UWEM MBONG ETEREWAK & ORS v. HRH ETEBOM UKPONG UDOEWAH
(2019)LCN/13881(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of March, 2019
CA/C/136/2017
RATIO
PRACTICE AND PROCEDURE: ORIGINATING SUMMONS: INSTANCES WHEN USED
By way of necessary prefatory remarks, originating summons is one of the four major modes of commencement of civil actions usually prescribed in the rules of Courts of first instance jurisdiction. The procedure is employed by an aggrieved party when the sole or principal question in issue is one, or likely to be one, of interpretation of a written law/enactment or any instrument, deed, will, contract or other written documents. It is a procedure which is friendly to non-contentions case where there are no substantial disputes as to facts. Contrariwise, it is unavailable in hostile proceedings that exhibit riotous facts. In other words, it is not utilizable in situations where justice of a case demands settlement of pleadings. The raison d?etre for the procedure, decipherable from its simplicity, is to fast track and expedite cases that do not showcase friction in facts thereby conserving the scarce juridical time. These peculiar features of originating summons have received the blessing of the apex Court in flood of authorities, see Order 3 Rule 6 of the High Court Rules; Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 1; Dapianlong v. Dariye (2007) 8 NWLR (Pt. 1036) 332; Ezeigwe v. Nwawulu (2010) 4 NWLR (Pt. 1183) 159; Anyanwoko v. Okoye (2010) 5 NWLR (Pt. 1188) 407; Elelu-Habeeb v. A.-G., Fed. (2012) 13 NWLR (Pt. 1318) 423; Atago v. Nwuche (2013) 3 NWLR (Pt. 1341) 337; Braithwaite v. Skye Bank Plc. (2013) 5 NWLR (Pt. 1346) 1; Asogwa v. PDP (2013) 7 NWLR (Pt. 1353) 207; Olley v. Tunji (2013) 10 NWLR (Pt. 1362) 275; Opia v. INEC (2014) 7 NWLR (Pt. 1407) 431;G., Lagos State v. A.-G., Fed (2014) 9 NWLR (Pt. 1412) 217; Jev. v. Iyortyom (supra); Danladi v. Dangiri (2015) 2 NWLR (Pt. 1442) 124; Oguebego v. PDP (2016) 4 NWLR (Pt. 1503) 446; N.A.C.B. Ltd. v. Ozoemelam (2016) 9 NWLR (Pt. 1517) 376; Ogah v. Ikpeazu (2017) NWLR (Pt. 1594); Alfa v. Attai (2018) 5 NWLR (Pt. 1611) 59.
PRACTICE AND PROCEDURE: WHEN THE COURT TREATS A SUIT AS A MERELY ACADEMIC ONE
Such academic questions are divorced from live issues which engage the adjudicative attention of the Courts. This is so even if their determination will enrich the jurisprudential content of the law, see A.-G., Anambra State v. A.-G., Fed. (2005) 9 NWLR (Pt. 931) 572; Ugba v. Suswam (2014) 14 NWLR (Pt. 1427) 264; Salik v. Idris (2014) 15 NWLR (Pt. 1429) 36; FRN v. Borishade (2015) 5 NWLR (Pt. 1451) 155; Danladi v. T.S.H.A. (2015) 2 NWLR (Pt. 1442)103; FRN v. Dairo (2015) 6 NWLR (Pt. 1452) 141; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229; Dickson v. Sylva (2017) 10 NWLR (Pt. 1573) 299; Olowu v. Building Stock Ltd. (2018) 1 NWLR (Pt. 1601) 343.
JUSTICES
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
1. UWEM MBONG ETEREWAK
2. ETEREWAK MBONG ETEREWAK
3. MALAS ETUK ETEREWAK
4. SAMUEL SOLOMON ETEREWAK Appellant(s)
AND
HRH ETEBOM UKPONG UDOEWAH Respondent(s)
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal probes into the correctness of the decision of the High Court of Akwa Ibom State, holden at Etinan (hereinafter addressed as ?the lower Court?), coram judice: Pius Idiong, J., in Suit No. HUET/27/2016, delivered on 3rd February, 2017. Before the lower Court, the appellants and the defendant were the plaintiffs and the defendant respectively.
