THE COURT OF APPEAL OF NIGERIA
ON THE 27th February, 2014
CA/L/905/09
BETWEEN
ABEEB AYETOBI
[substituted by order of Court dated 18/5/2011)
V.
OLUSOLA OSIADE TAIWO
SIDI DAUDA BAGE, J.C.A. (Delivering The Leading Judgment):
This is an appeal against the ruling of L.B. Lawal Akapo J, of the Lagos State High Court of Justice, holden at Ikeja, in suit No.ID/136M/2008 delivered on 30th September, 2009. The facts relevant for determination of the appeal can be summarized thus:
1.02 By an originating summons dated the 28th day of February, 2008 the Respondent instituted proceedings against the Appellant and unknown persons as 1st and 2nd Defendants respectively for recovery of possession of the piece or parcel of land known as plot 4 Block 148 Ipaja New Town Scheme Ipaja, Lagos State measuring approximately 1820.96 square metres as shown on survey plan No. LS/D/LKJ403F and covered by certificate of occupancy dated the 30th day July 1990 and registered as No. 5/5/1990 N on the ground that the claimant [Respondent] was entitled to possession and that the persons in occupation are there without his licence or consent. See pages 1-2 on the record.
1.03 The Appellant was not served personally with the originating processes and same was not served on the Appellant's address for service on the face of the summons which is Baale's house Ikola village Ipaja, Lagos. Rather the process was served on one Prince Oladimeji of No.8 Ogundele Street Ipaja on 28th March, 2008 see the bailiffs affidavit of service dated 31/3/2008 at pages 25A and 25B of the record.
1.04 The summons was listed for mention on 14th April 2008 (less than two weeks after service) whereas under order 3 rule 8 and Form 3 of the Schedule to the High Court of Lagos State (Civil Procedure) Rules 2004 the Defendants are allowed a period of 42 days to answer to the summons. It was subsequently adjourned to 14th May, 2008 for hearing without further notice to the Defendant. See page 26 of the record.
1.05 The Defendants (Appellant and unknown persons) were absent at the hearing of the originating summons on 14th May 2008 when the learned trial judge (Coram Marsh J) after allowing same to be moved by Respondent's counsel, gave judgment (termed ruling) instantly in his favour. See pages 27 and 28 of the record. Shortly thereafter the judge retired from service.
1.06 pursuant to an application dated and filed on 30th June, 2008 [more than six days after the default judgment of 14th May 2008) by the Appellant and praying the court for the following:
- An order extending time within which to set aside the judgment in default of appearance and defence dated 14/5/2008.
- An order setting aside the said judgment and
- An order re-listing the originating summons dated 28/2/2008 for its determination on the merits.
The Appellant (despite the aforementioned anomalies) admitted receipt of the originating summons but contends that he was sick at the time which accounted for his absence at the hearing. He relied on a sick report allegedly issued by the hospital where he was treated which report was attached as exhibit A to the motion to set aside the default judgment. See page 44 of the record.
1.07 In opposing the application the Respondent's counsel investigated the sick report by writing to the hospital. The outcome of his investigation proved that the report was false. See the counter-affidavit and exhibits at pages 29-32 of the record.
1.08 Consequently the Appellant lodged a complaint with the same hospital on the false report. He was given a fresh report which he attached as exhibit A1 to the reply to the counter-affidavit see page 36 of the record.
1.09 In his ruling dated 30th day of September, 2009 the learned trial judge (Coram Lawal - Akapo J.) while dismissing the motion of 30/6/2008 held inter alia that he disbelieved both exhibits A and A1 [the Appellant's sick reports) because
"Curiously enough, these two medical certificates which are in conflict were both said to have been signed by Medical Practitioner, a situation which is semblance of some sharp practices. More importantly, there is no independent evidence (aside from the Applicant) emanating from the hospital explaining the defect or omission in exhibit "A" and the follow up circumstances that led to the issuance of exhibit "A1".
In the absence of this crucial evidence, the genuineness of the two medical certificates are called into question and the authenticity are in doubt. I disbelieve the two medical certificates as unreliable and of no probative value".
