THE GOVERNOR OF KOGI STATE & ORS V. OBA S. A. MOHAMMED
(2018)LCN/11872(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 8th day of July, 2008
CA/A/79/07
RATIO
COURT AND PROCEDURE: ABUSE OF COURT PROCESS
“On what constitutes abuse of court process, the Supreme Court in the case of: Amaefule V. State supra at p. 177 para. C-F. per Oputa, JSC stated thus;
“Abuse of process of the court is a term generally applied to a proceeding which is wanting in “bona fides” and is frivolous, vexatious or oppressive?
Abuse of process can also mean abuse of legal procedure or improper use of legal process… The term abuse of process has an element of malice in it. It thus has to be a malicious perversion of a regularly issued process, civil or criminal, for a purpose, and to obtain a result not lawfully warranted or properly attainable thereby. “” PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
COURT AND PROCEDURE: ORIGINATING SUMMONS
“It is now settled beyond all arguments that an originating summons is an unusual mode of commencing proceedings in the High Court, which is confined to cases where special statutory provisions exist for its application. Furthermore, it is used to commence non-hostile proceedings and non-contentious actions where the facts are not likely to be in dispute. It is a method of procedure and not a substitute for commencing contentious suits where the facts are in dispute. The appropriate method for commencing contentious suits is a writ of summons in which what is alleged by the parties will be clearly defined in the pleadings and both parties will be at liberty to lead oral evidence in proof of the averments therein. For under the writ of summons, facts are regarded as holding a pride of place and the fountain head of the Law, in the sense that the facts lead to a legal decision on the matter.” PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
1. THE GOV. OF KOGI STATE.
2. THE ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, KOGI STATE.
3. THE SPECIAL ADVISER ON LOCAL GOVERNMENT AND CHIEFTAINCY AFFAIRS.
4. PERMANENT SECRETARY, LOCAL GOVERNMENT AND CHIEFTAINCY AFFAIRS, KOGI STATE.
5. KOGI STATE COUNCIL OF CHIEFS.
6. OKUN AREA TRADITIONAL COUNCIL.
7. CHAIRMAN YAGBA EAST LOCAL GOVERNMENT TRADITIONAL COUNCIL.
8. YAGBA EAST LOCAL COUNCIL. Appellant(s)
AND
OBA S. A. MOHAMMED Respondent(s)
OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the ruling of the High Court of Kogi State holden at Isanlu delivered on 16/11/06 by Hon. Justice S. T. Husseini.
Respondent’s second suit No. KGS/IHC/11/06 in the High Court of Justice, Isanlu, constitutes an abuse of court process.
The Appellants’ learned counsel reiterated that the phrase, ”abuse of court process” has been explained to include when a party or a person institutes a multiplicity of actions on the same subject matter against the same opponent. On this legal principle, he relied on the case of: Saraki Vs. Kotoye (1992) 9 NWLR (Pt. 264) p. 156. A look at the Respondent’s opponents in both suits will reveal that the Attorney-General & Commissioner for Justice, the Special Adviser on local Government and Chieftaincy matters are opponents in both suits and the introduction of new opponents in the latter suit was a deliberate ploy on the Respondent’s part to deceive the court. So also is the choice of nomenclature to the Respondent’s name in both Suits. For in the earlier suit he was referred to as Mallam S. A. Mohammed; while in the latter suit he was referred to as Oba S. A, Mohammed, a deliberate cover up meant to shield his latter suit from being seen to constitute an abuse of court process.
It was contended for the Appellants that if the Respondent strongly desired to add new opponents to the suit the only option opened to him was to apply for the joining of these new opponents to the existing opponents.
The learned counsel for the Appellants canvassed that assuming that the Appellants were in breach of an order of interim injunction restraining them from releasing the white paper on the report of the said Committee containing the recommendation that the appointment of the Respondent as Olukotun of Ife-Olukotun be annulled, the Respondent ought to have gone to that Court with his complaint of breach since his suit was still pending at the time of the purported breach. The institution of the fresh suit did not avail the Respondent.
An alleged breach of a purported order of interim injunction should not be a license for allowing or condoning an abuse of the process of the court. For a court of law has a dual responsibility of preventing the abuse of its process as well as protecting its majesty.
