CORAM

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PARTIES

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1. MRS. WASILATU DADA2. MR. ABIODUN BADMUS MOROUNDIYA3. ALHAJI NOJEEM AGORO (For and on behalf of the entire Members of Balogun Omotosho Family, Ojo) APPELLANTS

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1. MR. TAOFEEK ALABI2. MR. BADMUS KOLAWOLE3. MR. ADERIBIGBE SIKIRU (for themselves & on behalf of the Market Men & Women of Igangbara Market Lagos/Badagry Expressway, Ojo)4. PERSONS UNKNOWN/OCCUPIERS RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Respondent commenced an action in the High Court of Lagos State, by originating summons against the Appellants claiming mainly against the Appellants the recovery of possession of the property to which he is claiming ownership. In reaction, the Appellants filed a preliminary objection on the premise that the action was wrongly commenced by originating summons instead of by a writ of summons which as they contended is proper as the facts and the circumstances of the case showed that there are so many disputes on the facts before the court. In its judgment, the lower Court relying on Order 53 of the Lagos State High Court (Civil Procedure) Rules 2012, held that in spite of the dispute on the facts, the action can be commenced by originating summons since the action is for recovery of possession. Dissatisfied with the judgment, the Appellants have appealed to this Court.

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HELD

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Appeal Allowed

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ISSUES

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Whether the lower court was right in overruling the preliminary objection of the Appellant?

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RATIONES DECIDENDI

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COMMENCEMENT OF ACTION – CIRCUMSTANCES WHEN AN ACTION MAY BE APPROPRIATELY COMMENCED BY ORIGINATING SUMMONS

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“In such a situation, the law is clear and certain. It is that in such a situation, the originating summons is not the appropriate procedure to adopt. Let me briefly state the appropriate situation for the application of originating summons proceeding. In Sani vs. Kogi State House of Assembly (2019) LPELR- 46404 (SC), the Supreme Court held in pages 13-16 thus:
“What type of action/case is Originating Summons Procedure best suited I will commence by throwing more light on an Originating Summons Process. In the case of Hussaini Isa Zakirai vs. Salisu Dan Azumi Muhammad & Ors (2017) LPELR – 42349 (SC), this Court has this to say:
“In effect, Originating Summons is a procedure wherein the evidence is mainly by way of documents and there is no serious dispute as to their existence in the pleadings. It is usually heard on affidavit evidence and involves questions of law rather than issues of fact.”
By the above proposition, Originating Summons is best suited for cases where there are no substantial disputes of facts or likelihood of facts. In the case of Standard Cleaning Services Company vs. the Council of Obafemi Awolowo University, Ile life (2011) 14 NWLR (Pt. 1269) 193 at 204 – 205 213 the Court held that:
“Originating Summons should only be applicable in circumstances where there is no dispute on the question of facts or even the likelihood of such dispute. Application for initiating contentious issues of facts where the facts of the plaintiff leave the matter for conjecture, Originating Summons is not an appropriate procedure. Where it is obvious from the state of the affidavit that there would be an air of friction in the proceedings, then an Originating Summons is not appropriate. Originating Summons should be used only where the proceeding involves the question of law, rather than disputed facts, even where the facts are not in dispute, the Originating Summons should not be used, if the proceedings are hostile.”
In Alfa vs Attai & Ors (2017) LPELR 42579 (SC), the apex court per Rhodes Vivour, JSC at pages 31-32 held:
“In Ejuwa vs. Idris (2006) 4 NWLR (Pt. 971) p. 538 As a judge of the Court of Appeal I said that: “Originating summons is the ideal process to commence proceedings where there is no dispute on questions of fact or the likelihood of such dispute, for example, where the issue is to determine questions of construction.  The main advantage of the procedure by originating summons is the emphasis on simplicity resulting in the elimination of pleadings.: I went on to say that: “where it is obvious from the state of the affidavits that there would be an air of friction in the proceedings, then an originating summons is no longer appropriate. A writ of summons would suffice in such circumstances. See: Doherty v Doherty (1967) 1 ALL NLR p. 245 Osuagwu vs. Emezu (1998) 12 NWLR (Pt. 579) p. 640 Olumide vs. Ajayi (1997) 8 NWLR (Pt. 517) P.433”
I can go on and on as there is so much case law authority on this point. I will, however, cite one more case in this respect. This is the case of Eze vs. Unijos (2017) LPELR- 42345 (SC), the Supreme Court held:
“Originating Summons is one of the ways of commencing an action. In such an action, pleadings are not filed. Affidavit takes the place of pleadings. Reliance is placed on affidavits and facts are not in dispute. Originating Summons are thus not suitable for hostile proceedings where the facts are seriously in dispute. So once a suit has been filed by Originating Summons and it becomes obvious that facts are in dispute or the proceedings are likely to be hostile a Writ of Summons would be ordered. Originating Summons can be used in matters that involve interpretation of documents, Statutes, contract, etc and it is by no means a procedure to enlarge the jurisdiction of the Court. The striking aspect of suits commenced by Originating Summons is that there are no pleadings or witnesses, and so proceedings are simple and concluded quickly. See: Pam vs. Mohammed (2008) 5-6 SC (pt. 1) P.83 Osunbade vs. Oyewunmi (2007) 4-5 SC p.98.”
See further FGN & Ors vs. Zebra Energy Ltd (2002) 12 SC (Pt.11) 136; Ogah vs. Ikepeazu & Ors LPELR- 42372; Oba Adegboyega Osunbade & Ors vs. Oba jimoh Oladunmi Oyewunmi & Ors NSCQR VOL. 30 2007 page 434”.-

