⦿ CASE SUMMARY OF:
ABEEB AYETOBI v. OLUSOLA OSIADE TAIWO (2014) – CA
by PipAr Chima
Court of Appeal – CA/L/905/09
⦿ JUDGEMENT DELIVERED ON:
27th February, 2014
⦿ AREA(S) OF LAW
Service of process;
Recovery of possession;
⦿ NOTABLE DICTA
* WHERE ORIGINATING SUMMONS IS TO BE USED
The law is already trite that, before a proceeding can be commenced by originating summons, the construction of a written law, or instrument made there under or deed or will or contract or other document must be in issue. It means that in any of such cases certain questions must have arisen for determination with reference to such document and it is these questions and the accompanying reliefs or prayers that embody the issues for determination in the action. – Bage JCA. Ayetobi v. Taiwo (2014)
* CLAIM DETERMINES IF AN ORIGINATING SUMMONS IS APPROPRIATE
From the above therefore, the first duty of a trial judge, where action are begun or initiated by means of an originating summons procedure, is to examine the claim before him, and then to ascertain whether the procedure in originating summons was suitable or appropriate to the action. This first step, is sine qua-non to his assuming jurisdiction on the matter. – Bage JCA. Ayetobi v. Taiwo (2014)
Olusola Osiade Taiwo
⦿ LEAD JUDGEMENT DELIVERED BY:
Sidi Dauda Bage, J.C.A.
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ CASE HISTORY
By an originating summons dated the 28th day of February, 2008 the Respondent instituted proceedings against the Appellant and unknown persons as 1st and 2nd Defendants respectively for recovery of possession of the piece or parcel of land known as plot 4 Block 148 Ipaja New Town Scheme Ipaja, Lagos State measuring approximately 1820.96 square metres as shown on survey plan No. LS/D/LKJ403F and covered by certificate of occupancy dated the 30th day July 1990 and registered as No. 5/5/1990 N on the ground that the claimant [Respondent] was entitled to possession and that the persons in occupation are there without his licence or consent. See pages 1-2 on the record.
The Appellant was not served personally with the originating processes and same was not served on the Appellant’s address for service on the face of the summons which is Baale’s house Ikola village Ipaja, Lagos. Rather the process was served on one Prince Oladimeji of No.8 Ogundele Street Ipaja on 28th March, 2008 see the bailiff’s affidavit of service dated 31/3/2008 at pages 25A and 25B of the record. The summons was listed for mention on 14th April 2008 (less than two weeks after service) whereas under order 3 rule 8 and Form 3 of the Schedule to the High Court of Lagos State (Civil Procedure) Rules 2004 the Defendants are allowed a period of 42 days to answer to the summons. It was subsequently adjourned to 14th May, 2008 for hearing without further notice to the Defendant. The Defendants (Appellant and unknown persons) were absent at the hearing of the originating summons on 14th May 2008 when the learned trial judge (Coram Marsh J) after allowing same to be moved by Respondent’s counsel, gave judgment (termed ruling) instantly in his favour. Shortly thereafter the judge retired from service.
Pursuant to an application dated and filed on 30th June, 2008 [more than six days after the default judgment of 14th May 2008] by the Appellant and praying the court for the following: “An order extending time within which to set aside the judgment in default of appearance and defence dated 14/5/2008, An order setting aside the said judgment and, An order re-listing the originating summons dated 28/2/2008 for its determination on the merits.”
The Appellant (despite the aforementioned anomalies) admitted receipt of the originating summons but contends that he was sick at the time which accounted for his absence at the hearing. He relied on a sick report allegedly issued by the hospital where he was treated which report was attached as exhibit A to the motion to set aside the default judgment.
In opposing the application the Respondent’s counsel investigated the sick report by writing to the hospital. The outcome of his investigation proved that the report was false. See the counter-affidavit and exhibits at pages 29-32 of the record. Consequently the Appellant lodged a complaint with the same hospital on the false report. He was given a fresh report which he attached as exhibit A1 to the reply to the counter-affidavit see page 36 of the record.
In his ruling dated 30th day of September, 2009 the learned trial judge (Coram Lawal – Akapo J.) while dismissing the motion of 30/6/2008 held inter alia that he disbelieved both exhibits A and A1 [the Appellant’s sick reports] because “Curiously enough, these two medical certificates which are in conflict were both said to have been signed by Medical Practitioner, a situation which is semblance of some sharp practices. More importantly, there is no independent evidence (aside from the Applicant) emanating from the hospital explaining the defect or omission in exhibit “A” and the follow up circumstances that led to the issuance of exhibit “A1″.
