CORAM

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Uwani Musa Abba Aji – Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa – Justice of the Supreme Court of Nigeria

Emmanuel Akomaye Agim – Justice of the Supreme Court of Nigeria

Chidi Nwaoma Uwa – Justice of the Supreme Court of Nigeria

Mohammed Baba Idris – Justice of the Supreme Court of Nigeria

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PARTIES

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ALHAJI MUSTAPHA BELLO

APPELLANTS 

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1. THE MINISTER, FEDERAL MINISTRY OF HOUSING & URBAN DEVELOPMENT

2. THE ATTORNEY GENERAL OF THE FEDERATION

RESPONDENTS 

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AREA(S) OF LAW

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LAND LAW, PRACTICE AND PROCEDURE, ORIGINATING SUMMONS, JURISDICTION, CONSTITUTIONAL LAW, EVIDENCE, APPEAL, ADMINISTRATIVE LAW, FEDERAL HIGH COURT JURISDICTION, DECLARATORY RELIEFS

 

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SUMMARY OF FACTS

The Appellant, Alhaji Mustapha Bello, commenced Suit No. FHC/KD/CS/67/2004 by originating summons before the Federal High Court sitting at Kaduna, raising questions for determination concerning the identity of a plot of land at Gongola Road, Kaduna South, Kaduna. The central dispute was whether the plot of land measuring 1.21 acres, bounded by property beacons Nos. Z.9670, Z.9671, Z.9677, and Z.9678, and occupied by tenants of the 1st Respondent — the Federal Ministry of Housing and Urban Development — was plot 25 or plot 39 of Gongola Road, Kaduna South.

The history of ownership of the disputed property traced back to Kaduna Textiles Limited, which had obtained a statutory right of occupancy over the plot from the Northern Region of Nigeria Government. Kaduna Textiles Limited subsequently built two semi-detached duplexes and appurtenances on the plot and later sold the unexpired residue of its right of occupancy to the Appellant. Before the consent of Kaduna State Government to the assignment could be processed, the term of the right of occupancy expired and the legal title reverted to the Kaduna State Government. The Appellant subsequently applied to the Kaduna State Government for a fresh grant of the right of occupancy, which was approved vide an offer letter of 27th August 2003 and confirmed by a certificate of statutory right of occupancy dated 8th November 2003. The buildings on the plot had become empty during the Kaduna riots and were thereafter occupied by servants of the 1st Respondent, who claimed that the 1st Respondent had allocated what they described as plot 39 to them. The Appellant wrote to the occupants to quit, and the 1st Respondent replied that its tenants occupied plot 39, not plot 25. The Appellant then sought clarification from the Surveyor General of Kaduna State, who confirmed in a letter that only plot 25 exists in official records, that plot 39 does not exist, and that the Appellant is recorded as the current owner.

The Respondents filed a preliminary objection to the originating summons and a counter-affidavit in opposition. After adoption of addresses, the Federal High Court delivered judgment on 17th June 2005 in favour of the Appellant, entering judgment in terms of the reliefs claimed. The Respondents appealed to the Court of Appeal, which on 22nd May 2009 allowed the appeal in part, set aside the trial Court’s judgment, and remitted the case for trial de novo by writ of summons before another judge, on the ground that the use of originating summons was unsuitable given the contentious nature of the dispute. The Court of Appeal also upheld the Federal High Court’s jurisdiction. The Appellant appealed to the Supreme Court against the order for retrial, while the Respondents cross-appealed against the Court of Appeal’s finding that the Federal High Court had jurisdiction to entertain the suit.

The Supreme Court allowed the main appeal and dismissed the cross-appeal, restoring the judgment of the Federal High Court.