See page 62 lines 16-24 of the record.
1.10 The court had hitherto erroneously held that the Appellant was entitled to 7 days to respond to the originating summons as opposed to the 42 days provided for under order 3 rule 8 of the High Court of Lagos State (Civil Procedure) Rules 2004 (page 62 lines 6-9 of the record).
1.11 The court also erroneously held that the Appellant was served with the originating process "by pasting" (page 61 lines 8-10 of the record) which runs contrary to the bailiffs affidavit of service at pages 25A and 25B of the record.
1.12 The Appellant was dissatisfied with the dismissal of his motion to set aside the default judgment. The notice of appeal filed on 22/10/2009 and raising two main grounds of complaint is found at pages 64-66 of the record.
2.00 ISSUE FOR DETERMINATION
Only one issue can be distilled from the two grounds namely:
Whether having regard to the facts and circumstances before the trial court upon the Appellant's motion on notice dated 30/6/2008, the trial judge properly exercised his discretion when he refused to extend time to set aside the default judgment dated 14/5/2008 and also to set aside the judgment
The Respondent, on his own part, filed his brief of argument dated the 25th of May, 2011, and filed on the 26th of May, 2011. In it a lone issue was distilled for determination, thus:
"Whether the lower court (Coram Lawal-Akapo) properly exercised its discretion when it dismissed the Appellant's motion on notice dated the 30th June, 2008, in its entirety."
The lone issue formulated by either side are all in respect similar. I adopt the issue formulated for determination by the Appellant.
Arguing the sole issue, learned counsel to the Appellant submitted that, in the application dated 30th June, 2008, the lower court was invited to consider 3 main reliefs viz:
"a) An order extending time within which to set aside the judgment in default of appearance and defence dated 14th may 2008.
b) An order setting aside the said judgment and
c) An order re-listing the originating summons dated 28th February, 2008 for its determination on the merits. These reliefs are in pari material with those considered by the Supreme Court in N. A. WILLIAMS & ORS VS. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1-2 SC (Reprint) 70 which case was solely relied upon by the lower court in the ruling appealed against.
Learned counsel further submitted that, in the instant case, the Appellant was expected to bring his application to set aside the default judgment within 6 days as provided for under order 30 rules 4 (2) and 4 (3) of the High Court of Lagos State (Civil Procedure) Rules 2004. The Appellant filed his application 41 days thereafter on 30th June, 2008 hence the request for extension of time. The sick report [exhibit A1] to the reply affidavit at page 36 of the record adequately covers this 41 days default as it confirms that the Appellant was sick during the period. The learned trial judge did not consider the first relief for extension of time at all in the ruling appealed against.
Learned counsel further submitted that, the Appellant had admitted that the 1st report (Exhibit A) was false hence he obtained a fresh one [exhibit A1] from the same hospital where he claimed to have been treated. It was therefore erroneous for the learned trial judge to have also found that exhibits A and A1 were in conflict since the issue of falsity of the original report [exhibit A] had been overtaken by issuance of exhibit A1 and no longer constituted a live issue in the case. As regards the conflict between exhibit A and A1, the court ought to have called for an "independent evidence" and not speculation. A court should act on facts and evidence presented before it but not on speculation to arrive at a decision. See SHUGABA VS. U.B.N. PLC (1997) 4 NWLR (Pt.500) 481 at 490 para B; OMUDIORA VS. FCSC (2007) 14 NWLR (Pt.1053) 17 at 35 para D. The refusal by the court of an order to extend time to set aside the default judgment dated 14th May 2008 was wrong, and in the circumstances liable to be set aside.
