, the said Power of Attorney was revoked by the Family by a Deed of Revocation of Power of Attorney.
?Contending that the Appellant continued to exercise the powers under the Power of the Attorney despite the revocation of the Power of Attorney, the Respondents commenced an action by Originating Summons before the High Court of Lagos State
1
in SUIT NO. BD/7M/2012: ALHAJI SAMINU AYINLA AJAKAYE & ORS (suing for themselves and on behalf of the Oju Agboroko Family of Iba Town, Ojo, Lagos State) vs. PRINCE ADEMOLA SAMUEL SHONIBARE. The question presented for determination in the Originating Summons was:
?Whether under and by virtue of the Deed of Revocation dated the 1st June, 2011 revoking the Power of Attorney granted to the Defendant dated 16th June, 2008, the Claimants are not entitled to immediate possession of the 46-36 hectares of land situate at Iba Town, being the property of the Claimants? family
Upon the determination of the said question, the Respondents claimed the following reliefs:
?1. A DECLARATION that the Deed of Revocation dated 1st June, 2011 revoking the Power of Attorney dated 16th June, 2008, in favour of the Defendant is valid, subsisting and binding on all parties.
2. A DECLARATION that under and by virtue of the Deed of Revocation dated 1st March, 2012, [sic] the Defendant seizes to exercise any right or authority to manage, lease or alienate any portion of the 46.36 hectares of land situate at Iba Town, (herein after referred
2
to as the ?the land?) being the Property of the Claimants? family.
3. A DECLARATION that any purported transfer, alienation or sale of any portion of the land, by the Defendant subsequent to the execution of the Deed of Revocation dated 1st June, 2011, amounts to a nullity and void ab initio.
4. AN ORDER granting immediate possession of the land to the Claimants as lawful owner.
5. AN ORDER setting aside any purported sale, lease or disposition howsoever of any portion of the land, carried out and or purportedly carried out by the Defendant subsequent to the revocation of the Power of Attorney.
6. AN ORDER AN ORDER [sic] of perpetual injunction restraining the Defendant, his privies, assigns, successors in title, agents, representatives or whosoever acting for or through him from disturbing and or interfering with the Claimants? possession of the land.
7. Solicitors cost for this action.?
The Originating Summons is supported by a twenty paragraph affidavit and an eleven paragraph further affidavit. The Appellant filed a thirty-nine paragraph affidavit in opposition. The documents relied on by the
3
parties were exhibited to their respective affidavits. The matter was heard on the affidavit evidence and in its judgment delivered on 20th December, 2012, the lower Court entered judgment for the Respondents in the following terms:
?1. It is hereby declared that the Deed of Revocation dated 1st June, 2011 revoking the Power of Attorney dated 16th June 2008, in favour of the Defendant is valid, subsisting and binding on all parties.
2. The Court hereby grants immediate possession of the land to the Claimants as lawful owner.?
The Appellant was dissatisfied with the decision of the lower Court and appealed against the same. The Notice of Appeal is at pages 183-186 of the Records while the chafed judgment of the lower Court is at pages 176-182 of the Records. The Records of Appeal were compiled and transmitted and briefs of argument were filed and exchanged by the parties. The Appellant?s Brief was filed on 6th January 2016 but deemed as properly filed on 5th June 2017. The Appellant further filed a Reply Brief on 16th April 2019. The Respondents? Brief was filed on 2nd May 2018. The Respondents? Brief and the
4
Appellant?s Reply Brief were both deemed as properly filed on 6th May 2019. The learned counsel for the parties urged the Court at the hearing to uphold their respective submissions in the determination of the appeal.
The Appellant distilled two issues for determination as follows:
?1. Whether in the light of the very substantial and irreconcilable conflicts in the affidavit evidence before it, it was proper for the trial Judge to have proceeded to hear and determine the action upon the basis of an Originating Summons, and whether by so doing, a miscarriage of justice has not been occasioned to the Appellant?
2. Whether in the face of the conflicting affidavits before him, the trial Judge could be said to have acted properly, judicially and judiciously in proceeding to make specific findings on the validity of Exhibits B and C and rendering his Judgment on the basis of those findings
The Respondents equally distilled two issues for determination, namely:
?1. Considering the availability of documentary evidence before the lower Court upon which any conflict in the affidavit evidence before it could be resolved,
5
was the lower Court right to have proceeded to determine the suit before it under the Originating Summons procedure by which the suit was commenced?
