3PLR – MICHAEL V. MIMA PROJECTS VENTURES LTD
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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MICHAEL
V.
MIMA PROJECTS VENTURES LTD
IN THE COURT OF APPEAL
[KADUNA DIVISION]
3PLR/2001/215 (CA)
OTHER CITATIONS
22 WRN 721
BEFORE THEIR LORDSHIPS:
ISA AYO SALAMI, JCA (Presided)
MAHMUD MOHAMMED, JCA (Delivered the leading judgment)
VICTOR AIMEPOMO OYELEYE OMAGE, JCA
BETWEEN
- M/S MARGARET HAUWA MICHAEL
- HAWAD INTERNATIONAL SCHOOLS LTD
AND
MIMA PROJECTS VENTURES LTD
REPRESENTATION
- Aluko-Olokun SAN with him T. Aluko-Olokun and S. Nnadi for the appellants.
Kayode Olatunji with him Chuks T. Agu for the respondent.
MAIN ISSUES
PRACTICE AND PROCEDURE – COURT – Court process – when abused – attitude of court.
PRACTICE AND PROCEDURE – Court process – abuse of – what amounts thereto.
PRACTICE AND PROCEDURE – Originating summons – when applicable.
PRACTICE AND PROCEDURE – Procedure prescribed by a statute – attitude of appellate court thereto – whether a departure would be allowed therefrom.
MAHMUD MOHAMMED, JCA (Delivered the following judgment):
This is an interlocutory appeal against the ruling of the High Court of Justice of Kaduna State sitting at Kaduna and delivered by Aliyu J. On 11/5/2000 dismissing a preliminary objection raised on behalf of the defendants now appellants by their learned counsel to the hearing of the plaintiff’s now respondent’s claims brought by an originating summons by the trial court.
By an originating summons dated 29/3/2000 and filed at the trial court, the respondent as plaintiff commenced its action in that court in suit No. KDH/188/2000 against the appellants as the defendants and claimed the following reliefs:
“1. An order granting the plaintiff/applicant writ of possession of all the houses and entire premises known as Hawad International Schools Ltd of No. 15 Gwari Avenue Barnawa G.R.A. Kaduna.
- An order empowering the plaintiff/applicant to take possession and a further order of ejection of all persons and movables that may be occupying part or the entire premises known as Hawad International Schools Ltd of No. 15 Gwari Avenue Baruawa G.R.A. Kaduna.”
The respondent’s originating summons was supported by a 4 paragraph affidavit with exhibits ‘A’, ‘B’ and ‘C’ and a further affidavit of 4 paragraphs with exhibits D, E, F, G, and H. The appellants on the other hand in response to the claims in the originating summons filed a 15 paragraph counter affidavit and a 4 paragraph further counter affidavit with exhibits A, B, and C1 to C6 deposed to by the 1st appellant as the 1st defendant in the action.
On 18/4/2000 when the respondent’s action came up for hearing at the trial court, learned counsel for the defendants, now appellants orally raised a preliminary objection as recorded in full in the record of this appeal at page 40 as follows:
“I have a preliminary objection. The proceedings have been commenced by way of originating summons. Counter affidavit (sic) have been filed by the defendants. While from the (sic) affidavit of the parties it is clear that the plaintiff contends that title to the property the subject matter of the action vests on defendants the defendants on the other hand (sic) contents that title to the property vests on 2nd defendant.”
In the light of the conflict in both (sic) affidavit of parties, the matter is not one to be heard on originating summons. In light of the circumstances two options are open to the court:
- To strike out the matter so that plaintiff can commence another action.
- Court can order for pleadings. I refer to Civil Procedure in Nigeria by Fidelis Nwadialo at page 194 and Doherty v. Doherty (1964) NMLR 144; (1964) 1 All NLR 299 (last paragraph) I urge the court to act accordingly.
In his reaction to the preliminary objection, the learned counsel to the plaintiff now respondent replied as follows:
“We oppose the preliminary objection. The cause of this action is purely on point of law. Since the purchase on the subject matter by the plaintiff has not been challenged either of the auctions and nothing before any court to set aside the auction in any court. Plaintiff has complied with sections 47, 48 and partly with section 50 of Sheriff & Civil Process Act Cap. 407 of 1990.