The protection of the court’s majesty is only limited to ensuring the obedience or protection of court’s orders that are valid and not null. On this position, reference was made to the case of: Ekulo Farms Ltd. & Anor V. Union Bank of Nigeria Plc. (2006) 4 SCNJ p. 164 at p. 165. According to the learned counsel for the Appellants, the interim order of injunction which the trial Court sought to protect or ensure its obedience was a null order because an interim order of injunction cannot be made to last until the determination of the substantive suit. What is more, parties were never heard on the motion which purportedly sought an interlocutory injunction. On this position, reliance was placed on the case of: N.A.B. Kotoye V. Central Bank of Nigeria (1989) All NLR p. 76 at p. 98.
Replying to issue one, the learned counsel for the Respondent submitted that it is trite law that for a latter case to constitute an abuse of court process in relation to a former case, the features that must simultaneously exist in the two cases are that the subject matter, the defendants and the issues in both cases must be the same. On this proposition, he relied on the cases of:
(1) Saraki V. Kotoye supra at p. 188;
(2) Ameafule V. The State (1988) 2 NWLR (Pt. 75) p.156 at p. 177and
(3) Ekpuk V. Okon (2002) FWLR (Pt.84) p.145 at pgs. 164 -165
The Respondent’s learned counsel conceded that the subject matter in the two cases centres on the chieftaincy stool of Ife-Olukotun and to that extent the subject matter could be said to be the same. However, for the second condition which is sameness of the opponents, he asserted that the defendants in the two cases are not the same. Reference was made to page 29 of the record to buttress this view. The Defendants in the latter case were necessitated by the latter claims and not an attempt to hoodwink the court. Albeit the issues involved in the two cases are products of the reliefs sought in the two cases, a calm comparison of the two sets of reliefs show that they are not the same. Whereas in the first suit, the Respondent essentially sought to protect his stool as the incumbent Olukotun of Ife-Olukotun; while in the second suit, he sought to restore his appointment to the stool which the 1st Appellant had purportedly nullified and thereby reduced him to an ex-Olukotun of Ife-Olukotun in flagrance disobedience of a valid and subsisting order of a court of competent jurisdiction. Hence, the issues in the two cases cannot by any stretch of imagination be said to be the same.
I have perused the record of appeal and given due consideration to the submissions of the learned counsel for both parties. The kernel of issue one according to the Appellants is that Suit No. KGS/IHC/11/06 being a duplication of Suit No. HCL/13/2005 amounts to an abuse of court process.
The questions for determination and the reliefs sought by the Respondent in the suit before the High Court Isanlu, which gave rise to this appeal have been comprehensively set out by me earlier on in this judgment. I have also examined the statement of claim in suit No. HCL/13/2005, which can be found at pages 29 to 40 particularly, the reliefs claimed by the Respondent at pages 39 to 40 of the record of proceedings.
It is pertinent at this juncture to set out the reliefs claimed by the Respondent in the first suit No. HCL/13/2005 at the High Court Kabba. They are:
1. A DECLARATION that the appointment of the Plaintiff as the Olukotun of Ife- Olukotun is regular and proper having complied with the requisite procedure under the native Law and custom of Ife-Olukotun
2. A DECLARATION that the appointment of the Plaintiff is regular and proper having scrupulously complied with the provisions of the Appointment and Deposition of Chief and Establishment of Councils in Kogi State Law NO.7 of 1992.
3. A DECLARATION that the 3rd Defendant went outside its terms of reference when it purportedly found that the appointment of the Plaintiff was irregular and recommended that the Plaintiff be given another opportunity to recontest the stool.
4. A DECLARATION that the recommendation of the 3rd Defendant that the Plaintiff should recontest the stool amounts to dethroning and/or deposition which is ultra vires its terms of reference and contrary to the Appointment and Deposition of Chiefs and Establishment of Councils in Kogi State Law NO.7 of 1992.
5. A DECLARATION that the recommendation of the 3rd Defendant that the Plaintiff should recontest the stool is unfair unjust, illegal, unlawful and against the rule of natural justice, equity and good conscience.
6. AN ORDER OF PERTETUAL INJUNCTION restraining the 2nd Defendant from acting on the recommendation of the 3rd Defendant in so far as it relates to the stool of OLUKOTUN of Ife-Olukotun.
7. AN ORDER OF PERPETUAL INJUNCTION restraining the 2nd Defendant from releasing the White Paper on the Report of the 3rd Defendant in So far as it affects the stool of OLUKOTUN of Ife-Olukotun.
