Mrs. Ebun Adedipe V. Afolabi Theophilus (2005)

LawGlobal-Hub Lead Judgment Report

M.L. GARBA, J.C.A.

By way of an originating summons, the appellant sought an order from the Lagos High Court to recover possession of the parcel of land at 23 George Street, Shomolu, Lagos.

When served with the summons which as required by law, was supported by an affidavit and later on further affidavit, the respondent filed a counter affidavit. After a consideration of the affidavit evidence along with the addresses of counsel, the lower court in a ruling delivered on the 18th February, 2002, concluded thus, inter alia:-

” … It is the humble view of this court that the matter before this Court cannot be dealt with without looking into the issues of the contending titles of the parties. In the circumstances, it is my humble view that this matter can be more conveniently dealt with on its merits by taking evidence VIVA VOCE. Accordingly, I make orders for filing of pleadings… The plaintiff’s originating summons dated 8th June, 2001 is hereby struck out.”

Being very dissatisfied with the above decision by the lower court, the appellant filed a Notice of Appeal against it on the 6th March, 2002, containing a single ground of appeal. The Notice of Appeal was amended by order of the lower Court made on 20th May, 2002, as contained on p. 77 of the record of appeal. The amended Notice of Appeal was dated the 7th May, 2002, containing two (2) grounds of appeal as follows:

“Grounds of Appeal

Ground One

The learned trial judge erred in law, when he ordered that pleadings should be filed on the basis of what the court referred to as the contending titles of the parties.

Particulars of Error

(1) The plaintiff is deemed to have been restored into possession following the order of His Lordship, Manuwa J. dated 29/9/2000, which set aside the warrant of possession executed in respect of the property.

(2) Before the defendant/respondent can validly claim right, title, interest to the land in which the plaintiff is validly in possession, his predecessors in title ought to have established a claim against the plaintiff through a court proceeding.

(3) There is no valid instrument of transfer of interest in the land to the respondent.

(4) Having regard to all the circumstances of the case, the right of the plaintiff to the land is inviolable.

(5) There is no legally valid dispute as to the facts before the court that should have made the need for the court to order pleadings to arise.

Ground Two

The learned trial judge erred in law, when he struck out the originating summons issued in this case dated the 8th of June, 2001.

Particulars of Error

(1) The defendant has not legally raised any issue from which the court could have held that there are such disputes as would deny the appellant the order to recover possession on the basis of the affidavit evidence before the court.

(2) Conversely the averments in the affidavit evidence remain uncontroverted with respect to the issues (i. e. whether the appellant is entitled to recover possession) that the court was left with no other choice than to make an order in favour of the appellant to recover possession.”

Pursuant to Order 6 Rule 3(1) of the Court of Appeal Rules, briefs were settled and exchanged by learned Counsel for the parties, in which they formulated issues for determination in this appeal. In his brief filed on the 3rd February, 2003, the learned appellant’s counsel formulated one issue, which in his view arises for determination in the appeal. It is thus:-

“Whether there is or are such issues of fact, that could only be resolved at the trial subsequent to filing of pleadings and receipt of oral evidence before the court could determine the right of the appellant in this case.”

On his part, learned Counsel for the respondent at page 2 of his brief filed on 22nd October, 2003, formulated the following issues which he said arise to be determined from the grounds of appeal:

“i. Whether considering the nature of the dispute between the parties, the applicant has utilized the proper cause of action in pursuit of her claim?

ii. Whether having regards to the circumstances of the case in the court below the claims of the respondent amounts to a legally admissible defence?

iii. Whether the trial court acted judicially in striking out the originating summons of the appellant and ordering that pleadings be filed?”

Now, looking at the formulation of issues by learned Counsel, it is clear that the issues formulated by respondent’s counsel are unnecessarily proliferated from the two grounds of appeal contained on the appellants’ amended Notice of Appeal. It is an accepted principle that while an issue could be properly raised from more than one (1) grounds of appeal, as was done in this appeal by the appellants’ counsel, it is inappropriate to raise more issues than the grounds of appeal, as is the case with the respondent’s counsel formulation of the issues. There are more issues than the grounds of appeal from which they are supposed to have been formulated. The formulation by the respondent’s counsel is undesirable and cannot be allowed, though it is not fatal to all the issues raised thereby. See UBA Plc. v. Mode (Nig.) Ltd. (2001) 13 NWLR (Pt. 730) 335 at 356 and Iweka v. S.C.O.A. (2000) 7 NWLR (Pt. 664) 325.