?The facts of the case, which gave birth to the appeal, are submissive to brevity and simplicity. In August, 2016, the respondent, the clan head of Ubium, issued a traditional summons on the appellants over a dispute between the members of Otung Afaha Akpadia family and the appellant in respect of a parcel of land situate and being at Enen Atai of Ibiomin-Ubium. The respondent, also, placed a traditional injunction (Ayei Ikpa Isong) on the disputed land restraining the appellants from entering into it until the final determination of the case. The appellants were not desirous of submitting to the traditional arbitration. As a result, their lawyer wrote to the respondent, the chief arbitrator/head of the traditional arbitration panel, intimating him of their declination to submit to the traditional arbitration. The appellants alleged that owing to the traditional injunction, they could not take possession of the disputed land and were forced to forfeit their due agricultural harvest. Sequel to these, the appellants beseeched the lower Court, via an originating summons filed on 12th October, 2016, which raised a single question, and tabled against the respondent the following reliefs:
1. A DECLARATION that a customary arbitration panel can only hear and determined matters while all the parties have submitted to its jurisdiction.
2. AN ORDER setting aside the order of traditional injunction restraining the plaintiffs from entering their farmland known as and called Enen Atai in Ikot Afaha, Akai Ubium, Nsit Ubium Local Government Area of Akwa Ibom State.
3. AN ORDER on the defendant to remove the fetish and demonic ajei (traditional injunction) with its accompanying native pot and animal horn placed in the plaintiffs said land forthwith.
4. AN ORDER on the defendant to pay the plaintiffs the sum of N10,000.00 (Ten Million Naira) as special and general damage for placing traditional injunction on the plaintiffs farmland.
5. AN ORDER of perpetual injunction restraining the defendant from further hearing and determination of the complaint brought before him against the plaintiffs by a party that is not juristic person.
The originating summons was supported by a 15-paragraph affidavit with four annexures, marked exhibits A-D, attached to it. A written address was filed along with the originating summons.
In reaction, the respondent joined issue with the appellants and denied liability by filing a 20-paragraph counter-affidavit with one annexure, marked exhibit A, attached to it. A written address accompanied it.
Following the denial and rival claims the lower Court, duly, heard the matter. In a considered judgment, delivered on 3rd February, 2017, found at pages 30-37 of the lean record, the lower Court dismissed the appellants? suit for being academic.
?The appellants were dissatisfied with the decision. Hence, on 10th March, 2017, the appellants, through counsel,
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lodged a 2-gound notice of appeal, copied at pages 22-24 of the printed record, wherein they sought for the following reliefs:
(a) An order setting aside the entire decision of the lower Court.
(b) An order setting aside the cost awarded by the lower Court.
(c) A declaration that the issuance of an injunction before the issuance of a summons by an Arbitration Panel suggest bias.
(d) A declaration that only a customary arbitration panel can hear, determine and place injunctions on matters to which parties have submitted to its jurisdiction.
(e) An order on the respondent to remove the fetish and demonic ajei (traditional injunction) with its accompanying native pot and animal horn placed in the plaintiffs said land forthwith.
(f) An order on the Respondent to pay the Appellants the sum of N10,000,000.00 (Ten Million Naira only) as special and general damages for placing traditional injunction on the Appellants? farmland.
Thereafter, the parties filed and exchanged their briefs of argument in line with the procedure governing the hearing of civil appeals in this Court. The appeal was heard on 17th January, 2019.
During its hearing, learned counsel for the appellants, Livinus Udofia, Esq., adopted the appellants? brief of argument, filed on 18th August, 2017 and deemed properly filed on 28th September, 2017, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the respondent, E. Udosen, Esq., adopted the respondent?s brief of argument, filed on 11th October, 2017, as forming his reactions against the appeal. He urged the Court to dismiss it.
In the appellants? brief of argument, learned counsel distilled two issues for determination to wit:
3.01 Whether the cause of action of the appellants was too contentious to be dealt with under the originating summons proceedings at the trial Court?
