(Vol.10 No.3) OGUNBANKE V. FALASE

IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT COURT NO. 48 (LANDS DIVISION) IKEJA
TODAY TUESDAY THE 29TH DAY OF SEPTEMBER, 2009
BEFORE THE HONOURABLE JUSTICE L. B. LAWAL-AKAPO - JUDGE

SUIT NO. ID/168M/09

BETWEEN:

MR. ABAYOMI OLAJIDE OGUNBANKE CLAIMANT/RESPONDENT

AND

1. WING COMMANDER TUNDE FALASE
(Attorney of David Hughes Family)
2. WAHAB OJUOLAPE DEFENDANTS/APPLICANTS
3. BIODUNOLAPDE
4. DR. ONYEMA AKACHUKWU

RULING

By Originating Summons dated 4th day of March, 2009 brought pursuant to Order 53 Rules 1 (2) & 2 of the High Court of Lagos State (Civil Procedure) Rules 2004, the Applicant is seeking recovery of the landed property situate at No. 9, Ogunbanke Street, Funsho Owoyemi Estate, Ijaiye Ojokoro, Lagos State on the ground that he is entitled to possession and that the person (s) in occupation are without his license or consent.

Arguing the application. Learned Counsel to the Applicant, Mr. 0. A. Ibiayo relied on his 27-paragraph affidavit sworn to on 4th day of March, 2009 and the 8 exhibits attached thereto. He relied on the Reply Affidavit of 11-paragraph sworn to on 6th day of July, 2009. He relied on the Written Address to the Originating Summons dated 4th day of March, 2009 and a Reply Address dated 6th day of July, 2009 and filed the same day. He adopted the contents of the Written Address and urged the court to grant the reliefs contained in the Summons. In opposition. Prince Farombi, Learned Counsel to the 1st - 3rd Defendants relied on his 29-paragraph Counter Affidavit dated 14th day of April, 2009 and one exhibit. He relied on his Written Address dated 14th day of April, 2009 filed the same day. He submitted that the Applicant's Reply Affidavit dated 6th day of July, 2009 was filed outside the statutory 7 days period and as such should be discountenanced. He cited in support of that contention Order 33 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2004. He contended further that the Reply Affidavit contained facts outside the 1st - 3rd Defendants' Counter Affidavit and whereas it is supposed to be a Reply to the said Counter Affidavit. He argued that the averments contained therein are legal arguments and conclusions and that it violates Section 87 of the Evidence Act. He submitted that the Written Address in support of the Reply which ought to be points of law are on facts. According to him, that is in breach of Order 39 Rule 1 (4) of the High Court of Lagos State (Civil Procedure) Rules 2004. He argued that exhibits A009 - A0011 attached to the Reply Affidavit have no bearing to the facts of this case. He urged the court to dismiss the application with substantial cost.

Still, in opposition to the application, Mrs. Onyebuchukwu Learned Counsel to the 4th Defendant aligned herself with the arguments preferred by Prince Farombi, Counsel to the 1st - 3rd Defendants. She relied on her 9-paragraph Counter Affidavit sworn to on 25th day of June, 2009. She stated that she did not file a Written Address in support other Counter Affidavit. Replying on points of law, Mr. Ibiayo submitted that as regards on irregular filing of an affidavit or process, failure to regularise will not invalid or an otherwise valid process. He referred to Order 5 Rule 1 (2) of the 2004 Rules.

I have read the processes filed and written arguments for and against the application. I have also listened to the oral arguments preferred by Learned Counsel on both sides in exposition of their Written Briefs. I shall start with the position taken by Learned Counsel to the 4th Defendant Mrs. Onyebuchukwu. Order 31 captioned "FILING OF WRITTEN ADDRESS"
Order 31 Rule 1 provides:
Order 31 Rule 1: "This order shall apply to ail applications and final addresses."
Order 39 Rules 1-3 provides:-
(1) "Where by these rules any application is authorised to be made to a Judge, such application shall be made by motion which may be supported by affidavit and shall state under what rule of Court or Law the application is brought. Every motion shall be served within 5 days of filing.

(2) Every such application shall be accompanied by a written address in support of the relief sought.

(3) Where the other party intends to oppose the application, he shall within 7 days of the service on him of such application, file his written address and may accompany it with a counter affidavit."

The combined effect of these two provisions is that a position taken in respect of an application must be supported by a Written Address and that if it is not so supported, such a stance should be jettisoned or disregarded. I therefore jettisoned the Counter Affidavit filed by the Counsel to the 4th Defendant in opposition to the application.

