THE EXECUTIVE GOVERNOR, NASARAWA STATE & ANOR v. YUSUF YAKUBU ZAKARI UKPO (2017)

THE EXECUTIVE GOVERNOR, NASARAWA STATE & ANOR v. YUSUF YAKUBU ZAKARI UKPO

(2017)LCN/10350(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 17th day of January, 2017

CA/MK/03/2014

RATIO

FORMULATION OF ISSUES FOR DETERMINATION: THE EFFECT OF AN ISSUE THAT DOES NOT RELATE TO OR FLOW FROM A GROUND OF APPEAL

FORMULATION OF ISSUES FOR DETERMINATION: WHETHER MORE THAN ONE ISSUE CAN BE FORMULATED FROM A SINGLE GROUND OF APPEAL

Furthermore, issues for determination reduce the grounds of appeal from which they are distilled into compact formulations; Sanusi v. Ayoola (1992) 11/12 SCNJ 142. Thus, a number of grounds could, where appropriate, be formulated into a single issue running through them. There need not be a separate issue formulated for each ground of appeal. But it is patently undesirable to split the issue in a ground of appeal; per Karibi Whyte, JSC in Labiyi v Anretiola (1992) LPELR-1730 (SC). Therefore, formulating issues for determination in excess of the grounds of appeal or formulating more than one issue from a single ground of appeal is not in line with the principles governing the formulation of issues for determination in an appeal. It amounts to proliferation of issues, which is not acceptable; Nwankwo v Yar’Adua (2010) 12 NWLR (Pt.1209) 518 S.C.; Okwuagbala v Ikwueme (2010) 19 NWLR (PT 1226) 54 S.C.PER ONYEKACHI AJA OTISI. J.C.A.

ORIGINATING SUMMONS: MEANING AND NATURE OF ORIGINATING SUMMONS

The Supreme Court, per Onnoghen JSC (as he then was) put it this way in Dapianlong v. Dariye (2007) 8 MJSC 140, (2007) 4 S.C. (PT.III) 18:

“The originating summons procedure is a means of commencement of action adopted in cases where the facts are not in dispute or there is no likelihood, of their being in dispute and when the sole or principal question in issue is or is likely to be one directed at the construction of a written law, Constitution or any instrument or of any deed, will, contract or other document or other question of law or in a circumstance where there is not likely to be any dispute as to the facts. In general terms, it is used for non-contentious actions or matters i.e. those actions where facts are not likely to be in dispute. In actions commenced by originating summons, pleadings are not required rather affidavit evidence are employed: See Director, State Security Service v. Agbakoba (1999) 3 NWLR (Pt. 595) 314; Din v. A-G of the Federation (1986) 1 NWLR (Pt. 17) 471; Keyamo v. House of Assembly Lagos State & Ors (2002) 18 NWLR (Pt. 799) 605.”

In Famfa Oil Limited v. Attorney-General of the Federation (2003) 18 NWLR (Pt. 852) 453 Belgore JSC, (as he then was) said at page 467:

“The very nature of an originating summons is to make things simpler for hearing. It is available to any person claiming interest under a deed, will or other written instrument whereby he will apply by originating summons for the determination of any question of construction arising under the instrument for a declaration of his interest. (Order 38 Rule 1 and Order 44 Rule 1 ). It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the dealings of the parties to the suit. In such a situation, there is no serious dispute as to facts but what the Plaintiff is claiming is the declaration of his rights. If there are serious disputes as to facts then a normal writ must be taken out and not originating summons; Doherty v. Doherty (1968) NMLR 241. In matters where facts are not in issue the originating summons, which must be supported by an affidavit of the facts must be taken out and will become operative once a Judge in chambers has signed it thus giving direction for its service.”

Again, inOba Osunbade v Oba Oyewunmi 30 NSCQR 434 at 449, the Supreme Court per Ogbuagu JSC said:

“It is now firmly settled that an Originating Summons, is an unusual method of commencing proceedings in the High Court and it is confined to cases where special statutory provisions exist for its application. It is not advisable, to make use of this procedure for hostile proceedings where the facts are in dispute as in the instant case leading to this appeal.” See also:Inakoju v Adeleke (2007) 2 MJSC 1; Peters-Pam v. Muhammed (2008) 9 MJSC 117; FGN v Zebra Energy (Nig.) Limited (2003) 1 MJSC 3. PER ONYEKACHI AJA OTISI. J.C.A.

ORIGINATING SUMMONS: CIRCUMSTANCES IN WHICH ORIGINATING SUMMONS SHOULD NOT BE EMPLOYED; HOW TO DETERMINE WHETHER OR NOT THE FACTS ARE IN DISPUTE

“It is well settled that in actions where there is likely to be substantial dispute of facts, or, where the relief or reliefs sought by a claimant are declaratory in nature, originating summons procedure that admits only affidavit evidence ought not to be employed. The action must be brought by writ of summons, the facts being in dispute. It is in accord with justice to postulate that where the complaint of the plaintiff makes allegations against a defendant, oral evidence is required. This would provide opportunity for the defendant to cross-examine witnesses testifying against him.

It is important to note that it is not the filing of a counter affidavit per se that determines whether or not facts are in dispute. In Ossai v Wakwah (2006) 4 NWLR (Pt.969) 208 at 229, (2006) LPELR-2813 (SC, (2006) 2 SC (Pt.1) 19, the Supreme Court, per Mohammed JSC (as he then was) unequivocally put it this way:

“It must be emphasized that it is not the filing of a counter-affidavit to oppose claims in an originating summons that makes such proceedings contentious or result in disputed facts. Even where no counter-affidavit was filed or where counter-affidavit was filed but ignored by the trial Court, as in the lost out case, the nature of the claims and the facts deposed in the affidavit in support of the claims in the originating summons are enough to disclose disputed facts and hostile nature of the proceedings.” PER ONYEKACHI AJA OTISI. J.C.A.

