National Bank Of Nigeria & Anor V. Lady Ayodele Alakija & Anor (1978)
LawGlobal-Hub Lead Judgment Report
KAYODE ESO, J.S.C.
The plaintiffs, in Suit No. M/146/72, took out an originating summons in the High Court of Lagos, against the defendants, as follows-
“LET the defendants within 8 days after service of this summons on each of them, inclusive of the day of service cause an appearance to be entered to this summons, which is issued on the application of the plaintiffs, Lady Ayodele Alakija and Mrs. Olakunle Ojo 26, Moloney Street, Lagos.”
By this summons the plaintiffs seek the determination of the court on the following questions, namely:-
“1. Whether the lease dated 30th April, 1955 between the 1st plaintiff of the one part and the 1st defendant of the other part is valid.
2. If the answer to the first question is in the affirmative, whether the lease aforesaid conferred on the 1st defendant as from the date of commencement thereof the entire estate in the term of years intended to be created thereby or only one half share (being the share of the 1st plaintiff) in the said term of years.
3. In the light of the answers to the above questions have the 2nd defendant any estate or interest in the property comprised in the lease aforesaid
4. If the answer to the third question is in the affirmative, what is the estate or interest owned by the said 2nd defendant.”
The first plaintiff swore to an affidavit in respect of the originating summons. She deposed as follows:-
“1. That I am the Applicant in the above matter and as such I am familiar with the facts to which I now swear.
2. That the property now known as No. 21, Yakubu Gowon Street, which I refer to hereafter as ‘the said property” belonged absolutely in fee simple to my father the late James George during his life time and was formerly known as 21, Broad Street, Lagos.
3. That the said James George died on the 20th day of May, 1945 and probate of his last will was granted to the late Sir Adeyemo Alakija and myself.
4. That the documents attached herewith and marked Exhibits A and A1 are true copies of the said Probate and will.
5. That Clause 4 of the aforesaid will provides as follows:-
“I give to my trustees (Adeyemo Alakija and Ayodele Alakija) my storey house situate at No. 21 Broad Street, (now Yakubu Gowon Street) upon trust for the separate use and benefit of Ayodele Alakija and Olakunle (now Mrs. Olakunle Ojo) and my child or children hereafter if female or females as tenants in common failing my said child or children upon further trust for Ayo Alakija and Olakunle as tenants in common.”
6. That the said James George had no other child or children born to him after making his aforesaid will which was dated the 27th day of November, 1942.
7. That my sister the 2nd plaintiff was born on the 31st day of January, 1930.
8. That my husband Sir Adeyomo Alakija having died I became the sole surviving executor and trustee of my father’s will.
9. That in my capacity as such trustee I granted a lease of the said property to the 1st defendant by a Deed dated 30th April, 1955 and registered under Title Number LO 2643. The lease aforesaid was for a term of ninety years commencing from the 1st day of May, 1955 and a true copy thereof is attached herewith and marked Exhibit B.
10. That my sister and I have sought the opinion of Chief Rotimi Williams in regard to the said property and in accordance with his advice we have referred to this Honourable Court for determination the questions raised in the Originating Summons in support of which I swear to this Affidavit.
11. That the 2nd defendant claimed the right to occupy the said property and I presume that they are claiming as assignees of the first defendant.
12. That I have the authority of the 2nd plaintiff to swear to this Affidavit
Sgd. Lady A. Alakija.
DEPONENT”
From this affidavit, it is clear that the two plaintiffs were beneficiaries of a will made by their late father, James George, in which will, the testator appointed the first plaintiff and her husband as executors and trustees of the will. Both of them were also to be guardians to the second defendant, who was at the time, a minor.
The property, subject-matter of this action, which, as the affidavit states, is situate at No. 21 Broad Street, Lagos, has, by an Indenture dated 30th April, 1955 and exhibited as “B” to the affidavit of the first plaintiff aforesaid, been demised unto the first defendant, the national bank of Nigeria by the first plaintiff –
“TO HOLD the same UNTO the Lessees for a term of Ninety (90) years commencing as from the 1st day of May, 1955.