The only issue formulated by the appellant’s counsel is preferable as it covers the real complaint against the ruling of the lower court appealed from and also subsume issue (iii) which is the only directly relevant issue of those formulated by the respondent’s counsel. Issues (i) and (ii) raised by him cannot be said to have arisen out of any of the two grounds on the appellant’s notice of appeal. Accordingly, the appellants’ issue would be considered in the determination of this appeal.

Appellant’s Submission:

It was submitted for the appellant that the order for filing pleadings by the lower court was to seek to review the order already made by a Court of co-ordinate jurisdiction that has the effect of restoring the appellant into possession. In addition, the order would make appellant re-litigate what had been granted, seek to foist on appellant needless cause of instituting an action when there is no longer a cause of action and deprive her of the benefit of a judgment of the court. According to counsel, the nature of an originating summons contemplated by Order 59 of the Lagos High Court (Civil Procedure) Rules, 1994, is to determine matters expeditiously, where there are no facts in dispute as to the right of the appellant to possession and is similar to Order 11 of the Rules. It was contended that an application for possession cannot be dribbled by a claim of title by a respondent and the order for pleadings by lower Court implies that there is an issue of fact or law to be decided at the trial.

Counsel argued no such issue of fact or law had arisen in this case of the appellant. Counsel referred to Section 78 of the Evidence Act, Cap. 112 Laws of Federation Nigeria, 1990 and said the affidavit evidence placed before the court was as good as oral evidence and that the court could only resort to oral evidence where issues raised could not be resolved on the face of the affidavit evidence. He cited the cases of Falobi v. Falobi (1976) 9-10 SC 1, Chairman N.P.C v. Chairman Ikere Local Government (2001) 13 NWLR (Pt.731) 540, 565-6 and Edosanwan v. Erebor (2001) 13 NWLR (pt.730) 265 at 295, and said it was erroneous for the lower court to advert to the claim for title as being materially in dispute.

Learned Counsel, concluded that the lower court did not properly articulate the issue arising from the facts and evidence before it and so was in error to have ordered for pleadings. He urged us to allow the appeal, set aside the order for pleadings and order possession for appellant.

Respondent’s Submissions:

For the respondent, it was said that Order 59 of the Lagos High Court (Civil Procedure) Rules, 1994, is a reproduction of Order 113 of Rules of the Supreme Court of England and that originating summons are taken out for non contentious matters, e. g. matters relating to the interpretation of statute and other legal instruments and for the resolution of matters where the facts are not in dispute. That hostile proceedings cannot be initiated by such summons. The case of Oba Oyewumi v. Oba Osunbade (2001) FWLR (Pt.82) 1919 at 1963 as authority for the submission and the case of Attorney General of the Federation v. Attorney General Abia State (2001) 11 NWLR (Pt.725) 689, (2001) 6 MISC 89 at 119 for the definition of a dispute were cited. According to learned Counsel for respondent, Order 59 presupposes that there is no dispute that;

(i) Plaintiff has title to the land.

(ii) That defendant does not have title and is a squatter.

Counsel said appellant had admitted in paragraph 10 of her affidavit in support of the summons that there is a rival claim to the land and did not deny the respondent’s averment that he bought the land without any encumbrance. In addition, the appellant did not deny that respondent’s predecessor in title had a good title. Reference was made to the case of Obasuyi v. Business Ventures Ltd. (2000) FWLR (Pt.10) 1722 at 1738 and pages 41-43; (2000) 5 NWLR (Pt.658) 668 of the record of appeal.

It was also argued for the respondent that Order 59 is not similar in procedural application to Order 11 and that even if the two are similar, where there is a dispute as to who of two people claiming possession, the presumption is that the person having title to the land is in lawful possession. The case of Akinferinwa v. Oladunjoye (2000) 6 NWLR (Pt.659) 92, (2002) FWLR (Pt.10) 1690, was relied on and it was contended that the respondent’s claim to title amounts to a legally admissible evidence on which the lower Court was to decide that there are issues of contending title of the parties.