JUSTICES

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria

Between

1. THE EXECUTIVE GOVERNOR, NASARAWA STATE
2. THE EXECUTIVE CHAIRMAN NASARAWA STATE Appellant(s)

AND

YUSUF YAKUBU ZAKARI UKPO
(Representative of Oshugu Village) Respondent(s)

ONYEKACHI AJA OTISI. J.C.A.Â (Delivering the Leading Judgment):Â This is appeal against the ruling of the High Court of Nasarawa State in Suit No NSD/N.12/2012, delivered by Honourable Justice Audu O. Bako, J. on November 28, 2013 dismissing the Motion on Notice filed by the Appellants in which the Appellants sought to set aside the judgment delivered by the trial Court on June 28, 2013 in the said suit.

?The facts leading to this appeal as discernable from the Record of Appeal are as follows: The Nasarawa State Government had acquired certain fish ponds within the Loko Development Area of Nasarawa State. The said fish ponds had been the cause of dispute and hostilities between the Ayele and Iggah Communities of the Loko Development Area. The Respondent instituted action in the lower Court by originating summons seeking, inter alia, declarations that they are owners of the fish pond as well as of the surrounding parcel of land. They also sought to set aside an alleged sale of the said fish pond. The trial Court entered judgment in favour of the Respondent. The Appellants filed an application to set aside the said judgment on various

grounds including that the lower Court lacked jurisdiction to entertain the matter in the first place. The learned trial Judge dismissed the said application. Dissatisfied with the said decision, the Appellants filed a Notice of Appeal in the lower Court on 3/12/2013 on seven grounds of appeal.

The parties exchanged Briefs of Argument. The Appellants’ Brief, settled by Akuson, A. Hosea, Esq., Ministry of Justice, Lafia, Nasarawa State was filed on 4/2/2014. The Respondents’ Brief, settled by Yusuf Zakari Edego, Esq., was filed on 28/2/2014. The Appellant’s Reply Brief was filed on 13/3/2014. The said Briefs were adopted on 23/11/2016 by respective Counsel.

Out of the seven grounds of appeal, learned Counsel for the Appellants, distilled six issues for determination, as follows:
(1) Whether the attention of the trial judge was drawn to the fact that Loko Development Area and its Administrator are juristic persons capable of suing and being sued (distilled from ground one).
(2) Whether the participation of a party in a matter gives jurisdiction to a Court where the Court ordinarily lacks same (distilled from ground two).
(3) Whether

the lower Court can set aside its own judgment when the procedure adopted in arriving at the judgment was such as deprived the judgment of the character of a legitimate adjudication (distilled from ground three).
(4) Whether the exhibits of the Respondent (attached to the counter affidavit to the motion to set aside the judgment) at the lower Court speak for themselves to the effect that the said fish pond was sold by the Administrator of Loko Development Area as alleged by Respondent in their originating summons (distilled from ground four and five).
(5) Whether the trial judge, in his evaluation of evidence and facts in the application to set aside his judgment can be said to be bias against the Appellants/Applicants/Judgment Debtor (distilled from ground six).
(6) Whether the Appellants’ application to the lower Court to set aside its judgment on the ground amongst others that the judgment was given without jurisdiction was frivolous (distilled from ground seven).

For the Respondents, six issues were formulated for determination, thus:
(1) Whether by virtue of Section 7 of the 1999 Constitution of Federal Republic of Nigeria and

Sections 1, 5, & 6 of the Land Use Act 2004, it is the Appellants and not the Loko Development Area and its Administrator that are the proper parties to be sued in the circumstance of the appeal? (distilled from ground one).
(2) Whether the proper procedure for the interpretation, construction and application of the 1999 Constitution and the Land Use Act 2004 as it relates to compulsory acquisition of property or land can be commenced by way of originating summons? (distilled from ground three).
(3)Whether the Respondent’s exhibits clearly established that indeed the Appellants sold the subject matter contrary to their denial in their counter affidavit to the originating summons that prompted to Respondent to tender the exhibits to expose the Appellants? (distilled from ground four).
(4) Whether the trial judge was right to deliver the judgment in favour of the Respondent based on the unimpeachable evidence and the fact that the Appellant admitted in their counter affidavit that the subject matter of this appeal belongs to the Respondent? (distilled from ground five).
(5) Whether the Appellants failed to comply with the provision of

the 1999 Constitution and Land Use Act 2004 as it relates to compulsory acquisition and therefore the declaration of their action null and void by lower Court was right decision to make in the circumstance of this appeal? (distilled from ground three).
(6) Whether a party that vehemently contested a case at the hearing of the suit and lost can still apply to the same Court to set aside the judgment and the fact that he fails to establish how the said judgment affected him to warrant it to be set aside? (distilled from ground two).

Learned Counsel for the Respondent formulated no issues from Grounds six and seven. He however formulated Issues 2 and 5 from Ground three. On being directed by the Court to address it on the effect of distilling two different issues from the same ground of appeal, learned Counsel said that he had spontaneously tied the issues to grounds while in Open Court. He did not know the effect. In reply, Mr. Akuson for the Appellants submitted that when more than one issue is distilled from a ground of appeal, the issues are incompetent and should be struck out. In the Reply Brief, Learned Counsel for the Appellants had also

contended that the issues raised by the Respondent for determination were not framed from any of the grounds of appeal and ought to be discountenanced.