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COMMENCEMENT OF ACTION – WHETHER A SUIT CAN BE COMMENCED BY ORIGINATING SUMMONS WHERE THERE ARE MATERIAL FACTS IN DISPUTE

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“This court per Iyizoba JCA in Milkway Investment (Nig.) Ltd & Anor vs. Usman (2014) LPELR- 23004 (CA) at pages 22-27 extensively reviewed the law and held as follows:
“Learned counsel for the Appellant had submitted thus: “Originating Summons generally is governed by the Provision of Order 3 Rule 5 of the High Court of Lagos Civil Procedure Rules 2004, it provides 5. Any person claiming to be interested under a deed, will enactment or other written instrument Appellant had submitted thus: may apply by Originating Summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested”. The court in case of the University of Lagos vs. M. F. Aigoro (1991)3 NWLR (Pt. 179) PG. 376@ 383-384, AWOGU JCA held: “An Originating Summons is therefore intended to be used in limited situations. It is ideal for construction and interpretation of the document.” According to Kayode Eso, JSC in National Bank of Nigeria & Anor. vs. Lady Alakija & Anor. (1978) 9 – 10 S. C. 59 at 71:- “In other words, it is our considered view that Originating Summons should only be applicable in such circumstances as where there is no dispute on questions of facts or the likelihood of such dispute. Where, for instance, the issue is to determine short questions of construction, and not matters of such controversy that the justice of the case would demand the settling of pleadings, originating Summons could be applicable. For it is to be noted that Originating Summons is merely a method of proceedings and not one that is meant to enlarge the jurisdiction of the court”. See also the cases of:- Obasanya vs. Babafemi (2000)15 NWLR (Pt. 684) P 3630: Jimoh vs. Olawoye (2003) 20 NWLR (Pt. 828)p.307: Inakoju vs. Adeleke (2007)4 NWLR (Pt. 1025) p.423 SC: National Bank of Nigeria vs. Lady Alakija (1978) 9-10 SC 59 @ 71. From the averments contained in the Applicant’s affidavit and the averments contained in the 1st – 3rd Defendants Counter Affidavit and the exhibits attached thereto, it is clearly not in doubt that the proceedings between the parties are hostile in nature. It is the law that where the proceedings or suit between the parties is hostile in nature, the use or employment of Originating Summons is clearly inappropriate, see – Nigerian Railway Corporation vs. Patrick (2008)4 NWLR (Pt. 1079) p.92 @109, NDUKWE-ANYANWU JCA @ P. 109 held:
“The principal issue in this suit is wrongful termination of employment. The learned counsel/or the respondent cannot succeed in hoodwinking this court to believe that the Fundamental Rights of the Plaintiff/Respondents is the principal issue. It was indeed wrong for this suit to have been commenced by way of Originating Summons. This action is definitely hostile and commencement of this suit by originating summons was clearly inappropriate”. Clearly and beyond any shadow of doubt, the facts in this suit are matters of controversy (claims and counterclaims) which are disputed and which will as of necessity require setting out of pleadings and taking of evidence in order to resolve the dispute. An