Learned counsel further submitted that, on the refusal of an order setting aside the judgment dated 14th May, 2008, the matters which call for consideration are as outlined in WILLIAMS VS. HOPE RISING (supra) at page 77. The Appellant was not personally served with the originating summons and same was not served at his address on the face of the summons. The summons was served on one Prince Oladimeji of No. 8 Ogundele Street, Ipaja, whereas the Appellant's address for service on the face of the summons is Baale's house Ikola village Ipaja Lagos. Despite the fundamental defect, the Appellant still admitted receipt of the summons but justified his inability to respond thereto for reason of the ill health. He relied on a sick report showing that he was sick from April to June, 2008. The hearing came up on 14th May, 2008. The Appellant was not notified of the time he was required to enter his defence to the originating summons dated 28th February, 2008; under Order 3 rule 8 (1) of the High Court of Lagos State [Civil Procedure) Rules 2004, the Appellant was entitled to a period of 42 days to respond to the summons and the Respondent was statutorily required to have stated this fact on the face of the summons Order 9 Rule 1 (1) of the same Rules. The court was misled by the inappropriate summons when it found that the Appellant was statutorily entitled to only 7 days (instead of 42 days) to respond to the summons. See page 62, lines 6-9 of the records. The effect of this is that, the suit cannot be said to have been initiated by due process of law and thus the judgment based on the incompetent summons was liable to have been set aside by the lower court for being a nullity or for want of jurisdiction. See MADUKOLU VS. NKEMDILIM (1962) 7 ALL NLR (Pt.4) 587 at 595.
Learned counsel further submitted that, a person cannot reasonably be expected to be at the hearing of a case he has no notice of. The Appellant was therefore entitled ex-debito justitae to an order setting aside the hearing and judgment dated 14th May, 2008 for breach of his constitutional right to fair hearing. See JOHN ANDY SONS & CO. LTD VS. MFON (2006) 12 NWLR (Pt.995) 461 at 476 paras G-H. The Appellant had requested for extension of time, the Respondent would not have been prejudiced if granted, or would have been compensated by the cost of N20,000.00 awarded if rehearing was ordered, and this suit (a land matter) ought to have been initiated by writ of summons and not by originating summons which does not admit oral evidence see FAKIMI vs. BUNAS (2009) 4 NWLR (Pt.1131) 388 at 399 paras F-G. The Appellant was absent throughout the proceedings before the lower court which corroborative of his poor state of health at all material time to this suit.
Learned counsel further submitted that, this appeal substantially concerns the exercise of judicial discretion as enunciated in WILLIAMS VS. HOPE RISING (supra); ONWUKA vs. ONONUJU (2009) 11 NWLR (Pt.1151) 174 at 204; OGOLO Vs. OGOLO (2006) 5 NWLR (Pt.972) 163 at 180-181 paras G-D.We urge the court to intervene, reverse the decision dated 30th September, 2009 and grant the 3 reliefs sought by the Appellant in his motion dated 30th June, 2008.
In response to the submissions of the learned counsel to the Appellant above, learned counsel to the Respondent submitted that though the Appellant by his application dated 30th June, 2008, was seeking for three (3) reliefs as set out in their motion paper, we posit that a consideration of the requirements of the law vis-a-vis the facts adduced in the affidavit in support and exhibits, will conveniently and properly dispose of all the reliefs sought by tire Appellant in his said application. The Appellant, Respondent and incidentally the lower court relied heavily on the case of N. A.WILLIAMS & ORS VS, HOPE RISING VOLUNTARY FUNDS SOCIETY (1980) 1 - 2 S.C. page 154 at the hearing and determination of the said application, this authority has set forth the conditions to be met by an Applicant seeking to set aside a default judgment. These requirements are conjunctive and not in the affirmative. In effect, the affidavit in support of the application must ground all the requirements of the law.
Learned counsel submitted further that, the learned trial judge was therefore right, relying on the authority of the case of N. A. WILLIAMS & ORS VS. HOPE RISING VOLUNTARY FUNDS SOCIETY (supra) to hold that the only issue that will completely dispose of this matter is to consider the validity or cogency or authenticity or otherwise of the reason given by the Defendant for his absence at trial. The onus of proving the reason for his absence from court until judgment was delivered in the lower court lies with the Appellant. See section 139 of the Evidence Act.