 

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HELD

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The main appeal was allowed and the cross-appeal was dismissed. The Supreme Court set aside the judgment of the Court of Appeal delivered on 22nd May 2009 and wholly restored the judgment of the Federal High Court delivered on 17th June 2005. On the originating summons issue, the Court held that where a suit has been heard and determined by originating summons, the relevant consideration is not whether it was competently commenced by that procedure, but whether the issues in dispute were fairly determined on the affidavit evidence and whether the material facts were in conflict and, if so, resolvable on the affidavits and documents without the need for oral evidence. The Court found that the material facts were not in dispute and that the apparent dispute as to the plot number was clearly resolved by documentary evidence, making the use of originating summons appropriate. The Court further held that any procedural irregularity in commencing a case by originating summons does not automatically lead to nullification of the proceedings if no miscarriage of justice resulted. On jurisdiction, the Court held that the Federal High Court had jurisdiction by virtue of Section 251(1)(r) of the Constitution, as the suit concerned the validity of executive or administrative action of a Federal Government agency in allocating the Appellant’s buildings to its servants.

 

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ISSUES

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1. Whether the learned Justices of the Court of Appeal were right in overruling the preliminary objection that by Section 25(2)(a) of the Court of Appeal Act 1976, the Respondents required leave to appeal for Ground 2 of their Notice and Grounds of Appeal to be competent?

2. Whether the Court below was right in holding that it was unsuitable to have commenced this suit by originating summons.

3. Whether the Court below was right in setting aside the trial Court’s judgment and ordering a retrial de novo by writ of summons before another judge of the Federal High Court.

4. (Cross-appeal) Whether the Court below was right in holding that the trial Court had jurisdiction to entertain the plaintiff’s claim as constituted.

2. Whether the Court below was right in holding that it was unsuitable to have commenced this suit by originating summons?

3. Whether the Court below was right in setting aside the trial Court’s judgment and ordering a retrial de novo by writ of summons before another judge of the Federal High Court?

4. (Cross-appeal) Whether the Court below was right in holding that the trial Court had jurisdiction to entertain the plaintiff’s claim as constituted?

 

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RATIONES DECIDENDI

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ORIGINATING SUMMONS – THE PROPER USE OF ORIGINATING SUMMONS AND THE CONDITIONS UNDER WHICH IT IS APPROPRIATE

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“It is now elementary that if the relevant or material facts upon which the resolution of the dispute is based are not in dispute or that even if in dispute and such dispute can be resolved or reconciled on the basis of documents attached to the affidavits, the case can be determined on the originating summons.” – Per Emmanuel Akomaye Agim, J.S.C.

 

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ORIGINATING SUMMONS PROCEDURE – THE RELEVANT CONSIDERATION WHERE A SUIT HAS ALREADY BEEN HEARD AND DETERMINED ON ORIGINATING SUMMONS

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“Where, as in our instant case, the suit which was commenced by originating summons has been tried and determined, the relevant consideration is not whether it was competently commenced by originating summons, but whether the issues in the dispute were fairly determined on the affidavit evidence and the party who had the burden to prove any fact in issue or dispute proved it on the affidavit evidence or not.” – Per Emmanuel Akomaye Agim, J.S.C.

 

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ORIGINATING SUMMONS – WHETHER PARTIES ARE LIMITED TO AFFIDAVIT EVIDENCE IN ORIGINATING SUMMONS PROCEEDINGS

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“In actions commenced by originating summons the parties are not limited to their affidavits in the discharge of the burden placed on them by law to prove any disputed fact as they can with leave of Court call oral evidence to resolve the dispute and thereby prove the fact. What to look out for is whether the relevant or material facts upon which the determination of the case of the parties depend were in conflict and if so, whether the conflicts were resolvable on the affidavits and the documents attached to them without the need to call oral or further evidence to resolve them.” – Per Emmanuel Akomaye Agim, J.S.C.

 

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ORIGINATING SUMMONS – WHETHER USE OF WRONG ORIGINATING PROCESS AUTOMATICALLY NULLIFIES PROCEEDINGS WHERE NO MISCARRIAGE OF JUSTICE RESULTED

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“In FGN V Zebra Energy Ltd (2002) 12 SC (Pt.ii) 136, this Court held that ‘once the procedure employed has brought into focus, the issues the parties contest and there is no miscarriage of justice, it will not matter that the procedure is not the correct one… It is my view that it does not matter whether by writ of summons or by originating summons a writ was initiated, what is relevant in a case of this nature is the question of justice of the case.’ As this Court held in Atago V Nwuche (2013) NWLR (Pt 1341) 337, ‘The form of commencement of an action does not necessarily make it incompetent. It does not matter whether the action was begun by writ of summons or by Originating Summons. What is important is the question of Justice of the case.'” – Per Emmanuel Akomaye Agim, J.S.C.