Having complied with these (sic) provision we submit that defendants have no business in applying that this court should strike out the summons or order pleadings. The remedies available to the 2nd defendant are very clear. I rely on Essay on Civil Proceedings, Enforcement of Judgment and Order of Court No. 2 by A. Obi – Okoye at page 35, article 108. I refer to Leedo Presidential Motels Ltd v. Bank of the North Ltd & Another (1998) 10 NWLR (Pt. 570) 353; (1998) 7 SCNJ 328 at 357. The reasons for commencing under originating summons is to enable the purchaser to comply with the provision of the law. We merely comply with order of the court which has not been challenged. On the remedy available to a 3rd party whose property has been sold by a court, I refer to Mbanugo & Ors. v. U.A.C. (1961) All NLR 775; Bobo v. Anthony (1931) 1 WACA 169 and Odejoke and Ors v. John Holt Co. Ltd 8 WACA 152. We urge the court to dismiss the objection of the defendants the two authorities cited by them also support our position.”
It was based on these full submissions of the learned counsel to the parties that the learned trial Judge after a very careful consideration ruled on the preliminary objection and dismissed the same in his ruling delivered on 11/5/2000. The most relevant part of that ruling at page 43 of the record reads:
“I do not think that the issue raised by Mr. Aluko Olokun that both parties are in their respective affidavits, claiming title over the property in issue is correct. The 2nd defendant may be claiming title. The plaintiff is definitely claiming possession of the property having purchased same from auction conducted in satisfaction of a judgment of a court and having fulfilled certain conditions of the law. The 2nd defendant who is a 3rd party would have no case against the plaintiff as far as the property is concerned if prior to the sale of same to the plaintiff and within 21 days from the said sale 2nd defendant did not register its claim by interpleader or apply to set the sale aside – see section 47 of the Sheriff and Civil Process Act. It seems to me that neither of these actions was taken by the 2nd defendant otherwise its claim of title in this case would have been unnecessary.
As closely demonstrated in the decisions in Mbanugo v. U.A.C (supra) and Bobo v. Anthony (supra) the 2nd defendant has its remedy only against the judgment debtor for money had and received or for declaration of title. See also Essays on Civil Proceedings No. 2 Enforcement of Judgments and Orders by A. Obi-Okoye at page 35 article 108.
As I have said earlier, I could find nothing in parties affidavit to suggest that the proceedings would be hostile. Since as I have said also, the plaintiff has a right to initiate this action by way of originating summons the preliminary objection is without any merit and is accordingly dismissed.”
The defendants now appellants who were not happy with the ruling above dismissing the preliminary objection, have appealed against it to this court on a single ground of appeal which complained that the trial court was in error when it refused to strike out the plaintiff’s action or order pleadings.
In the appellants’ brief of argument filed on their behalf by their learned senior counsel, only one issue for the determination of the appeal was formulated. The issue is whether the trial Judge erred in law in refusing the application of the defendants that an order for pleadings be made in the matter or the suit be struck out for being unsuitable for hearing on an originating summons.
In the respondent’s brief of argument on the other hand, the lone issue identified arising from the ground of appeal filed by the appellants is whether the respondent’s action at the lower court is suitable or not for hearing under an originating summons procedure. It is clear that the issues for determination of the appeal as identified in the respective briefs of the parties are virtually the same. I shall therefore proceed to determine this appeal on the issue as identified in the appellants’ brief of argument.
In support of the only one issue in this appeal, the learned senior counsel for the appellants after quoting the relevant part of the ruling of the lower court now on appeal, referred to the provisions of sections 46, 49 and 52 of the Sheriffs and Civil Procedure Law Cap. 141 of the Laws of Kaduna State, 1991 and sections 21, 22 and 26 of the Land Use Act Cap. 202 of 1990 Laws of the Federation of Nigeria and concluded that a sale of landed property under order of court transfers the right, title and interest of the judgment debtor in the property only. That it follows if the debtor had no right, title or interest in the property the purchaser could not under the sale acquire them. Relying on a number of cases particularly Abiodun & Ors. v. Ogunyomi (1962) 1 All NLR 551, learned senior counsel submitted that failure to obtain the required governor’s consent to confirm the sale, had rendered the certificate of purchase of the property invalid, null and void. Referring to the cases cited by the counsel to the respondent in opposing the preliminary objection, learned senior counsel maintained that the cases do not assist the respondent and concluded that having regard to the decision of this court in Olumide v. Ajayi (1997) 8 NWLR (Pt. 517) 433, the present case is not suitable for hearing under originating summons procedure because of the existence of dispute in the facts between the parties. Learned senior counsel therefore urged this court to allow the appeal, set aside the ruling of the lower court of 11/5/2000 and remit the case to the lower court for hearing on pleadings by another Judge.