2. Is the decision of the lower Court as to the existence of the Power of Attorney (i.e. Exhibit B attached to the affidavit in support of the Originating Summons) sustainable in law and in the entire circumstances of the suit before the lower Court
Our starting point will be the Respondents? challenge to issue number two distilled by the Appellant. It is the Respondents? contention that the said issue number two does not flow from the grounds of appeal and should therefore be struck out for being incompetent. The cases ofGWEDE vs. INEC (2015) 18 NWLR (PT 1438) 56, EKE vs. OGBONDA (2006) 18 NWLR (PT 1012) 506 and UTB (NIG) LTD vs. AJAGBULE (2006) 2 NWLR (PT 965) 447 among other cases were referred to. It was stated that the complaint in ground 2 of the Grounds of Appeal from which issue number two is stated to be distilled is in respect of the finding of the lower Court that Exhibit B is the Power of Attorney that was granted to the Appellant, while the issue as crafted challenges
6
the findings in respect of the validity of Exhibits B and C. It was posited that there was no complaint in the ground on the judicious and judicial actions of the lower Court or the validity or otherwise of Exhibits B and C. The Court was consequently urged to strike out issue number two and the arguments thereunder vide IGP vs. IKPILA (2016) 9 NWLR (PT 1517) 236 at 270.
In reply to the challenge to his issue number two, the Appellant maintains that the said issue unequivocally arises from Ground two of the Notice of Appeal which complains about the decision of the lower Court to place reliance on Exhibit B in adjudicating the matter. While conceding that ground 2 did not make specific reference to Exhibit C, it was submitted that issue number two can nevertheless be accommodated under the said ground, such that the Court can consider the same. The inclusion of the reference to Exhibit C, it was opined, will not invalidate the issue since the Court can, suo motu, reframe and recouch an issue in order to accommodate the same within the relevant ground of appeal. The cases of ADEOGUN vs. FASHOGBON (2008) 17 NWLR (PT 1115) 149, SCIRROCCO INTERNATIONAL LTD vs. UNITY BANK PLC
7
(2016) LPELR-40265 (CA) and AWOJUGBAGBE LIGHT INDUSTRIES LTD vs. CHINUKWE (1995) 5 NWLR (PT 330) 379 were relied upon.
Now, it is trite law that a Court can and is entitled to re-formulate issues formulated by the parties or counsel in order to give it precision and clarity. The purpose of reframing the issues is to have a more judicious and proper determination of an appeal, that is, to narrow the issues in controversy in the interest of accuracy, clarity and brevity. See UNITY BANK PLC vs. BOUARI (2008) ALL FWLR (PT 416) 1825 at 1846- 1847. In the words of Uwaifo, JSC in MUSA SHA (JNR) vs. DA RAP KWAN (2000) 5 SCNJ 101 at 127:
?The purpose of framing or re-framing an issue or issues, it is stated: is to lead to a more judicious and proper determination of an appeal. The purpose of formulating it or them, is in order to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity.?
The challenge to the Appellant?s issue number two is not that it is not clear, imprecise or accurate; rather the challenge is that it is not a competent issue since it does not take its roots in the grounds
8
of appeal. It is only when an issue can be properly located within a ground of appeal that the Court can tinker with the same in order to conduce to precision, clarity and brevity. It is rudimentary law that an issue or issues for determination in an appeal must be distilled from or must arise or flow from a competent ground of appeal. An issue is incompetent if it does not flow from a competent ground. Such an issue is liable to be struck out. See ETA vs. DAZIE (2013) LPELR (20136) 1 at 7, OSINUPEBI vs. SAIBU (1982) 7 SC 164, NSIRIM vs. AMADI (2016) LPELR (26053) 1 at 12-13 and OKONOBOR vs. D. EDEGBE & SONS TRANSPORT CO. LTD (2010) LPELR (2488) 1 at 8.
The grievance and dissatisfaction with the decision of a Court is articulated and conveyed to an appellate Court in the ground or grounds of appeal. In other words, the grounds of appeal index the appellant?s complaints against the judgment of a Court: CCB PLC vs. EKPERI (2007) 3 NWLR (PT 1022) 493 at 511. The law is that a ground of appeal is the error of law or facts alleged as the defect in the decision appealed against and on the basis of which the decision should be set aside. It is the
9
reason why the decision is considered wrong by the aggrieved party: IDIKA vs. ERISI (1988) 2 NWLR (PT 78) 503 at 578 and AKPAN vs. BOB (2010) 17 NWLR (PT 1223) 421 at 464. In ascertaining the real complaint raised in a ground of appeal, the ground of appeal and all the particulars thereto are to be read and construed together. See OBATOYINBO vs. OSHATOBA (1996) LPELR (2156) 1 at 33, ODUKWE vs. ACHEBE (2008) 1 NWLR (PT 1067) 40 at 53 and ABIA STATE INDEPENDENT ELECTORAL COMMISSION vs. ONYEABOR (2011) LPELR (3563) 1 at 31.