8. AN ORDER OF PROHIBITION if the white paper on the Report of the Defendant is already released, prohibiting the Defendants whether by themselves, agents, subordinates, assigns, privies, institutions or whoever purporting to act on their behalf from implementing or executing the white paper as it applies or relates to the Plaintiff.
On what constitutes abuse of court process, the Supreme Court in the case of: Amaefule V. State supra at p. 177 para. C-F. per Oputa, JSC stated thus;
“Abuse of process of the court is a term generally applied to a proceeding which is wanting in “bona fides” and is frivolous, vexatious or oppressive?
Abuse of process can also mean abuse of legal procedure or improper use of legal process… The term abuse of process has an element of malice in it. It thus has to be a malicious perversion of a regularly issued process, civil or criminal, for a purpose, and to obtain a result not lawfully warranted or properly attainable thereby. ”
In: Saraki V. Kotoye supra at pgs.188 – 189, Karibi-Whyte, JSC had this to say:
“The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice … The employment of Judicial process is only regarded generally as an abuse when the party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See Okorodudu V. Okorodudu (1977) 3 SC 21; Oyegbola V. Esso West Africa Inc. (1966) 2 SCNLR 35, (1966) 1 All NLR 170.”
The Supreme Court equally in: Agwasim V. Ojichie (2004) 10 NWLR (Pt. 882) p. 613 at pgs. 622 – 623 paras. F.B appreciated the fact that abuse of judicial process may occur in various ways.
From the authorities referred to above, it is also evident that abuse of process may consist of the proper or improper use of judicial process with the intention to irritate or annoy an opponent or to interfere with the due administration of justice. Further on this trite legal position, see the cases of: (1) Dapianlong V. Dariye (2007) 8 NWLR (Pt. 1036) p. 239 and
(2) Ugese V. Siki (2007) 8 NWLR (Pt. 1037) p. 452.
It was held in: Ogoejeofo V. Ogoejeofo (2006) 3 NWLR (Pt. 966) p, 205; (2006) 1 SCNJ p. 69 at p. 79 lines 34-39 that the abuse lies in the multiplicity and manner of the exercise of the right to institute an action rather than the exercise of the right ”per se” There will be no abuse of process where a party exercises his right of action ”bona fide”. See: Unifam Ind Ltd V. Oceanic Bank Int’l (Nig.) Ltd (2005) 3 NWLR (Pt. 911) p.83 at p. 100 E-H.
Mohammed J.C.A. (as he then was) considered what could amount to abuse of court process in Owonikoko V. Arowosaiye (1997) 10 NWLR (Pt. 523) p.61 when he stated at p.76 as follows:
”An abuse of the process of the court may occur when a party improperly uses judicial process to the harassment, irritation and annoyance of his opponent, and to interfere with the administration of justice. A clear example is where two similar processes are used against the same party in respect of the exercise of the same right and subject matter. See Okafor V. Attorney-General, Anambra State (1991) 6 NWLR (Pt. 200) p. 659 at p. 681.”
In the instant case, the learned trial Judge held in lines 28 to 34 at page 106 and lines 14 to 17 at page 107 of the record of appeal, that:
“The Plaintiff vide his Originating summons is seeking several Declaration (sic) and Reliefs. It is clear to me that all the reliefs being sought arose from the annulment (sic) of the appointment of the plaintiff as the Olukotun of Ife-Olukotun, an event which took place sometimes in June, 2006. – – – – It is correct to assert – – – – that the annulment (sic) of plaintiff’s appointment in 2006 – – – gave rise to a cause of action – – – – – the letter of annulment (sic) of appointment constitutes a fresh cause of action notwithstanding that the plaintiff in the action before this court is also the plaintiff in the previous action before High Court, Kabba.”
Concerning the previous action before the High Court, Kabba, the learned trial Judge also held in lines 4 to 9 at page 107 of the record that:
“—- the purport of that action was plaintiffs’ (sic) quest to protect and preserve a vested right, his right to continue to occupy the stool of Olukotun of Ife-Olukotun having been so appointed as distinguished from (sic) action which seeks to challenge the validity of the removal of the plaintiff from occupying the stool of Olukotun of Ife-Olokotun, by the defendants, which is what the originating summons before this court is all about. – ”
I am well guided by the above findings in the present case. It is quite clear and I am of the view that the Respondent’s first suit was in the main geared towards preventing the annulment of his appointment and his removal.
