Mrs Cecilia Arewa V. Alhaja Toyin Olanrewaju & Ors (2007)
LawGlobal-Hub Lead Judgment Report
M. D. MUHAMMAD, J. C. A.
The Appellant commenced Suit NO. 1/582/2001 against the Respondents at the Oyo State High Court by way of an originating Summons seeking the following relies :-
“(I) A determination as to whether the marriage celebrated between the Plaintiff and Samuel Olufemi Arewa (Deceased) was legal, valid and subsisting at the death of/the deceased. If the answer to (1) is Yes!
(2) A determination as to whether the Plaintiffs is:-
(a) entitled to administer the Estate of the deceased in priority; jointly with any children of the deceased.
(b) A Beneficiary of the Estate of the Deceased and to what extent. If the answer to (2) is yes:-
(3) A determination as to whether the 2nd Respondent has any rights of administration or succession concerning the Estate of the Deceased.
If the answer to (1) and (2) is Yes and (3) is No, the Plaintiff prays for the following Order:
(4) That the 2nd Defendant be restrained by injunction from intermeddling with the Estate of the Deceased.
(5) And the 3rd Defendant is enjoined to the grant letters of Administration of the Estate of the Deceased to the Plaintiff along with the 1st Defendant and Mrs. Sola Ilori, another child of the Deceased.
(6) that the 1st Defendant do render accounts of all sums that have been received by her from the assets comprised in the Estate and pay same over to the Joint Administrator “.
An eight paragraph affidavit with two annexure exhibits SAI and Exhibit SA2 supported Writ. Ex SAl is Applicant’s Marriage Certificate to the Deceased, while Ex SA2 is the Deceased’s Death Certificate.
Mrs. Omolola Arewa in opposing the writ had a seven paragraph counter-affidavit deposed to on her behalf by one Kolawole Yusuf a Litigation Manager with Messrs Tunde Shonibare & Co. Lagos.
The lower court at page 20-21 of the record, in its ruling dated 28th November 2001 decided as follows:-
“Order 1 Rule 2(a) and (b) (sic) states that:
“Proceedings may be begin (sic) by originating summons where –
(a) the sole or principal question at issue is, or is likely to be one of the constructions of a written
Law or any instrument made under any written Law or any deed, contract or other document or some other questions of law or
(b) There is unlikely to be any substantial dispute”
Order 38 Rule I also has this to say on originating summons proceeding-
.. 38 (I) Any person claiming to be interested Under a deed, will 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 courts also have made several pronouncements on when it is proper to commence an action by originating summons. They are of the view that originating summons should only be applicable in such circumstances where there is no dispute of question of fact or likelihood of such dispute; where for instance the issue is to determine questions of construction and not matters of such controversy that the justice of the case would demand settling on pleadings, originating summons would be applicable. An originating summons is merely a method of procedure and not one that is meant to enlarge the jurisdiction of the court. In NATIONAL BANK OF NIGERIA LTD. Vs. ALAKIJA (1978) 9-10 SC Tobi JCA (sic) at Page 70-71 paragraph H-A states thus:-
It is generally inadvisable to employ an originating summons for hostile proceedings. Also in the unreported case of ARTHUR MBANEFO vs. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, RIVERS STATE & ORS Suit NOFHC/235/86 delivered on 4/11/86, the court converted originating summons to an ordinary Writ of Summons because the declaration sought by the Plaintiff as a holder of a leasehold interest in property in Port Harcourt involved a dispute, Also, in the Re DOHERTY, DOHERTY vs. DOHERTY (1968) NMLR 241 per Ademola CJN, the Supreme Court warned against the use of originating summons in hostile proceedings.
Having read the affidavit in support of the originating summons together with the attached Exhibits i.e. SAl and SA2, the 2nd Defendant’s counter-affidavit, and having listened to the submissions of both Counsel, it appears that there are conflicts in the facts winch need to be addressed by oral evidence in the circumstance, I hereby order that pleadings be filed in the matter.
Being dissatisfied with the foregoing decision in respect of her originating summons, the Appellant has appealed against the decision to this court on a notice containing five grounds.