The Appellant?s ground two of the grounds of appeal with its particulars reads as follows:
?The Learned Trial Judge erred in law and on facts when he held that Exhibit B, Power of Attorney was granted to the Defendant where there [sic] no proof before the Court of any Power of Attorney received and acknowledge [sic] by the Defendant.
PARTICULARS OF ERROR
i. It is wrong for the Learned Trial Judge to assume that Exhibit B, Power of Attorney having being [sic] signed by one Prince Adegbola Shonibare, the purported representative of Shonibare family, is a proof that the Defendant is aware of the existence of the
10
Power of Attorney.
ii. Even though the learned Trial Judge tried to read a material contradiction into the affidavit evidence before the Court on the issue of existence and denial by the Defendant of granting Exhibit B, Power of Attorney to him, it is patently clear from the affidavit of both parties that Exhibit B, could be in existence but the Defendant was not aware of the Power of Attorney and neither was he in possession of the same.
iii. The law is very trite that the Court has no jurisdiction to speculate but on realities based on relevant facts. See S.D.C. CEM (Nig.) Ltd V Nagel & Co. Ltd. (2003) 4 NWLR Part 811 at Page 639.?
Construing the above ground and its particulars together, it is evident that the real complaint in the ground is that the lower Court was in error when it held that Exhibit B, the Power of Attorney, was granted to the Appellant when there was no proof that the Appellant received and acknowledged any Power of Attorney. It was further complained that it was not open to a Court to speculate and accordingly the fact that one of the signatories of the Power of Attorney was a member of the Shonibare Family was not proof that the
11
Appellant was aware of the Power of Attorney. That is the complaint, which in precis terms, is that it was wrong to hold that the Power of Attorney was granted to the Appellant when it was not proved that any Power of Attorney was received or acknowledged by the Appellant or that he was aware of the existence of any Power of Attorney.
At the risk of prolixity, I will reproduce the scarified issue number two distilled by the Appellant. It states:
?Whether in the face of the conflicting affidavits before him, the trial Judge could be said to have acted properly, judicially and judiciously in proceeding to make specific findings on the validity of Exhibits B and C and rendering his Judgment on the basis of those findings
It is limpid that the above issue as distilled does not deal with receipt, acknowledgment or awareness of the Power of Attorney, Exhibit B, by the Appellant. It rather deals with the validity, not only of the Power of Attorney, Exhibit B, but also of the Deed of Revocation of the Power of Attorney, Exhibit C. Interestingly, Exhibit C is not referred to at all in the ground of appeal. Evidently, the issue is
12
tangential from the real complaint in the ground of appeal from which it has been avowed to be formulated. Without a doubt, the issue does not flow from the said ground of appeal. This being so, the issue is incompetent and must be struck out. The submissions in respect of the said incompetent issue must also be discountenanced: MAGIT vs. UNIVERSITY OF AGRICULTURE, MAKURDI (2005) 19 NWLR (PT 959) 211, SHEMA vs. FRN (2018) LPELR (43723) 1 at 12-13 and DUWIN PHARMACEUTICAL AND CHEMICAL CO. LTD vs. BENEKS PHARMACETICAL & COSMETICS LTD (2008) LPELR (974) 1 at 16-17.