aggrieved litigant should approach the Court by employing proper procedure to ventilate his grievance. On page 5-6 of the Records of Appeal, the Respondent averred in paragraphs 27, 28, 29, 30 and 31 of the affidavit in support of the originating summons that he had paid N10,000,000.00 in the name of the 3rd Defendant to the Federal Ministry of Transport Ad-Hoc committee on sale of NPA Landed Assets and exhibited a Receipt in support of that claim. He further averred that he has paid N22,000,000.00 out of total purchase price of N29,000,000.00 yet the 1st -3rd Defendants have failed to put him in possession of the portion of the property. It is evident that the Respondent was claiming title to the property in dispute and the claim for possession was, in fact, a claim for the title to land. There is no gainsaying that such a claim is hostile in nature. This is true even in the instant case as the Appellants and the 3rd Defendant in their counter affidavit found on pages 64-65 and 187-19 of the records of appeal denied the Respondent’s averments of making the said payment of N10,000,000.00. The Exhibited Receipt found on page 32 of the Records of Appeal clearly shows that the 3rd Defendant (Sosanya Oladapo) paid the N10,000,000.00 not the Respondent. The affidavit evidence and the exhibit of the Respondent on that issue are in conflict. The learned trial judge thus erred in law in granting title/possession to the Respondent on the basis of Order 53 of the High Court Civil Procedure Rules when he had not such jurisdiction to so do. Finally, on this, proceedings commenced by originating summons are expeditiously dealt with. The affidavit evidence with the Exhibits attached is relied upon but not to be used where the proceedings are hostile proceedings in which the facts are disputed. See: Doherty vs. Doherty (1964) NWLR 144: National Bank of Nigeria vs. Alakija (1978)9-10 SC 59: Famfa Oil Ltd vs. A.G. Federation (2003) 18 NWLR (Pt. 852); Director of State Security Service vs. Agbakoba (1999)3 NWLR (Pt. 595) 314. See also, ONYEAMA JSC in Akinsete vs. Akindutire (1966)1 All NLR 147@148 and the case of Government of Ashanti vs. Adjuah Korjortee 4 W.A.C.A 83 upholding the judgment of BANNERMAN. J. he also cited:
The dictum of Sir Udo Udoma, J.S.C in Chief Uku & 4 Ors. Vs. D. E. Okumagba (1974)3 SC. 35@ 64-65
The dictum of Irikefe J.S.C. (as he then was ) in Eboh vs. Oki (1974)1 S.C. 179@ 189-190
The dictum of Fatayi-Williams, J.S.C. (as he then was) in Olu Ibukun & Anor vs. Olu Ibukun & Anor, (1974)2 SC 41 @ 47-48
The dictum of Fatayi-Williams J.S.C (as he then was) in Falobi vs. Falobi (1976) 9 & 10 S. C. @ 14-15
The dictum of Nnamani, J.S.C in the State vs. Salihu Mohammed Gwonto & 4 Others (1983) 3 S.C. 62 @ 108-109” –

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CASES CITED

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None

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STATUTES REFERRED TO

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Lagos State High Court (Civil Procedure) Rules 2012|Limitation Law, Cap 67, Laws of Lagos State, 2003|

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CLICK HERE TO READ FULL JUDGMENT

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