The stand of the respondent on this appeal as contained in the respondent’s brief of argument is that the appellants arguments in their brief appeared to have abandoned the real issue arising in the appeal with regard to whether or not the respondent’s action is suitable for hearing under originating summons procedure. Rather, the appellants dwelled so much on the issue of title to the property purchased by the respondent which was not in issue at the trial court but which is a subject of a new case already before another Judge of the High Court in suit No. KDH/KAD/305/2000 between the 2nd appellant and the respondent. Coming back to the issue for determination in this appeal, it was argued for the respondent that having regard to the state of the law in Doherty v. Doherty (1964) NMLR 144; (1964) 1 All NLR 299 and N.B.N. Ltd. v. Alakaji (1978) 9 – 10 S.C 59, Originating summons procedure may be used in actions where there is no dispute on questions of facts or likelihood of such dispute. That in the present case, if the 2nd appellant is to be heard on any disputed issue as it relates to the property the subject matter of this appeal, her remedy lies in taking a fresh action as she had already done in suit No. KDH/KAD/305/2000. That the respondent having bought the property at an auction sale in the High Court, it was entitled to apply for a writ of possession of the property by means of originating summons as the sale had become absolute since it was not challenged by anyone within the 21 days required by the Sheriff and Civil Process Act. Learned counsel therefore argued that the respondents action by originating summons for the enforcement of its right to possess the property, was in order on the authority of Mbanugo & Ors. v. U.A.C. (1961) All NLR 775 and Bobo v. Anthony (1931) 1 WACA 169 especially when the 2nd appellant’s action for declaration of title is already before another High Court in compliance with ruling of lower court now on appeal.
The only issue that calls for determination in this appeal arising from the ruling of the lower court of 11/5/2000 dismissing the appellant’s oral preliminary objection to the respondent’s action for possession of property purchased at an auction conducted by the Kaduna State High Court, is whether that dismissal of the preliminary objection was right having regard to the material placed before the lower court. The question therefore is whether the reliefs claimed by the respondent in the originating summons could be heard under the procedure outlined by order 6 of the Kaduna State High Court (Civil Procedure) Rules, 1987 rule 3 of which states what originating summons shall contain as follows:
“3. Every originating summons shall include a statement of the questions on which the plaintiff seeks the determination or direction of the court or, as the case may be, concise statement of relief or remedy claimed in the proceedings began by the originating summons with sufficient particulars to identify the cause or causes of action in respect of which the plaintiff claims the relief or remedy.”
It is therefore quite clear from the above provisions of the rules that originating summons is prescribed as one of the methods of commencing actions at the court below. It is however intended to be used in limited circumstances in matters involving the construction and interpretation of documents. Throwing light in the use of originating summons, the Supreme Court in the leading case on the subject namely, National Bank of Nigeria & Anor v. Lady Alakija & Anor (1978) 9-10 S.C 59 at 71 had stated clearly where Kayode Eso JSC (as he then was) said:
“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.”
Other relevant cases stating guidance on this subject also include Doherty v. Doherty (1964) NMLR 144; (1964) 1 All NLR 299; University of Lagos v. Aigoro (1991) 3 NWLR (Pt. 179) 379 at 383 – 384; Olumide v. Ajayi (1997) 8 NWLR (Pt. 517) 433 at 442 – 443; Anatogu v. Anatogu (1997) 9 NWLR (Pt. 519) 49 at 70 – 71 and Director of State Security Service v. Agbakoba (1999) 3 NWLR (Pt. 595) 425 at 354 where Uwais CJN in drawing a vital distinction between originating summons and writ of summons said:
“Similarly, an originating summons is not the same as writ of summons. In the case of the former no pleadings are employed while in the case of the latter there are pleadings in the form of statement of claims, statement of defence, reply etc.”
and further proceeded to define the term ‘originating summons’ to include:
“every summons other than a summon in a pending cause or matter. It is used in the Chancery Division instead of a writ of summons to obtain a declaration or decision of the court in the construction of an instrument or a statutory provision as in the present case.”
Thus, the underlying principles in all these decisions is that originating summons may only be used in initiating proceedings to obtain declarations or decisions of court in the construction or interpretation of instruments or statutory provisions in circumstances where there is no dispute on questions of facts or the likelihood of such dispute. In other words where the facts in issue between the parties involve matters of serious controversy that the justice of the case would demand the settling of pleadings, originating summons cannot be applicable.
