IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA ON THE 3RD DAY OF OCTOBER 2013 SUIT NO. FCT/HC/CV/2563/12 BEFORE HIS LORDSHIP: HONOURABLE JUSTICE FOLASADE OJO JUDGE: 1. MORINGA CONSULTING LTD BETWEEN: 2. NATIONAL PROGRAMME ON IMMUNIZATION PLAINTIFFS 3. MEDICAL & HEALTH WORKERS UNION OF NIGERIA AND 1. THE HON. MINISTER FED. CAPITAL TERRITORY, ABUJA DEFENDANTS 2. FED. CAPITAL DEV. AUTHORITY 3. ABUJA METROPOLITAN MANAGEMENT COUNCIL RULING The plaintiffs herein commenced this suit against the defendants vide an originating summons filed on the 1 st of March 2012 seeking the determination of the following questions: 1. Whether a person s immovable property of interest in same can be acquired by Government (1 st and 2 nd defendants) or any of it s agencies without notice and payment of compensation. 2) Whether the 3 rd defendant has or is vested with any such authority or power to revoke the plaintiffs property, Plot 467 Cadastral Zone B13 Gadua District Abuja. 3) Whether the defendants can in law revoke the allocation of Plot 467, Cadastral Zone B13, Gasua District Abuja without cause/service of notice on the plaintiffs. The plaintiffs claim the following reliefs: i. A declaration that the purported revocation of the right of occupancy or interests of the plaintiffs on Plot 467 Cadastral 1
Zone B13, Gadua District, FCT Abuja without notice is illegal, null and void and of no effect whatsoever. ii. A declaration that the 1 st defendant cannot demolish the plaintiff building and structures under construction or re-allot the same plot to any person or member of the public be it individual or corporate during subsistence of the plaintiffs interest. iii. An order of perpetual injunction restraining the defendants either by themselves, agents, servants or privies from interfering with or otherwise doing anything that will interfere, hamper or impede the plaintiffs title, ownership, possession or interest of Plot 467, Cadastral Zone B13, Gadua District, FCT, Abuja. iv. Ten million naira (N10,000,000) general damages for breach of contract, trespass and an interference with the plaintiff s property. The originating summons is supported by a 23- paragraphed affidavit as well as a further and better affidavit. The plaintiff s counsel filed a written address and a reply on points of law. The defendants filed a 16-paragraphed counter affidavit and a 7 paragraphed further and better counter affidavit and a counsel s written address. They also filed two notices of preliminary objection dated 13/4/12 and 7/5/12 respectively. Upon application of the defendants counsel, the preliminary objection dated 13/4/12 was struck out. I ordered that the preliminary objection of 7 th of May 2012 be consolidated with the originating summons and arguments on both the preliminary objection and originating summons were taken together. The grounds of the preliminary as contained on the face of the notice of preliminary objection are as follows: 1. That the originating summons is incompetent having not been properly issued as required by Order 5 Rule 6 of the High Court of the Federal Capital Territory Abuja (Civil Procedure) Rules 2004. 2. That this case is not properly before the Court. 3. That the Court lacks the jurisdiction to entertain this suit. The applicants by the preliminary objection pray that I strike out and dismiss the suit with costs for being grossly defective. The plaintiff s case as contained in the affidavit and further and better affidavit filed by them in a nutshell is that on the 26 th of June 2002, the 2 nd plaintiff was allocated the property described as Plot 467, Cadastral Zone B13 Gadua District Abuja by the 2 nd plaintiff for the purpose of developing a laboratory and an 2
estate and a right of occupancy was granted to them. The 2 nd plaintiff did a layout and building plan for the estate which said plan was approved by the 3 rd defendant. According to the plaintiffs, the development on the site had reached the DPC level when a STOP WORK NOTICE dated 22 nd February 2012 issued by the 3 rd defendant was pasted on the site. At the time the order was pasted, they say a sum of fifty million naira had been expended on the site which said sum was sourced through a contributory mortgage finance. It is the plaintiff s case that the 3 rd defendant has no power to revoke land within the FCT and that the 1 st defendant who had such powers did not do so according to law as no notice of revocation was given to the 2 nd plaintiff. The defendants in their counter affidavit deny the plaintiffs case and say that the plaintiffs violated the terms of the grant and that a notice of revocation was duly issued. The preliminary objection of the defendants is two pronged: 1. Whether the originating summons is incompetent having not been issued in line with the provisions of Order 5 Rule 6 of the FCT High Court Civil Procedure Rules. 