There are established principles that govern formulation of issues for determination in an appeal. At the core is that issues distilled for determination in an appeal must flow from the grounds of appeal. An issue formulated for determination that does not relate to or arise from any of the grounds of appeal is not competent and ought to be disregarded; Oyegun v Nzeribe (2010) 16 NWLR (Pt.1220) 568 S.C.; Kalu v Odili (1992) 6 SCNJÂ 76; Oje v Babalola (1991) 5 S.C. 128. Indeed, a Court is without the vires to consider for determination an issue that does not relate to or flow from a ground of appeal. Furthermore, issues for determination reduce the grounds of appeal from which they are distilled into compact formulations; Sanusi v. Ayoola (1992) 11/12 SCNJ 142. Thus, a number of grounds could, where appropriate, be formulated into a single issue running through them. There need not be a separate issue formulated for each ground of appeal. But it is patently undesirable to split the issue in a ground of

appeal; per Karibi Whyte, JSC in Labiyi v Anretiola (1992) LPELR-1730 (SC). Therefore, formulating issues for determination in excess of the grounds of appeal or formulating more than one issue from a single ground of appeal is not in line with the principles governing the formulation of issues for determination in an appeal. It amounts to proliferation of issues, which is not acceptable; Nwankwo v Yar’Adua (2010) 12 NWLR (Pt.1209) 518 S.C.; Okwuagbala v Ikwueme (2010) 19 NWLR (PT 1226) 54 S.C.
?Where a respondent does not file a cross appeal or a respondent’s notice, he must distill issues for determination within the grounds as framed by the appellant. An examination of the issues distilled by the Respondent herein, in the light of the above principles, would reveal that Issue 1 as distilled by the Respondent does not arise from ground one of the grounds of appeal. Issue 2 formulated by the Respondent does not flow from ground three of the grounds of appeal. Issue 3 was framed from ground four. Issue 4 was framed from ground five. Issue 5 does not flow from ground three and cannot be considered thereunder. In any event, two different issues cannot be

formulated from a single ground. Issue 6 was framed from ground two. Issues 1, 2 and 5 as formulated by the Respondent are incompetent and are accordingly hereby struck out.

The competent issues distilled for determination by the Respondent are therefore as follows:
3. Whether the Respondent’s exhibits clearly established that indeed the Appellants sold the subject matter contrary to their denial in their counter affidavit to the originating summons that prompted to Respondent to tender the exhibits to expose the Appellants? (distilled from ground four).
4. Whether the trial judge was right to deliver the judgment in favour of the Respondent based on the unimpeachable evidence and the fact that the Appellant admitted in their counter affidavit that the subject matter of this appeal belongs to the Respondent? (distilled from ground five).
6. Whether a party that vehemently contested a case at the hearing of the suit and lost can still apply to the same Court to set aside the judgment and the fact that he fails to establish how the said judgment affected him to warrant it to be set aside.? (distilled from ground two).

?I am of the

considered view that it would be fitting to commence the determination of this appeal by the consideration of Issues 2 and 3 as distilled by the Appellants and Issue 6 as formulated by the Respondents. These issues challenge the procedure originating the proceedings that gave rise to this appeal and the participation of the Appellants therein.

It was contended by the Appellants that the procedure adopted by the lower Court in arriving at its decision on appeal was such as deprived the judgment of the character of legitimate adjudication. The claim of the Respondent was that they be declared as the owners of a fish pond and the surrounding land. But, the action was initiated by originating summons rather than by way of writ of summons as provided by law. Declaratory reliefs are not granted even on admission by the defendant except by credible and satisfactory oral evidence. Matters relating to declaration of title are not commenced by originating summons. Reliance was placed on Orianwo v Orianwo (2001) NWLR (PT 707) 516 at 523; A.G.F. v Ajayi (2000) 2 WRN 105; Adeogun v Fasogbon (2011) 2 – 3 MJSC (PT 11) 103.It was further submitted, relying inter alia on,

Dana Impex Ltd v Aderotoye (2006) 3 NWLR (Pt.966) 78 at 93 – 94, that the lower Court had jurisdiction to set aside its decision on this ground. The Court was urged to allow the appeal and set aside the decision of the lower Court.

The Respondent had sought the following reliefs from the trial Court:
1. A Declaration that the selling of the Applicants land and Ogbagwu fish pond therein fish behind their village to Unknown persons since 2007 till the filing of this suit is illegal, unlawful, unconstitutional and null and void.
2. A Declaration that the sale of the Applicants fish ponds (Ogbagwu and others) behind their village to unknown persons is in contravention of the Land Use Act, repugnant to natural justice, equity, good conscience and Public Policy.
3. A Declaration that the Oshugu land and Ogbagwu fish ponds therein behind Oshugwu village belongs to the Applicants and cannot sold to private persons except for public interest, therefore the sale is unlawful, unconstitutional and against public policy and null and void.
4.Â A Declaration that Loko Development Area has no power to sell the Applicant’s land virtue of the provisions of

the Constitution of Federal Republic of Nigeria 1999 and the Land Use Act 2004, therefore every transaction dealings on the land by the Respondents is unlawful, unconstitutional, null and void.
5. An order of this Honourable Court restraining the Respondents, their agents and cronies from selling and trespassing into land, Ogbagwu fish pond therein and all the surrounding land and other fish ponds in the environs behind the Oshugwu village.
6. An order of perpetual injunction restraining the Respondents, their agents and cronies from selling and trespassing into the Applicants’ Ogbagwu fish pond therein and all the surrounding land and other fish ponds in the environs behind the Oshugwu village.
7. An order compelling the Respondents to refund the sum of N300,000.00 per year from 2007 until judgment is delivered in this suit being the cost of sale of the Ogbagwu fish.
8. The sum of N1Million Naira only for general damages for trespass by the 2nd to 4th Respondents.
9. The sum of N500,000.00 being cost of this suit.
10. And any order or further orders this Honourable Court deem fit to make in the circumstances.
?
The Affidavit in