It is an established principle that an appeal is decided upon the issues raised or formulated for the determination of the Court. When the issues are formulated, the grounds of appeal upon which they are based or from which the issues are formulated become extinguished or expire. The argument on the appeal is then based on the issues formulated, not on the grounds. See SANUSI vs. AYOOLA (1992) 9 NWLR (PT 265) 275, SALIBA vs. YASSIN (2002) 3 SCM 96 at 104 and AFRICAN INTERNATIONAL BANK LTD vs. INTEGRATED DIMENSIONAL SYSTEM LTD (2012) 7 NWLR (PT 1328) 1. Concomitantly, where the issues
13
formulated for determination from a ground or grounds of appeal are struck out, that puts an end to those grounds of appeal: IKPEAZU vs. OTTI (2016) LPELR (40055) 1 and ODUGBEMI vs. SHANUSI (2018) LPELR (44868) 1 at 45-46. This is so because since the said ground or grounds of appeal have not translated to an issue for determination, it will be deemed as abandoned and struck out. See UNILORIN vs. OLAWEPO (2012) 52 WRN 42, SHETTIMA vs. GONI (2011) 18 NWLR (PT 1279) 413 and AJIBULU vs. AJAYI (2013) LPELR (21860) 1 at 11. Accordingly, since the Appellant?s issue number two is incompetent, the said issue as well as ground two from which it was purportedly distilled, which is now bereft of any issue formulated therefrom are hereby struck out. They would play no further part in this appeal. See BAKARE vs. L.S.C.S.C. (1992) LPELR (711) 1 at 42-43 and NWALUTU vs. NBA (2019) LPELR (46916) 1 at 6-7.
The Appellant?s issue number two having been struck out, it is on the basis of the Appellant?s issue number one which is akin to the Respondents? issue number one that I will now consider the submissions of learned counsel and determine this
14
appeal.
ISSUE FOR DETERMINATION
Whether in the light of the very substantial and irreconcilable conflicts in the affidavit evidence before it, it was proper for the trial Judge to have proceeded to hear and determine the action upon the basis of an Originating Summons, and whether by so doing, a miscarriage of justice has not been occasioned to the Appellant?
SUBMISSIONS OF THE APPELLANT?S COUNSEL
The Appellant submits that originating summons as a means of commencing an action is only used where there is unlikely to be any substantial dispute of fact. The cases of FAMFA OIL LTD vs. A-G FEDERATION (2003) 18 NWLR (PT 852) 453, KEYAMO vs. HOUSE OF ASSEMBLY LAGOS STATE, (2002) 18 NWLR (PT 799) 613, NATIONAL BANK vs. ALAKIJA (1978) 9-10 SC [no page stated] and FGN vs. ZEBRA ENERGY LTD (2002) 18 NWLR (PT 798) 162 were referred to. It was maintained that there were substantial disputes as to facts in the affidavits filed by the parties such that the action ought not to have been heard under the originating summons procedure by the lower Court. The lower Court it was opined ought to have ordered for pleadings to be filed and oral evidence
15
adduced since what the Respondents claimed was effectively a declaration of title to land vide G.E.B. PLC vs. ODUKWU (2009) 14 NWLR (PT 1160) at 67-68, INAKOJU vs. ADELEKE (2007) 4 NWLR (PT 1025) 425, ORIANWO vs. ORIANWO (2001) 5 NWLR (PT 707) 516 at 524, MINISTER, FED. MIN OF HOUSING vs. BELLO (2009) 12 NWLR (PT 1155) 345, ADEYELU II vs. AJAGUNGBADE IV (2007) 14 NWLR (PT 1053) 16 and MOMAH vs. VAB PETROLEUM INC. (2000) 1 SC 142-3.
It is the further contention of the Appellant that the lower Court after hearing the originating summons and determining the validity of the revocation of the Power of Attorney proceeded to grant possession of the land to the Respondents and divest the Appellant of the same, when the same lower Court (differently constituted) had earlier granted the Appellant possession of the land in SUIT NO. ID/211M/2009. This, it was asserted, occasioned a miscarriage of justice. The case of NNAJIOFOR vs. UKONU (1986) 4 NWLR (PT 36) 505 was relied upon. It was conclusively submitted that the decision of the lower Court to hear the case with all the deeply conflicting affidavit evidence on the basis of an originating summons occasioned a
16
miscarriage of justice to the Appellant. The case of BAYERO vs. FMBN LTD (1992) 1 NWLR (PT 220) 699 was cited in support.
SUBMISSIONS OF THE RESPONDENTS? COUNSEL
The Respondents? submit that prior to the hearing of the case, the lower Court, suo motu, raised the issue of whether originating summons was the proper procedure and that after hearing from counsel, it held that the case could be heard by originating summons. The Appellant, it was posited, did not challenge this finding and it accordingly remains binding vide NBCI vs. INTEGRATED GAS (NIG) LTD (2005) 4 NWLR (PT 916) 617, IYOHO vs. EFFIONG (2007) 4 SC (PT III) 90 and EMESIANI vs. EMESIANI (2013) LPELR-21360 (CA). The Court was therefore urged to discountenance the Appellant?s argument that originating summons was not the proper procedure.
