Etinyin J. L. E. Duke (for and on Behalf of Ikot Edem Odo Village) V. Chief E. O. Ephraim & Anor (2009)
LawGlobal-Hub Lead Judgment Report
M. A. OWOADE J.C.A:
This is an appeal against the Ruling of Philomena N. Ekpe J. in Suit No. HCA/4/2005 delivered on 31/3/2006 at the Akpabuyo Judicial Division of the High Court of Cross River State.
The Appellant as Plaintiff before the High Court initially instituted this action in a representative capacity for and on behalf of Ikot Edem Odo village – by an originating summons filed on 21/8/2005 against 7 Defendants including the two (2) Respondents in this appeal as 6th and 7th Defendants. Later the Plaintiff/Appellant was granted leave to maintain the action in his personal capacity.
The question for determination in the said summons was:
Whether, in accordance with the Land Use Act, 1978, the 3rd, 4th & 5th Defendants have the jurisdiction to declare that the landed property of Ikot Edem Odo village known as and called “Esa Edet Efio Otu” situate at Ikot Edem ado village, Akpabuyo is the property of Ikot Ekpe Eyo village represented by the 6th Defendant” The relief sought by the Plaintiff / Appellant in the originating summons were as follows:
(a) A declaration that the purported transfer of “Esa Edet Efio Otu” in Ikot Edem ado village to Ekpo Eyo village in the report dated 20/12/2004 is null, void and of no effect whatsoever and is against the provisions of the Land Use Act 1978.
(b) An order directing the 1st & 2nd Defendants not to act on the finding / recommendation of the 3rd, 4th & 5th Defendants dated 20/12/2004
(c) A declaration that “Esa Edet Efio Otu” the land in question is the bona fide property of Ikot Edem Odo village.
(d) The sum of N100, 000.00 (One Hundred Thousand Naira) as general damages against the 6th Defendants for unwarranted interference with the Plaintiffs enjoyment of his community’s property and for expenses incurred at the Nigeria Police Zone 6, Calabar on 26/4/2004 following a false report lodged against the Plaintiff and some of his Council members in respect of the land in question.
On 5th May, 2005, the 1st, 3rd – 5th Defendants in the court below brought a notice of preliminary objection for an order striking out the Plaintiff’s originating summons on grounds of incompetence by reason of Plaintiff’s violation of Order 1 Rule 2(2) (a), 8(b) of the High Court (Civil Procedure) Rules, 1987.
The above motion was pending in the courts file from the record when the Plaintiff /Appellant filed a motion on Notice on 16/5/2005 praying to amend his originating summons and a deeming order. On 17/5/2005, the learned trial Judge heard Counsel on the Plaintiffs / Appellant’s motion on notice for amendment of originating summons.
In a considered Ruling delivered on 14/6/2005, Philomena Ekpe J. allowed the application for the amendment of the originating summons and held at page 118 of the record as follows:
“…the mere fact that the Respondent’s Counsel had filed a preliminary objection to the originating summons does not in my view preclude the Applicants from amending his pleadings. Since the law allows an Applicant to amend his pleadings at any time without creating a new suit, I hold that the Applicant is on the right track in seeking to amend his pleadings at this stage. I do not think any injustice will be done the other parties if this amendment is allowed as it merely seeks to correct certain errors in the originating summons in order to bring out the actual issues involved. Consequently and in the light of all the above, this application for amendment is hereby granted accordingly.”
Thereafter, the court adjourned the matter to the 29/6/2005 for hearing. Eventually, the court heard arguments on the merit of the originating summons and on 30/3/2006 delivered another considered Ruling where it held at page 133 of the record as follows:
“In this case, the Plaintiff sharply disagrees with the report of the panel set up by the 1st Defendant to determine highly contentions issues of fact concerning the land in either Ikot Edem Odo or Ikot Ekpe Eyo. The salient question and crux of the matter here is not the interpretation of the said Panel Report but the result of the Panel itself. In the report “Esa Edet Efio Otu” has been ceded to Ikot Ekpo Eyo. The Plaintiff disagrees with the findings of that Panel and the issues therein became quite contentious.”