support of the Originating Summons, pages 4 – 6 of the Record of Appeal, deposed as follows:
I Yusuf Yakubu Z. Ukpo, Adult, Citizen of Nigeria, Indigene of Oshugu village of Nasarawa Local Government Area of Nasarawa State do hereby make oath and state as follows.
1. That I am an indigene of Oshugu Village and by virtue, I am familiar with the facts of the affidavit deposed to herein.
2. That I am duly nominated and mandated by my village people and leaders to represent them in this suit and by virtue I have the authority of my village people to depose to this affidavit. (herein attached is a copy of the letter of authority and marked as exhibit YZ1)
3. That the 1st Respondent is the chief executive chairman of Nasarawa Local Government Area and by virtue of the Land Use Act is vested with power and responsibility of the administration of land in the Local Government Area.
4. That the 2nd Respondent is a creation of the Nasarawa State Government which is not recognised by the Constitution of the Federal Republic of Nigeria 1999, therefore does not have the constitutional powers to sell the Applicant’s land.
5. That the Ogbagwu

fish pond is about 1Â kilometer from Oshugu village right in the middle of the community land and the Oshugu people had been in possession for more than 100 years ago.
6. That my late father who died on the 25/12/2011 verily informed me and I believe him that our origin is Akum kingdom and we are know(sic) as Owaya clan of Akum extraction.
7. That Akum is the headquarters of all the Afo people from Akum up till a village call Akum in Benue State during the reign of King (Osu) Owuma Ebije at about 500 years ago.
8. That the fish pond is a name of one of the daughters of the then king of Akum which was given to her as inheritance, that is while the fish pond the subject matter called Ogbagwu is name after the daughter of Akum King.
9. That my late grandfather Ukpo Oroto, Osu of Ogwufa late Odumu and late Agwuba came from Ogwufa now the present Benue State to established Oshugu village in front of Ogbuagwu fish pond to prevent trespass to their father land and the Ogbagwu fish pond therein.
10. That Oshugu village had been in peaceful possession of the land and the fish pond therein until the 2007 when as result of communal conflict

the entire village was destroyed.
11. That as a result of event of paragraph 10 some people came and claimed that the Ogbagwu fish pond had been sold to them by the Respondents.
12. That we engage(sic) the services of solicitors Messrs YZ Edego & Co to write the relevants (sic) authority in the state to verified(sic) the claims of the trespassers whom(sic) refused to discloses their names and identity.
13. That our solicitors wrote and served on the Executive Governor of Nasarawa State a pre-action notice dated 8th May, 2012 and copied the Attorney-General and Commissioner of Justice and the Commissioner of Agriculture respectively. (herein attached is a photocopy of the acknowledged copy of the pre-action notice and marked as Exhibit Y.Z.Z)
14. That the Respondents refused and failed to respond to our demand in the said letter therefore we instructed our solicitors to file this suit to redress the injustice against our community.
15. That it is against public policy and in contravention of the Land (Use Act and the Constitution of the Federal Republic of Nigeria to sell land or the fish ponds therein to individual and deprive the

community of the indigenous inhabitants of their possessory rights.
16. That it is in the interest of justice that this application be granted.
17. That I depose to this affidavit in good faith and in accordance with the oaths law.

Annexed to the Affidavit in support of the Originating Summons were the following documents: a letter of authority to file and prosecute the action in a representative capacity; and the pre-action notice to the 1st Appellant.

In response to these depositions, the Appellants filed a Counter Affidavit, pages 29 34 of the Record of Appeal, in which they deposed:
I, ADAMU ALIYU, Male, Adult, Muslim, Civil Servant and Litigation Secretary, residing at Kofar Gworiya, Keffi, do hereby make oath and state as follows: 1.Â That I am the Litigation Secretary in the Keffi Area Office of the Hon. Attorney General and Commissioner of Justice of Nasarawa State.
2. That by virtue of my position as above state, I am conversant with the facts of the case.
3. That I have the consent and authority of the respondent to depose to this counter affidavit.
4. That I was in the office of Alhassan Sabo Esq. when he was

briefed by the Director of Personnel Management (DPM) of Loko Development Area, Mr Stephen Abeshi on the 18th day of February, 2013 at about 11:30am of the facts of this case and I verily believe him as follows:
(a) That paragraph 4 of the applicant’s affidavit is a misnomer, as the 2nd Respondent did not in any way sell out the applicant’s Fish Pond or land so contended by the applicant.
(b) That the Respondents admit paragraph 10 of the applicant’s affidavit and further state that it is as a result of the conflicts stated therein, that the State Government acquired the Fish Ponds so as to allow peace to reign in the area.
(c) That applicant failed to state the names or particulars of those who the said fish pond was sold to in their paragraph 11 of the affidavit.
(d) That the applicants are economical with the truth as the sole reason for the acquisition was for normalcy to return to the communities and not that the fish pond(s) was sold to other persons.
(e) That it was not only the applicant’s fish pond that was acquired by the State Government but over 10 (ten) natural water bodies belonging to different communities in the

locality were seized by the State Government including that of the applicant.
(f) That the reasons for the said acquisition was because as a result of dispute in respect of these water bodies so many lives and properties were lost in 2003 which necessitated the State Government taken over the whole water bodies within the locality.
(g) That notwithstanding the efforts of the State Government in restoring peace and security in the affected areas, the applicants and Ayele communities made demands for the return of their fish ponds.
(h) That the demand in Sub-paragraph (g) above was seriously refused by the State Government through the Ministry of Agriculture and Natural Resources and a correspondence to that effect sent to the Sole Administrator, Loko Development Area, Loko Annexed hereunder is the said correspondence and marked as Exhibit ‘B’.
(i) That paragraphs 5,6,7,8 and 9 of the affidavit only relates to tracing the traditional or customary ownership and possession of the applicants to the fish pond in question.
(j) That the respondents are not contesting the customary title of the fish pond with the applicants.
(k) That the