It was aimed at stopping the Kogi State Government from releasing the White Paper on and implementing the recommendations in the Report of the Committee on the Review of Chieftaincy Matters in Kogi State relating to the stool of Olukotun of Ife-Olukotun occupied by the Respondent. To realize this aim, the Respondent further filed a motion in which he sought and was granted an injunctive order restraining the Kogi State Government in that regard pending the determination of the said substantive suit. Notwithstanding the injunctive order and the pendency of the suit, the Governor of Kogi State went ahead to release the White Paper on the Report of the Committee and implemented the recommendations therein by “Inter alia”, annulling the appointment of the Respondent as the Olukotun of Ife-Olukotun – See the letter reference No. DGO/LGCA/CHI/S/P/122/Vol. 1/45 dated 24th June, 2006, Exhibit D at page 19 of the record of proceedings.
Contrariwise, the second suit filed by the Respondent at the High Court Isanlu, the subject-matter of this appeal, was a reaction to the annulment of the Respondent’s appointment. I have earlier on in this judgment reproduced the declaratory reliefs sought in the said suit. The suit challenged his eventual removal and impliedly sought an order of the Court to reinstate him as the Olukotun of Ife-Olukotun.
I am firmly of the opinion that from the moment the appointment of the Respondent was annulled in line with the recommendations contained in the released White Paper on the Report of the Committee in the face of the interlocutory injunctive order and the pendency of the first suit, the cause of action became completely changed and altered. The position not only of the Respondent but also of the High Court Kabba had been overreached. Both the Court and the Respondent became incapacitated and were prevented from acting in any way under the main suit. What is more, as earlier on pointed out, since the Respondent’s second suit had to do with his alleged unlawful removal and his possible reinstatement, those issues not covered by the first suit that was before the High Court Kabba, can not be taken under or subsumed in the first suit. The purported annulment of the Respondent’s appointment completed and closed-up the first action. It is trite law that the cause of action normally precedes the commencement of an action in respect thereof. In the instant ease, the Respondent had not been removed before he commenced the first suit, whereas the second suit was instituted after he had been removed.
The learned counsel for the Appellants admitted that the Government of Kogi State was in disobedience of the order of the High Court Kabba in the first suit and he argued that the Respondent could only seek a remedy within the confines of that first suit and can not institute a completely different suit. With respect to the learned counsel, this position taken by him is totally misconceived. The consequence of disobedience of a court order is quite different from a cause of action. The consequence of such disobedience can only be and it is punishment. Hence, the second suit of the Respondent before the High Court Isanlu can stand and exist independently even if the Respondent decides to initiate contempt proceedings against the Defendants for their disobedience of the order of the High Court Kabba under the first suit.
Unequivocally, I agree with the learned trial Judge that the action of the Respondent in the Originating Summons filed before the trial Court, High Court Isanlu despite the fact that it was against eight persons, bodies or authorities as defendants some of whom were not parties in the earlier suit filed by the Respondent at the High Court Kabba, sought to challenge the validity of the removal of the Respondent as Olukotun of Ife-Olukotun. The trial Court properly found that the letter of the annulment of the appointment of the Respondent, Exhibit D gave rise to a fresh cause of action; whereas, the purport of the first suit before the High Court Kabba was the Respondent’s quest to protect and preserve a vested right to continue to occupy the stool of Olukotun of Ife-Olukotun having been legally and validly appointed.
It may appear that the two suits border on a cumulation or collection of the grievance of the Respondent against the Kogi State Government and that the second action was an extension or a spillover of the first action, to my eyes it is not; indeed it is a “non-sequitor”. The two actions had different aims. The first action’s target was to “prevent the imminent removal while the second action’s target was a “remedy for the alleged illegal actual removal of the Respondent. I am of the strong view and I hold that the subject-matter of both suits is not the same or similar and so also are the reliefs sought. The parties in the two suits are patently not the same. The outcome or end result of the two actions could never be the same. The second suit, the subject-matter of this appeal was in exercise of the Respondent’s “bona fide” right of action to challenge his “removal” from the stool of Olukotun of Ife-Olukotun. From whatever angle one perceives it, the second suit instituted by the Respondent at the Isanlu Division of the Kogi State High Court was not done “mala fide” and can not be viewed as an attempt to interfere with due administration of justice. Neither the High Court Kabba where the first suit was instituted nor the Appellants had been overreached in anyway.