The learned trial Judge continued”
“An overview of the case before me is that the procedure adopted here is quite unsuitable since the facts are in dispute as the evidence is solely by way of affidavit.”
And concluded, still on page 133 that:
“This court is therefore not in a position to declare the report of the Panel null and void as it would be tantamount to determining the highly contentious issues herein only by the affidavit evidence before me, consequently and in the light of all the issues herein involved. It is my view that the parties come before the High Court for the proper adjudication of the issues involved. Accordingly, the originating summons before me is hereby struck out and I make no order as to cost.”
Dissatisfied with this Ruling, the Plaintiff/Appellant filed a Notice of Appeal with (4) four grounds of appeal before this court on 22/5/2006. Appellant\s brief of argument was dated and filed on 4/7/2006. The Respondents brief was dated and filed on 28/4/2008. Appellant’s Reply brief was filed on 4/7/2006. The Appellant formulated four (4) issues for determination as follows:
- Whether the learned trial Judge, having decided an issue and its decision embodied in its order that had been given effect on 29/6/2005, could re-open that issue and substitute a different decision to the one already decided.
- Whether the learned trial Judge was right in granting a claim not made by the Plaintiff / Appellant.
- Whether the learned trial Judge was right in basing his judgment on reliefs not sought by the Plaintiff / Appellant.
- Whether the learned trial Judge was right in making a decision in respect of parties not before him.
The Respondents on the other hand formulated a sole issue for determination, to wit whether the learned trial Judge was right to decline jurisdiction in not determining highly contentious issues of ownership of land on the affidavit evidence before her?
I shall adopt the issues formulated by the Appellant in the determination of this appeal.
On Issue NO.1, learned Counsel for the Appellant submitted that the learned trial Judge was on 17/5/2005 asked to decide whether the Plaintiffs originating summons (as amended) was competent or not. That, on 14/6/2005, the Judge decided that the originating summons (as amended) was legally alright and ordered that the originating summons be argued on 29/6/2005. Relying on the cases of Oyeyipo & Anor. V. Oyinloye (1987) 1 NWLR (Pt. 50) 356 at 384 and Mueller v. Mueller (2006) NWLR (Pt. 977) 627 – 634, Appellant’s Counsel submitted that having decided the issue of 17/7/2005, the authority of the learned trial Judge to try it again had ceased and he had become functus officio.
Responding to the first issue, learned Counsel for the Respondents said that the complaint against the decision of the lower court is that after stating that she would not strike out the originating summons, on a preliminary objection, the Judge proceeded to strike out the case after hearing arguments on the merits.
Respondents’ Counsel could not see what unfairness or detriment the Appellant has suffered when the learned trial Judge concluded that she would not determine the issues on affidavit evidence and that the parties should approach the court properly.
Respondents’ Counsel referred to an array of cases on fair hearing and due process and concluded that the hearing was fair as the parties were given adequate opportunity to be heard.
To start with, on Issue No. 1 it is unfortunate that the learned Counsel for the Appellant failed to state correctly what happened in the court below at the hearing of 17/5/2005 which led to the Ruling of 14/6/2005? The learned Counsel for the Plaintiff / Appellant withdrew an earlier motion for amendment of the originating summons and moved the motion of 16/6/2005. In the course of argument, the some of the Counsel for the Respondents objected to the application on the ground that they had earlier filed a preliminary objection on the competence of the originating summons. The learned trial Judge discountenanced the said preliminary objection on the ground that “pleadings of the parties (originating summons) can be amended at any stage of the proceedings” and accordingly allowed the Plaintiff’s / Appellant’s motion on notice for amendment of the originating summons on 14/6/2005.
It was therefore incorrect for the learned Appellant’s Counsel to state as he did in the submission on Issue No. 1 that:
“The learned trial Judge was on 17/5/2005 asked to decide whether the Plaintiff’s originating summons (as amended) was competent or not (pages 114 to 116 of the record). On 14.6.2005, the Judge decided that the originating summons (as amended) was legally alright and ordered that the originating summons be argued on 29.6.2005 (pages 116 to 118 of the record).”