purpose of acquisition of the fish pond is for peace to reign in the area.
(l) That it is the Nasarawa State Government through the 1st respondent that acquired the fish pond pursuant to the powers, conferred upon him under the Land Use Act but not the 2nd Respondent.
(m) That even the acquisition is not made of a permanent nature but only in the interim so as to allow peace return in the communities before each owner of fish pond takes back its possession. Thus paragraph 15 of the affidavit is a complete fallacy.
That it will be in the interest of justice to refuse the applicant’s originating summons as its grant will constitute a security threat to the communities where the fish pond is situate.

?The Respondent challenged the depositions of the Appellants in the Counter Affidavit. In the Reply on Point of Law to Respondents’ Counter affidavit, pages 44 – 46 of the Record of Appeal, they alleged that the correspondence annexed as Exhibit B (paragraph 4(h) reproduced above) by the Appellants looked ‘suspicious and fraudulent’, that it was mutilated and manipulated. The Respondent deposed to a Further Affidavit in support of the Originating

Summons, as well as a Further and Better Affidavit in support of the Originating Summons, pages 50 -51 and 52 – 53 of the Record of Appeal.

Aggrieved by this said judgment, the Appellants applied for the said judgment to be set aside on the grounds that it was given per incuriam and obtained by fraud and without jurisdiction; pages 72 – 78 of the Record of Appeal. The Respondents opposed this application, filing a counter affidavit; pages 72 – 78 of the Record of Appeal. There was a Further and Better Affidavit deposed to by the Appellants. The learned trial Judge in a considered ruling, refused the application; pages 123 – 127 of the Record of Appeal. The instant appeal was filed in consequence.

The nature of originating summons has been very well pronounced in a number of legal authorities. The Supreme Court, per Onnoghen JSC (as he then was) put it this way in Dapianlong v. Dariye (2007) 8 MJSC 140, (2007) 4 S.C. (PT.III) 18:
“The originating summons procedure is a means of commencement of action adopted in cases where the facts are not in dispute or there is no likelihood, of their being in dispute and when the sole or principal question in

issue is or is likely to be one directed at the construction of a written law, Constitution or any instrument or of any deed, will, contract or other document or other question of law or in a circumstance where there is not likely to be any dispute as to the facts. In general terms, it is used for non-contentious actions or matters i.e. those actions where facts are not likely to be in dispute.
In actions commenced by originating summons, pleadings are not required rather affidavit evidence are employed: See Director, State Security Service v. Agbakoba (1999) 3 NWLR (Pt. 595) 314; Din v. A-G of the Federation (1986) 1 NWLR (Pt. 17) 471; Keyamo v. House of Assembly Lagos State & Ors (2002) 18 NWLR (Pt. 799) 605.”
In Famfa Oil Limited v. Attorney-General of the Federation (2003) 18 NWLR (Pt. 852) 453 Belgore JSC, (as he then was) said at page 467:
“The very nature of an originating summons is to make things simpler for hearing. It is available to any person claiming interest under a deed, will or other written instrument whereby he will apply by originating summons for the determination of any question of construction arising under the

instrument for a declaration of his interest. (Order 38 Rule 1 and Order 44 Rule 1 ). It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the dealings of the parties to the suit. In such a situation, there is no serious dispute as to facts but what the Plaintiff is claiming is the declaration of his rights. If there are serious disputes as to facts then a normal writ must be taken out and not originating summons; Doherty v. Doherty (1968) NMLR 241. In matters where facts are not in issue the originating summons, which must be supported by an affidavit of the facts must be taken out and will become operative once a Judge in chambers has signed it thus giving direction for its service.”
Again, inObaÂ Osunbade v Oba Oyewunmi 30 NSCQR 434 at 449, the Supreme Court per Ogbuagu JSC said:
“It is now firmly settled that an Originating Summons, is an unusual method of commencing proceedings in the High Court and it is confined to cases where special statutory provisions exist for its application. It is not advisable, to make use of this procedure for hostile proceedings where the

facts are in dispute as in the instant case leading to this appeal.”
See also:Inakoju v Adeleke (2007) 2 MJSC 1; Peters-Pam v. Muhammed (2008) 9 MJSC 117; FGN v Zebra Energy (Nig.) Limited (2003) 1 MJSC 3.

The issues presented before the lower Court for determination, as acknowledged by the learned trial Judge, pages 68 – 69 of the Record of Appeal, were:
1. Whether the purported sale of the Applicants land and fish pond therein is contrary to the Land Use Act, Constitution of the Federal Republic of Nigeria and public policy.
2. Whether the fact deposed in the affidavit in support of the Originating Summons is sufficient traditional evidence to establish proof or ownership of the subject matter of this suit.
3. Whether the action of the 2nd Respondent to sale(sic) and administer land in violation of the Constitution and the Land Use Act provisions is unlawful and unconstitutional.

?The Respondent was thus required to prove that there had been an unlawful acquisition of land and fish pond belonging to the community by the Appellants. The said fish pond and the surrounding land in issue, as well as the dimensions of the land ought

to be identified with certainty. There ought to be proof to ground the allegation that there had been an unlawful sale of the said fish pond and surrounding land by the Appellants.