Learned counsel further submitted that, the Appellant in trying to discharge this onus relied solely on his purported sickness which prevented him from attending court and also exhibited exhibit A - Medical Report dated 30th June, 2008, and exhibit A1- Medical Report dated 24th September, 2008. A comparative analysis of exhibits A and A1 tendered by the Appellant on the one hand and exhibits 00T.1 and OOT. 2 tendered by the Respondent would show clearly that the Appellant had failed to discharge the onus of proving the alleged illness, which prevented him from appearing and defending the suit. Based on the enquiries vide exhibit OOT. 1 to the Lagos State University Teaching Hospital, Ikeja, as to the authenticity of the medical report dated 30th June, 2008 (exhibit A), the medical report was found not to have been issued by the hospital as alleged. The Appellant upon being aware of this fact vide the counter affidavit dated the 12th September, 2008, filed by the Respondent, proceeded to procure another medical report dated 24th September, 2008 - exhibit A1. The learned trial judge considering the material contradictions the contents of exhibit OOT.2 from the Lagos State University Teaching Hospital Ikeja and the failure of exhibit A1 to explain the follow up circumstances that led to its issuance, rightly dismissed the Appellant's said application when he held at page 62 of the record, that he disbelieved the two medical certificates as unreliable and of no probative value.
Learned counsel further submitted that, the Appellant had admitted in paragraph 2 of the affidavit in support of the motion dated 30th June, 2008, that he was duly served the originating summons sometime in late March, 2008. It is trite that what has been admitted need no further proof. See AKINLAGUN VS. OSHOBOJA (2006) 5 S.C. (Pt. 11) 100 at 122-123 paras 30-40; ONISAODU & ANOR VS. ELEWUJU & ANOR (2006) 7 S.C. (Pt. 11) 45 at 53 paras 15-20. The matter of service on the Appellant appears settled as far as his admission goes.
Learned counsel further submitted that, it is trite that any issue for determination not distilled from any ground of appeal unarguable and if argued, goes to no issue. See DREXEL ENERGY & 2 ORS VS. TRANS INTERNATIONAL BANK & 2 ORS (2008) 12 S.C. (Pt.11) 240 at 244 paras 20; OWNERS OF M/V GONGOLA HOPE & ANOR VS. SMURFIT CASES NIGERIA LTD & ANOR (2007) 6 S.C. (Pt.11) 58 at 59-60. The issue as regards the time limited by the Rules of Court for appearance to an originating summons was never canvassed as grounds in the Appellant's notice of appeal. Therefore, all arguments in the Appellant's brief thereon, got to no issue. See Order 17 Rule 16 of the High Court of Lagos State [Civil Procedure] Rules 2004, which limits the time for filing a counter affidavit to an originating summons (as in this case) to twenty one [21] days from the service of the originating process. The Appellant had more than twenty one (21) days from service of the court process to the 14tn May, 2008 which judgment was entered by the lower court, to have filed a counter affidavit to the originating summons.
Learned counsel further submitted that, assuming without conceding that the time limited for appearance to an originating summons under Order 53 of the High Court of Lagos State [Civil Procedure) Rules 2004, is forty two (42) days. The period between when the Appellant admitted he was duly served (as per paragraph 2 of the affidavit in support dated 30th June, 2008, and the entry of judgment by the lower court, is not less than forty three (43) days. This is still outside the forty two [42] days strenuously canvassed by the Appellant. The Appellant was well aware of the suit at the lower court but having intentionally given up his right to appear and defend the suit and sufficiently time and opportunity having been available to him to take necessary steps to defend the suit, he cannot now be heard to complain that he has not been given such opportunity to appear and defend the suit. See ARIORI & ORS VS. ELEMO & ORS (1983) 1 S.C. 13 at 26-27. We urge this court to uphold the Ruling of the learned trial judge, and dismiss the appeal as incompetent.
In his reply brief dated and filed 2nd of June, 2011 learned counsel to the Appellant submitted that, there is no response in the Respondent's brief to the argument that the lower court neglected to consider the Appellant's prayer for extension of time, therefore, the argument on the point as contained in the Appellant's brief seem to have been impliedly conceded.