The five grounds of Appeal on which the Appellant predicates her Appeal read as follows:-
GROUNDS OF APPEAL
The Learned Trial Judge erred in law and made a wrong inference in holding that there were conflicts between the facts set out in the affidavit supporting the originating summons “vis a vis” the acts in the 2nd Defendants counter affidavit when none of the material facts in the former affidavit was controverted by the latter.
ii. The Learned Trial Judge by reason of the erroneous finding that there were conflicts in the 2 opposing affidavits on record wrongfully ordered pleadings when none of the material facts in the affidavit supporting the originating summons was controverted by the counter affidavit.
iii. The Learned Trial Judge erred in law in failing to consider and decide upon the submissions of the Plaintiff. Particulars (a) The Learned Trial Judge ignored all the Plaintiffs submissions on Record other than to hold that there were conflicts in affidavit evidence.
(b) The Learned Trial Judge was enjoined to hear and decide upon the Plaintiffs submission on Record.
iv. The Learned Trial Judge denied the Plaintiff a fair hearing by reason of the complaint in ground (iii) supra.
v. The Learned Trial Judge having regard to the affidavits and submissions on record ought to have found for the Plaintiff.
Particulars
(a) The affidavit in support of the originating summons was uncontroverted.
(b) The Plaintiff had established that she was the only legal wife of the Deceased at the time of his demise.
(c) Inferentially the Plaintiff was entitled to jointly administer and co-benefit from the Deceased Estate along with the children of the Deceased, to the exclusion of any other person “.
By her appeal as constituted by the foregoing grounds of appeal, the Appellant seeks in consequence there from an order of this court “setting aside the decision of the High Court of Oyo State and substituting thereto orders in terms of prayer in the Plaintiffs originating summons of 22nd June 200I”.
In keeping with the practice in this court, parties in this appeal have filed, exchanged and at the hearing of the appeal adopted and relied upon their briefs of arguments for or against the appeal.
Two issues have been distilled in the Appellant’s brief of argument as having arisen for the determination of the appeal. The issues read:-
�2 .01 whether there were any material conflicts in the opposing Affidavits as to justify the ordering of pleadings (grounds 1 and 11).
2.02 Whether the trial court denied the Plaintiff a fair hearing in failing to consider and determine her Counsel’s submissions on record and whether a consideration and determination of the submissions aforesaid would have led to a decision in Plaintiff’s favour”.
In the Respondent’s brief, a lone and most appropriate issue has been formulated as having arisen for the determination of this appeal. It reads:-
Whether the reliefs sought in the originated (sic) summons are such that could be decided without a court of Record hearing evidence particularly as affecting RIGHTS OF A PARTY to join as ADMINISTRATOR and also on PRIORITY OF RIGHTS and EXTENT OF ENTITLEMENT IN SHARING BY THE APPLICANT”.
Under Appellant’s 1st issue her Learned Counsel submits that 2nd Respondent’s counter affidavit; the only one in opposition did not controvert the averments in support of Appellant’s originating summons and the claims therein. Instead, the counter affidavit only provided new facts why she should be made an Administrator. The lower court is wrong to have held that there is from this state of affidavit evidence, irreconcilable conflict that disabled the court from finding for the Appellant and forcing the court to order pleadings. Learned Counsel although conceding that the trial court had the power to order pleadings but insisted that that power must be exercised only where facts that is necessary for the just determination of the issues in conflict though is existence had not been presented to the court.
Counsel cited and relied on the following in support of these arguments GBADAMOSI Vs. ALELE (1998) 12 NWLR (Pt. 578) 402 at 419, FSB INTERNATIONAL BANK Vs. IMANO NIG. LTD. (2000) 11 NWLR (Pt. 679) 620 and particularly NATIONAL BANK Vs. ALAKIJA (1978) 11 NSCC 470 at 480. He urges that since by Order 1 Rule 2 (a) and (b) and Order 38(1) of the lower court’s rules of practice the Appellant was entitled to present her claim in the manner she did, and Appellants entitlement to the reliefs she sought had not been denied and controverted, same should be granted the Appellant by this court.
In arguing the 2nd issue, Learned Appellant Counsel contends that the lower court had erred by its refusal to consider the merits of the submissions he made in support of Appellant’s case. Appellant had thus been denied fair hearing and her right as enshrined under S.36 (1) of the constitution violated.
The effect of the court’s violation of Appellant’s constitutional right goes to the root of the entire proceedings and same should be set aside. Thereafter, Learned Counsel urges that Appellant’s case be considered on its merit and granted as prayed. Learned Counsel has urged us to explore Supreme Court’s decisions in OSAFILE Vs. Odi No.1 (1990) 3 NWLR (Pt. 137) 130 at 156 and OBODO Vs. OLOMIE (1987) 3 NWLR (Pt. 59) 11I. On the whole Learned Appellant Counsel urges that the Appeal be allowed.