I therefore hold that the institution of the suit before the High Court Isanlu did not amount to an abuse of process and the said Court was right to hold that the suit is competent and that it possesses the requisite jurisdiction to entertain and determine it. The first issue for determination is accordingly resolved against the Appellants.
ISSUE TWO
“Whether suit No. KGS/IHC/11/06 was not wrongly commenced by way of an originating summons.”
It was submitted by the Appellants’ learned counsel that the aim of an action commenced by originating summons is to simply speed up procedure since it is envisaged that there are no serious disputes as to the facts of the case. In such circumstances, what is in dispute is the construction of an enactment or instrument made under any law upon which a plaintiff is basing his right. On this legal position, he referred to the case of: A.-G., Adamawa State V. A,-G., Federation (2005) 12 SNCJ 35 at 53.
According to the learned counsel for the Appellants, the Respondent’s suit which he commenced by way of an originating summons was certainly not devoid of facts that are in serious dispute. For instance, the Respondent deposed in his affidavit in support of the originating summons that he was not afforded the opportunity of fair hearing before his appointment as Olukotun of Ife-Olukotun was annulled. The alleged denial of his right to fair hearing as guaranteed under the provisions of Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 and the relevant provisions of the Chiefs Law, 2006 led to an adverse decision affecting his status as a graded Chief as well as his personal right and privileges.
Continuing, Appellants’ learned counsel contended that the 1st-5th Appellants in their counter-affidavits in opposition to the Summons averred that the Respondent was given fair hearing because he appeared before the committee. The committee had public sittings in Isanlu the headquarters of Yagba East Local Government Area of Kogi State. The Respondent was at the said public hearing where memoranda were presented against his appointment. Oral evidence was taken from the presenters of the memoranda against his appointment. At the end of the public hearing, the Committee again invited the Respondent to clarify the issues raised in the various memoranda against him and he honoured the invitation by appearing before the Committee and stated his own case in response thereto. At the end of its work, the committee submitted a report. The committee in its report recommended the annulment of the appointment of the Respondent as the Olukotun of Ife-Olukotun because it found the appointment not to have been made in accordance with the native law and custom of Ife-Olukotun. The annulment of the appointment of the Respondent by the Kogi State Governor was consequent upon the acceptance of the committee’s recommendation.
It became glaring that there exist serious disputes as to whether the Respondent was heard before his appointment was annulled. Therefore it is expected that the trial Court ought to be strongly interested in seeing the report of the committee whose recommendation culminated into the annulment of the Respondent’s appointment.
It was equally contended in the course of arguing the notice of preliminary objection of the Appellants that the trial Court cannot determine the issue of fair hearing without recourse to the report of the committee. The only way the volumes of the report can be seen by the court is through the taking of oral evidence in the course of which they can be tendered. This means that the suit must be commenced by way of a writ of summons.
The learned counsel for the Appellants submitted that Orders 1 rule 2(2) (a) & (b) and 38 rule 2 of the Kogi State High Court (Civil Procedure) Rules, 1991 referred to by the trial Court were misinterpreted, misapplied and read in isolation by the trial Court. It was his opinion that these provisions must be read and applied together.
In contention of issue two, the learned counsel for the Respondent submitted that suit No. KGS/IHC/11/06 was not wrongly commenced by way of originating summons. Under the provisions of the High Court (Civil Procedure) Rules of Kogi State, a suit can be commenced by way of Originating Summons in Kogi State where the case involves the construction of a question of law or any instrument or document made under the law or where it is unlikely that there will be any substantial dispute of facts.
The questions presented for determination and the reliefs sought by the Respondent before the trial Court are hinged on the interpretation of the Chiefs (Appointment, Deposition and Establishment of Traditional Councils in Kogi State) Law No. 23, 2006 and the relevant provisions of the 1999 Constitution of the Federal Republic of Nigeria. Reference was made to pages 2 to 4 of the record of appeal in this regard.