As part of the covenants attached to the lease, the Lessees were under obligation to repair, improve, renovate, during the said term of the lease, the property purely at their own expense. They could also demolish and rebuild the property at their own discretion and cost.
What happened to the property after the lease would be found in the affidavit of Samson Olatunde Banjo, the Acting General Manager of the bank who deposed as follows:-
“4. That following the lease of the property to the 1st defendant in 1955, the first defendant was using the old building on the property as store.
5. That by an instrument of transfer dated 28th February, 1961, the lease was transferred to the National Investment Properties Company Limited whose interest was registered on the 5th of January, 1962 under the Titles Act, this being the 2nd registration.
6. That by an instrument of transfer dated 11th November, 1963 the lease was again assigned to the Western Region Marketing Board, whose interest was registered under the Titles Act on the 13th August, 1964, that being the 3rd registration.
7. That by an instrument of transfer dated 20th December, 1967, the lease was finally transferred to the 2nd defendant in this case whose interest was again registered under the Titles Act, being the 4th registration thereof.”
So, with the registration by the 2nd defendant, the property has changed hands four times since the demise by the 1st plaintiff to the first defendant.
When the matter came before the court, learned counsel for the defendants, who, at that time was Chief G.B. Akinyede objected to the trial by Originating Summons. He contended that this was a case that should be tried on pleadings. The learned trial Judge rules against Chief Akinyede’s submission. He said-
“I am satisfied that this action had properly been instituted by way of Originating Summons in so far as what the court is asked to determine is principally the validity of the Deed dated 30th April, 1955. All the other questions for determination seem to me to be fairly ancillary to the proper question.”
The matter was therefore tried on the Originating Summons and the learned trial Judge after considering the extensive legal submissions of learned counsel, dealt with all the issues raised in the summons, in the light of the legal submissions. As regards the first question, whether the lease of the property made by the first plaintiff to the first defendant was valid, the learned trial Judge upheld the submission of the plaintiffs’ counsel that the demise made in Clause 4 of the Will of late James George (which clause has been reproduced supra) which gave all the property to trustees upon trust for the separate use and benefit of the first and second defendants was a settlement under the Settled Lands Act, 1882-1890 with special reference to Section 2 (a) and Section 59 thereof. He held –
“In the circumstances of the present case, I am satisfied that –
(a) a settlement of the property in dispute was created in 1945;
(b) the second plaintiff was a tenant for life under the settlement;
(c) there were no Trustees of the settlement and none were appointed as provided under Section 38 of the Act. The Trustees of the Will could not therefore, in my view, be considered as such Trustees;
(d) the first plaintiff alone could not validly grant the lease of 1965.”
He held further-
“Although it is an established principle that when the 2nd plaintiff became sui juris she and the 1st plaintiff could call upon the trustee of the estate to vest the property in them, they would have had to do so from the trustees of the settlement if they had been appointed by the court and had been registered as the proprietors of the property under Section 75 of the Registration of Titles Act Cap. 181. In that case, they would have terminated the settlement before dealing with the property. Insofar as I have held that a settlement was created in this in 1945, it was then that trustees of the settlement could have been appointed but none were appointed up till 1955 when the lease was granted. Hence in my view, the plaintiffs could not have terminated the settlement in 1955 by calling upon the trustees of the estate to vest the property in them to enable them to deal with it.”
and he concluded-
“I am of the opinion that the lease of 1955 between the plaintiff and the first defendant was invalid.”
As regards the second question which was raised in the Originating Summons, the learned trial Judge held that since the lease of 1955 had been held by him to be invalid, the question whether the first plaintiff could transfer her moiety in the property to the first defendant did not seem to arise. The learned Judge concluded that it was unnecesssary therefore to consider whether the first plaintiff was estopped from denying that she had any power or title to grant the lease in 1955.