It is the further contention of the Respondents that originating summons is the suitable procedure where there are no material disputes as to facts in actions for, inter alia, interpretation of written instruments. The cases ofPDP vs. ABUBAKAR (2007) 3 NWLR (PT 1022) 515, AGBAKOBA vs. INEC (2008) 18 NWLR (PT 1119) 480 at 536,
17
FAMFA OIL LTD vs. A-G FEDERATION (2003) 18 NWLR (PT 852) 453 and EZEIGWE vs. NWAWULU (2010) 4 NWLR (PT 1183) 159 were referred to. It was stated that the Respondents? action was for interpretation of the Deed revoking the Power of Attorney donated by the Oju Agboroko family to the Appellant; but that the Appellant in his counter affidavit raised several issues of facts on account of which he contended that there was contradictory affidavit evidence.
It was asserted that the mere filing of a counter affidavit and raising several issues of facts which are not material to the issues put before the Court does not render the proceedings hostile. The cases of GBILEVE vs. ADDINGI (2014) LPELR-22141 (SC) and LSDPC vs. ADOLD/STAMM. INT. (NIG) LTD (2005) 2 NWLR (PT 910) 603 at 617 were relied upon. It was opined that the material facts relevant for the determination of the originating summons were the existence of a Deed of Revocation and the effect of the revocation of the Power of Attorney on the right exercised by the Appellant over the Respondents? family land. The existence of the Deed of Revocation was said not to have been controverted by the Appellant
18
since the Appellant?s contention was that the Respondents belong to the Giwa Oju Agboroko family, which did not donate any Power of Attorney in his favour. It was maintained that the lower Court rightly held that the Power of Attorney granted to the Appellant by the Oju Agboroko family was in existence, more so, when the Appellant prosecuted the action in SUIT NO. ID/211M/2009 as Attorney for the Oju Agboroko family. It was consequently submitted that there were no material conflicts in the affidavit evidence.
It is the further submission of the Respondents that where the conflict in affidavit evidence can be resolved by available documentary evidence, oral evidence would not need to be called vide IKPEAZU vs. EKEAGBARA (2016) LPELR-40847 (CA). The lower Court, it was stated, rightly made use of the available documentary evidence to decide the Originating Summons. The Respondents further contended that the Appellant?s counter affidavit was self-contradictory based on the documents attached thereto and that in those circumstances, the counter affidavit was unreliable and a question of conflicting affidavit will therefore not arise. The cases of
19
OLLY vs. TUNJI (2012) LPELR-7911 (CA) and ARJAY LTD vs. A.M.S. LTD (2003) 7 NWLR (PT 820) 577 at 627 were cited in support. The Appellant?s claim that the land belongs to the Shonibare Oju Agboroko family, it was conclusively submitted, was contradicted by the documents attached to the said counter affidavit showing that the land is vested in the Oju Agboroko family.
APPELLANT?S REPLY ON LAW
The Appellant in the Reply brief submits that his not having filed an interlocutory appeal did not foreclose his right of appeal on the propriety of the Originating Summons procedure since he had a right to elect whether to appeal immediately or incorporate the same in the final appeal. The cases of OKUNLADE vs. AZEEZ (2009) LPELR (CA) [sic] and ONWUBUARIRI vs. IGBOASOYI (2011) 1 SCM at 113 were called in aid. The Appellant further submitted that the Respondents? case was founded on a Power of Attorney which they claimed they donated to the Appellant but subsequently revoked, but that the Appellant?s evidence being that the Respondents belong to a different family and did not donate any Power of Attorney to him, there was nothing to
20
revoke; thereby raising a contentious issue that could only be resolved by resort to oral evidence. It was conclusively stated that the Appellant?s affidavit was not self-contradictory as the reference therein to Shonibare Oju Agboroko family was merely descriptive of the Appellant?s status as the head of the Oju Agboroko family.
RESOLUTION
Straight off the reel, the question of whether the action was properly commenced by an Originating Summons raises a threshold issue of competence of this action. In the oft-cited case of MADUKOLU vs. NKEMDILIM (1962) 1 ALL NLR 587, the apex Court, inter alia, held that a Court is competent when the action has been initiated by due process of law. The contention that the action was not suited for the Originating Summons procedure is therefore a contention that the Court is not competent to entertain the action since it had not been initiated by due process of law.