Suffice to say that the above quoted from the submission of the learned Counsel to the Appellant is misleading and does not represent what transpired in the court on 17/5/2005. In fact, and contrary to the impression which the learned Counsel for the Appellant would want this court to have, none of the Counsel for the Respondents ever presented any formal arguments on the Notices of preliminary objection that were in the court’s record. The attitude of the learned trial Judge rightly too was to take the motion for amendment of the originating summons that would revive the proceedings rather than to hear arguments on the notice of preliminary objection that would terminate the proceedings. Arising from the above observations, it is difficult to understand the argument of the learned Counsel for the Appellant before us in this court that:
“Having decided that issue, his authority to try it again had ceased and he had become functus officio…”
In the first place, the only business which the learned trial Judge attended to and the only issue decided in the Ruling of 14/6/2005 was to grant the application by the same learned Counsel for the Plaintiff / Appellant for amendment of the originating summons in spite of the issue of the competence of the summons that was canvassed in argument by Respondents’ Counsel.
The court below could not be said to be functus officio in relation to the Ruling on merit on the originating summons of 30/3/2006, (the subject matter of this appeal) merely because on 14/6/2005, it decided an unrelated matter of allowing the Plaintiff / Appellant to amend his originating summons. Indeed it strains legal language to suggest that a court which took a decision on 14/6/2005 to grant an application for amendment to the Plaintiffs / Appellant’s originating summons became functus officio as regards its decision on the merit of the originating summons itself on 30/3/2006. In Mohammed v. Husseini (1998) 14 NWLR (Pt. 584) 108 at 163 – 164, the Supreme Court held that:
“The Latin expression functus officio simply means “task performed”. Therefore applying it to the judiciary, it means that a Judge cannot give a decision or make an order on a matter twice. In other words, once a Judge gives a decision or makes an order on a matter, he no longer has the competence or jurisdiction to give another decision or order on the same matter … A Judge is functus officio. If he gives judgment on the merits… ”
In the instant case, the granting of the application for the amendment of Plaintiff’s / Appellant’s originating summons was definitely quite a different matter from the consideration of the merit of the originating summons which attracted a different decision on 30/3/2006.
The learned trial Judge was not functus officio since he did not give a decision or make an order on a matter twice and indeed considered only the matter of 30/3/2006 on its merit.
Issue No. 1 is resolved against the Appellant.
On Issue NO.2, Appellant’s Counsel submitted that the Plaintiff’s / Appellant’s claim in the originating summons was the determination of the question:
“Whether, under Section 41 of the Land Use Act 1978, the 3rd, 4th & 5th Defendants have the jurisdiction to declare in their report of 20.12.2004 that the landed property of Ikot Edem Odo village known and called Esa Edet Efio Otu is the property of Ikot Ekpo Eyo village”
That, by holding that “the salient questions and crux of the matter here is not the interpretation of the said Panel report but the result of the Panel itself.” (page 133 of the record), the learned trial Judge was imputing to the Plaintiff / Appellant a claim he never made, and relying on the case of Nkuma v. Odili (2006)6 NWLR (Pt. 977) 587 – 593, said the law does not allow this. In deciding Issue NO.2, it must first be recognized as a matter of fact that the statement credited to the learned trial Judge was in consonance with the head relief sought by the Plaintiff/Appellant to wit:
(a) A declaration that the purported transfer of “Esa Edet Efio Otu” in Ikot Edem Odo village to Ekpo Eyo village in the report dated 20/12/2004 is null and void and of no effect whatsoever and is against the provisions of the Land Use Act 1978.”
Which is truly not an interpretation of the said Panel Report but the result of the Panel itself?
Second, as a matter of law, the opinion by the learned trial Judge at page 133 of the record is in the circumstances of the determination if any in the case an obiter dictum.
The crux of the decision of the learned trial Judge in the instant case is that he would not entertain the case as a claim under the originating summons procedure because of the potentiality of its being contentious. The statement now being contested by the learned Appellant’s Counsel did not in any form lead to or form part of the decision of the learned trial Judge not to entertain the case and it is therefore an opinion, obiter not affecting the determination of the case.