Before applying the law to the present appeal, it is very necessary in my view to examine the facts and circumstances placed before the learned trial Judge in the appellant’s preliminary objection before he dismissed the same. It is significant to observe that although there was an affidavit and further affidavit in support of the respondents reliefs claimed in the originating summons, while the appellants in opposing the same had filed two counter affidavits, the learned counsel to the appellants in his oral preliminary objection to the hearing of the originating summons had merely stated in his address that there was conflict in the affidavit of the parties and as such the matter was not one to be heard on originating summons. The learned trial Judge was not referred to any paragraph in the respondent’s affidavit in support of the action or the appellants counter affidavits opposing the action which were said to be in conflict. The general statement made by the learned appellants’ counsel in his preliminary objection that the affidavits of the parties show there was a dispute between the parties over title to the property the subject matter of the action, is not supported by the said affidavits. This is because while the respondent’s affidavits merely averred that the property the possession of which was being sought in the action was purchased at an auction sale at the Kaduna State High Court on 29/4/99, the appellants’ counter affidavit deposed to by the 1st appellant was only saying that the 1st appellant was no longer the owner of the property the subject of the recovery of possession action.
Obviously, this is merely stating the obvious as that property had already been sold at an auction sale to the respondent since 29/4/99 before the present action was filed in the year 2000. The 2nd appellant which is in possession of the property being recovered in the action, had not in the counter affidavits denied being in possession nor claimed to be the owner of the same property by virtue of the alleged assignment to it by the 1st appellant which was not concluded until 23/9/99 after the auction sale of the same property had been concluded on 29/4/99. Thus, as the respondent was not claiming for title in its action while the appellants or at least the 2nd appellant was not denying being in possession of the property the subject of the recovery of possession action, I cannot see any conflicts in the affidavits of the parties as claimed by the learned counsel to the appellants in his oral preliminary objection to the respondent’s action.
Having regard to the cases of Doherty v. Doherty (supra), National Bank of Nigeria v. Alakaji (supra) and other cases cited and relied upon in this judgment, it is quite plain that the position of the law is that an originating summons as a means of initiating proceedings in the High Court should not be used where there is a dispute of facts or the likelihood of such dispute. In other words it is not suitable for what may be called “hostile proceedings” in which facts are in dispute. In the present appeal, having regard to the oral preliminary objection of the appellants the claims of the respondent in its originating summons and the affidavits of the parties, the alleged conflicts in the affidavits are not apparent to warrant any finding on the existence of any disputed facts or the likelihood of such dispute particularly when the possession of the property at least by the 2nd appellant had not been specifically denied in the counter affidavits to give rise to such disputed facts.
Lord Denning, MR (as he then was) when confronted with similar circumstances arising in the present case with regard to the absence of disputed facts or the likelihood of such dispute from the affidavits where no reliance was placed on the affidavit by the plaintiffs in an action began by originating summons, had this to say in the case of Puston v. Ministry of Pensions (1963) 1 All ER 275 at 278 –
Before us counsel on behalf of the plaintiffs did not rely on the affidavits which they had filed on the facts. Counsel did not even read them. He made it quite clear that he was no longer challenging the findings of fact by the Commissioner. All counsel desired, he said was a determination of the point of law. What was the proper interpretation of words in the statute “directly interested”? Were the plaintiffs, on the facts found by the Commissioner “directly interested” or not in the trade dispute which caused the stoppage of work? When the case is put that way, it seems to me to be a very proper matter for determination for originating summons for a declaration. Indeed it is sensible and a modern way of approach.”
It is in the light of this decision relating to the modern way of approach in the use of originating summons proceedings and particularly where disputed facts have not been specifically pointed out from the paragraphs of the affidavits that I agree with the lower court in dismissing the appellants’ preliminary objection. This is because, in my view, in the absence of disputed facts between the parties, my understanding of the law on the requirements for initiating proceedings by originating summons is that the requirements have been satisfied to justify the hearing of the respondent’s claims as such. The question of whether the claims may succeed or not is entirely irrelevant at this stage.
Another aspect of this case which I can not afford to ignore inspite of the striking out of the respondent’s preliminary objection to the hearing of this appeal is the existence of suit No. KDH/KAD/305/2000 between 2nd appellant as plaintiff and the respondent in this appeal as the defendant which was filed by the 2nd appellant at one of the Kaduna State High Courts other than the court from which this appeal arose in apparent compliance with the ruling of the lower court of 11/5/2000 now on appeal. The question then is whether even if this appeal is allowed by this court I can grant the reliefs sought by the appellants of setting aside the ruling of the lower court and remitting the case to the lower court for hearing on pleadings by another Judge concurrently with the case of the 2nd appellant relating to the same subject already pending before another Judge of the same High Court. The answer is certainly in the negative.
To do so will certainly result in an abuse of process of the lower court which this court as an appellate court has a duty to prevent by dismissing this appeal.
In the result, having regard to the circumstances of this case and the materials placed before the lower court, I am of the view that the learned trial Judge was right in dismissing the appellants preliminary objection. Accordingly this appeal must fail. The appeal having failed, the same is hereby dismissed with N3000.00 costs to the respondent.