Learned counsel further submitted that the subsequent confirmation of diabetes as the primary cause of the death of the original appellant by an independent doctor shows that the lower court was wrong to have disbelieved exhibit A1.
Learned counsel further submitted that, the service of the originating summons and or non filing of a counter affidavit thereto does not preclude the Respondent or even the lower court itself from notifying the Appellant of its hearing date. The effect of the non service of the hearing date, renders the proceedings and judgment dated 14th May, 2008 a nullity and so the lower court ought to have set same aside see JOHN ANDY & SONS CO. LTD VS. MFON (2006) 12 NWLR (Pt.995) 461 at 476 paragraphs G-H; SIGBENU VS. IMAFIDON (2009) 13 NWLR (Pt.1158) 231-254 paras F-E.
Learned counsel further submitted that, the issues of unspecified [not inadequate] time for appearance as duplicated on the originating summons and the consequent non-notification of its hearing date constitute veritable ground for breach of the Appellant's constitutional right to fair hearing as particularized in ground 2 particular (g) of the notice of appeal see page 65 of the record. The argument originally canvassed by the Appellant on the issue in his brief remains unassailable.
On the part of this court, the submissions of counsel are carefully examined. The Respondent who was Plaintiff at the lower court, commenced his action by an originating summons dated 28th February, 2008, it was filed against the Appellant (then Defendant) and unknown persons, claiming inter alia an order to recover possession of the piece or parcel of land known as plot 4, Block 148, Ipaja New Town Scheme, Ipaja, Lagos State, measuring approximately 1820.96 square metres as shown on survey plan No.LS/D/LKJ403F covered by certificate of occupancy dated the 30th July, 1990 and registered as No. 5/5/1990 N. The cause of action with respect to the dispute between the parties on appeal is a claim for an order to recover possession of a piece or parcel of land. Before proceeding to determine whether the action for recovery of possession of a piece, or parcel of land, can appropriately be initiated by originating summons procedure, as is the case with the present action. It is apposite to appreciate what a cause of action is. The Supreme Court in the case of AFOLAYAN VS. OGUNRINDE (1990) 1 NWLR (Pt.369) 382 at 383; (1990) 21 N.S.C.C. (Pt.1) 219 at 226 defined a cause of action as follows:
"A cause of action has been defined by this court in many decisions of this court. See ADOGAN & ANOR VS. AINA (1964) N.S.C.C. (Vol. 3) 87; ADIMORA VS. AJUFO (1988) N.S.C.C. (Vol.19) (Pt.1) 1003; 1005; (1988) 6 S.C. (1988) 3 NWLR (Pt.80) 1; THOMAS vs. OLUFUNSOYE (1986) 7 NWLR (Pt.18) 669; BELLO vs. ATTORNEY GENERAL, OYO STATE (1986) 5 NWLR (Pt.45) 825; in its simplest terms, I would say that a cause of action means (1) a cause of complaint, (2) a civil right or obligation fit for determination by a court of law, (3) a dispute in respect of which a court of law is entitled to invoke its judicial powers to determine. It consists of every fact which it would be necessary for the Plaintiff to prove, if traversed, in order to support his right to judgment - COOK VS. GILL (1873) L.R. 8 C.P. 107; READ VS. BROWN (1889) 22 Q.B.D. 128. When facts establishing a civil right or obligation exist side by side, a cause of action is said to have accrued. See ADIMORA VS. AJUFO (1988) 1 N.S.C.C. 1005; 1008; (1988) 3 NWLR (Pt.80) 1."