Learned Counsel for the Respondent argued the Respondents lone Issue. He submits that originating summons procedure was wrongly employed by the Appellant to commence proceedings on facts that are seriously contested. Appellant’s claim as contained in the originating summons cannot be justly considered without the settlement of pleadings.
The trial court’s conclusion to that effect is, submits Learned Respondent Counsel, correct and fully supported by judicial authorities. Counsel relies inter alia on the Supreme Court’s decision in NATIONAL BANK OF NIGERIA & AN OR Vs. LADY ALAKIJA & ANOR. (1978) 9-10 SC 59 at 71, MICHAEL Vs. MIMA PROJECT VENTURES LTD. (2003) FWLR (Pt. 140) 1780 at 1798 and DOHERTY Vs. DOHERTY (1968) NMLR24I.
In further argument, Learned Counsel argues that the allegation of denial of fair hearing to the Appellant does not hold since Appellant still has the opportunity of presenting her case in a fuller trial after settlement of pleadings. Above all, Appellant has neither shown what disadvantage the decision of the lower court caused her nor the undue advantage accorded the Respondents given the decision being appealed against.
Learned Counsel for the Respondents had, without filing a notice of Preliminary Objection to the competence of this appeal, challenged the competence of all the grounds of appeal and in a very disjointed fashion.
The Respondent’s brief is interspersed with these staccato objections all through. An objection raised in this manner breaches the provision of Order 3 Rule 15(3). It is ignored in its totality.
The issues raised by this appeal are fairly straight forward: is the lower court wrong in its decision that the wrong process has been employed by the Appellant in seeking reliefs through proceedings that do not provide for the resolution of hotly contested facts? Is the lower court also wrong in deciding not to consider Appellant’s case on the merits because same had begun through inappropriate procedure?
The answer to the first issue in this appeal as reformulated above lies 111 the interpretation placed on Order I Rule 2 sub rule 2(a) and (b) as well as Order 38 Rule I of the Oyo State High Court (Civil Procedure) Rules particularly as these interpretation pertains the nature and in what manner of proceedings the originating summons is best employed. In this regard Learned Respondent’s Counsel is supported by a seemingly endless chain of judicial authorities. His submissions is that the lower court’s decision that because facts remain in dispute between the parties and the dispute has lingered in spite of the opposing affidavits of the parties, the originating summons taken out by the Appellant against the Respondents is most inappropriate. I agree with Counsel in this regard. While considering similar rules of court on originating summons, the Supreme Court in FAMFA OIL LTD. Vs. AG FEDERATION (2003) 9-1031 at 38, further applied its earlier decisions on the nature and appropriate application of the originating summons, per Be/gore JSC (as he then was) puts it simply thus:-
“The very nature of an originating summons is to make Things simpler for hearing. It is available to any Person claiming interest under a deed, will or other written instrument whereby he will apply by originating summons for the determination of any question of construction arising under the instrument for declaration of his interest.
(Order 38 Rule I and Order 44 Rule IL) it is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the dealings of the parties to the suit. In such a situation there is no serious dispute as to (acts but what the Plaintiffs claiming is the declaration of his rights. If there are serious dispute as to (acts then a normal writ must be taken out and NOT originating summons – DOHERTY Vs. DOHERTY (1968) NMLR 241. In matters where Facts are not in issue the originating summons, which must be Supported by an affidavit of the (acts, must be taken out ..,.. “.
(Underlining supplied for emphasis)
The Apex Court in approving Court ‘s Position in Re- GILES REAL AND PERSONAL ADVANCE CO. Vs. MICHELL (1890) 43 CH 1) 391 had in NATIONAL BANK OF NIGERIA Vs. ALAKIJA (1978) 2 LRN 78 restated the very principle it enunciated in DOHERTY Vs. DOHERTY supra that: ” Originating Summons is intended to enable simple matters to be settled by the court without the expense of bringing an action in the usual way; not to enable the court to determine matters which involve a serious question “.
I agree with Learned Respondent Counsel that the lower court is right that going by the affidavit evidence and the submissions made before it, facts on the basis of which the Appellant asked the court to make the various declarations and grant reliefs consequential to these declarations remain in dispute. The declarations sought by the Appellant cannot be settled solely on the basis of Ex SAl and Ex SA2, her Marriage Certificate and the Death Certificate of her deceased husband. The facts that remain in contention include whether or not Appellant had remained the deceased person’s wife to the end, whether the deceased had another wife and/or children and the status of these persons vis-a-vis their being entitled to a share of the estate succession to which brought about the suit. In the instant case originating summons has been wrongly employed by the Appellant. The lower court has rightly stopped hostile proceedings best determined through settlement of pleadings in proceedings commended by a Writ. This resolves Appellant’s 151issue against her.