ISA AYO SALAMI, JCA: I read before now the judgment just delivered by my learned brother, Mahmud Mohammed, JCA and agree entirely with the reasoning contained therein and the conclusion arrived thereat.
The respondent bought the property in dispute, the premises housing Hawad International Schools at 15 Gwarri Avenue, Barnawa GRA, Kaduna at a court auction sale in satisfaction of a judgment debt. The sale took place on 29th April 1999 when the respondent herein emerged as the highest bidder. He paid the purchase price and was duly issued with a receipt.
An application may however be brought to set aside the sale within 21 days of the transaction under section 46 of the Sheriffs and Civil Processes Law Cap. 141 of the Laws of Kaduna State of Nigeria 1991 on the ground of material irregularity and no sale may be set aside unless the applicant proves to the satisfaction of the court that he suffered a substantial injury as a result of the irregularity, Unegbu v. Woli (1997) 2 NWLR (Pt. 486) 194, 205 and Bank of the North Limited v. Nigerian Bank for Commerce and Industries (1990) 5 NWLR (Pt. 150) 263, 272. The appellant failed to take step or steps to ensure that the sale was set aside. He equally failed to initiate inter pleader proceedings. The sale on expiration of the twenty-one day was deemed absolute by dint of the provisions of section 47 of Cap. 141. On the sale being deemed absolute by the operation of the provisions of section 47 of the same enactment the respondent was accordingly issued with certificate of title under the provision of section 49 of the said Law. It follows, in my respectful opinion, that title vests in him, subject to the provisions of Land Use Act Cap. 202 of the Laws of Federation 1990, in him against the whole world.
Having secured certificate of title, the respondent, pursuance of the provision of section 50 of the Sheriffs and Civil Processes Law, Cap. 141, brought application seeking for possession from the judgment debtor, or some person on his behalf or some person claiming under a title created by the judgment debtor subsequently to the attachment. The court on this application shall order possession to be delivered to the purchaser or any person whom he may appoint to receive delivery of the property on his behalf. Section 50 reads as follows:
“50. If the property sold shall consist of a house, land or other immovable property in possession of a judgment debtor or some person on his behalf or of some person claiming under a title created by the judgment debtor subsequently to the attachment of such property, the court shall, on the application of the purchaser, order delivery thereof to be made by putting the party to whom the house, land or other immovable property may have been sold or any person whom he may appoint to receive delivery on his behalf, in possession thereof and, if need be, by removing any person who may refuse to vacate the same.”
(Italics supplied)
The mode of initiating the proceedings according to this section is by way of application. This pre-supposes a motion on notice supported by affidavit to the judgment debtor or a person holding possession on his behalf or some person claiming under a title created by the judgment debtor subsequently to the attachment. The respondent herein did not approach the court below by application rather he went by way of originating summons to secure possession of the property he bought at court auction sale conducted under and in accordance with the provisions of Sheriffs and Civil Processes Law Cap. 141. The originating summons needless to say is supported by affidavit. Section 50 probably prescribes application apparently because the facts of the sale, purchase and lack of challenge on ground of irregularity are not likely to be in dispute. That is to say, at the stage certificate of title was issued all controversy thereon ought to have been resolved.
The appellant at the hearing of the application took objection to the proceedings on the ground that the suit was not properly constituted. Learned senior counsel in his objection proffered two options.
(a) to strike out the matter so that plaintiff can commence another action.
(b) court can order for pleadings.
I do not think that any of these options avail the appellant. The respondent went by way of originating summons supported by affidavit which is respectfully a substantial compliance with the provisions of section 50 of Cap. 141. The purchaser cannot be compelled, contrary to the contention of the learned senior counsel on behalf of the appellant both In the Court below and in this court to come by way of writ of summons which will eventually lead to pleadings. It is not the intention of the legislature for the matter to be fought on pleadings, if it were, it could have clearly and unequivocally provided for the said procedure. Where a statute has prescribed a certain procedure for redress and there is no doubt from the language used in the statute that that should be the procedure available, the court will not allow any departure from the procedure. See Pasmore v. Oswaldtwistle and Urban District Counsel (1898) A.C 387, 394. I am “like the centurion at Caparnaum I am under authority – that of decided cases” per Lawton in Lim v. Canden Health Authority (1979) 1 Q.B 196, 221. See also Ohin Moore v. Akesseh Tayee 2 WACA 43, 45 (P.C) I am bound by authority of statute and decided cases and not on convenience of litigants.
For this reason and the fuller reason contained in the lead judgment of my learned brother, I, too, dismiss the appeal and affirm the decision of the learned trial Judge. I endorse all other consequential orders contained in the said lead judgment including the order as to costs.