In the instant case, the learned trial Judge could not be said to have dictated a remedy outside of his claim to the Plaintiff as was the case in Nkuma v. Odili (supra) cited by the learned Counsel to the Appellant. The comment of the learned trial Judge at page 133 was not the point in the case which determined the judgment of the court. The comment therefore remains an obiter dictum as distinguished from the ratio decidendi of the case. It is trite that an appeal against a decision of a court must be against the ratio decidendi and not the obiter-dicta contained in the judgment of the court.
Appellant’s Issue No 2 is unfounded and it is resolved against the Appellant.
Arguing the third issue, learned Counsel for the Appellant referred to the orders sought in the Plaintiff’s / Appellant’s reliefs before the lower court and submitted that by holding that:
“This court is therefore not in a position to declare the report of the panel null and void as it would be tantamount to determining the highly contentious issues herein on the affidavit evidence before me” (page 133 of the record).”
The learned trial Judge was in fact, foisting on the Plaintiff / Appellant reliefs he never sought from the lower court and relying on the case of R. Benkay (Nigeria) Ltd. v. Cadbury (Nigeria) Plc (2006 6 NWLR (Pt. 976) 338 at 352, said, this the law does not allow.
In other words, said Appellant’s Counsel, while the Plaintiff / Appellant was asking for an order nullifying the illegal declaration of title to the property in question by the 3rd, 4th & 5th Defendants (before the lower court) in favour of another community because of the provisions of Section 41 of the Land Use Act, the trial court was talking about the declaration of the report of the Panel as null and void.
Here again, as a matter of fact the distinction being made between the comments of the Judge and the relief sought by the Plaintiff / Appellant appear to me to be a distinction without a difference.
As a matter of law, the learned trial Judge did not foist on the Appellant or grant any relief(s) to the Appellant. An Appellant can only complain of a relief having been foisted on him if any were granted. In the instant case, what happened was that in determining the merit of the originating summons as a process before him, the trial Judge decided as a matter of discretion not to entertain the matter by the originating summons procedure on the ground that the issues are contentious. On this, the decision of the learned trial Judge cannot be faulted. First, in fact the supporting affidavit of the Plaintiff / Appellant himself reveals facts that are likely to be disputed in abundance as it deposed to family genealogy and history of long ownership and possession of the land which he sought to claim by originating summons. This, apart from the insistence by the Defendants at the lower court that having been deprived the capacity to sue on a communal land in a representative capacity, the Plaintiff / Appellant was deprived of the locus standi to bring the action as an individual within the community.
In all of these, the learned trial Judge simply held that the issues in the matter are contentious and could not be entertained under the originating summons procedure.
Order 1 Rule 2(2) of the High Court (Civil Procedure) Rules of Cross River State 1987 provides as follows for proceedings which may be begun by originating summons.
(2) Proceedings may be begun by originating summons where-
(a) The sole or principal question at issue is, or is likely to be, one of the construction of a written law, or of any deed, will contract or other document or some other question of law.
(b) There is unlikely to be any substantial dispute of fact.
In the instant case, the issue of ownership of land submitted for the decision of the learned trial Judge was clearly contentious and the learned trial Judge acted properly by refusing to entertain the issue under the originating summons procedure.
Indeed, as observed by Kayode Eso JSC in the case of National Bank of Nigeria v. Lady Ayodele Alakija & Anor (1978) 9 and 10 SC 59.
“(2) Originating summons should only be applicable in circumstances where there is no dispute on questions of facts or even the likelihood of such dispute.
(3) Application by originating summons should never be a substitute for initiating contentious issues of fact.
(4) Where the affidavit of the Plaintiff leaves matters for conjuncture originating summons is not an appropriate procedure.
