In The Court of Appeal

(Benin Judicial Division)

On Tuesday, the 2nd day of March, 2010

Suit No: CA/B/177/2005

Before Their Lordships

AMINA ADAMU AUGIE               ....... Justice, Court of Appeal

OYEBISI FOLAYEMI OMOLEYE      ....... Justice, Court of Appeal

CHIOMA EGONDU NWOSU-IHEME ....... Justice, Court of Appeal

Between

1. Chief P. I. A. Jideonwo

2. Miss Chioma

3. Miss Stella

4. Mr. Francis

5. Miss Ngozi

6. The Ghanaian Appellants

And

Mrs. Eunice Chukwuma    Respondents

AMINA ADAMU AUGIE, J.C.A.: (Delivering the Leading Judgment): The property at No. 26 Jarret Street, Cable-Point, Asaba, Delta State, has been subject of litigation in various Courts for a numbers of years.

The property originally belonged to the Respondent's husband, Robert ObiefunaChukwuma, a native of Asaba, who died intestate in 1967, during the Nigerian Civil war. After the war, his properties were partitioned to his children, and the said property at No. 26 Jarret Street, was given to the Respondent's children, Henry and ChinezeChukwuma. In 1977, Henry Chukwuma sold the property to the 1^st Appellant. When the Respondent, who was living in the property, refused to give up possession, the 1st Appellant filed an action against both of them in Suit No.A/73/89, before Hon. Justice A. N. E. Gbemudu of the High Court, Asaba. In his Judgment delivered on the 28th of May, 1992, Gbemudu, J. dismissed his claims on the ground that the property had ceased to be family property and was the personal property of Henry and Chineze, thus, the sale made by Henry without Chineze's consent, was void.

The 1st Appellant then filed an appeal against the Judgment on the 15th of June, 1992, but the appeal was dismissed by this Court for want of prosecution on the 9th of June, 1999. By a Motion dated 16^th July, 1999 and filed on 21st July, 1999, the 1st Appellant applied to re-list the appeal, but this Court refused the application in its Ruling delivered on the 24th of November, 1999. By a Motion dated 14th

February, 2000 and filed same day, the 1st Appellant applied to the Supreme Court for leave to appeal against the decision of this Court dismissing his appeal for want of prosecution. The Application, SC/16/2000, was heard and granted by the Supreme Court on the 8th of March, 2000. In addition, the 1st Appellant applied for leave to appeal against the Ruling of this Court dismissing his application to re-list his appeal, but this Application was heard and dismissed by the Supreme Court on the 19th of March, 2001.

During this time, Henry and Chineze had died; the 1st Appellant had taken possession of the property; and the Respondent, who was now in her father's house, obtained a Court Order from Odita, J., on 13^thMarch, 1997 to have the rents collected from the property paid into Court.

After a series of correspondence between her Solicitor and that of the 1st Appellant failed to have him hand over possession of the property, the Respondent filed an action by Originating Summons at the High Court, Asaba, praying for the determination of the following questions'

1. Whether the plaintiff, a widow of late Robert ObiefunaChukwuma, a native of Asaba, who died intestate is entitled to a life interest in her late husband's house at No. 26 Jarret Street, Cable-Point, Asaba, and to occupy same throughout her life time.

2. Whether the Plaintiff who was in possession and physical occupation of the property - before the purported acquisition of the land by the 1st Defendant, which acquisition has been declared illegal, null and void by the Judgment of Gbemudu, J. on 28/5/92 in Suit No. A/73/89 between the 1st Defendant and the Plaintiff herein can be legitimately prevented from resuming possession and occupation of the property bythe Defendants.

3. Whether a person in possession of land can be ousted by a person who does not have a better title.

4. Whether the Defendants are entitled to remain in possession of and keep the Plaintiff out of same despite the finding of Court that the 1st Defendant's acquisition of the land is illegal, null and void.

The Respondent as the Plaintiff therein, also claimed to be entitled to-

1. A Declaration that she is entitled to resume possession and occupation of the buildings and property lying and situate at No. 26 Jarret Street, Cable- Point, Asaba and remain in possession of same without any objection, interference or disturbance by the Defendants.