 

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COMPETING AFFIDAVITS IN ORIGINATING SUMMONS – THE LEGAL CONSEQUENCE WHERE THE STATE OF COMPETING AFFIDAVITS REQUIRES ORAL EVIDENCE

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“Where the state of the competing affidavits shows the need for oral or further evidence to resolve factual issues joined in them, then the party who by law has the burden to prove that fact has failed to prove it and the Court would be wrong to act on it as a proven fact. The legal issue that arises in such situation is not one of fair hearing or competence of the proceedings, but lack of proof of the fact in issue and the decision of the Court on the fact would be assessed on the available evidence. If the evidence on which it relied on is not conclusive in proving the fact, then the decision cannot be justified on the evidence.” – Per Emmanuel Akomaye Agim, J.S.C.

 

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DISTINCTION BETWEEN FINAL AND INTERLOCUTORY DECISIONS – THE TEST FOR DETERMINING WHETHER A DECISION IS FINAL OR INTERLOCUTORY

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“A final order or judgment at law is one which brings to an end the rights of the parties in the action. It disposes of the subject matter of the controversy or determines the litigation as to all parties on the merits. On the other hand, an interlocutory order or judgment is one given in the process of the action or cause, which is only intermediate and does not finally determine the rights of the parties in action. It is an order, which determines some preliminary or subordinate issue or settles some steps or questions but does not adjudicate the ultimate rights of parties, in the action. However, where the order finally determines the rights of the parties as to the particular issue disputed, it is a final order even if arising from an interlocutory application.” – Per Emmanuel Akomaye Agim, J.S.C. (quoting Igunbor V Afolabi (2001) 11 NWLR (Pt. 723) 148 at 165)

 

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FINAL DECISIONS MADE AT INTERLOCUTORY STAGE – WHETHER A DECISION MADE DURING INTERLOCUTORY PROCEEDINGS IS FINAL WHERE THE TRIAL COURT LACKS JURISDICTION TO REVISIT IT

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“So a final decision is one which by its nature cannot be reconsidered by the Court that rendered it. The fact that the decision was made during an interlocutory trial or hearing of an issue in a pending suit will not rob it of its character as a final decision.” – Per Emmanuel Akomaye Agim, J.S.C.

 

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CHANGING THE BASIS OF CASE ON APPEAL – WHETHER A PARTY CAN RAISE A DIFFERENT CASE ON APPEAL FROM THE CASE ARGUED AT THE LOWER COURT

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“The law is settled by a long line of judicial decisions that an appeal being a continuation of the case at the trial Court, a party cannot make a case on appeal different from or inconsistent with his or her case at the trial Court. See for example Osuji V Ekeocha (2009) LPELR-2816(SC), Kayode V Odutola (2001) 11 NWLR (Pt.725) 659(SC) and Ezomo V AG Bendel State (1986) 4 NWLR (Pt.36) 448 @ 462 (SC).” – Per Emmanuel Akomaye Agim, J.S.C.

 

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EFFECT OF FAILURE TO APPEAL AGAINST A HOLDING – WHETHER A PARTY WHO FAILS TO APPEAL AGAINST A SPECIFIC HOLDING IS BOUND BY IT

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“There is no ground of this appeal complaining against this Court of Appeal’s holding that the issue of the commencement of the suit at the trial Court by originating summons is not a fresh issue and that therefore no leave is required to raise it in ground 2 of the appeal. By not appealing against it, the parties herein accept the holding it as correct, conclusive and binding on them. See Iyoho v. Effiong (2007) 4 SC (Pt 111) 90, SPDC & Nig Ltd v. X.M. Federal Ltd & Anor (2006) 7 SC (Pt. 11) 27. Dabup v. Kolo (1993) 12 SCNJ 1, NBCI v. Integrated Gas (Nig) Ltd (2005) 4 NWLR (Pt. 918) 617 (SC) and Sparkling Breweries Ltd & Ors v. Union Bank of Nig Ltd (2001) 7 SC (Pt. 11) 148.” – Per Emmanuel Akomaye Agim, J.S.C.