The cases of Jos North Local Government v. Daniyan (2000) 10 NWLR (Pt.675) 281, (2000) FWLR (Pt.21) 871 at 884-5, Obulor v. Obora (2001) 8 NWLR (Pt.714) 25, FWLR 1004 at 1010 and R v. Itule (1961) All NLR 462, were cited and relied on. Section 2 of the Evidence Act was cited on the definition of facts in issue.

After going to town, on issues which are not relevant to the determination of this appeal on pages 6-9 of his brief, learned Counsel concluded his submissions by urging this Court to hold that the lower Court did not err in its order for pleadings and dismiss the appeal with substantial costs.

In his reply brief filed on 19th March, 2004, he repeated the grounds on which Order 59 was used in the lower court and went on to challenge the claim for title of the respondent on ground of lis pendens.

Like the respondent’s Counsel, the appellants Counsel expended time on issues which are not relevant in this appeal on pp.2-4 of the reply brief.

He however said that the province of Order 59 covers those who entered into physical possession of land, which the court had deemed to be in the possession of another person. That its objective is that those who are not supposed to be in possession of land are not found there and if found, to be removed promptly.

Counsel denied that appellant admitted the respondent’s predecessor in title had an adverse claim in the land.

Since the real grievance or complaint in this appeal by the appellant relates entirely on the procedure provided in Order 59(1), for ease of reference, it is expedient to set out the relevant portions of the order. They are thus:-

“Order 59

1. Where a person claims possession of land which he alleges is occupied solely by a person (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his the proceedings may be brought by originating summons in accordance with the provisions of this Order.
2. N/A
3. The plaintiff shall file in support of originating summons an affidavit stating:

(a) his interest in the land;

(b) the circumstances in which the land has been occupied without licence or consent and in which his claim to possession arises; and

(c) N/A

4. (1) Where any person in occupation of the land is named in the originating summons, the summons together with a copy of the affidavit in support shall be served on him.”

Now, these provisions are quite clear and simple in their terms. I agree with counsel that their object is to enable a person recover possession of land from another who has no right to be there or in possession, without the licence or consent or as the case may be, the predecessor in title of the claimant in situations or cases, where there are no conflicting claims.

A claimant is required to state in his affidavit;

(a) his interest in the land;

(b) the circumstances in which the land has been occupied without licence or consent and in which his claim to possession arises.

It is also clear from the terms of the Order that it was not intended that the Court would automatically or as a matter of course make an order for possession merely on the application. A named respondent was required to be served with the application and the affidavit in support which undoubtedly was to enable the respondent be heard in the application before it was decided.

Where a respondent through his response by way of counter affidavit disputes the application by way of a conflicting claim, either to possession or title or both, and the Court; on the fact of the affidavit evidence finds that issues of rival claims were joined by the applicant and respondent, then it cannot act under the Order to order possession.

The appropriate step to take in such a situation would be for the court to call upon the parties to settle the issues and place evidence before it on the basis of which the issues are to be determined. Where however, the court upon a consideration the affidavit evidence of the applicant and respondent, it finds that the respondent did not challenge the applicant by way of a rival claim or defence as the case may be, it may proceed under the Order to grant the application as prayed or as the justice of the matter would require.

The object of the Order is certainly to expedite determination of claims in which there are no dispute as to the facts from which the claims arise. This much cannot be disputed.

Coming to the present appeal, the appellant in compliance with Order 59 rule 3(a) and (b) above, filed an affidavit in support of the summons setting out her interest in land and the circumstances in which the land has been occupied without licence or consent.

The affidavit was as follows:-

“1. I am the plaintiff in this case.

2. I depose to all the facts within my knowledge and believe to support the originating summons, I have taken out in this case.
3. The property concerned in this case is that piece or parcel of land lying, being and situate at 9 Animashaun Street, Watch Tower Shomolu, Lagos State. The property has been renamed 23 George Street, Shomolu, Lagos State.
4. The said property belonged to my father and I succeeded to it with other children of my father by way of inheritance under Yoruba Native Law and Custom.
5. My father became seised of the land in the following circumstances.