VICTOR AIMEPOMO OYELEYE OMAGE JCA: In the appellant brief of argument filed on 12/9/00. The issue to be determined is submitted to be as follows:
“Whether the trial Judge erred in law in refusing the application of the 2nd defendant that the suit/claim before the court is unsuitable for hearing as commenced by the plaintiff by originating summons because;
(1) There are triable issues of facts arguable against the plaintiffs claim, an example of which is whether or not the plaintiff is entitled to the claim to title he averred when the issue will be raised by the defendant as to whether or not the applicant by originating summons has obtained the consent of the governor to be entitled to the claim the applicant averred.”
The appellant as defendants In the Court below, and now includes it in his submission in this court that unless the consent of the governor is obtained the applicant/ respondent cannot justifiably aver that he is a title owner to the property he claims to have bought at a public auction.
The respondents issue for determination reads thus:
“The only issue for determination is whether the respondents action in the lower court is suitable for hearing under an originating summons procedure. The facts of the matter which culminated in the appeal on the issues stated above are these.”
The respondent who is the plaintiff In the Court below commenced an action against the 1st and 2nd defendants in suit No. KDH/KAD/188/2000 by originating summons and claimed from them, the following reliefs;
“(1) An order granting the plaintiff applicant a writ of possession over all the houses and entire premises known as Hawad International Ltd. of No. 15 Gwari Avenue, Barnawa GRA Kaduna State.
(2) An order empowering the plaintiff/applicant to take possession and a further order of ejection of all persons and moveables that may be occupying part of the entire premises known as Hawad International School Ltd. of No. 15 Gwari Avenue Barnawa GRA Kaduna.”
The application by originating summons was supported by an affidavit to which is annexed the following exhibits A, B, and C. There is a further affidavit to which is attached exhibits D, E, F, G, and H. The second appellant in this appeal filed against the originating summons a counter affidavit of fifteen paragraphs in which he urged the court not to proceed with the hearing of the matter as formed, because the triable issues in the suit are not suitable for trial under the originating summons procedure. At the hearing of the originating summons, the counsel for the appellant took a preliminary objection viva voce, saying in the light of the conflict in both affidavit of the parties, the matter before the court is not one to be heard under an originating summons procedure. The reasons proffered by the appellant in the lower court, which are also contained in the appellant’s brief are that the plaintiff now respondent is not possessed of title to the land in issue, and that the respondent cannot have title to the land until the plaintiff has applied for and obtained the consent of the Governor of Kaduna State. He said the plaintiff/respondent does not have a right under the law to bring an action in court for claims on the said land. That an action by a writ of summons is desirable in which oral evidence will be tendered. In the event the appellant In the Court below urged the court to either strike out the originating summons or order pleadings in the originating summons to determine the triable issues.
The plaintiff now respondent vigorously opposed the preliminary objection of the appellant. Counsel for the applicant in the originating summons submitted to the court that its action was to determine a point of law, being an action to take possession of immovable property purchased by the plaintiff at a public auction conducted by a sheriff of court as 29/4/99. Before the sale of the landed property on which buildings used as a school existed, the property was said to be in the possession of the 1st defendant, and the title to the property is said to be in the 2nd defendant said to be a limited liability company. What is relevant to the proceedings is that the certificate of purchase of the property issues to the plaintiff/respondent shows that the two defendants now appellants have judgment against the two of them, upon which reason the Registrar of court through the sheriff sold by auction the property to the plaintiff now respondent. It was submitted on behalf of the plaintiff that as the sale of the property has not been challenged by the defendant and as there is no application before the court to set aside the sale in any court of law, it does not lie in the defendant now appellant to seek the order of court to strike out the originating summons In the Court below. Furthermore the plaintiff responded that it had complied with the provisions of sections 47, 48 and partly with section 50 all of the Sheriffs and Civil Process Law, Cap. 407 of 1990. It is not the business of the defendant to apply that the summons be struck out, or that pleadings be ordered. The plaintiff submitted that originating procedure was preferred to enable the purchaser comply with the law.
The plaintiff replied also to the defendant’s complaint that a third party had title to the property by saying such a third party was free to pursue his remedy but has not done so in this proceedings.
The record shows that the defendants counsel did not respond to the plaintiffs address In the Court. The court on 10/5/2000 adjourned for ruling. In his ruling on 11/5/2000, the learned trial Judge in considering the submission of the defendant held in a material portion thereof as follows:
“It is clear from the submission of Mr. Aluko Olokun that the preliminary objection is not challenging the right of the plaintiff to bring the suit by originating summons rather what learned counsel challenges is the likelihood of the matter being heard under this process without making the proceedings cumbersome in view of conflicting claims of parties in their respective affidavit. Indeed the plaintiff has an option under it to initiate his suit by originating summons or under order 5 the writ of summons etc.