 

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FEDERAL HIGH COURT JURISDICTION – THE BASIS OF FEDERAL HIGH COURT JURISDICTION OVER ACTIONS CHALLENGING EXECUTIVE OR ADMINISTRATIVE ACTIONS OF FEDERAL GOVERNMENT AGENCIES

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“Since the suit claims for an injunction, damages and ejectment concerning the 1st respondent’s executive or administrative action or decision to allocate the appellant’s buildings on the disputed plot to some of its servants to occupy and live thereon, the trial Court’s jurisdiction to hear and determine it clearly derives from 251(1)(r) of the 1999 Constitution which provides that- ‘any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.'” – Per Emmanuel Akomaye Agim, J.S.C.

 

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FEDERAL HIGH COURT JURISDICTION OVER LAND MATTERS INVOLVING FEDERAL GOVERNMENT AGENCIES – WHETHER SECTION 251(1)(r) EXCLUDES LAND-RELATED ACTIONS

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“There is nothing in Subsection (r) or proviso to Section 251(1) of the 1999 Constitution excluding actions concerning the decisions or acts of the Federal Government agencies relating to land or actions for damages for wrongs or injuries relating to land from the jurisdiction those provisions have given the trial Court. The jurisdiction given the trial Court by Subsection (r) is to entertain any action or proceeding challenging the validity of any executive or administrative action or decision by the Federal Government or any of its agencies. It did not exclude action challenging executive or administrative action or decision relating to land from its application. There are no limiting or exclusionary words in that provision which uses the words ‘any’ to show that the legislative intent is that the provision should apply to all actions challenging all executive or administrative actions or decisions of the Federal Government or its agencies irrespective of the subject matter of such executive or administrative act or decision.” – Per Emmanuel Akomaye Agim, J.S.C.

 

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EXCLUSIVE FEDERAL HIGH COURT JURISDICTION OVER FEDERAL GOVERNMENT AGENCY ACTIONS – THE INTENTION OF THE LEGISLATURE IN VESTING JURISDICTION EXCLUSIVELY IN THE FEDERAL HIGH COURT

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“The aim of paragraphs (q) (r) and (s) of Subsection (1) of Section 230 was to vest exclusive jurisdiction in the Federal High Court in matters in which the Federal Government or any of its agents was a party. A State High Court would no longer have jurisdiction in such matters notwithstanding the nature of the claim in the action.” – Per Emmanuel Akomaye Agim, J.S.C. (quoting Ogundare, J.S.C. in NEPA v. Edegbero (2002) 18 NWLR (Pt. 798) 79)

 

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RESOLUTION OF DOCUMENTARY DISPUTES IN ORIGINATING SUMMONS PROCEEDINGS – WHERE APPARENT DISPUTES OF FACT ARE RESOLVED BY DOCUMENTARY EVIDENCE

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“The attempt by the respondents to introduce doubt or dispute as to the number of the plot failed as it did not affect the fact that both sides were ad idem on the property occupied by the respondents and from which the appellant wants them ejected. In any case, that dispute in numbering was clearly resolved or reconciled by exhibits A(appellant’s survey plan), exhibit iv (respondent’s survey plan) and exhibit N (letter from the Surveyor General of Kaduna State) being documents attached to the affidavits. The survey beacon numbers of the land surveyed in exhibit A is the same with the survey beacon numbers of the land surveyed in exhibit iv.” – Per Emmanuel Akomaye Agim, J.S.C.

 

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CASES CITED

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria 1999 (as amended) — Sections 251(1)(r), 251(1)(p), (q), (s) and the Proviso to Section 251(1) Land Use Act — Section 9 Court of Appeal Act 1976 — Section 25(2)(a) Court of Appeal Act (Cap. C36 LFN 2004, updated 2007) — Section 24(2) Federal High Court Rules

 

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OTHER CITATIONS

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CLICK HERE TO READ FULL JUDGMENT 

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COUNSEL

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1. A.C Amechi, Esq.For Appellant(s)

2. Victoria Alonge, Esq. with him, John Jelabi, Esq. Chinelo Obiekwe, Esq. and Victor Balogun, Esq.For Respondent(s)