Having in view, the definition of a cause of action, as elaborately provided for, by the Supreme Court above vis-a-vis the claim of the Respondent at the lower court for recovery of possession of a piece or parcel of land, can the originating summons procedure be an appropriate mode of commencement of such an action? The law is already trite that, before a proceeding can be commenced by originating summons, the construction of a written law, or instrument made there under or deed or will or contract or other document must be in issue. It means that in any of such cases certain questions must have arisen for determination with reference to such document and it is these questions and the accompanying reliefs or prayers that embody the issues for determination in the action. Before determining whether this is the situation with the Respondent's case at the lower court, let us pause, to see circumstances where originating summons is applicable. The Supreme Court per Eso JSC (of blessed memory) in OLOYO VS. ALEGBE (1983) 2 S.C. N.L.R. 35 at 67, stated as follows:
In delivering the judgment of the court in the case of NATIONAL BANK OF NIG VS. ALAKIJA & ANOR (1978) 2 L.R.N. 78, I had cause to review the whole history of originating summons and then held:
Originating Summons should only be applicable in such circumstances as where there is no dispute on question of fact or (even) the likelihood of such dispute.
"[page 86 ibid) originating summons is reserved for issues like the determination of short question of construction and not matters of such controversy that the justice of the case would demand the settling of Pleadings."
From the above therefore, the first duty of a trial judge, where action are begun or initiated by means of an originating summons procedure, is to examine the claim before him, and then to ascertain whether the procedure in originating summons was suitable or appropriate to the action. This first step, is sine qua-non to his assuming jurisdiction on the matter. This court, per Galadima JCA [as he then was] now JSC in KEYAMO VS. HOUSE OF ASSEMBLY, LAGOS STATE (2000) 11 W.R.N. 29 at 40, (2000) 12 NWLR (Pt. 680) 796 at 213 stated as follows:
"I must state that the correct position of the law is that originating summons is used to commence an action where the issue involved is one of the construction of a written law or of any instrument made under a written law, or of any deed, contract or other document or some other question of law or where there is unlikely to be any substantial dispute of fact. This is the provision of Order 3 Rule 2 (2) of the Lagos State Civil Procedure (supra)"
The claim before this court which is for the recovery of a piece or parcel of land. By its very nature, cannot be uncontentious or uncontroversial, originating summons cannot be appropriately used, and with the instant appeal, the trial court ought not to have allowed it to be employed. Again this court per Galadima JCA (as he then was) now JSC in the case of OBASANYA VS. BABAFEMI (2000) 23 WRN (Pt.689) 1 at 17 stated again as follows:
"Where the facts are controversial or contentious and cannot be ascertained without evidence being adduced, originating summons should not be appropriately used; and it used it should be discountenanced. See N. B. N. & ANOR VS. ALAKIJA (1978) 2 LRN 78 see also DOHERTY VS. DOHERTY (1964) N.M.L.R. 144, UNILAG VS. AIGORO (1991) 3 NWLR (Pt.179) 367; ANATOGU Vs. ANATOGU (1997) 9. The provision of Order 3 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules 1994 (supra) quite clearly provides that the originating summons procedure is only suitable for cases where the sole or principle question is one of construction of document. In the construction of such documents law or instruments no evidence is required or adduced. Facts constituting an allegation of fraud by their very nature are controversial."
The fraud must be established by evidence in proof. I am of the opinion that the issue of fraud has neither been properly raised in the Plaintiffs action and neither can such issue even where properly raised be tried on an originating summons as erroneously held by the learned trial judge."