2. A Declaration that the Defendants' continued resistance and objection to her resumption of possession and occupation of No. 26 Jarret Street, Cable-Point, Asaba, is illegal, null and void.

3. A Declaration that she is entitled to live on and occupy the property in dispute throughout her life time.

4. An order of Court directing the Defendants to give up possession of No. 26 Jarret Street, Cable-Point, Asaba to her.

5. An order of Perpetual Injunction restraining the Defendants, whether by themselves or through their agents, privies, servants or any person whatsoever from occupying the said No. 26 Jarret Street, Cable-Point, Asaba or exercising, claiming or asserting any form of ownership or possessory rights over same or disturbing or interfering with her quiet enjoyment or possession of same by any means whatsoever.

6. Any other order or such order as the Honourable Court may deem fit to make in the interest of Justice.

The Originating Summons is supported by a 17-paragraph Affidavit deposed to by the Respondent, and attached thereto are the following:

(1) The Judgment of Gbemudu, J. in Suit No. Ar73/89 [Exhibit A]

(2) Copies of Letters written by M. I. Onochie, Esq., on behalf of the

1st Appellant to other Solicitors acting on her behalf [Exhibits B &C]

(3) Certified true copy of the 151 Appellants' Affidavit filed in Suit No. N35/2004 and some Exhibits annexed thereto [Exhibit D]

The Appellants as the Defendants therein, filed a 32-paragraph Counter- Affidavit deposed to by the 1st Appellant, and attached thereto:

(1) A Copy of the proceedings in this Court dismissing his appeal on the 9th of June, 1999 as Exhibit A;

(2) A Copy of the proceeding at the Supreme Court granting him leaveto appeal against the decision of this Court as Exhibit B;

(3) A Copy of the proceedings at the Supreme Court on 3/2/04 as Exhibit C; and (4) A Copy of the Receipt used to pay the rents collected from the property in dispute into Government Treasury, was attached as Exhibit D.

Written Addresses were ordered and filed by counsel to both parties, and after adopting same, the learned trial Judge, Briki-Okolosi, J., delivered his Judgment on the 18th of January, 2005, wherein he stated as follows:

'There has been an attempt to pull wool over the eyes of the Court by raising a lot of technical points that ought not to be. I refuse to be dragged into any such controversy. The case the way I see it is a very simple one. The Plaintiff has been prevented since 2nd May, 1992 when Judgment was entered by Gbemudu, J. in A/73/89 in taking possession of the disputed premises by the 1st Defendant using every legal technicality possible to achieve his aim'.

At the end of the day, he granted declaratory reliefs 1, 2, 4 &5; refused declaratory relief 3; and awarded the Respondent N2,000.00 as costs. Dissatisfied, the Appellants filed a Notice of Appeal containing four Grounds of Appeal in this Court. Briefs of Arguments were duly filed, and in the Appellants' brief prepared by Hope OguguaOzoh, Esq., it was submitted that the Issues arising for determination in this appeal are -

(1) Whether the Respondent's claims were properly commenced by originating summons.

(2) Whether the Respondent has the locus standi to maintain this action.

(3) Whether the learned trial Judge was right in making an order directing the Appellants to give up possession of No. 26 JarretStreet, Cable-Point, Asaba.

The Respondent adopted the Appellants' Issues in her brief prepared by O. W. Chibougu, Esq., and I will do same in dealing with this appeal.

The first Issue relates to the objection raised by the Appellants that the action should not have been commenced by Originating Summons, which is provided for by Order 2 rule 2 of the High Court Rules, thus:

'Proceedings may be begun by Originating Summons where -

(a) The sole or principal question at issue is, or likely to be, one of the construction of a written law or of any instrument made under any written law, or of any deed, will, contract or other document or some other question of law; or

(b) There is unlikely to be any substantial dispute of fact'.