In regard to the third and fourth questions, it was the learned trial Judge’s view that the lease of 1955 was wholly void. On laches and acquiescence, he held that the affidavit of Mr. Banjo was not such evidence. If the defendants had filed an affidavit in opposition, disclosing the facts deposed to by Mr. Banjo, learned Judge conceded that, in those circumstances, there would have been admissible evidence establishing considerable delay (that is laches and acquiescence) on the part of the plaintiffs in instituting these proceedings.
The Judge held finally-
“(a) the lease dated 30th April, 1955 and made between the first plaintiff and first defendant is wholly invalid;
(b) Insofar as the lease of 1955 has been held to be wholly invalid, the question of whether the first plaintiff could transfer her moiety in the property does not arise;
(c) &(d) since the lease of 1955 was held to be wholly invalid any interest in the property sought to be acquired by the second defendant as a purchaser without notice would by virtue of Section 53 (1) &(2) of the Registration of Title Act Cap. 181 be equally void.”
Against this decision, the two defendants have appealed to this court. Originally, learned counsel representing them filed 22 grounds of appeal. During the hearing, learned counsel applied and got leave to add another ground of appeal which was marked Ground 20A and which reads as follows:-
“(20A) The learned trial Judge misdirected himself in law in having rejected the application of the appellants that this case was such as should not have been tried on an Originating Summons but should have been tried on pleadings to be ordered to be filed by the parties in view particularly of paragraphs 6 and 7 of the affidavit of Samson Olatunde Banjo as at page 21 of the Record of Appeal showing that the appellants desired that the case be tried on pleadings to be ordered so that they might put before the trial court all the facts relating to and surrounding the transactions including certain material facts about the respondents and also the part each of them played before, during and after the transactions and further before the trial court the legal and equitable defences on which they would be relying.”
He then sought an alternative relief, following the new ground of appeal. The alternative relief is as follows-
“……. in addition to a reversal of the judgment of the lower court, an order that the case be remitted to the High Court for rehearing on pleadings”
Dr. F.A. Ajayi, learned counsel representing the appellants in this Court, abandoned grounds 1 and 4 of the grounds of appeal and argued all the other grounds of appeal including ground 20A. As ground 20A is in the alternative to all the other grounds of appeal, it becomes necessary that we examine the submissions of learned counsel thereupon first, particularly as the alternative relief sought, that is, for a rehearing of the case on pleadings, flows from that ground of appeal and our decision on this ground of appeal might put a stop to our consideration of the other grounds of appeal.
Dr. Ajayi submitted that this case was not suitable for Originating Summons. He referred to the affidavit of the Acting General manager of the first defendant, (Mr. Samson Olatunde Banjo), paragraphs 6 and 7 of which disclosed that there was some controversy on the facts. Counsel further referred to the affidavit of the first plaintiff and urged that no reason was given in that affidavit for the invalidity of the transaction as claimed in the Originating Summons. The affidavit, counsel continued, left room for conjecture and the reasons for the invalidity of the lease only came out in the submissions of learned counsel for the plaintiffs during the hearing of the case. Dr. Ajayi referred us to the case of Old Wood Young Compensation Fund, Arnott v. Master Agricultural Fisheries, Food & Ors., 1967, 2 All ER, 1146 at 1149 and also the case of T.A. Doherty, H.A. Doherty v. R.A. Doherty, 1968, NMLR 241.
On this ground, professor Kasunmu’s (learned counsel for the respondents’) reply was that the learned Judge was right to have tried the case on originating summons. There was an unconditional appearance by the defendants and thereafter, it was too late for them to ask for pleadings. What the court was asked to determine was the nature of the interest which the first defendant had in the property and also the interest of the two plaintiffs in the property. Insofar as the first question is concerned, learned counsel submitted that the court was to determine whether or not the first plaintiff was a trustee for the purpose of granting the lease. The second question followed from the first. The question was whether the first plaintiff, assuming she was a trustee, could make the grant. Counsel further urged that Mr. Banjo’s affidavit supported the procedure of Originating Summons which was adopted at the trial. There was nothing, learned counsel concluded, that stopped the defendant from asking the court to permit them to cross-examine the parties.And, insofar as cross-examination could be permitted, the procedure by originating summons was proper.