The crux of this matter is a claim of proprietary or possessory right over what the Applicant referred to as "No. 9, Ogunbanke Street, Funsho Owoyemi Estate, Ijaiye Ojokoro, Lagos." The Applicant supports his claim with a Deed of Assignment which has annexed to it a Survey Plan which document is marked exhibit A0011. The property referred to in the Deed of Assignment reads: "ALL THAT piece or parcel of land situate, lying and being at Ijaiye Ojokoro, Agege in the Agege Local Government Area of Lagos State measuring approximately 553.252 square metres more particularly described and delineated in RED in Plan No. BOP/LA/92/3347 dated 25th day of August, 1992 drawn by S. A. Oluwoye, Licensed Surveyor." The Survey Plan in turn referred to the property as being at "Ijaiye Ojokoro Off Lagos - Abeokuta Expressway, Agege Local Government Area of Lagos State." The 1st - 3rd Defendants herein simply referred to as the 1st set of Defendants in paragraph 2 of their Counter Affidavit avers as follows:-
"2 That contrary to paragraph 1 of the affidavit in support of the originating summons, there is no known street as "Ogunbanke Street, Funsho Owoyemi Estate" as the street where the subject matter of this case is situated is within David Hughes Estate and has not been named after any individual"

The Applicant in paragraphs 11 — 15 of his affidavit in support conceded that there was a concluded suit in Suit No. ID/I 11/84 - Chief G. Sanni Adu vs. Mr. Hughes between his predecessor-in-title and the person from who the 1st - 3rd Respondents are claiming title (i. e. Estate of David Hughes). The Applicant went further and exhibited the said judgment of LONGE J. as Exhibit A0018.

Paragraphs 11-15 of the Applicant's affidavit are very germane. It reads:-
"11. In late 1995, it came to my vendors the Ojugbele Adetan lyanru Family of Ipaja Road, Magbon, Orile Agege, Lagos had instituted Suit No. ID/111/84 - Chief G. Sanni & Ors. Vs. Mr. Hughes & Anor Before the Lagos High Court, Ikeja Judicial Division, against the 1st Defendant's predecessor-in-title upon a claim in trespass and declaration of title to a vast area of land situate and being at Ojokoro Village, Agege, Lagos and depicted on Plan No. JLA01/90 of 14th January, 1990 admitted in evidence therein as Exhibit 2.

12. It further came to my attention that by a Judgment of Hon. Justice E. F. Longe of 19th July, 1991, the court gave judgment in favour of the Ojugbele Adetan laynru Family - as Plaintiff therein in the following terms;
"Therefore with regards the first relief being claimed by the Plaintiffs in their Writ of Summons, there will be judgment for the Plaintiffs for an Order of right to Certificate of Occupancy over the piece or parcel of land situate, lying and being at Ojokoro Village, Agege, and shown in exhibit 2 EXCLUDING that part or parcel of land marked RED ON THE SAID PLAN, WHICH IS NOW FOUND to belong to the Defendants as depicted in Exhibit 1C..."

"Finally the judgment of this court, that is the Plaintiffs succeed partially to the relief sought from this court, that is the Plaintiffs are entitled to the statutory right of occupancy in respect of that piece and parcel of land marked green in Exhibit 2 in this case EXCLUDING the area marked RED on the said Exhibit 2, because the area marked RED on the plan is found to belong to the defendants. That is the judgment of the court." (Pages 24 & 25 of judgment)

Now shown to me and marked Exhibit AOO/5 is a Certified True Copy of the said judgment.

13. I am aware that the on Appeal, the Court of Appeal per Oguntade JCA (as he then was) sustained/affirmed the decision of the High Court aforesaid and further found as follows:-

"....The lower court accepted that evidence. It was free to do so. The lower court did not make a declaration of title in favour of the Defendants. It only held that the defendants had shown that they had been in possession of the land of the land verged 'Red' in Exhibit 2 for a long time."

"There is my view a difference between stating that a person had shown that he was in possession of the land and that that person was the owner of the land. Indeed, the lower court did not have to make any pronouncement concerning the Defendant's ownership of the land since the Defendants never brought such a claim before the court." (See pages 12 & 13 of Court of Appeal Judgment)

Now shown to me and marked Exhibit AOO/6 is a Certified True Copy of the said Court of Appeal Judgment (Appeal No. CA/L/292/94).