Without a doubt, the lower Court, suo motu, raised and decided that the action being on the question of whether a power of attorney had been revoked can be heard by originating summons (see page 167 of the Records). However, the question
21
of competence of the procedure which raises the issue that the proceedings are hostile and not suited for originating summons transcends the narrow issue raised and decided suo motu by the lower Court. In the circumstance, the Appellant was within his rights in raising the question of the competence of the action in the final appeal against the decision of the lower Court: OKUNLADE vs. AZEEZ (2009) LPELR (4730) 1 at 57-58, ONWUBUARIRI vs. IGBOASOYI (2011) LPELR (754) 1 at 15-16 and CBN vs. HARRIS (2017) LPELR (43538) 1 at 15-16.
In the exordium, I set out the salient background facts of this matter which was commenced by Originating Summons. It is hornbook law that the Originating Summons procedure is intended to be used in limited circumstances in matters involving the construction and interpretation of enactments and documents. In NATIONAL BANK OF NIGERIA vs. ALAKIJA (1978) 9-10 SC 39 at 71, Eso, JSC stated:
?In other words, it is our considered view that Originating Summons should only be applicable in such circumstances as where there is no dispute on question of facts or the likelihood of such dispute. Where for instance, the issue is to
22
determine short questions of construction and not matters of such controversy that the justice of the case would demand the settling of pleadings, Originating Summons could be applicable.?
See also DOHERTY vs. DOHERTY (1964) 1 ALL NLR 299, OLUMIDE vs. AJAYI (1997) 8 NWLR (PT 517) 433 at 442-443, ANATOGU vs. ANATOGU (1997) 9 NWLR (PT 519) 49 at 70-71 and EZEIGWE vs. NWAWULU (supra) at 191.
The underlying principle in all these decisions is that Originating Summons may only be used in initiating proceedings to obtain declarations or decisions of Court on the construction or interpretation of documents, instruments or statutory provisions in circumstances where there is no dispute on question of facts or the likelihood of such dispute. In other words, where the facts in issue between the parties involve matters of serious controversy that the justice of the case would demand the settling of pleadings, Originating Summons cannot be applicable: PAM vs. MOHAMMED (2008) 16 NWLR (PT 1112) 1 at 15, MICHAEL vs. MIMA PROJECTS VENTURES LTD (2002) 24 WRN 71 at 81 and OSSAI vs. WAKWAH (2006) ALL FWLR (PT 303) 239 at 254-255.
?In determining whether the
23
facts of the matter are disputed, it has to be arrived at relative to the material issue in contest between the parties. By all odds, the question which the Respondents presented for determination calls for the interpretation and effect of a document, id est, the Deed of Revocation of the Power of Attorney granted to the Appellant by the Oju Agboroko family. It is pertinent to state that the Respondents maintain the action in a representative capacity for themselves and on behalf of the Oju Agboroko family. Their instruction to maintain the action in the said representative capacity was not challenged in the lower Court, neither has it been challenged on appeal. So the action is by the Oju Agboroko family, who the named Respondents? represent. See DURBAR HOTEL PLC vs. ITYOUGH (2016) LPELR (42560) 1 at 8-9 and APEH vs. PDP (2016) ALL FWLR (PT 824) 1 at 13. This being so, the Appellant?s contention that the Respondents are of the Giwa Oju Agboroko family is of no moment. There is consequently nothing that makes the proceedings hostile in that regard. Furthermore, the Power of Attorney which the Respondents seek the legal effect of its revocation
24
vis-a-vis, the land released to the Oju Agboroko family is Exhibit B to the affidavit in support of the Originating Summons. The said Power of Attorney was granted to the Appellant by the Oju Agboroko family. The material issue is the revocation of the said Power of Attorney and it does not raise the involvement of Giwa Oju Agboroko family which the Appellant has introduced in his counter affidavit. I iterate that the Respondents sue on behalf of the Oju Agboroko family. Their representation has not been challenged, so the bandying of Giwa Oju Agboroko family does not arise when it is clear that Exhibit B, the Power of Attorney, was granted by the Oju Agboroko family whom the Respondents represent.
It is no doubt the law that where there are conflicts in the affidavits the same is to be resolved by taking oral evidence: PHARMACISTS BOARD vs. ADEBESIN (1978) 5 SC 43 and NATIONAL BANK vs. ARE BROS (NIG) LTD (1977) 6 SC 97. However, where there exists documentary evidence on which the conflict can be resolved then such documentary evidence outside the conflicting affidavit evidence will be used and there will be no need to take oral evidence.
25
See IKPEAZU vs. EKEAGARA (supra) and LIJADU vs. LIJADU (1991) 1 NWLR (PT 169) 627 at 649.