Now, in determining the issues raised in this ground of appeal, we think it is necessary to examine the rules of court relevant at the time of the institution of the proceedings. The rules of court are the Supreme Court (Civil Procedure Rules), first made on the 19th of September, 1945, see Cap. 211, vol. x, Laws of Nigeria 1948 Edition – (hereinafter referred to as the old Supreme Court Rules (Nigeria)). We will now proceed to examine these Rules. Order II, R. 1 of the Rules provides-
“Every suit shall be commenced by a writ of summons………” (underlining ours)
This is mandatory. However, note must at once be made of Section 12 of the High Court of Lagos Law, Cap. 80 which provides –
“12. The jurisdiction vested in the High Court shall, so far as practice and procedure are concerned, be exercised in the manner provided by this or any other ordinance, or by such rules and orders of court as may be made pursuant to this or any other Ordinance, and in the absence of any such provisions in substantial conformity with the practice and procedure for the time being of Her Majesty’s High Court of Justice in England.”
It is trite law that where our rules are silent on any point of procedure the rules of procedure in the English courts are applicable and it is only this provision that could bring in the relevance of Order 5 of the Rules of Supreme Court (United Kingdom Rules), sub-paragraphs of which provide for the procedure of originating summons and under which the instant proceedings were obviously begun. Order 5, R. 1, R.S.C. 1973 (U.K. Rules) was taken from R.S.C. (Revision) 1962; O.5. R.1. It provides for different modes of initiation of civil proceedings in England. It reads-
“Subject to the provisions of any Act and of these rules, civil proceedings in the High Court may be begun by writ, originating summons, originating motion or petition.”
(again, underlining ours)
A very important distinction between the provision of the old Supreme Court Rules of Nigeria and the united Kingdom Rules is that the Nigerian Rules make it mandatory to initiate all suits by a writ of summons while the United Kingdom Rules permit a choice of four alternatives. This we think is very important.
In support of Order II rule 1 of the old Supreme Court Rules (Nigeria) is O. 32 R. 1 which provides
“In all suits written pleadings shall be ordered by the court unless the court considers in any particular suit that written pleadings are unnecessary”
No doubt this is complimentary to Order II rule 1, which makes it mandatory to initiate proceedings by writ. It seems clear to us that the whole essence of the Old Supreme Court Rules (Nigeria) aforesaid, was to provide for determination of civil proceedings when the issues are clear on the pleadings and the parties are clearly seised to the issues in controversy between them.
It is with this, as background, that the effect of the provisions of Order 5 R. 4(1) and (2) of the Rules of the Supreme Court (U.K. Rules) should be considered. That rule provides-
“(1) Except in the case of proceedings which by these rules or by or under any Act are required to be begun by writ or originating summons or are required or authorised to be begun by originating motion or petition proceedings may be begun either by writ or by originating summons as the plaintiff considers appropriate.
(2) Proceedings –
(a) in which the sole or principal question at issue is, or is likely to be, one of the construction of an Act or of any instrument made under an Act, or of any deed, will, contract or other document, or some other question of law, or (underlining ours)
(b) in which there is unlikely to be any substantial dispute of fact are appropriate to be begun by originating summons unless the plaintiff intends in those proceedings is apply for judgment under Order 14 or Order 86 or for any other reason considers the proceedings more appropriate to be begun by writ.”