Appellant’s argument under the 2nd issue is that the lower court in refusing to consider the merits of Appellant’s claim had breached Appellant’s right to fair hearing. Here again, Learned Appellant’s Counsel is far from being correct. We have, under Appellant’s l51issue that was resolved against the Appellant, affirmed that a proceeding is respect of disputed facts cannot be lawfully commenced by an originating summons.
The proceedings in the instant suit regarding highly disputed facts and commenced by the originating summons procedure has been adjudged fundamentally irregular.
In AG LAGOS STATE Vs. DOSUNMU (1989) 3 NWLR (Pt. 111) 552, jurisdiction has been defined as the limits imposed on the power of a validly constituted court to hear and determine issues between persons seeking to avail themselves of its process by reference to the subject matter or the issues or to the persons between whom issues are joined or to the kind of relief sought.
Again it is settled that a court is competent when it is properly constituted as regards numbers and qualifications of the members; the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction and the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See MADUKOLU VS NKEMDILIM (1962) 1 ALL NLR 587 SC; SKENCONSULT Vs. UKEY (1981) 1 SC 6.
In the instant case the rules of court has imposed on the Appellant some restriction as to what procedure to exploit in asking for reliefs on highly contested facts. Because there is the likelihood, indeed the probability of generating hostile proceedings, the Appellant is only at liberty to commence his action by a Writ and settlement of pleadings. The originating summons procedure is not available to her.
Breach of Appellant’s right of fair hearing presupposes that he has the right that can be so abused. Learned Appellant Counsel’s submissions that because of the breach of Appellant’s right to fair hearing the lower court’s proceeding had become totally compromised is clearly misconceived. The principles of fair hearing can only apply in a case where the party has the right to be heard in respect of a court process.
In the instant case where Appellant’s action had not been commenced in the manner the law said it should and the court was incompetent to proceed on such an illegally commenced proceedings, Appellant never had any right of being heard in the first place let alone speaks of such right being unfairly breached. See MADUMERE Vs. OKAFOR (1996) 4 NWLR (Pt. 445) 637; SOSANYA Vs. ONADEKO (2005) 2 SC (Pt. 11) 13 and MODUKOLU Vs. NKEMDILIM (supra).
By parity of reasoning, an Appeal for example that requires the leave of either the trial court or the Court of Appeal under Section 242 or Section 243 of the 1999 Constitution and such leave had not been obtained before the filing of the appeal, the court of appeal would have no jurisdiction to determine such appeal on its merit. It must be struck out. See IWACHUKWU Vs. NWIZU (1994) 7 NWLR (Pt. 357) 379 SC and AMUDA Vs. ADELODUN (1994) 8 NWLR (Pt. 360) 23 SC.
Similarly, an appeal constituted by entirely incompetent grounds cannot be heard on the merits. It must equally be struck out. See IDIKA Vs. ERISI (1988) 2 NWLR (Pt. 78) 563; MANAGEMENT ENTERPRISES LTD. Vs. ABC MERCHANT BANK (1996) 6 NWLR (Pt. 452) 294.
Besides, it is not enough to hold a grudge against the decision appealed against without more. Appellant has the duty to state what injustice the lapse he mentions and establishes against the judgment caused him. In the instant case the Appellant is only asked to file pleadings in respect of his claim to enable the lower court assume jurisdiction and effectively determine the issue in controversy between the parties. If anything, it is the Appellant that shut herself out rather than the court refusing her a hearing.
Appellant has failed under both issues to sustain the complaints against the lower court’s ruling let alone show the injustice both lapses caused her. The issues as well as the appeal in its entirety must fail. See U.RN. LTD. Vs. OZIGI (1994) 5 NWLR (Pt. 346) 540 SC and ATOYEBI Vs. GOVERNOR OF OYO STATE (1994) 5 NWLR (PT. 344) 290 Sc. Having resolved both issues against the Appellant, the appeal has no merit.
It is dismissed. Costs is assessed at N5,000:00k in favour of the 2nd Respondent.
Other Citations: (2007)LCN/2387(CA)