14. I am also aware that the on Appeal, the Court of Appeal per Oguntade JCA (as he then was) sustained/affirmed the decision of the High Court aforesaid and further found as follows:-

"... The lower court accepted that evidence. It was free to do so. The lower court did not make a declaration of title in favour of the Defendants. It only held that the defendants had shown that they had been in possession of the land verged 'Red' in Exhibit 2 for a long time"
"There is my view a difference between stating that a person had shown that he was in possession of the land and that that person was the owner of the land. Indeed, the lower court did not have to make any pronouncement concerning the Defendant's ownership of the land since the Defendants never brought such a claim before the court." (See pages 12 & 13 of Court of Appeal Judgment)

Now shown to me and marked Exhibit AOO/6 is a Certified True Copy of the said Court of Appeal Judgment (Appeal No. CA/L/292/94).
15. I am further aware that no further appeal (s) was precipitated from the decision of the Court of Appeal aforesaid. Now shown to me and collectively marked ExhibitAOO/7 are Certified True Copy of the Orders of the Supreme Court of 24th January. & 15th June, 2000 and that of 29th April, 2002 evidencing this fact."

The Applicant in paragraph 21 of his affidavit averred that the 1st - 3rd Defendants has completed the construction work which he initiated in respect of the subject matter. The 1st - 3rd Defendants averred that the property in dispute belongs to the 2nd Defendant. They averred further in paragraph 21 of their Counter Affidavit that the 2nd Defendant has completed the property and has put in tenants in occupation. All of these are allegations and counter allegations. Flowing from above, there is therefore the need to determine:-

(i) The address description and identity of the property which is the subject matter of this action.
(ii) Who as between the Applicant and the 1st - 3rd Defendants own the property?
(iii) In whose favour as between the two contending parties is the judgment of LONGE J. in Suit No. ID/I 11/84 - Chief G. Sanni & Ors. Vs. Mr. Hughes & Anor. and the Court of Appeal Judgment in the same in Suit No. CA/L/292/94 which judgments were pleaded by both parties.
(iv) Who as between the Applicant and the 1st - 3rd Defendants is entitled to possession of the said property?
The questions that then arise for determination are:-
(i) Is Order 53 appropriate in the circumstances of this case?
(ii) Can the issues raised in this suit be dealt with on an Originating Summons?

On question one, Order 53 deal with summary possession for recovery of land occupied by squatters or persons without the owner's consent. From the averments in the Affidavit and Counter Affidavit it is evidently clear that the 1st - 3rd Defendants are not squatters and that this set of Defendants are known to the Applicant. I find as a fact and I hold that Order 53 is not applicable to the facts of this case.

On Issue No (ii) Originating Summons is Originating Summons generally is governed by the Provision of Order 3 Rule 5. It provides:-
"3. Any person claiming to be interested under a deed. Will, enactment or other written instrument 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:
UNIVERSITY OF LAGOS VS. M F. AIGORO (1991) 3 NWLR (PT. 179) PG. 376 at 383 - 384
Awogu J. C. A. held:
"An originating Summons is therefore intended to be used in limited situations. It is ideal for construction and interpretation of documents. According to Kayode Eso, J. S. C. 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 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:-
i. OBASANYA VS. BABAFEMI
(2000) 15 NWLR (PT. 684) PG. 3630

ii. JTMOH VS. OLAWOYE
(2003) 20 NWLR (PT. 828) PG. 307

iii. INAKOJU VS. ADELEKE
(2007) 4 NWLR (PT. 1025) PG. 423 S. C.

iv. NATIONAL BANK OF NIGERIA VS. LADY ALAKIJA
(1978) 9 -10 SC 59 at 71.

v. NATIONAL BANK OF NIGERIA
VS.
LADY ALAKIJA & ANOR (1978) 9 -10 S. C. 59 at 71

From the averments contained in paragraphs 11 - 15 of 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 NWANZE
(2008) 4 NWLR (PT. 1076) PG. 92 at 109

NDUKWU-ANYANWU J. C. A. at page 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/respondent 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 (claimed and counter claims) 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.

I therefore find as a fact and I hold that the use of Originating Summons in the present case is grossly misplaced. In the result it is hereby ordered that the parties shall file and exchange pleadings within the time permitted by the Rules of this and take such other steps as may be necessary to have the matter heard on its merit.

L.B. LAWAL AKAPO
JUDGE
29/09/2009