(a) My father initially bought the property built on the land from Alhaja Ogunfemi Magbagbeolu alias Janet Ajayi in 1971. A purchase receipt issued in his favour is herewith attached and marked Exhibit A.

(b) The said Madam Ogunfemi Magbagbeolu bought the house from one G. Dada in 1963. The purchase receipt is herewith attached and marked as Exbit B.

(c) My father subsequently bought the land from one Alhaji A. W. Irawo, sometime in 1978. The purchase receipts of 18th January, 1978 and 2nd March, 1978, are herewith attached and marked as Exhibit C.

6. Throughout the life of my father and since he became seised of the land, and built thereon, there was no action against him or his predecessors in title, and his occupation and ownership of the land was without any disturbance, let or hindrance.
7. After his death sometime in 1991, neither myself, nor any other children of the family, had notice or knowledge of any action having been taken against our father, ourselves or our predecessors in title.
8. Sometime on or about the 27th of June, 1997, I received a letter from Messrs Olagunju Arowosegbe & Co, who for the first time intimated me that a judgment was obtained in respect of the land. A copy of the letter is herewith attached and marked as exhibit D.
9. I caused our solicitor Messrs Ademola Olowoyeye & Co to give an immediate reply to the letter referred to in paragraph 8 above. A copy of the letter is herewith attached and marked as Exhibit E.
10. On or (about Friday, the 7th of August, 1998 and purportedly acting pursuant to an order of possession granted by His Lordship, the Honourable Mr. Justice Adebayo Manuwa, in Suit No. ID/308/75, then one Adenike Uthman moved against our property, destroyed it and levelled up the ground.
11. I took immediate step to set aside the writ of possession and sought other consequential relief, and the order was granted by His Lordship Honourable Justice Adebayo Manuwa in his judgment of 26th September, 2000. A copy of the judgment is herewith attached and marked as Exhibit F.
12. I have since the judgment discovered that despite the application and during the pendencey of the case, the respondent has put up a structure on the land.
13. The respondent’s occupation is without my permission, licence or consent.
14. I make this application to recover possession of the land.
15. I depose to this affidavit in good faith solemnly believing that it is true and correct, and in accordance with the Oaths Law, 1994.”

Put in brief, the facts relied on by the appellant were that she along the others, inherited the land in dispute from her father, who purchased it in 1978. Without notice of any action in respect of the land, one Adenike Uthman, acting on an order for possession made in Suit No. ID/308/75, took over the land on or about the 7th August, 1998. The appellant had the writ of possession in the said suit set aside by the Court that issued same and that respondent is in occupation without her permission, licence or consent. A copy of the ruling in Suit No. ID/308/7S dated the 26th August, 2000, but delivered on 29th September, 2000, was annexed to the applicant’s affidavit.

On her part, the respondent filed a 14 paragraphs counter affidavit in response to the applicant’s affidavit. The averments therein are as follows:

“1. That I am the second defendant/respondent in this suit and therefore conversant with this suit the facts of which I am deposing to hereunder.

2. That I am the owner of the property at No.9 Animashaun street, Shomolu, now renumbered No. 23, George street, Shomolu, Lagos.
3. That the said property was sold to me by Mrs. Adenike Uthman (Nee-Jackson-Goyea) the Deed of Assignment wherein title was passed to me by the said Mrs. Adenike Uthman is herewith attached and marked exhibit M. A. 01.
4. That before purchase of the said property, I had carried out the necessary search to ensure that Mrs. Adenike Uthman had perfect title which she sought to pass to me.
5. The search revealed thus:

(a) That Mrs. Adenike Uthman’s title was confirmed by a registered Deed of Conveyance dated 25th day of September, 1924 and registered as No. 192 at page 711 in volume 174 of the Register of Deed kept at the Lagos State Land Registry Lagos, Nigeria. A copy of the CTC of the said conveyance is herewith attached and marked Exhibit M.A. 02.