See also, M. O. Oloyo V. B. A. Ejegbe, Speaker Bendel State House of Assembly (1983) 2 SCNLR 35 at 67. Falobi V. Falobi (1976) 1 NMLR 169, Eze V. A.G. Rivers State (1999) 3 NWLR (Pt. 619) 430; Adeyemo V. Beyioku (1999) 13 NWLR (Pt. 635) 472. In the case of Akibu V. Raca Auto Supply Ltd. (2000) 14 NWLR (Pt. 686) 190 at 203 Aderemi JCA (as he then was) said:
“It will be seen from the above that the main advantage of originating summons is its simplicity resulting from the elimination of pleadings. It must never be employed in trying matters of disputed question of facts or the likelihood of such disputes, it is ideal for construction and interpretation of documents. See University of Lagos V. Aigoro (1991) 3 NWLR (Pt. 179) 376. Indeed, the Federal Supreme Court (as the apex court used to be called) said in Re Doherty, Doherty V. Doherty (1968) NMLR 241 (per Ademola C.J.N.) that originating summons should never be used in hostile proceedings.”
In the instant case, the learned trial Judge could not be said to be in error when he held at page 133 of the record that “this court is therefore not in a position to declare the report of the Panel null and void as it would be tantamount to determining the highly contentious issues herein on the affidavit evidence before me.”
Apart from the fact as pointed out earlier that the affidavit in support of the Plaintiff / Appellant motion on notice itself “leaves matters for conjuncture” the insistence by the Defendants/Respondents (before the lower court) that the Plaintiff. Appellant lacks the necessary locus standi to bring the action also qualifies the proceedings as hostile proceedings.
From the foregoing, Issue NO.3 is also resolved against the Appellant.
On the fourth issue, learned Counsel for the Appellant contended that, effectively the 1st, 3rd, 4th & 5th Defendants (before the lower court) ceased to be parties before the lower court from 20.7.2005 and that it was therefore legally inappropriate for the learned trial Judge to allude to the report of the Panel set up by it (1st Defendant) as containing “highly contentious issues of fact containing the land in either Ikot Edem Odo or Ikot Ekpo Eyo” instead, according to Appellant’s Counsel of confining himself to the issue placed before the court, i.e. the interpretation of Section 41 of the Use Act 1978 vis-‘E0-vis the declaration of title to land made by the 3rd, 4th & 5th Defendants. Appellant’s Counsel relied on the case of Babaiya V. Sikeli (2006) 3 NWLR (Pt. 968) 508 – 516 and submitted that the court has no jurisdiction to make any order in respect of a party not before it.
In deciding Issue No. 4, it would be quickly seen that if the paragraph accredited to the learned trial Judge were fully and properly quoted, it does not in fact refer to any of the 1st, 3rd, 4th & 5th Defendants before the lower court as the learned Counsel for the Appellant would want us to believe.
The quotation which could be found in paragraph 3 in the Ruling appealed against delivered on 30/3/2006 at page 133 of the printed record reads in full as follows:
“In the case, the Plaintiff sharply disagreed with the report of the Panel set up by the 1st Defendant to determine highly contentious issues of fact concerning the land in either Ikot Edem Odo or Ikot Ekpo Eyo.
First, the paragraph itself did not relate to the decision of the court, neither does it determine any question in issue. It is an opinion expressed obiter by the learned trial Judge. Section 318 of the Constitution of the Federal Republic of Nigeria 1999 defines a ‘decision’ to mean in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation.
The word “determination” in turn means bringing or coming to an end, or the mental action to a decision, or resolving a question.
See, The Automatic Telephonic and Electric Co. Ltd V. Federal Military Government of Nigeria (1968) 1 ALL NLR 429, Maria Onyekweli V. Christiana Ugwu & Ors (2008) 15 NWLR (Pt. 1111) 545 at 558.
The statement credited to the learned trial Judge again at page 133 under Issue No. 4 is neither a determination nor a ‘decision’ and therefore has nothing to do with parties who had ceased before the Ruling to be parties to the case.
Issue NO.4 is also resolved against the Appellant.
Having resolved the four (4) issues in this appeal against the Appellant, the appeal lacks merit and it is accordingly dismissed.
There shall be N10, 000.00 costs in favour of the Respondents against the Appellant.
Other Citations: (2009)LCN/3497(CA)