In the opinion of Respondent’s learned counsel, the question whether the Respondent was afforded an opportunity to be heard before the Committee under reference cannot constitute a serious issue of fact in the circumstances of this case. This is because the question can be resolved by reference to both the Exhibits in support of and against the originating summons which in any case are not in dispute, and the provisions of the constitution of the federal Republic of Nigeria, 1999. What is more, assuming but not conceding that the report the Appellants intend to use to defend their positions are bulky, the bulkiness of documents is not one of the indices that determine whether or not a case should be commenced by way of originating summons. On this proposition, he relied on the case of: Famfa Oil Ltd V. Attorney-General Federation & Anor. (2003) FWLR (Pt. 184) p. 195 at p. 205.
Having perused the submissions of the learned counsel for the Appellants and the Respondent under issue two, it is clear that the bone of contention is the propriety of originating summons as the mode of commencement of the suit of the Respondent before the High Court Isanlu that is, Suit No. KGS/IHC/11/06.
It is now settled beyond all arguments that an originating summons is an unusual mode of commencing proceedings in the High Court, which is confined to cases where special statutory provisions exist for its application. Furthermore, it is used to commence non-hostile proceedings and non-contentious actions where the facts are not likely to be in dispute. It is a method of procedure and not a substitute for commencing contentious suits where the facts are in dispute. The appropriate method for commencing contentious suits is a writ of summons in which what is alleged by the parties will be clearly defined in the pleadings and both parties will be at liberty to lead oral evidence in proof of the averments therein. For under the writ of summons, facts are regarded as holding a pride of place and the fountain head of the Law, in the sense that the facts lead to a legal decision on the matter.
Contrariwise, in general terms, originating summons is used for those actions where the facts are not in dispute or likely to be in dispute. When proceedings are properly commenced by originating summons, pleadings are not filed and consequently witnesses are rarely called and examined. Rather, affidavit evidence is mostly used and relied upon. Facts therefore do not have a pride of place or play a central but an infinitesimal role in the proceedings. Proceedings for which originating summons is used usually involve questions of law rather than disputed issues of facts. The merit of the method of originating summons lies in the fact that proceedings commenced thereby are very expeditiously dealt with. In the case of: National Bank of Nigeria V. Lady A. Alakija & Anor. (1978) 2 LRN p. 75:- the Supreme Court per Eso JSC (Rtd.) held “inter alia “that:
“(2) Originating Summons should only be applicable in circumstances where there is no dispute on questions of facts or even the likelihood of such dispute;
(3) Application by originating summons should never be a substitute for initiating CONTENTIOUS issues of facts;
(4) Where the affidavit of the plaintiff leaves matters for conjecture, originating summons is not an appropriate procedure. ”
See also the cases of:
(1) Doherty V. Doherty (1968) NMLR p. 241;
(2) Oloyo V. Alegbe (1983) 2 SCNLR p. 35and
(3) Unilag V. Aigoro (1991) 3 NWLR (Pt. 179) p. 376.
In the case of: Adeyelu II V. Ajagungbade III (2007) 14 NWLR (Pt. 1053) p.1, the Supreme-Court further put to rest any doubt as to when it is appropriate to institute an action by originating summons. At page 16, Akintan JSC observed as follows:
“The main issue raised in the appeal is whether it was proper for the action to have been initiated by originating summons having regard to the fact that there were a number of disputed facts and issues. The law is settled that where there are disputed facts, such actions could not be initiated by originating summons. – – -”
Where a plaintiff commences his action by an originating summons with its supporting affidavit, there is a presumption that there is unlikely to be any substantial dispute of facts. This is especially where there is an enabling provision of the law in that regard. This presumption will be rebutted if the defendant in response thereto in his counter-affidavit avers to issues of facts which are in sharp contradiction of those in the affidavit in support of the originating summons of the plaintiff.
In the instant case, the learned counsel for the Respondent submitted that the originating summons of the Respondent dated 8/9/06 was issued in compliance with the provisions of Order 1 rule 2(a) and (b) and Order 38 rule 2 of the Kogi State High Court (Civil Procedure) Rules 1991. For ease of reference, the said rules are hereby reproduced thus:
Order 1 Rules 2 (a) & (b):
“2.Proceedings may be begun by originating summons where (a) the sole or principal question at issue is, or is likely to be, one of the construction of a written law, or of any written instrument made under any written law or of any deed, will, contract or other document or some other question of law; or
(b) There is unlikely to be any substantial dispute of fact.