In overruling the said objection, the lower Court held as follow :-

'The construction that is to be put on the document, that is Exhibit A, the Judgment of Gbemudu, J., - against the backdrop of the legal position in relation to the 1st Defendant (Plaintiff herein) who neither counter claimed nor brought a cross action but was found by the Court to be in possession at the time is the principal question to be determined in this action. The question is, did the dismissal of the Plaintiff's action leave her without any rights to enforce giving the finding that she was in possession at the time? There are not likely to be any dispute on the facts as whether she was in possession at the time or not. Even the claim and counter claim about her present status as regards this seems not to be affected given the finding in the Judgment, which enures in her favour. In the light of this I hold that the objection is without any merit'.

The Appellants argued that the lower Court erred in that, the reliefs sought do not relate to the construction of any WILL or document or contract or to the interpretqtion of any written law; and that the Respondent's complaint was that she was in possession of the property until her right to possession was interfered with by the 1^stAppellant.

It was submitted that where there is an interference with a party's right to possession, the remedy open to the party is to maintain an action for damages in trespass against the party interfering with his right to possession, citing Balogun vs. Akanji (2005) 10 NWLR (Pt. 933) 394; that the Affidavits filed by the parties clearly show that the proceedings in this case are hostile, and so this suit should not have been commenced by an originating summons, citing NBN &Anor. V. Alakija&Anor. (1978) 2 LRN 78, Obasanya V. Babafemi (2000) 15 NWLR (Pt 689) Doherty V. Doherty (1968) NMLR 144, UNILAG V. Aigoro (1991) 3 NWLR (Pt.179) 376; Anatogu V. Anatogu(1997) NWLR (Pt 519) 49, that a trial Court is bound to confine itself to issues raised by the parties and cannot on its own formulate an issue and base its decision on it, citing Overseas Construction Co. Nig. Ltd. v. Creek Enterprises Nig. Ltd. &Anor. (1985) 3 NWLR (Pt 13) 407,Adeniji v. Adeniji (1972) 4 SC 10; and that the lower Court therefore erred when it formulated the question that was not one of the Issues formulated for determination by the Respondent.

The Respondent, however, submitted that the arguments are misconceived in that an aggrieved person can sue for possession of the property and an Order of Perpetual Injunction to restrain further trespass, citing Akano v. Okunade 1978 1 LRN 130 and Kabiawu v. Lawal 1965 ALL NLR (Reprint) 344. It was argued in the alternative that assuming, without conceding, that she was wrong in suing for possession, it is only the claim for possession, which is Relief 4 that would be struck out or dismissed, citing Nwosu v. Otunola (1974) All NLR (Reprint) 480, Ezekwesili v. Agbapuonwu (2003) FWLR (Pt. 162) 2016, and Obiekezie&Ors. V. Nweke&Ors. (1972) NSCC (Vol. 7) 109, 110. Furthermore, that her Questions 2 to 4 are questions of law, whose resolution depends on the legal consequence of the findings in Suit No. N73/89; and the resolution of the principal question identified by the lower Court isa question of law, whose determination did not involve any dispute offacts.

The Appellants filed a Reply Brief, wherein it was submitted that the originating Summons shows they were in actual physical possession, and to oust them, the Respondent must show a title, which is prima facie good against the whole world, citing Balogun v. Akanji (2005) 10 NWLR (Pt. 933) 394; and that the Judgment in Suit No. A/73/89 shows that title to the property in dispute belongs to Henry and ChinezeChukwuma.

To start with, it is well established that the aim of an action being commenced by originating summons is to simplify and speed up procedure since it is envisaged that, there is no serious dispute as to the facts in the case because what is in dispute is the construction of an enactment or instrument made under any law upon which the Plaintiff is basing his right to a declaration or claim in his favour. Where there is a serious dispute as to the facts, then a writ of summons must be issued - see A.G., Adamawa State V. A. G., Fed. (2005) 18 NWLR (Pt. 958) 581