(b) That the title of Mrs. Adenike Uthman (Nee Jackson-Goyea) the original owner was ratified by Deed of Conveyance dated 3rd day of December, 1957 and registered as No. 56 at page 56 in volume 234 of the Register of Deeds formerly Ibadan, now Lagos State Land Registry, Lagos. A copy of the CTC of the said conveyance is herewith attached and marked Exhibit M. A. 03.

(c) That judgment of a court of competent jurisdiction along with an order and warrant for possession given and granted to Mrs. Adenike Uthman validated her title in the said property.

6. That on the basis of the above, court order referred to in paragraph 5(c) above, possession was lawfully taken by Mrs. Uthman.
7. That I have been informed by Mrs. Wale Ogunnaise of counsel in the firm of Adekanola, kuye & Co. my solicitors, and I verily believe him that until the consequential order and warrant of possession granted Mrs. Uthman was set aside it was competent and effectual.
8. That I purchased the said property from Mrs. Uthman without knowledge of the plaintiff’s or any other adverse interest in the said property.

9 . That I have without knowledge of any adverse interest purchased the said property from Mrs. Uthman and had effectively taken possession before the plaintiff/applicant went to court to challenge the consequential orders granted Mrs. Uthman.

10. That the subsequent orders being relied upon by the plaintiff/applicants to bring their application is a subject of appeal at the Court of Appeal Lagos and an application for stay of execution pending in the same Court.
11. That the application of the plaintiffs/applicants is misconceived as the proper issues to be determined is as to title and not possession.
12. That plaintiff’s/applicant application is mischievous for non-disclosure of all facts to the Honourable Court.
13. That the defendant do not need or require the consent, permission or licence of the plaintiff to be in occupation of the said property as the consent of the original owner had been obtained by the defendant purchasing same.
14. That I make these declaration in good faith and in accordance with the Oaths Law of Lagos State.”

In summary, the respondent’s answer to the applicant’s affidavit is that the land in question was sold to her by Adenike Uthman, who had a perfect title and in possession pursuant to a writ of possession from the Court. That she took possession of the land from Uthman before appellant went to challenge the writ and so did not require the consent, permission or licence of the appellant having purchased the land from the owner.

From the affidavit evidence adduced by the parties, it is clear that each of them claims both possession and title to the land in dispute. The resort to Order 59 by the appellant does not substract from the facts which she deposed to on oath as set out in her affidavit above. The appellant had strenuously attacked the order for pleadings by the lower court on the ground that it would make her relitigate what Manuwa J. had granted and seek to foist on her a needless cause of initiating an action when there is no longer a cause of action. From the ruling of Manuwa J. at page 22 of the record of appeal, appellant was not named as a party therein; the parties being Adenike Uthman as plaintiff and Alhaji Ibrahim Sanusi as defendant. Similarly, she was not a party in the proceedings in which Manuwa J, granted the writ of possession, which was later set aside in the ruling delivered on 29th September, 2000, and on the ground upon which the appellant made the application under Order 59 to the lower Court. If she was not a party to any of these proceedings granting writ of possession and later setting same aside, she can’t use Order 59 to claim any possession of the land on the basis of setting aside the writ of possession granted Uthman; respondent’s predecessor in title.

In any case, the appellant’s claim in the lower Court was for possession when the respondent is in physical possession of the land in dispute. Where, as in the case before the lower Court, two people claim to be in possession of land the law ascribe possession to one who can show better title. It is more so when, a person desires to dislodge another in physical possession, the claim can only succeed when the person in possession is proved to be a trespasser or that there is a better title in the claimant. That proof can only be by way of pleadings and evidence. See Odubeko v. Fowler (1993) 9 SCNJ 185 at 198, (1993) 7 NWLR (Pt.308) 637 and Agu v. Nnadi (1999) 2 NWLR (Pt.589) 131 at 140.

For the above reasons, I find myself in agreement with the learned trial Judge that upon an examination of the affidavit evidence adduced by the parties, the claim by the appellant could not be dealt with conclusively without looking into the issues of the contending titles of the parties. Consequently, the lower Court was right in ordering pleadings in the matter.

In the result, I find no merits in this appeal whatsoever and dismiss same. The sum of N7,000 as costs is assessed in favour of the respondent.

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Other Citations: (2005)LCN/1739(CA)