The Appellant in further contention of the perceived conflict in the affidavits contends that the land had been released to him before the Power of Attorney was issued. In the first place there is a surfeit of documentary evidence on which this issue can be resolved outside of the affidavits. The document by which the land was released is Exhibit A to the affidavit in support of the Originating Summons. It was made Attention to the Appellant, but it is clear that the land was released, not to the Appellant as an individual, but to the Oju Agboroko family. Indeed it was released to them at their request. The Appellant in further highlight of what he considers to be conflict contends that the land had already been released before the Power of Attorney was said to have been granted. That is correct. But on the Appellant?s own showing, the Power of Attorney became necessary as a result of the demand for the same by the Nigerian Army. Exhibit F to the Appellants counter affidavit is relevant. It is, inter alia, addressed to the Oju Agboroko family c/o Prince Shonibare and it
26
reads:
?RELEASE OF LAND AT OJO MILITARY CANTONMENT
I am directed to request you to nominate your representative(s) in respect of the above subject matter and make available the Power of Attorney.?
(See page 43 of the Records)
So there is abound documentary evidence outside of the affidavits on which any perceived conflict could be resolved without recourse to taking oral evidence. The lower Court amply utilised the documentary evidence to resolve the contrived conflicts in the affidavit. Hear the lower Court at pages 180-181 of the Records:
?Now from the foregoing, the Claimants maintained that they did revoke the Power of Attorney donated to the Defendant. The Defendant, on the other side maintains that he was not given any power of attorney.
In proof, the Claimants exhibited a Power of Attorney dated 16th June 2008. In this document, those that signed the document, 14 families in number, representing the Oju Agboroko Family did appoint one Prince Ademola Samuel Shonibare as their Attorney. In this document, one Prince Adegbola Shonibare, who is representing the Shonibare Family, appended his signature. Going
27
on, the Claimants further exhibited a Deed of Revocation of Power of Attorney dated 1st June 2011. In this Deed, a Power of Attorney dated 16th June 2008 donated or appointing one Prince Ademola Samuel Shonibare is referred to. This Deed revoked the Power of Attorney dated 16th June 2008 earlier mentioned. The signatories of the Deed of Revocation include the Shonibare Family under the hand of one Prince Adegbola Shonibare, the same person that appended his signature on the Power of Attorney.
Now, the Defendant herein, Prince Ademola Samuel Shonibare, denies the existence of the Power of Attorney. This is the purport of the deposition in paragraphs 15 and 18 of the counter affidavit. However, nowhere in the counter affidavit did the Defendant make mention of the Deed of Revocation. All he alleges is that the land belongs to him.
By virtue of Section 128(1) of the Evidence Act, 2011, no evidence shall be permitted to contradict, alter, added to or varied by oral evidence. This being the case, the Court finds that the Power of Attorney, in which the Defendant was appointed to act on behalf of the Oju Agboroko Family is a document in existence.
28
To further show the lie to the Defendant?s position, as being the owner of the land, the 1st exhibit attached to the affidavit in support clearly shows that a parcel of land described as ?46:36 Hectares of Land? was released to the Oju Agboroko family of Iba Town as the original owner by the Federal Government of Nigeria in 2007 and not to him in his personal capacity.
By a letter dated 3rd January 2008, exhibited by the Defendant, one Prince Ademola Shonibare, acting as the Head of the Family directed a letter under the Agboro Oju Land Owners family to the Honourable Minister of Defence. The reference of this letter is ?Release of 46:36 Hectares of Land of Oju Agboroko Land?. By this letter, it is clear that Prince Ademola Shonibare is not the owner of the land in reference but the Oju Agboroko Family, where he acts as the ?Head of the Family?.
This assertion is further confirmed by the Power of Attorney exhibited by the Defendant to his counter affidavit. In that Power of Attorney, donated to one Engineer Samuel Oladele, the Defendant is among the ?principal member and accredited representatives of Oju
29
Agboroko family. To further prove that the 46:36 hectares of land do belong to the Oju Agboroko family, a look at the recommendations as contained in the draft report exhibited by the Defendant did direct that ?the Oju Agboroko family should be made to fence off the 46:36 Ha if finally released to them?. There is no recommendation that suggests that the Defendant is the owner of the land as it is sought to suggest in the counter affidavit especially paragraphs 8, 10, 23, 25, 27, 28 and 31 thereof, in that draft report on the meeting held with MOD inspection team on the release of some portions of land at NA Cantonment, Ojo.?