In other words, the nature of an originating summons is to make things simpler, and to that end, where it is obvious or evident from the state of the affidavit evidence that there would be an air of friction in the proceedings, an originating summons is no longer appropriate. See N.R.C. V. Cudjoe (2008) 10 NWLR (Pt. 1095) 329. In the instant case, I have to agree with the Appellants that commencing the Respondent's action by originating summons was inappropriate in the circumstances. Order 2 rule 2 (b) of the High Court (Civil Procedure) Rules, clearly stipulates that originating summons can only be utilized where there is unlikely to be any substantial dispute of fact. The Rules did not define what a substantial dispute of fact is, but dispute is defined as a conflict or controversy; a conflict of claims or rights or demand on one side met by contrary allegations on the other side; the subject of litigation; the matter for which a suit is brought and upon which issue is joined - see Air Via Ltd. V. Oriental Airlines Ltd. (2004) 9 NWLR (Pt. 878) 298, Obiechefu V. Gov., Imo State (2008) 14 NWLR (Pt.1106) 22.

In this case, parties joined issues on so many fronts. Take for instance, the declaratory relief 3 sought, which was refused by the lower Court. The Respondent claimed that she was entitled to live on and occupy the property in dispute throughout her lifetime, and to support her stance, she averred in paragraph 4 to (3 of her Affidavit in support of the process-

4. Under Asaba Native Law and Custom, a widow is entitled to a life interest in the building and landed property of her husband and is entitled to live thereon and occupy same until she dies.

5. Before the Defendant purportedly purchased the property in dispute, which purchase has been held to be illegal, null and void vide the Judgment of Gbemudu, J., in Suit No. A/73/89 between the Plaintiff and myself as Defendant, I was in possession and occupation of the property in dispute along with my children.

6. It was after the Plaintiff's said invalidated and nullifiedpurchase of the property in dispute that he entered the property in dispute and forcefully ejected or ousted me from same and I am now staying in my father's house.

The 1st Appellant, however, stated as follows in his Counter-Affidavit:

6. That in 1970 the landed property of late Robert Chukwuma was partitioned in accordance with Asaba Native Law and Custom.

7. That No. 26 Jarret Street after the said partition was given to HenryChukwuma and ChinezeChukwuma.

8. That with the partitioning of the said property No. 26 JarretStreet ceased to be family property but the personal property of Henry and Chineze

9. That in 1977 I purchased the said property from Henry and Chineze

10.That following the refusai of the Plaintiff to vacate No. 26 JarretStreet, Asaba, I filed a suit against her - Suit No. A/73/89 at the High Court, Asaba

11. That while the suit was still pending Plaintiff in this case who was the defendant in that suit on her own volition parked out of the said premises.

He further averred in paragraph 22 to 25 of the same Counter-Affidavit-

22. That the property now being the personal property of Henry and ChinezeChukwuma, the Asaba Native Law and Custom referred to by the Plaintiff in paragraph 4 of her Affidavit no longer applies to the said property.

23.That the questions that arise for determination in this case do not relate to construction and interpretation of documents and the facts of this case are in dispute.

24.That the Plaintiff did not file a counter-claim to my suit.

25. That the same issue raised by the Plaintiff in paragraph 4 of her affidavit was also raised by her in her Statement of Defence in Suit No. A/73/89.

The Respondent filed a 6-paragraph Reply to the Counter-Affidavit deposed to by one Joy Okonkwo, a Litigation Clerk in the Chambers of O. W. Chibuogwu, Esq., who averred as follows in paragraph 4 (a) to (d)

4.The Plaintiff informed me and I verily believe her that: Henry and ChinezeChukwuma stated in paragraph 7 of the Counter-Affidavit are her children for her late husband, Robert ObiefunaChikwuma referred to in paragraphs 4 to 5 of the Counter-Affidavit.

ii. The devolvement of the property in dispute on her said children as stated in paragraphs 8, 22 and 29 of the Counter-Affidavit does not, under Asaba Native Law and Custom, rob her of the right to occupy and stay on the property in dispute for her life since a widow's right to occupy her late husband's property is not limited to situations where her deceased husband dies childless. She is entitled to stay on the property with her husband's children and they are the only ones who can validly oust her from the property or challenge her occupation of same. Furthermore, the 1st Defendant's attempt in Suit No. A/73/89 to rob her of occupational interest in the property in dispute failed woefully and was dismissed.

iii. The 1st Defendant's claim in paragraph 9 that he bought the property in dispute from her said two children was found to be false in Suit No.A/73/89.

iv. The 1st Defendant's deposition in paragraph 11 is false as it was the 1st Defendant who forced her out of the property in dispute.