2. Whether this suit qualifies to be initiated by an originating summons. Order 5 Rule 6 of the FCT High Court Civil Procedure Rules provide thus: An originating summons is issued on signature by a Registrar or other officer of the Court duly authorized, accompanied by relevant documents the applicant may wish to rely on. It is the position of the defendants counsel that the originating summons is incompetent as it was not issued in accordance with the provision of Order 5 Rule 6 of the FCT High Court Civil Procedure Rules in that it was not signed by the Registrar of Court. He relied on the case of OMEGA BANK (NIG.) PLC VS OBC LTD 8 NWLR Pt. 928 Pg. 547. Arguing per contra, counsel to the plaintiffs submitted that originating processes are issued by the Court and not the parties and as such any failure cannot be visited on the litigant. He relied on the case of DUKE VS AKPA BOYO LOCAL GOVERNMENT (2006) ALL FWLR Pt. 294 Pg. 559 and ANYANWOKO VS OKOYE (2010) ALL FWLR Pt. 515 Pg. 214 at 231. It is clear from the originating summons which is part of the record of the Court that it was not signed by the registrar or any officer of the Court. The question then is what is the effect of such omission? From the provisions of Order 5 Rule 6 of the FCT High Court Civil Procedure Rules it is not in doubt that it is the duty of the Registrar to issue an originating summons and not that of the plaintiff and his counsel. All that is 3
required of the plaintiff is to state the questions for which they seek determination, state the reliefs claimed, endorse the plaintiff s address, their counsel s name and business address. The plaintiffs in this instance have done their side, should they now be penalized for the omission of the Registrar of Court. I think not. In S.I.E.C. EKITI STATE VS N.C.P. (2008) 12 NWLR Pt. 1102 Pg. 720 at 743 Paras F H, Sankey JCA held thus: The point must be made that once a prospective plaintiff has properly made his claim as required by law, delivered the same to the Registrar for the assessment of the necessary fees payable and such fees are fully paid, his responsibility ceases. What is left to be done, such as the signing of the relevant process or the writ of summons or the originating process by Judge or other officer empowered by law so to sign are entirely the domestic affairs of the Court and it s staff. A plaintiff may not, in the interest of justice be unduly penalized for the mistakes or oversight of the Court and it s staff in connection with such internal matter, particularly where no miscarriage of justice, as in the present case, is occasioned. See FAMFA OIL LTD VS A.G. FEDERATION (SUPRA); ALAWODE VS SEMOH (1959) SC NLR 91. In the case of COOPERATIVE AND COMMERCIAL BANK PLC VS A.G. ANAMBRA & ANOR (1992) 8 NWLR Pt. 261 Pg. 528, OLATAWURA, JSC at Pg. 561 held thus: It will be contrary to all principles to allow litigants to suffer the mistake of the Court registry. In other words, the Court will not visit the sin of the court s registry on a litigant or his counsel, unless, it was shown that the litigant or his counsel was a party thereto or had full knowledge of the sin or mistake and encouraged, or condoned the said act. The plaintiffs in this case having done their own part before filing the originating summons and having not been shown to have condoned or encouraged the error of the Registrar of Court should not be penalized for same and I so hold. I shall therefore exercise my discretion under Order 2 Rule 1 of the Rules of this Court and treat the failure of the Registrar to sign the originating process as an irregularity which will not nullify the summons itself. The second leg of the objection is whether this suit is proper having been commenced by an originating summons. This action was commenced by the plaintiffs vide an originating summons. 4
Order 1 Rule 2(2) of the FCT High Court Civil Procedure Rules provide thus: (2) Proceedings may commence by originating summons where a) The main issue is, or likely to be one of constructioni) of a written law or of an instrument made under any written law, or ii) of any deed, will, contract or other document or b) There is unlikely to be a substantial dispute of law. The law is settled that originating summons is principally ideal for use in an action involving the construction and interpretation of a written law or documents or in an action where there is no dispute on question of facts or likelihood of such dispute. Where it is obvious from the state of the affidavits that there would be dispute in the proceedings, originating summons would not be appropriate. See OSSAI VS WAKAWAH (2006) 4 NWLR Pt. 969 Pg. 208, AGBAKOBA VS INEC (2007) 14 NWLR Pt. 1053 Pg. 1, EGBARIN VS AGHOGHOVBIA (2003) 16 NWLR Pt. 846 Pg. 380 at 389 390. In OGUNSOLA VS A.P.P (2003) 9 NWLR Pt. 826 Pg. 462 at 492 Paras. A C, the Court of Appeal held thus: It is trite that the procedure of the originating summons is intended for use in a friendly action between parties who are substantially and ad idem on the facts and who, without the need for pleadings merely want, for example a directive of the Court on the point of law involved such as