In the absence of this crucial evidence, the genuineness of the two medical certificates are called into question and the authenticity are in doubt. I disbelieve the two medical certificates as unreliable and of no probative value”.
The Applicant has herein appealed to this Court of Appeal.
⦿ ISSUE(S) & RESOLUTION
[APPEAL: ALLOWED; RESENT TO TRIAL COURT FOR RE-HEARING]
I. Whether the lower court (Coram Lawal-Akapo) properly exercised its discretion when it dismissed the Appellant’s motion on notice dated the 30th June, 2008, in its entirety.”
i. The claim before this court which is for the recovery of a piece or parcel of land. By its very nature, cannot be uncontentious or uncontroversial, originating summons cannot be appropriately used, and with the instant appeal, the trial court ought not to have allowed it to be employed.
ii. The main issue is that, originating summons procedure cannot be an appropriate mode of initiating an action where the parties are desirous to contest the facts or there is the likelihood of that contest which is futuristic. The default of appearance of the Appellant to answer to the originating summon will not be a cure to the fact that, the claim of the Respondent for recovery of land cannot be initiated by originating summons. The very foundation which has affected the entire superstructure of the action remains defective. All the issues of default to file the counter affidavit to the originating summons, the default of appearance, the efficacies of exhibits A, A1, and the conditions set forth to set aside the default judgment have all become superfluous. In essence therefore, initiating an action on a wrong procedure robs the court of its jurisdiction to adjudicate over such matter. The issue of jurisdiction of a court to adjudicate over a matter before it is a threshold issue that goes to the root or foundation of adjudication. This stems from the trite position of the law, that once it is discovered that a court has no jurisdiction to adjudicate over a matter, any decision/proceedings emanating from such a court regarding that matter, no matter how well rendered or conducted, is a nullity.
iii. The Suit, the subject matter of this appeal, being one for recovery of possession of a piece or parcel of land which is indentified, is surely one that is contentious and cannot be appropriately brought by way of Originating Summons.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
* ORIGINATING SUMMONS NEEDED WHERE NO DISPUTE OF FACT
NATIONAL BANK OF NIG VS. ALAKIJA & ANOR (1978) 2 L.R.N. 78, I had cause to review the whole history of originating summons and then held: Originating Summons should only be applicable in such circumstances as where there is no dispute on question of fact or (even) the likelihood of such dispute. “[page 86 ibid) originating summons is reserved for issues like the determination of short question of construction and not matters of such controversy that the justice of the case would demand the settling of Pleadings.”
* WHERE INTERPRETATION IS NEEDED ORIGINATING SUMMONS IS APPROPRIATE
KEYAMO VS. HOUSE OF ASSEMBLY, LAGOS STATE (2000) 11 W.R.N. 29 at 40, (2000) 12 NWLR (Pt. 680) 796 at 213 stated as follows: “I must state that the correct position of the law is that originating summons is used to commence an action where the issue involved is one of the construction of a written law or of any instrument made under a written law, or of any deed, contract or other document or some other question of law or where there is unlikely to be any substantial dispute of fact. This is the provision of Order 3 Rule 2 (2) of the Lagos State Civil Procedure (supra)”
* ORIGINATING SUMMONS CANNOT BE USED WHERE FACTS ARE CONTENTIOUS
OBASANYA v. BABAFEMI (2000) 23 WRN (Pt.689) 1 at 17 stated again as follows: “Where the facts are controversial or contentious and cannot be ascertained without evidence being adduced, originating summons should not be appropriately used; and if used it should be discountenanced. See N. B. N. & ANOR VS. ALAKIJA (1978) 2 LRN 78 see also DOHERTY VS. DOHERTY (1964) N.M.L.R. 144, UNILAG VS. AIGORO (1991) 3 NWLR (Pt.179) 367; ANATOGU Vs. ANATOGU (1997) 9. The provision of Order 3 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules 1994 (supra) quite clearly provides that the originating summons procedure is only suitable for cases where the sole or principle question is one of construction of document. In the construction of such documents, law or instruments no evidence is required or adduced. Facts constituting an allegation of fraud by their very nature are controversial.”
⦿ REFERENCED (OTHERS)