3.02 Whether the dismissal order made by the trial Court is the appropriate remedy in the circumstance of this case?
In the respondent?s brief of argument, learned counsel crafted a solitary issue for determination viz:
Whether the learned trial Judge was right in dismissing the case of the appellants?
A close look at the two sets of issues shows that they are identical in substance. Indeed, the respondent?s issue can be conveniently subsumed under the appellants?. Given this sameness, I will decide the appeal on the issues formulated by the appellants: the undoubted owners of the appeal. For reason that will unfold anon, I will begin with issue two.
Arguments on issue two
Learned counsel for the appellants submitted that Order 3 Rule 6 of the High Court Akwa Ibom State (Civil Procedure) Rules (High Court Rules for short) made provision for circumstances in which an originating summons might be used: question of construction of an enactment and declaration as to the right claimed. He cited the enactment as the Arbitration Law Cap 15 vol.1 Akwa Ibom State, 2004. He relied on Sections 1 and 18 of the Law. He posited that commencement of a matter through an improper originating process would not rob a Court of jurisdiction. He referred to Order 3 Rule 7 of the High Court Rules; Atago v. Nwuche (2013) 3 NWLR (Pt. 1341) 337; Famfa Oil Ltd. v. A.-G., Fed. (2003) 18 NWLR (Pt. 852) 453; PDP v. Abubakar (2007) 3 NWLR (Pt. 1022) 515; Adeyelu II v. Ajagungbade III (2007) 14 NWLR (Pt. 1053) 1. He postulated that the judgment of the Supreme Court should be enforced in any part of the country. He referred to Section 287(1) of the Constitution, as amended. He persisted that the lower Court should have ordered for pleadings and called for oral evidence or, at least, visited the locus to sort out the action rather than dismiss it with unwarranted cost and trivialisation of the cause of action under the guise of being academic exercise.
On behalf of the respondent, learned counsel contended that the traditional arbitration panel of the respondent could not be same as the one in Arbitration Law which could be under the supervisory/appellate jurisdiction of the lower Court. He asserted that the traditional arbitration panel was different as its decisions/proceedings could not be subject of appeal to the lower Court. He relied on Kpo v. Ajom (2015) 8 NWLR (Pt. 1461) 201; Ufomba v. Ahuchaogu (2003) 8 NWLR (Pt. 821) 130.
He explained when a point or suit could be academic as noted in Odom v. PDP (2015) 6 NWLR (Pt. 1456) 527; Ugwu v. PDP (2015) 7 NWLR (Pt. 1459) 478. He described the bases upon which the lower Court dismissed the appellants? suit for being academic. He concluded that the lower Court was right.
Resolution of the issue
A clinical examination of the issue, clearly, reveals that it falls squarely, within a narrow compass. It chastises the lower Court?s ultimate finding that the appellants? suit was academic. To begin with, the appellants? action, whence the appeal germinated from, was commenced by dint of originating summons.
By way of necessary prefatory remarks, originating summons is one of the four major modes of commencement of civil actions usually prescribed in the rules of Courts of first instance jurisdiction. The procedure is employed by an aggrieved party when the sole or principal question in issue is one, or likely to be one, of interpretation of a written law/enactment or any instrument, deed, will, contract or other written documents. It is a procedure which is friendly to non-contentions case where there are no substantial disputes as to facts. Contrariwise, it is unavailable in hostile proceedings that exhibit riotous facts. In other words, it is not utilizable in situations where justice of a case demands settlement of pleadings. The raison d?etre for the procedure, decipherable from its simplicity, is to fast track and expedite cases that do not showcase friction in facts thereby conserving the scarce juridical time. These peculiar features of originating summons have received the blessing of the apex Court in flood of authorities, see Order 3 Rule 6 of the High Court Rules; Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 1; Dapianlong v. Dariye (2007) 8 NWLR (Pt. 1036) 332; Ezeigwe v. Nwawulu (2010) 4 NWLR (Pt. 1183) 159; Anyanwoko v. Okoye (2010) 5 NWLR (Pt. 1188) 407; Elelu-Habeeb v. A.-G., Fed. (2012) 13 NWLR (Pt. 1318) 423; Atago v. Nwuche (2013) 3 NWLR (Pt. 1341) 337%