on the interpretation of a clause in testator s will. The procedure is not intended for use in a hostile action between parties and in which the parties concerned need know before-hand the issues which they are called upon to contend with from pleadings. Also in EJURA VS IDRIS (2006) 4 NWLR Pt. 971 Pg. 538 at 560 Para. H, it was held thus: Where it is obvious from the state of the affidavits that there would be an air of friction in the pleadings then an originating summons is no longer appropriate. A writ of summons would suffice in such circumstances. In OSSAI VS WAKWAH (SUPRA) Mohammed JSC at Pg. 229 Paras. E F held as follows: It must be emphasized that it is not the filing of a counter affidavit to oppose the claims in an originating summons that makes such proceedings contentious or result in disputed facts. 5
Even where no counter affidavit was filed but ignored by the trial Court, as in the lost out case, the nature of the claims in the originating summons are enough to disclose disputed facts and hostile nature of the proceedings. From the reliefs claimed by the plaintiffs and the depositions in the affidavit in support of the originating summons, their claim in the main is for a declaration that the purported revocation of the right of occupancy of the plaintiff in the land the subject matter of this suit without notice is illegal null and void and of no effect. The plaintiffs position is that the interest of the 2 nd plaintiff in the land still subsists as same has not been revoked in accordance with the law because no notice of revocation was issued to that effect. The defendants on the other hand deposed in their counter affidavit that the 2 nd plaintiff did not develop the land within two years in accordance with the terms of the grant of the right of occupancy and that a revocation notice was accordingly issued. The plaintiffs in their further affidavit in support of the writ of summons deny the depositions in the affidavit. From the case of the plaintiff as presented in the affidavits in support of the originating summons and that of the defendants as contained in the counter affidavit I find that there is a substantial dispute amongst parties on material facts in this suit. The issue of whether the right of occupancy of the 2 nd plaintiff was revoked is a material issue for determination in the substantive which from the present available facts can only be resolved by concise pleading and calling of oral evidence. The defendants defence is that the 2 nd plaintiff breached the terms of the grant and was issued with a revocation notice. The plaintiffs claim that he did not breach any condition and that he built in accordance with the approved building plan. He also claims that he was not served with any notice revocation. The dispute as to whether the right of occupancy of the 2 nd plaintiff was revoked is substantial and affect the live issue in the substantive case and I so hold. The affidavit evidence are conflicting and there is therefore the need to call oral evidence to resolve the conflicts. I am therefore of the view that the present suit is not one that can be competently prosecuted vide originating summons and I so hold. The defendants have prayed that the instant suit be struck out for the reason that it was wrongly commenced by originating summons. In EJURA VS IDRIS (SUPRA) at Pg. 561 Para. C, the Court of Appeal held that when the Court find an originating summons to be inappropriate it ought to 6
order the parties to file their pleadings and come by way of writ of summons and not dismiss the suit. In DIAPALONG VS LALONG (2007) 5 NWLR (Pt. 1026) Pg. 199 at 212, Akaahs, JCA held thus: Further, the form of commencement of an action does not make it incompetent. It does not matter whether the action was begun by writ of summons or originating summons, what is relevant is the question of the justice of the case When a suit is commenced by originating summons, the appropriate order to be made by the Court is to proceed with the filing of pleadings. See also GOVT. OF C.R.S. VS ASSAM (2008) 5 NWLR Pt. 1081 Pg. 658. Order 2 Rule 1 of the Rules of this Court empowers me to make such order dealing with the proceedings generally as I think just. My conclusion is that from all decided legal authorities and the rules of this Court, the proper order to make in the circumstance is to order that parties file their respective pleadings in accordance with the rules of Court. Having held that this suit ought to be commenced by writ of summons and not originating summons as was done for the reason that there are disputed facts which can only be resolved by calling oral evidence, I believe I am precluded from considering the merits of the substantive case at this stage and I so hold. I shall therefore not make any findings on the originating summons. Parties are ordered to file their respective pleadings. HON. JUSTICE F.A. OJO JUDGE 3/10/2013 N.M. Babuwa (Mrs.) for the defendants. Boniface Bassey for the plaintiffs with P.C. Ashuikeka. 7