I do not think that the issue raised by Mr. Aluko Olokun that both parties in their respective affidavit are claiming title over the property in issue is correct. The 2nd defendant may be claiming title (over the property). The plaintiff is definitely claiming possession of the property having purchased same from auction conducted in satisfaction of a judgment of court; and having fulfilled certain conditions of the law.
The 2nd defendant has its remedy against the judgment debtor for money has and received, or for a declaration of title. I find nothing in (the) parties affidavit to suggest that proceedings would be hostile, etc. The preliminary objection is without merit and is accordingly dismissed.”
It is against this ruling that the appellants filed his appeal, and formulated one issue which has been recorded above. In the brief of the respondent to the appeal filed out of time on 2/5/01 by the leave of court the respondent raised a preliminary objection; on which submissions were made at the hearing. The objection inter alia is that the appellants appeal before the court is an abuse of the process of the court being that the appellant on 12/5/2000; a day after the ruling of the court below against which he had appealed, filed a claim against the respondent in the High Court Kaduna in suit No. KDH/KAD/305/2000. The suit is still pending before the High Court Kaduna. The respondent also objects to the use by the appellant in this appeal of pages 28-30 of the record of proceedings in this court because the affidavit therein contained do not form part of the proceedings in suit No. KDH/KAD/188/2000, on which this appeal is based.
I have looked at the pages of the record referred to above in pages 28-30, pages 29 and 30 are annexures to the contents of page 28. That page shows that it is in proceedings in suit No. KAH/KAD/168/2000. The appellant failed to explain how the said pages form part of the proceedings in this appeal as it is clear they belong to another court proceedings. Pages 28-30 of the records are therefore expunged from the records. The other arm of the respondents objection can only be determined when the appellant’s submission in this appeal is considered.
In this appeal the only issue formulated by the appellant is whether or not the respondent/plaintiff’s claim should be, or can be determined by originating summons procedure. I have written above, the words “should be determined” that is not infact the essence of the appellants issue. The essence of the appellants issue is, could the plaintiff’s claim before the court in suit No. KDH/KAD be determined by originating summons.
This in my view is the only imputation of the appellant’s issue when the appellant wrote in his brief “whether the trial Judge erred in law in refusing the application of the defendants that an order for pleadings be made in the matter before the court.” The appellant has submitted that proceedings by originating summons is not appropriate for the hearing of the plaintiff’s claim because of the defence he proposed to offer at the hearing.
The plaintiff In the Court below has submitted that the kind of claim he has In the Court is well served by the procedure of originating summons that he adopted. The issue to be determined is this, was the learned trial Judge correct when he held that the respondent was entitled to adopt any proceedings, and that having regard to the nature of his claim the respondent was right to elect an originating summons for the relief he claimed for a writ of possession of the property he bought in an auction sale. It is settled law that the claim of the plaintiff in court is the index for determination of the jurisdiction of the court over the relief claimed. See: Adeyemi v. Opeyori (1976) 9 – 10 S.C 31.
In my respective opinion it is the claim of the plaintiff that should be considered to determine whether or not the court may preside on the claim, not the defence of the defendant. In the claim before the court, the plaintiff claimed for a right to possession of the property that he had bought in an auction sale. The affidavit of the defendant shows that the defendant sought to challenge the title of the respondent to the property in issue. However, because of the usual incidents, and the general nature of the procedure of an originating summons proceeding it is thought that it does not allow for a counter claim. It does in some cases. See rule 8 order 38 of the Uniform High Court (Civil Procedure) Rules applicable in Kaduna State. The question which arises therefore is this, should the plaintiff’s claim be struck out in the proceedings in order to accommodate the claim of the defendants? This is the essence of the appellant’s appeal when he complained that the trial court was in error for refusing the appellants preliminary objection. What is an originating summons” I define originating summons as an alternative means to a writ of summons with which to commence civil proceedings in a court of law, but unlike the latter, pleadings are generally not ordered vide rule 3 of order 6 of Uniform High Court (Civil Procedure) Rules 1987 which requires that every originating summons shall include a statement of the questions on which the plaintiff seeks determination or direction of the court. Where the facts are likely to be in dispute necessitating the filing of a counter affidavit or an application by either party to call witnesses, then a writ not an originating summons should be applied for. See: Theophilus Doherty v. Richard Doherty (1964) NMLR 144; (1964) 1 All NLR 299.