Clearly, parties joined issues on whatAsaba Native Law and Custom is in relation to the Respondent, who is a widow; they joined issues on how she ended up moving out of the property in dispute; the Appellants say she packed out on her own volition, while the Respondent insists the 1st Appellant forced her out. In addition, there is the issue of the Order made by Odita, J. The 1st Appellant averred in his paragraph

27 that-

'I have since complied with the Order of Court requiring me to deposit all rents collected from 26 Jarret Street into Court until the appeal

(Exhibit D attached)'

The Respondent countered as follows in paragraph 4 (e) of her Reply-

(e) The 1st Defendant has not complied with the order of this Court as he stated in paragraph 27 of the Counter-Affidavit as:

i. N30,00 is not all the rent the 1st Appellant collected from the property since 1977 when the 1st Defendant alleged that he bought the property or since 1989 when he actually acquired the property and put tenants into the six rooms on the property after ejecting her.

ii. From this Court's Ruling in Suit No. A/73/89 delivered on 13/5/97, it is clear that the 1st Defendant was collecting N350.00 as rent monthly from each of the said six rooms after he took over possession of the property in dispute. (Ruling annexed as Exhibit E)

iii. Even if the 1st Defendant has not increased the rent payable on the rooms, N350.00 paid each month per room for one year would give N4,200.00 and N25,200.00 for the six rooms every year.

I must point out that in an action commenced by Originating Summons the issue of evaluation of evidence does not arise as the process isonly applicable where there is no dispute of fact, and it must beremembered that when affidavit evidence are conflicting, oral evidenceis required to resolve the conflict - see N.R.C. v. Cudjoe (supra).

Thus, the decisive question is whether there will be substantial dispute of fact at the trial.

In this case, the lower Court's answers to the questions posed to it for determination by the Respondent, speaks volumes. They are as

follows -

QUESTION 1 ...' I am prepared to find that the Plaintiff has going for

her a finding of fact that she is the widow of the late Robert ObiefunaChukwuma. It seems to me however that a claim based on the ground of the property being family property upon which the rules of custom of Asaba would apply is not available to the Plaintiff. It is my view that this Court cannot validly answer that said question in favour of the Plaintiff without attempting to do contrary to the conclusions of Gbemudu, J., which forms the fulcrum of the present suit. I am therefore in agreement with the position held by the Defendant in paragraph 22 of the Counter-Affidavit I accept that evidence as being in order. I therefore answer this question in the negative.

QUESTION ... I accept the claim that the Plaintiff was in possession of the disputed property at the time Suit No. A/73/89 was filed otherwise there would have been no necessity for Relief 7. I dare say that the entire suit was about getting her to deliver up possession to the 1st Defendant. There was evidence - that the 1st Defendant before filing Suit No. A/73/89 first sued her at the Customary Court for her to give up possession and it was after the striking out of that suit that led to the filing of the suit and acclaim for injunction against her. There have been claims and counter-claims in this suit as to how the Plaintiff came to be ousted from the property.The Plaintiff claims that, she was forced out of the premises while the Defendants' position is that the Plaintiff packed out on her own accord. I believefrom all the evidence and all the circumstances that of the case that the Plaintiff was forced to pack out of the premises to live in her father's house. This finding is reinforced by the correspondences that were exchanged between the parties before the filing of these suits. My answer is that the Defendants cannot prevent the Plaintiff in the above circumstances from resuming possession and occupation of the property. I therefore answer the question in the affirmative.