The old supreme Court Rules (Nigeria) make no specific provision for the procedure of construction of a deed or contract. By virtue of Section 12 of the High Court of Lagos Law therefore, Order 5 R. 4 of the United Kingdom Rules could in our view be applicable for the purpose of such construction, subject however to the fact that it should be applied within the spirit, and the background of Order II R. 1 and Order XXXII R. 1 of the old Supreme Court Rules (Nigeria).
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 fact 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 procedure and not one that is meant to enlarge the jurisdiction of the court. See Re King, Mellor v. South Australian Land Mortgage & Agency Coy., 1907, 1 Ch. 72 as per Neville, J., at p. 75.
Even, under the United Kingdom Rules where there is option to proceed either by writ or originating summons, and where the courts in England develop a modern trend of extending the use of the procedure by originating summons to declaratory actions, the courts still take good care not to substitute the use of that procedure for contentious action of disputed facts. Lord Denning, MR., in Funton v. Ministry of pensions 1963 1 All ER 275 seemed to have had this in mind when he said (at p. 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 the 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 a sensible and modern way of approach.” (underlining ours)
That the application by originating summons is no substitute for initiating contentious issues of facts is not far-fetched if one takes a quick look at a short history of the evolution of the procedure. Until 1962, when R.S.C. Revision 1962, O.5, R. 1 took effect, there was not, in the United Kingdom, an absolute right to proceed by originating summons. A plaintiff coming by way of originating summons was under obligation to show that his use of the procedure was required or permitted by a rule or statute. Indeed, the first advent of the term “originating summons” itself was by the Chancery Procedure Act 1852 which replaced the old mode of commencing proceedings in the Court of Chancery by “bill” (later simplified by introduction of “claims”) with the commencement of a suit in certain cases only by “a summons originating proceedings in chambers”. In 1883 the Rules of the Supreme Court (1875) were recast and the term “originating summons” was, for the first time, introduced into the terms and defined. (see in re-Holloway (A solocitor ex-parte Pallister 1894 2 QB. 163 as per Lindley, LJ., on p. 167 et seq.)
However, the main advantage of the procedure by originating summons has always been simplicity resulting from the elimination of pleadings. And from the early times the courts have refrained from trying matters of disputed question of facts on originating summons. In Re Power, Lindsell v. Phillips (1885) 30 Ch. D. 291, Cotton LJ said –
“As regards the view taken by the Vice-Chancellor, it is true that it is not a right course to take out an originating summons to obtain payment of a disputed debt, where the dispute turns on matters of fact.”
Lindley LJ., in the same case (ibid) was of the following opinion –
“I think the vice-chancellor can hardly have understood that in this case there are not facts in dispute. A summons is not the proper way of trying a disputed debt where the dispute turns on question of fact, but where there is no dispute of fact the validity of the debt can be decided just as well on summons as in an action.”
The case of In re Nobbs, Nobbs v. Law Reversionary Interest Society, 1896, 2 Ch. 830 turned on the question of construction, as in the instant case before us, though unlike it, it dealt with the issue of mortgage. Yet Kekewich J.’s view is of relevance – He said-
“The point which I have to decide is a question of construction arising under a mortgage deed, which is clearly a written instrument within the words of the rule; but is it contended on behalf of the defendants that I ought not to decide the point in this case because the instrument is a mortgage deed, and the person claiming to have the deed construed is a mortgagor, and there is no offer by her to redeem. It is perfectly well settled, indeed engrained in the practice of the court, that no mortgagor can bring an action against the mortgagee in respect of the mortgage without offering to redeem, and the reason is perfectly plain, and is commented on in the case of Dalton v. Hayter before Lord Langdale. A decree for redemption is also a decree for foreclosure, and a mortgagor seeking to redeem can only do so subject to the penalty of being foreclosed if he does not redeem within the time limited; and therefore it is very important that the mortgagor should not be allowed to come and harass the mortgagee without offering to redeem. The rule is for the protection of the mortgagee in view of the doctrine of Courts of Equity which confers on the mortgagor a power to redeem. Ought I to apply that rule to proceedings under Order LIV. A It seems to me that if I were to do so I should be running counter to that which, as is notorious outside the rule and apparent from itself, was the intention of the framers of it, namely, to facilitate the determination of short questions of construction which could be examined without affidavits upon the instrument itself, and to make the determination expeditious, easy, and inexpensive.” (underlining ours)
See also Nutten v. Holland 1894, 3 Ch. 408. In re giles Real and Person Coy. v. Michell (1890) 43 Ch. D. 391, Cotton, LJ., believed that ‘originating summons’ was 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.” “The main difference between a writ of summons and an originating summons, being, in the opinion of Chitty, J., (see In re Busfield Whale v. Busfield (1886) 32 Ch. D. 123 at p.126).