Originating Summons is a procedure for which only affidavit evidence is adduced. Unfortunately, the depositions of the Respondent did not provide adequate required details and there was no documentary evidence annexed that could fill the yawning gaps. Again, unfortunately, the issues identified by the learned trial Judge for determination were not at all addressed in the judgment found at pages 66 -71 of the Record of Appeal. The learned trial Judge simply restated the reliefs sought and the submissions of the Respondent’s Counsel and then entered judgment in favour of the Respondent. In my considered view, learned Counsel for the Appellants rightly described the said judgment as vague.

?It is well settled that in actions where there is likely to be substantial dispute of facts, or, where the relief or reliefs sought by a claimant are declaratory in nature, originating summons procedure that admits only affidavit evidence ought not to be employed. The action must be brought

by writ of summons, the facts being in dispute. It is in accord with justice to postulate that where the complaint of the plaintiff makes allegations against a defendant, oral evidence is required. This would provide opportunity for the defendant to cross-examine witnesses testifying against him.
It is important to note that it is not the filing of a counter affidavit per se that determines whether or not facts are in dispute. In Ossai v Wakwah (2006) 4 NWLR (Pt.969) 208 at 229, (2006) LPELR-2813 (SC, (2006) 2 SC (Pt.1) 19, the Supreme Court, per Mohammed JSC (as he then was) unequivocally put it this way:
“It must be emphasized that it is not the filing of a counter-affidavit to oppose claims in an originating summons that makes such proceedings contentious or result in disputed facts. Even where no counter-affidavit was filed or where counter-affidavit was filed but ignored by the trial Court, as in the lost out case, the nature of the claims and the facts deposed in the affidavit in support of the claims in the originating summons are enough to disclose disputed facts and hostile nature of the proceedings.”

?A close examination of the

affidavit evidence of the Respondent would reveal that there were facts which were likely to be disputed. The status of the fish pond, whether it was actually lawfully acquired by the Nasarawa State Government for peace to reign in the affected communities and whether the particular fish pond was leased for a season or sold wholly for all time. Likewise, in controversy was whether the surrounding lands alleged belonging to the Respondents were also lawfully acquired or unlawfully interfered with by the Appellants and what were the dimensions of surrounding lands claimed. The precise surrounding area of land for which a declaration was sought was not defined with sufficient clarity or identified.

There is no doubt that it is not in all cases where there is conflicting affidavit evidence that originating summons cannot be employed. Where there exists documentary evidence upon which the Court may ground its decision, the matter may be heard and determined on such evidence; Nwosu vs. Imo State Environmental Sanitation Authority (1990) 2 NWLR (PT.135) 688. But, in this case, there were no documents annexed to the affidavit in support of the Originating

Summons to ground the grant of the declarations sought by the Appellant. There was just no evidence placed before the trial Court in the affidavit evidence in support of the Originating Summons to ground the reliefs sought. The issues thrown up by the affidavit evidence of the Respondent at the lower Court could not have been judiciously resolved without the benefit of oral evidence and an opportunity given to the parties to cross examine their respective witnesses.

I agree with the Appellants that the originating summons procedure was not the correct procedure to employ in determining hostile proceedings in which facts are in dispute; Amasike v The Registrar, Corporate Affairs Commission (2010) 13 NWLR (PT.1211) 337 S.C; Ezeigwe v Nwawulu (2010) 4 NWLR (PT 1183) 159 S.C.; Agbakoba v INEC (2008) 18 NWLR (PT.1119) 489 S.C. An aggrieved litigant should not employ originating summons as a procedure to ventilate grievances which are in dispute. In my considered view, there is no gainsaying the fact that the Respondent commenced the action by a procedure that does not permit a comprehensive ventilation of the matters in controversy in order to ensure justice

for all the parties.

However, it is important to take note of the fact that the Appellant took part in these proceedings until judgment was delivered. No objection to the procedure was taken. There was thus no decision of the lower Court on any complaint on the procedure employed by the Respondent. Raising this point on appeal amounts to a fresh issue for which leave of Court must be sought for and obtained. It is well settled that when a party seeks to file and argue a fresh issue not raised in the lower Court, whether or not the issue pertains to law, leave to file and argue such fresh issue must be had and obtained; Obiakor v. State (2002) SCNLR 193; Obioha v. Duru (1994) 1Â NWLR (Pt.365) 631; Opobiyi v. Layiwola Muniru (2011) 1 LPELER-8232 (SC); Ohochukwu v. Attorney General Rivers State (2012) LPELR-7849 (SC). Such fresh issue may be raised and relied on, upon any new line of argument or new decided authorities, judicial or statutory to support the argument in an issue; Ogunbadejo v. Owoyemi (1993) 1 NWLR (Pt.271) 517 at 534; Oseni v. Bajulu (2009) 18 NWLR (PT 1172) 164.
?An exception to this general rule is where the new issue sought to be raised

touches on jurisdiction. The jurisdiction of a Court is the authority which a Court has to decide on matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision.
The limits of this authority are set by statute, charter or commission under which the Court is constituted and may be extended or restricted; National Bank (Nigeria) Ltd v. Shoyoye (1977) 5 S.C. 110; Ndaeyo v. Ogunaya (1977) 1 S.C. 7. If the fresh or new issue sought to be raised on appeal challenges the jurisdiction of the Court, generally, leave of Court need not be first obtained; Gaji v. Paye (2003) 1 NWLR (PT 823) 58 at 599; Elugbe v. Omokhafe (2005) ALL FWLR (PT 243) 629 at 640, 646; Moses v. State (2006) 11 NWLR (Pt.992) 458, (2006) All F.W.L.R. (PT 322) 1437; The Minister of works & Housing v. Shittu (2007) 16 NWLR (PT 1060) 351. In the case of Moses v. State (2006) 11 NWLR (PT 992) 458, Ogbuagu JSC at page 503 said:
“The consequence is long settled in a number of decided authorities to the effect that an Appeal Court will not ordinarily entertain issues that are fresh and not brought and decided before a lower Court,