Where Ademola CJN warned against the use of originating summons in hostile proceedings. In my respectful opinion, the party who bought landed property in an auction sale made by the court’s sheriff in the name of the Registrar of a court of law and having compiled with the provisions of the Sheriff and Civil Processes Law as in the instant case did not engage or initiate a hostile proceedings when he sought an order of court to secure a writ of possession over the property so purchased. The complaint of the appellant In the Court below when he has not filed a claim in counter to the plaintiffs claims seeks to challenge the title of the appellant by way of a preliminary objection to the originating summons is clearly hostile in the proceedings. The preliminary objection raised by the appellant’s In the Court below was a surreptious attempt to avoid an answer to the appellants claim in the summons. In my view the court below was right to refuse and dismiss the appellants preliminary objection. The respondent has objected in the brief to this appeal filed by the appellant, the respondent averred that the appellant filed the appeal despite the institution by the appellant of a suit No. KAD/KHG/305/2000 in High Court Kaduna against the respondent in the same cause. In the suit the appellant challenged the respondents title and seeks possession of the said property. While the application by originating summons of the respondent ruled by the court to be validly made is still pending In the Court below, this appeal is still filed by the appellant. The effect therefore is this, there are three processes pending in various courts on the same subject matter simultaneously. The appellant by filing the suit No. KAD/KHG/305/2000 responding to and proceeding on appeal is clearly in abuse of the processes of the court. An abuse of the process of the court is said to occur when proceedings in court are vexatious. One of such proceedings should be struck off. See: Drummond Jackson v. British Medical Association (1970) 1 All ER 1094 CA. (11) Morgan & 3 Ors. v. West African Automobile & Engineering Co. Ltd. (1971) 1 NMLR 219 at 221. I uphold therefore the objection of the respondent, and order that the subsequent suit be adjourned sine die, if not struck out until the determination of the hearing commenced by originating summons.
In sum I rule that the learned trial Judge was not in error when he refused the preliminary objection raised by the appellant In the Court below in suit No. KDH/KAD/188/2000. By the foregoing, I agree with my learned brother M. Mohammed JCA that the appeal be dismissed. It is hereby dismissed. I abide by the consequential orders made in the lead judgment for costs.
Cases referred to in the judgment
Abiodun v. Ogunyomi (1962) 1 All NLR 551.
Adeyemi v. Opeyori (1976) 9-10 S.C 31.
Anatogu v. Anatogu (1997) 9 NWLR (Pt. 519) 49.
B.O.N Ltd. v. Nigerian Bank for Commerce and Industries (1990) 5 NWLR (Pt. 150) 263.
Bobo v. Anthony (1931)1 WACA 169.
Director, S.S.S v. Agbakoba (1999) 3 NWLR (Pt. 595) 425.
Doherty v. Doherty (1964) NMLR 144; (1964) 1 All NLR 299.
Drummond-Jackson v. British Medical Association (1970) 1 All ER 1094.
Leedo Presidential Motels Ltd v. Bank of the North Ltd. (1998) 10 NWLR (Pt. 570) 353; (1998) 7 SCNJ 328.
Lim v. Canden Health Authority (1979) 1 Q.B 196.
Mbanugo v. U.A.C. (1961) All NLR 775.
Moore v. Tayee 2 WACA 43.
Morgan v. West African Automobile & Engineering Co. Ltd. (1971) 1 NMLR 219.
N.B.N Ltd. v. Alakija (1978) 9-10 S.C 59.
Odejoke v. John Holt Co. Ltd. 8 WACA 152.
Olumide v. Ajayi (1997) 8 NWLR (Pt. 517) 433.
Pasmore v. Oswaldtwistle and Urban District Counsel (1898) A.C 387.
Puston v. Ministry of Pensions (1963) 1 All ER 275.
Unegbu v. Woli (1997) 2 NWLR (Pt. 486) 194.
Unilag v. Aigoro (1991) 3 NWLR (Pt. 179) 379.
Statutes referred to in the judgment
Sheriffs & Civil Process Act Cap. 407 Laws of the Federation of Nigeria, 1990 Ss. 47, 48 & 50.
Sheriffs & Civil Process Law Cap. 141 of the Laws of Kaduna State, 1991 Ss. 45, 46, 47 49, 50 & 52.
Land Use Act Cap. 202 Laws of the Federation of Nigeria, 1990 Ss. 21, 22 & 26.
Rules of court referred to in the judgment
Kaduna State High Court (Civil Procedure) Rules 1987 or. 38 r. 8.
Uniform High Court (Civil Procedure) Rules 1987 or. 6 r. 3.
Books referred to in the judgment
Nwadialo: Civil Procedure in Nigeria p. 194.
Obi-Okoye: Essays on Civil Proceedings, Enforcement of Judgment and Order of Court No. 2 p. 35, art. 108.