“that in the one case the proceedings are in court, and there are or may be pleadings, whereas in the other case the proceedings are in Chambers and there are no pleadings.”
Buckley, J., in Re Sir Lindy Parkinson and Co. Ltd. v. Trusts Deed Bishop & Ors. v. Smith & Anor. (1965) 1 All ER, 60, sounded a note of warning-
“Under that rule (i.e. RSC Order 5, R. 4 (2) applicable for the purpose of originating summons), it was, I think, open to the plaintiffs to institute these proceedings either by originating summons or by writ; by the terms of the rule the matter is left in the discretion of the plaintiffs, but I desire to say that in my view clearly, proceedings by beneficiaries against trustees of a contentious nature charging the trustees with breach of trust or with default in the proper performance of their duties, whether the matters with which the trustees are charged are matters of commission or omission, ought normally to be commenced by writ and not by originating summons, for in such proceedings it is most desirable that the trustees should know before trial precisely what is alleged against them. The appropriate form of proceedings, therefore, in my view, are proceedings by writ in which what is alleged by the parties will be clearly defined in the pleadings in which the parties can, if they wish, seek better and further particular of the matters alleged by their opponents.”
And, so far for English authorities. The Nigerian courts exhibit the same reticence, as the English courts, in regard to the procedure by originating summons. This court, in Theophilus Adebayo Doherty, henry Ade Doherty v. R. Ade Doherty 1968, NMLR 241 (as per Ademola CJN.,), warned against the use of originating summons in hostile proceedings.
Having examined all these authorities, it is now necessary to examine the instant case in the light of the authorities, to see if, in the circumstances, the learned trial Judge was right to have permitted the case to proceed on originating summons.
We have already set down (supra) the affidavit attached to the summons. All the facts disclosed therein were that the first plaintiff was the sole surviving executor and trustee of the will, that she granted the lease in question as such trustee and that on the advice of her counsel she has brought this action.
It was only during hearing in court that it was known for the first time that her case was based on the Settled Lands Act. It was only in the submission of her counsel, unsupported as it were by any evidence, that it was realised that the plaintiffs’ case was that –
“(1) there were no trustees of the settlement of the property which was in law to be regarded as settled land;
(2) the two plaintiffs did not terminate the settlement, if any, when the 2nd plaintiff became sui juris;
(3) the two plaintiffs did not ask for a vesting deed from the trustees of the Will; and
(4) no trustees of the settlement had been registered as owner of the land pursuant to S. 75 of the Settled Land Act.
Surely all these facts could only be within the peculiar knowledge of the plaintiffs and if they are to be relied upon, it is for them to allege and prove and not just assume them. As Dr. Ajayi, learned counsel for the appellants said in his submission, the affidavit of the 1st plaintiff left room for conjecture. And it was upon this conjecture and subsequently the submission of plaintiffs’ counsel that the learned trial Judge made his finding of fact for he said –
“(c) There were no trustees of the Settlement and none were appointed as provided for under Section 38 of the Act.”