without the leave of the Court having been had and obtained…Let me add quickly, that the only exceptions are where the issue of jurisdiction is raised as a fresh point, leave is not necessary”.
There is no doubt that the issue of jurisdiction is a threshold issue that can be raised at any time, even on appeal. But this is not at large. It is the accepted view that where all the facts are available to the party, it is desirable to raise it at the lower Court so as to give notice to the opposing party of the case he has to meet; Ezomo v. Oyakhire (1985)2 S.C. 260.
A line may be drawn between when the fresh issue is founded on procedural matters and when substantive law is involved. I would emphasize that a complaint touching on the competence of an originating process is procedural and it is not obscure. Any challenge on the competence of procedural step ought to be raised timeously and at the trial Court. However, while a litigant may submit to a procedural jurisdiction, parties cannot confer jurisdiction on a Court where the law has not done so;Obiuweabi v. CBN (2011) LPELR- 2185(SC). Therefore, if the fresh issue arises from substantive law,

it may be raised on appeal without leave of Court. In this case, the complaint regarding the procedure adopted by the Respondent was not taken at the lower Court. The Appellants participated in the proceedings up until judgment was given. I do not see how they can raise that complaint on appeal when there was neither complaint to the trial Court nor decision of the trial Court thereon. The proper course of action to take would be to appeal against the said judgment; and not simply to bring an application to have it set aside. The matter was procedurally wrongly heard under the originating summons procedure but the ensuing judgment was not a nullity. I agree with the submissions for the Respondent that the learned trial Judge had become functus officio. He could not have set aside the judgment. In my view, the application to set it aside was rightly refused by the lower Court. The learned trial Judge in the judgment in issue, specifically at page 126, indeed recognized that the Appellants could appeal against the judgment, if they so desired. Issues 2 and 3 as distilled by the Appellants and Issue 6 as formulated by the Respondent are resolved against the

Appellants.

The complaint that proper and necessary parties were not before the trial Court at the hearing of the originating summons, which was raised at the time of seeking to set aside the resultant judgment, was a complaint coming too late. The Appellants were part of the proceedings at the trial Court. If the proper parties or necessary parties were not before the trial Court, this was an issue that ought to have been raised at the hearing of the originating summons. Failure to join a necessary party is an irregularity which does not affect the competence or jurisdiction of the Court to adjudicate on the matter. A judgment delivered in the absence of a necessary party without more, is not a nullity; Okoye v. C.F.C. (1991) 7 S.C. (PT 111) 33. The judgment cannot be liable to be set aside on this basis. Drawing the attention of the trial Court to the fact that necessary parties were not before it after the matter has been heard and judgment delivered thereon is akin to medicine after death. It is no longer of relevance. I would therefore resolve Issue 1 as distilled by the Appellants against them.

?The point has already been made that there was no

evidence submitted to the trial Court to ground the reliefs sought by the Respondents. The solution was to appeal against the said judgment and not to apply to the same trial Court to set it aside. The exhibits annexed in support of the Respondent’s counter affidavit to the motion seeking to set aside the judgment of the lower Court were not before the trial Court at the hearing of the originating summons. The exhibits were therefore irrelevant at the stage of the ruling to set aside the said judgment. Those exhibits did not reinforce the judgment at all. The Respondent could not rely on exhibits annexed in support of the Respondent’s counter affidavit to the motion seeking to set aside the judgment of the lower Court to reinforce a judgment already delivered. The said exhibits therefore established absolutely nothing. The exhibits annexed in support of the Respondent’s counter affidavit to the motion seeking to set aside the judgment of the lower Court were not placed before the trial Court for consideration at the hearing of the originating summons. These exhibits can by no means be viewed as having established a relief that was granted before the exhibits

were placed before the trial Court. I would therefore resolve Issue 4 as distilled by the Appellants in favour of the Appellants and Issue 3 as distilled by the Respondent against the Respondent.

The Supreme Court has defined judicial bias in a number of authorities.
“Bias in its ordinary meaning is opinion or feeling in favour of one side in a dispute or argument resulting in the likelihood that the Judge so influenced will be unable to hold an even scale.”,
per Ayoola, JSC in Kenon v. Teksm (2001) 7 S.C. (PT 111) 49.
“When a judge appears to give more favour or consideration to one of the parties before him, either in his utterances, attention or actions, which is capable of perverting the cause of justice, or where fair hearing cannot be said to have taken place, all in favour of the party he supports covertly or overtly, then an allegation of bias against him can be grounded, That of course is a Judicial bias.”
Per I. T. Muhammed, JSC in Womiloju v. Anibire (2010) 10 NWLR (PT.1203) 545.
In Womiloju v. Anibire (supra) other factors which could show real likelihood of bias were listed as:
1. Hostility of strong personal

animosity towards a party,
2. Personal friendship, family or professional relationship
But there must be a real likelihood of bias, which is not merely based on conjecture. The test is the impression created in the minds of right minded people. If right thinking persons would think that there is a real likelihood of bias or that the trial judge had not been impartial then his decision cannot stand, Womiloju v. Anibire (supra); Saliba v. Lababedi (1972) 12 S.C. 132. An allegation of bias cannot be grounded by conjecture.

The fact that the trial Court did not give weight to the most of the issues raised by the Appellants does not amount to evidence of bias. The failure of a trial Judge to consider the issues raised by a party does not immediately prove that he is biased. I therefore resolve Issue 5 against the Appellants.