Order 38 Rules 2:
”2. Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of an enactment may apply by originating summons for the determination of such question of construction and for a declaration to the right claimed.”
The Appellants’ learned counsel contended in the Appellants’ brief of argument that there was a serious dispute as to the facts averred in the affidavit in support of the Respondent’s originating summons. Reference was made to paragraph 14 of the Respondent’s supporting affidavit. Learned counsel for the Appellants made copious references to contradictory averments the affidavit in support of the Originating Summons. To my mind, in the absence of any counter-affidavit filed by the Appellants, the learned trial Judge was right to determine the propriety of the method of originating summons employed by the Respondent in initiating his action based on the uncontradicted and uncontroverted averments in the affidavit in support thereof. The trial Court in my view properly found that the principal question posed for determination in the originating summons of the Respondent had to do with the construction or interpretation of the relevant provisions of the Chiefs (Appointment, Deposition and Establishment of Traditional Council in Kogi State) Law No. 23 of 2006 and the fundamental rights of the Respondent under the Constitution of the Federal Republic of Nigeria, 1999. That in the main, the question posed for determination by the trial Court is, whether the Governor of Kogi State had the power to annul the appointment of the Respondent, the Olukotun of Ife-Olukotun, a graded chief of second class status, which appointment was duly approved by the Kogi State Government?
In the case of: Inakoju V. Adeleke (2007) 4 NWLR (Pt. 1025) p. 423, the Supreme Court per Akintan JSC at pgs, 684 – 685 held as follows:
“The implication of failure of the appellants to — file a counter-affidavit to controvert the averments in the affidavit filed in support of the originating summons are: (1) by filing and relying on preliminary objection rather than filing a counter-affidavit to the merit of the case, they have demurred – – – – – -; and (2) it means that the appellants have admitted the facts deposed to in the affidavit flied in support of the originating summons – – – – they had the opportunity of putting their defence across, if any but chose not to avail themselves of that opportunity: See Igbokwe V. Udobi (1992) 3 NWLR (pt 228) 214: Oyeyipo V. Oyinloye (1987) 1 NWLR (Pt. 50) 356; and Omo V. JSC, Delta State (2000)12 NWLR (pt. 682) 444.”
As earlier on in this judgment adverted to by me, the averments in the affidavit in support of the originating summons with its accompaniments contained in pages 7 to 58 of the record of proceedings remain uncontroverted and uncontradicted by the Appellants’ failure or refusal to file a counter-affidavit to oppose them. As can be deduced from the originating summons and the adjuncts thereto the trial Court was right to hold that there was no likelihood of substantial dispute of issues of facts; rather, that the Respondent’s sole or principal question earmarked for determination is one of construction of written laws. Based on this, it could safely be concluded and I hold that the action that is, suit No. KGS/IHC/11/06 was properly commenced and is therefore competent. I am in agreement as held by the learned trial Judge that the trial Court consequently possesses jurisdiction to adjudicate thereupon. Issue two must be and it is hereby resolved against the Appellants.
On the whole, from my above line of reasoning and conclusions, the two issues having suffered the fate of failure, this appeal collapses. The ruling of the trial Court delivered on 16/11/2006 dismissing the preliminary objection filed by the Appellants to challenge the originating summons of the Respondent in Suit No. KGS/IHC/11/06 is hereby affirmed. Consequently, this appeal is accordingly dismissed.
The sum of Twenty Thousand Naira (N20, 000) is awarded as costs against the Appellants, in favour of the Respondent.
UWANI MUSA ABBA AJI, J.C.A.: I have had the privileged of reading in draft the judgment just delivered by my learned brother Omoleye, JCA.
My learned brother has exhaustively considered all the issues raised in the appeal, and I agree with the reasoning and conclusions reached therein. I adopt same as mine. I have nothing more to add. I endorse the consequential order including that of costs.
AYOBODO OLOKULO-SODIPE, J.C.A.: I have had the privilege of reading in advance the Judgment of my learned brother, OYEBISI FOLAYEMI OMOLEYE, JCA. I am in complete agreement with His Lordship’s reasoning and conclusions. I adopt the Judgment as mine.
Appearances
Mr. A. Sule Assistant Director, Civil Litigation, Kogi State Ministry of Justice, LokojaFor Appellant
AND
Mr. R. O. OlaniyiFor Respondent