The Appellant argues that the valid Court judgment in SUIT NO. ID/211M/2009 had given him possession of the land and that it was therefore wrong for the lower Court to have ordered immediate possession of the land in favour of the Respondents. Dealing with this issue, the lower Court held as follows at page 181 of the Records:
?Further, the issue that question as to the ?Res? had been determined in suit no. ID/211M/2009 is not tenable. The judgment of the Court in suit no. ID/211M/2009 is not
30
exhibited for the Court to consider.?
It is abecedarian that the proof of the judgment of a Court is by production of the judgment itself. See Section 128 (1) of Evidence Act and the cases of BALA vs. GWARAM (2017) LPELR (43205) 1 at 25, NWANA vs. OKOYEOCHA (2016) LPELR (40927) 1 at 22-23 and EBURUEKWE vs. IBEABUCHI (2018) LPELR (44687) 1 at 9-11. In the absence of the judgment of the Court in SUIT NO. ID/211M/2009, there is no way the lower Court could have upheld the Appellant?s contention that the said judgment gave possession of the land to him.
Howbeit, the Appellant attached some Court processes in the said SUIT NO. ID/211M/2009 as Exhibits I, J and L of his counter affidavit (See pages 49-50 of the Records). The process at page 49 shows that the Appellant prosecuted the said action for himself and as Attorney to the Oju Agboroko Family of Iba Town, Ojo, Lagos. Furthermore, at page 56 of the Records, the Court recorded as follows of the prosecution of the said case by the Appellant:
?That the respondent herein (Appellant) is the head of the Oju Agboroku Family of Iba Town and he initiated this suit in his capacity as head
31
of family for and on behalf of the entire family.?
So it would appear that being an action on behalf of the Oju Agboroko Family, any order of possession made by the Court will be for the Oju Agboroko Family and not for the Appellant as an individual in his personal capacity. It has to be remembered that the said action in SUIT NO. ID/211M/2009 was during the subsistence of the Power of Attorney, Exhibit B to the affidavit in support of the Originating Summons. By paragraphs 4 and 5 of the said Exhibit B, the Appellant was given the power to maintain action as Attorney in respect of the land, so any action by the Appellant during the subsistence of the said Power of Attorney could not have been in his personal capacity but as attorney of the Oju Agboroko family and any order of possession made would not be in his favour as an individual but in favour of the Oju Agboroko family whom he represents as Attorney.
?It has to be remembered that the land belonged to the Oju Agboroko family until the compulsory acquisition by the Government. Upon the release of part of the land to the family, they continued in possession. The Power of Attorney they gave
32
to the Appellant was a revocable Power of Attorney. It was not coupled with interest so the grant of the Power of Attorney did not divest the family of possession. The Appellant was merely the attorney, agent, representative of the family which remained in de jure possession of the land. As already demonstrated the Appellant did not prove that he was given possession of the land in his personal capacity as an individual in SUIT NO. ID/211M/2009, so it was not a miscarriage of justice when the lower Court upon holding that the Power of Attorney had been validly revoked made an order for the immediate possession of the land by the Respondents, the Oju Agboroko family.
From the totality of the foregoing, the sole competent issue for determination must be resolved in favour of the Respondents. It was proper for the lower Court to have heard and determined the action on the originating summons filed as there existed documentary evidence outside the affidavit evidence on which it resolved the perceived conflicts in the affidavit and no miscarriage of justice was occasioned thereby. The appeal is accordingly dismissed for being devoid of merit. The judgment of
33
the lower Court is affirmed. There shall be costs of N200,000.00 in favour of the Respondents.
MOHAMMED LAWAL GARBA, J.C.A.: I agree
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I had the privilege to read in its draft stage, the lead judgment just delivered by my learned brother, Ugochukwu Anthony Ogakwu, JCA in which he found no merit in the appeal, and consequently dismissed it.
I whole heartedly agree with his reasoning in resolving the issues which he found as calling for determination of the appeal, and I also abide with the consequential order he has made as regards the issues as to costs.
?The appeal is also dismissed by me too.
34
Appearances:
G. M. O. Oguntade, Esq., SAN with him, Miss Abosede OladeindeFor Appellant(s)
Adebowale Kamoru, Esq. with him, Farid Giwa, Esq.For Respondent(s)
Appearances
G. M. O. Oguntade, Esq., SAN with him, Miss Abosede OladeindeFor Appellant
AND
Adebowale Kamoru, Esq. with him, Farid Giwa, Esq.For Respondent