Having argued that the plaintiffs could have called upon the trustee of the estate to vest the property in them “if they had been appointed by the court and had been registered as the proprietors of the property under S. 75 of the Registration of Titles Act”, he held that no trustees of the settlement were appointed up till 1955 when the lease was granted. Of course, there was no evidence as to whether or not the plaintiffs were appointed as trustees of the settlement by the court though the first plaintiff granted the lease to the first defendant in her capacity as trustee of the will. Yet, it was on this finding of fact that the learned trial Judge proceeded to base his rationale in answering the first question and he held that the lease of 1955 between the 1st plaintiff and 1st defendant was invalid. The first question obviously was the most important question in the case, for in the decision of the learned trial Judge, the answers to the remaining three questions flowed from the first.
Even, as regards issue of delay, the learned Judge appreciated that if certain facts had been brought to the court, there would have been established some considerable delay in instituting these proceedings by the plaintiffs. The learned Judge was also of the view that the defendants would have applied to cross-examine the plaintiffs as regards the facts deposed to in the affidavit in support of the originating summons. But as we have earlier pointed out the affidavit is bare; it disclosed nothing more than that the 1st plaintiff, trustee of the will granted the lease as such trustee, and relied on an unspecified advice of her solicitor to bring this action.
In our view, what is revealed throughout the proceedings, following upon the submissions of learned counsel for the plaintiffs at the hearing and the findings of the learned trial Judge, all of which we have highlighted (supra) and also on the submissions of the learned counsel for the respondents who said the appellants should have requested for the cross-examination of the respondents, is that, facts do exist, but not presented and that they are necessary for a just decision to be reached. The affidavit of the plaintiff could not be a substitute for these full facts which should have been brought before the court. It only leaves the matter for a conjecture.
We are of the firm view that this is a case where facts should have been brought before the court, indeed, by both parties before a just decision could be reached. Samson Olatunde Banjo did say in his affidavit, in support of his application, that this was a case where pleadings were necessary, that the defendants would like to put all facts, “relating to and surrounding the transactions including certain material facts about the plaintiffs and also the part each of the plaintiffs played before, during and after the transactions. We think that the learned trial Judge should have ordered pleadings in this case as there are obvious questions or dispute which were raised both in the submissions of learned counsel and the decision of the court which have neither been proved nor admitted. Warrington, J., in Lewis v. Green (1905) 2 Ch.D. 340 at p. 342 said and we agree-
“……………Of course, in a sense, every question of construction may involve some question of fact. It may be a question about which there is no dispute, but in order to raise any question of construction some facts must be proved or admitted.”
Here no facts have either been proved or admitted.
In our view, and on all the authorities we have reviewed (supra), this is not a case where it could be said that there is unlikely to be any substantial dispute (O.5. Rule 4(2) b RSC 1965 UK Rules); nor that the facts are even undisputed as In re Power Lindsel v. Phillips (supra); nor that they are uncontentious as in Sir Lindy Parkinson’s case (supra). They are, in fact, hostile proceedings (Doherty v. Doherty (supra) ) where pleadings must be ordered. To proceed merely by originating summons would not meet the justice of the case and we think the learned trial Judge should have made an order for pleadings.
It follows that ground 20A of the grounds of appeal must succeed. We have already stated that the appellants asked for a retrial on this ground. Having regard to the order we intend to make, we do not think it would be wise to pronounce on the other grounds of appeal, notwithstanding so much learning brought by both learned counsel into their arguments, as this may prove to inhibit the trial court on the issues raised in the grounds, which may be issues he might have to decide.
We would therefore allow this appeal and the appeal is hereby allowed. The judgment and order of Kazeem, J., in the Lagos High Court in Suit No. M/146/72, including his order as to costs, are hereby set aside. We order a retrial of the case before another Judge of the High Court of Lagos State. The trial Judge shall proceed, at the retrial, to treat the case as if it has been commenced by writ, order pleadings and he shall hear this case on the pleadings so ordered and delivered.
The appellants shall have the costs of this appeal assessed at N500.00. Costs in the High Court shall abide the retrial.
Other Citation: (1978) LCN/1980(SC)