Circumstances under which a judgment can be set aside have been well articulated by a plethora of judicial pronouncements;Obioha v Ibero (1994) LPELR-2180 (SC); Josiah Cornelius Ltd v Ezenwa (1996) 4 NWLR (PT 443) 391; Bello v INEC (2010) LPELR-767(SC); Nwankwo v Yar’Adua (2010) 12 NWLR (PT 1209) 518 S.C. A judgment that

amounts to nullity in law can be set aside upon the application of the party affected thereby. It is important to note that a judgment which is wrong or not correct may not necessarily be a nullity; Nnadozie v Mbagwu (2008) 1 S.C. (Pt.11) 43. Neither the judgment in respect of the originating summons nor the ruling refusing to set aside the said judgment have been shown to have been a nullity. There was no basis upon which the lower Court ought to have set aside the said judgment. Issue 6 is resolved against the Appellant.

Issue 4 distilled by the Respondent is fundamental.
Whether the trial judge was right to deliver the judgment in favour of the Respondent based on the unimpeachable evidence and the fact that the Appellant admitted in their counter affidavit that the subject matter of this appeal belongs to the Respondent? (distilled from ground five).

I have already noted above that there was no evidence at all adduced before the trial Court in proof of the reliefs sought by the Respondent in the originating summons. There was no evidence to ground the grant of the orders sought by the Respondent. Exhibits annexed in support of the

Respondent’s counter affidavit to the motion seeking to set aside the judgment of the lower Court which were not placed before the trial Court for consideration at the hearing of the originating summons, can by no means be viewed as having established a relief that was granted before the exhibits were placed before the trial Court. The judgment of the learned trial Judge delivered on June 28, 2013 therefore has no justification to stand. Issue 4 as formulated by the Respondent is thus resolved against the Respondent and in favour of the Appellants.

However, the Notice of Appeal filed by the Appellants was against the ruling of the trial Court delivered on November 28, 2013. There was no specific appeal against the judgment delivered on June 28, 2013. Although the Appellants had also in this appeal sought an order to set aside the said judgment, the Notice and Grounds of Appeal were against the said ruling. If the ruling were to be set aside, then the judgment would obviously go with it. But, the ruling appealed against has not been set aside. The said judgment is therefore subsisting, awaiting the proper step by the Appellants. The Appellants ought to

have also appealed against the said judgment. I do not know if this was an oversight. However, this Court cannot proceed to set aside the said judgment delivered on June 28, 2013 when the Notice of Appeal under consideration only captured the ruling of November 28, 2013. This Court is bereft of jurisdiction to extend the Notice of Appeal by setting aside the said judgment when there was no specific appeal against it.

The appeal against the ruling of the trial Court delivered on November 28, 201 3 therefore fails.
Parties are to bear their costs.

JUMMAI HANNATU SANKEY, J.C.A.:My learned brother, Otisi, JCA, availed me a copy of the Judgment just delivered. Upon perusal, I agree with her reasoning and conclusion.

?It is evident from the Record of Appeal of the lower Court that the issues canvassed in the Appeal concerning the mode of commencing the action by means of an Originating Summons, instead of by a Writ of Summons, was never raised before the trial Court. Thus, no decision was rendered on the issue, which is plainly an issue of procedural law. That being the case, the Appellant requires the leave of

this Court before he can raise it. This was never sought nor obtained.
Generally, the jurisdiction of an appellate Court is strictly circumscribed by law to make pronouncements only issues which were determined by the trial Court. Where fresh issues must of necessity be raised on appeal, leave of Court must be expressly sought and obtained. The only exception of course is when it concerns an issue of jurisdiction. See Salisu V Mobolaji (2013) LPELR-SC.272/2008; Agbakoba V INEC (2008) 12 SC (Pt.III) 171 at 198; Veepee Ind. Ltd V Cocoa Ind. Ltd (2008) 4-S SC (Pt.1) 116 at 139-140; Afolalu V State (2007) LPELR ? CA/IL/C91/2007; Benson V State (2002) 6 SCNJ 193.
Courts in a long line of authorities have enumerated and laid down special circumstances and conditions under which points of law not agitated at the trial Court may be allowed to be raised on appeal. The requirements include the following: the point of law raised must not be insubstantial, no further evidence will be adduced which will affect the new point, the refusal of leave to argue the fresh point will occasion a miscarriage of justice, or other exceptional circumstance. See Nasco

Mgmt Services Ltd V A.N Amaku Transport Ltd (1998) LPELR-CA/J/132/96 (R); Niger Progress Ltd V NEL Corp (1989) 3 NWLR (Pt.107) 68 at 100; PPC Ltd V Adophy (1986) 4 NWLR (Pt.34) 205; Dweye V Iyomahan (1983) 2 SCNLR 135 at 138.
Since no application has been shown to have been placed before the Court to raise the fresh issues argued in the Appeal, the Appellant is not on firma terra when he presumed to raise it on his own steam and without the requisite leave.

It is for this and the fuller reasons contained in the lead Judgment that I also find no merit in the Appeal. It is accordingly dismissed. I abide by the consequential orders reflected therein.

JOSEPH EYOÂ EKANEM, J.C.A.:I had the privilege of reading in advance the judgment which has just been delivered by my learned brother, Onyekachi A. Otisi, JCA. I agree that the trial Court rightly dismissed the motion on notice in which the appellants sought to set aside the judgment of the trial Court delivered on 28/6/2013.

?I also dismiss the appeal and abide by the order as to costs contained in the lead judgment.

Appearances

Akuson A. Hosea, Esq. (Ministry of Justice, Lafia, Nasarawa State)For Appellant

AND

Yusuf Zakari Edego, Esq.For Respondent

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