QUESTIONS 3 & 4 - In the light of the findings and conclusions of this Court per Gbemudu, J. in Suit No. A/73/89 dismissing all the claims - the 1st Defendant either by himself or through the 2 - 6th Defendants cannot continue to prevent the Plaintiff from taking possession of No. 26 Jarret Street, Cable-Point. I therefore answer these questions in favour of the Plaintiff.

The lower Court further stated as follows at page 175 of the Record:

"The Plaintiff has been prevented since 28 May 1992 when Judgment was entered by Gbemudu, J. in taking possession of the disputed premises by the 1st Defendant using every legal technicality possible toachieve his aim. This was despite the dismissal of his claim forinjunction against the Plaintiff by the learned Judge. Again theattempt of the Plaintiff through the Application she brought beforeOdita, J., and the order to pay rent realized from the premises also met a brick wall. I see from the way this case was fought that only a positive order from the Court will settle this matter once and for all"

It is in making the positive order that will settle the matter once and for all that the lower Court fell into ,serious error because, exasperated by the antics of the Appellants, it relied on the Affidavit evidence to arrive at conclusions that can only be reached from evidence after a full trial.

I understand how exasperating it is, Gbemudu, J. delivered his Judgment in May 1992; the Appellants appear to be dilly dallying and have not pursued their appeal expeditiously; and they are still holding onto the property that Gbemudu, J. held was not theirs in the eyes of the law.

However, it is one thing to be outraged about the situation, and quite another thing to close one's eyes to the right procedure set down by law, which is that originating summons can only be used in cases where the facts are not in dispute or there is no likelihood of their being in dispute.

There are a lot of controversies and disputed facts between the parties, and the Respondent should have filed a writ of summons instead, which would have allowed them to ventilate and thrash out the vexed issues. However, all is not lost; the originating summons can be treated as a writ of summons and parties ordered to file pleadings in the matter - see A.G., Adamawa State V. A. G., Fed. (supra), NRC. V. Cudjoe (supra), Obiechefu V. Gov., Imo State (supra), Govt. C.R.S. V. Assam (2008) 5 NWLR (Pt. 1081) 658 and Ossai V. Wakwah (2006) 4 NWLR (Pt. 969) 208, where the Supreme Court per Onnoghen, JSC held -

'The Court of appeal is right in allowing the appeal and remitting the case to the High Court of Rivers State to be dealt with by another Judge. Originating summons - is not suitable for use in hostile proceedings where the facts are in dispute or likely to be in dispute. In the present case, the issue of ownership of the property is still outstanding between Appellant and Chief Okafor. What the originating summons sought to do is not a resolution of dispute involving questions of law which could have been most appropriate. Apart from the dispute as to ownership of the property in issue, there is also the dispute as to what rents have been paid and what is in arrears. These have to be settled by pleadings and proved at the trials

(Highlight mine)

As it stands, this appeal succeeds and it is hereby allowed. Theaction is remitted back to the High Court of Delta State for trial onpleadings. There will be no order as to costs.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I have had the advantage of reading my draft the lead judgment of my learned brother Augie, JCA, in this appeal. I am at one with it. I also allow the appeal and abide by the consequential orders contained in the said lead judgment.

CHIOMA EGONDU NWOSU-IHEME (Ph. D) J.C.A.: I have had the privilege of reading in advance the erudite Judgment of my learned brother AMINA ADAMU AUGIE JCA with which I entirely agree.

Considering the fact that the learned trial Judge GBEMUDIA J. delivered his Judgment as far back as 1992, as unfortunate as this case is, there is absolutely nothing this court can reasonably do in the circumstance. It is very clear that the proceedings are hostile and facts are in dispute. Originating summons cannot be used in the resolution of dispute where not only ownership of the property is in issue as in this case, but the issue of rents collected in the said property as well.

It is hoped that when this case comes up for hearing, the trial Judge will use his discretion to give it accelerated hearing in the interest of Justice, considering that this case commenced over twenty years ago. I agree that the case be remitted back to the High Court of Delta State for trial on pleadings. I also make no order as to costs.

Appearances

D. C. Maduechesi, Esq., For the Appelants

G. I. Ugbechie, Esq., with S. Nwanne, Esq.      For the Respondents