From the above therefore, the sum total that is deduciable is that the originating summons procedure should only be used in cases where the facts are not in dispute or there is no likelihood of their being in dispute. No doubt, the claim for an order to recover possession of a piece or parcel of land, there must be likelihood of facts being in dispute. The fact that the original Appellant tendered exhibit A, the first medical report to justify his absence from court after being served with the originating summons is indicative of his intention to contest the facts in the matter. The controversy surrounding the genuineness of exhibit A notwithstanding, the added procurement of exhibit A1 fortifies that intention to contest the facts in the matter. The attention of the trial court was far off from the position of the law, on the mode of the originating summons procedure. The trial court shifted its attention to the outer part of the issue. The Appellant's failure to respond to the originating summons after being duly served. As a result of this failure, the trial court delivered a default judgment against the Appellant and in favour of the Respondent. The Appellant then took steps to have the trial court set aside the said default judgment. The application to set aside the said default judgment was refused by the trial court. The court fortified itself by the condition set forth for the Applicant to have met in the celebrated decision of N. A. WILLIAMS & ORS VS, HOPE RISING COLUNTARY FUNDS SOCIETY (1980) 1-1 S.C. at page 154. The court refused the application. It is thus very clear, that the trial court had misled itself from the main substance of the issue before it. The main issue is that, originating summons procedure cannot be an appropriate mode of initiating an action where the parties are desirous to contest the facts or there is the likelihood of that contest which is futuristic. The default of appearance of the Appellant to answer to the originating summon will not be a cure to the fact that, the claim of the Respondent for recovery of land cannot be initiated by originating summons. The very foundation which has affected the entire superstructure of the action remains defective. All the issues of default to file the counter affidavit to the originating summons, the default of appearance, the efficacies of exhibits A, A1, and the conditions set forth to set aside the default judgment have all become superfluous. In essence therefore, initiating an action on a wrong procedure robs the court of its jurisdiction to adjudicate over such matter. The issue of jurisdiction of a court to adjudicate over a matter before it is a threshold issue that goes to the root or foundation of adjudication. This stems from the trite position of the law, that once it is discovered that a court has no jurisdiction to adjudicate over a matter, any decision/proceedings emanating from such a court regarding that matter, no matter how well rendered or conducted, is a nullity. See MADUKOLU & ORS VS. NKEMDILIM (1962) 1 ALL NLR 581; LEEDO PRESIDENTIAL MOTEL VS. B.O.N. LTD & ANOR (1998) 10 NWLR (Pt.570) 353 at 390-391 and MANAGEMENT ENTERPRISIS LTD VS. OTUSANYA (1987) 2 NWLR (Pt.55) 179. Further to this is the celebrated dictum of Lord Denning M.R. in MACFOY VS. U.A.C. LTD (1962) A.C.152 at 160 "one cannot put something on nothing and expect it to stay there, it will surely collapse."
On the whole therefore, the sole issue in this appeal is resolved in favour of the Appellant and against the Respondent. The appeal is meritorious and it is hereby allowed. The ruling of Honourable Justice L. B. Lawal-Akapo in suit No.ID/136M/2008, of the High Court of Lagos State, Ikeja judicial Division, delivered on the 30th September, 2009 is hereby set aside by this court.
This court also makes the order that the file with respect to this matter, be remitted back to the Honourable Chief Judge of Lagos State, for reassignment before another Honourable Judge, to recommenced afresh on a writ of summons. Parties are to bear their own costs.
RITA NOSAKHARE PEMU J.C.A.:
I had before now been afforded a draft copy of the Judgment just delivered by my brother SIDI DAUDA BAGE JCA.
I agree with his opinion and conclusions. Indeed he had dealt extensively with the issue of the propriety of initiating contentious matters by way of Originating Summons.
Where an action is initiated on a wrong pedestal, it collapses, not to rise again. The Court is divested of Jurisdiction simpliciter, and ab initio.
The case of MACFOY vs. UAC LTD (1902) A. C. 152 AT 160 where Lord Denning M. R observed that "one cannot put something on nothing and expect it to stay there, it will surely collapse" cannot be over emphasized. The Suit, the subject matter of this appeal, being one for recovery of possession of a piece or parcel of land which is indentified, is surely one that is contentious and cannot be appropriately brought by way of Originating Summons.
CHINWE EUGENIA IYIZOBA, J.C.A.:
I read before now the judgment just delivered by my learned brother SIDI DAUDA BAGE, JCA, I agree with the reasoning and conclusions.
Apart from the issue of originating summons, the appellant was not served hearing notice in respect of the fixture of 14/5/08. That alone, entitles him to have the judgment set aside ex debito justicia. See Bade & Anor v. James Atunbi & Anor (2011) LPELR - 9265 (CA). Queen Omabuwa v. Madam Marta Owhofatsho (2006) 5 NWLR (Pt.972) 40; Shell Petroleum Development Cop of Nig Ltd v. Niger Optical Service Co. Ltd (2004) 7 NWLR.
I agree that the appeal has merit. I also allow the appeal. I abide by the consequential orders in the lead judgment.