Bala v Gur and Others (CA/A/275/2012) [2016] NGCA 89 (22 March 2016)

In the Court of Appeal
Holden at Abuja









ABUBAKAR DATTI YAHAYA. JCA: This is an appeal from the decision of the High Court of the Federal Capital Territory delivered on the 29th March, 2012, dismissing the appellant's objections and granting the reliefs sought by the 1st respondent.

The appellant was in occupation of Block 9 flat 10 Katampe NSITF estate (the house in dispute) belonging to the 2nd respondent herein, Nigerian Social Insurance Trust Fund Pic (NSITF). The house in dispute as well as others, were transferred to the 3rd respondent herein (Trust Fund pension Pic). The 2nd and 3rd respondents offered to the appellant as a tenant, the first option to purchase the disputed property, via a letter dated 10/11/06. He accepted the offer, paid 10% of the purchase price and offered to pay the balance later, as agreed. The 2nd and 3rd respondents later suspended the sales and reviewed the price and the time period within which payment could be made. The appellant and other co-tenants felt aggrieved and sued the 2nd and 3rd respondents at the Federal High Court Abuja, in Suit No. ABJ/CS/112/2009. One Profund Properties Limited was the 3rd defendant. The Suit was for specific performance of the earlier contract sale agreement.

During the pendency of that Suit, the 2nd and 3rd respondents sold the disputed house to the 1st respondent, who sued the appellant initially at the Magistrate Court for possession. The Suit was struck out. He then commenced the action giving rise to this appeal, by way of Originating Summons. The 1st respondent here, was the plaintiff. The 2nd and 3rd respondents herein, were 1st and 2nd defendants. The appellant here, was the 3rd defendant.

The Appellant filed a Preliminary Objection to the Suit. The 2nd respondent also filed a Preliminary Objection to the Suit. Affidavits and counter-affidavits were filed in support or in opposition to the Originating Summons. The Preliminary Objection of the appellant was dismissed and the prayers of the 1st respondent were granted.

The appellant's brief was settled by his counsel, Gordy Uche, now SAN, and was filed on the 10/7/12, In it, four issues were identified for resolution. They read –

i.  Was the learned trial judge right in holding that the 1st Respondent's Suit was competently brought by Originating Summons? (Ground 2).

ii. Was the learned trial judge right in holding that the 1st Respondent had locus standi to institute the action? (Ground 1).

iii.   Was the learned trial judge right in not dismissing the 1st Respondent's Suit as an abuse of Court's process? (Ground 5).

iv. Was the learned trial judge right in entering judgment in favour of the 1st Respondent? (Grounds 3 and 4).

The 1st and 3rd respondents' brief was filed by Chijoke Kanu, on the 1/3/16. He identified the very four issues for determination the appellant had done, except that they were rephrased.

The 2nd respondent's brief was settled by Mr. Noel Awosike and was filed on the 18/6/2014. He adopted the four issues formulated by the 1st and 3rd respondents.

The Appellant's Reply brief was deemed filed on 2/3/16,

As all the issues identified are similar, I shall adopt the issues formulated by the appellant in this appeal.


Was the learned trial judge right in holding that the 1st respondent's Suit was competently brought by Originating Summons?
Learned counsel for the appellant referred to Order 1 Rule 2 of the High Court of the Federal Capital Territory Abuja (Civil Procedure) Rules 2004 on commencement of action by Origination Summons and submitted that the 1st respondent's Suit did not come under the Rule, since no interpretation of the contract allegedly entered between the 1st respondent and the two other respondents, was called upon. Further, that the Suit was contentious as there was substantial dispute of facts, judging by the affidavits and counter-affidavits. Counsel submitted also, that the Suit of the 1st respondent is for recovery of possession of a residential premises and so cannot be commenced by means of Originating Summons. He referred to NNPC VS. ABDULRAHMAN (2006) 12 NWLR (Pt. 993) 202; MINISTER FEDERAL MINISTRY OF HOUSING AND URBAN DEVELOMENT VS. A-G FEDERATION (2009) 12 NWLR (Pt 1155) 345 at 367 and section 10 of the Recovery of Premises Act Cap 544, Laws of the FCT Nigeria. He urged us to resolve the issue in favour of the appellant.

In answer, learned counsel for the 1st and 3rd respondents submitted that there was nothing wrong with the mode of commencement of the Suit since the 1st respondent was only I seeking for the interpretation of his rights and entitlements under the contract he entered with the 2nd and 3rd respondents. He argued that the contract is not disputed by parties to it, and all that was required, was for the trial court to peruse the documents of transaction, and say whether the 1st respondent was entitled to the reliefs sought or not. He referred to the purchase receipt and Deed of Assignment in favour of the 1st respondent over the property. On the submission that a party claiming an entitlement under a contract, deed or will, can commence the Suit by Originating Summons, where evidence is wholly documentary, he referred to FAMFA OIL LTD VS. A-G FEDERATION (2003) 10 12 VOL. 16 NSCQR 46 at 49. Since the case of the 1st respondent rests fully on documents, Originating Summons process is in order.

On the counter-affidavit of the 2nd respondent, counsel submitted that there is nothing in it that requires oral evidence, especially as it admitted at paragraph 7 thereof, that its name is on the document of transaction with the 1st respondent. The other paragraphs he said, are of no evidential value.

Learned counsel also argued that the Suit is not for recovery of premises since 'the appellant is not the tenant of the 1st respondent." This should be the other way round. They both claim to have acquired the disputed property through the same root - 2nd and 3rd respondents. He urged us to resolve the issue in favour of the respondents, or order pleadings - OSUAGWU VS. EMEZI (1998) 12 NWLR (Pt. 579) 640.

The response of the 2nd respondent is in line with the submissions of the 1st and 3rd respondents, and has also relied on the same authority, as the 1st and 3rd respondents had done. He emphasised that gleaning the documents filed in court and the affidavit of the defendants, "there is no dispute as to whether there exists, a contract between the parties."

The Amended Originating Summons in respect of the Suit, sought for the determination of these questions -

“1. Whether the plaintiff is not entitled to the immediate possession and occupation of the property known as Block 9 Flat 10 Katampe Abuja pursuant to the plaintiff's transaction with the 1st and 2nd Defendants.
2. Whether the 3rd Defendant is not liable to immediate ejection from the said Block 9 Flat 10 Katampe Abuja pursuant to the 1st and 2nd defendants' said transaction with the plaintiff.
3. Whether the plaintiff is not entitled to the annual rental value of the said property from the Defendants as damages for failure to hand over the said property to the plaintiff upon payment of the purchase price."
Order 1 rule 2 of the High Court of the Federal Capital Territory Abuja (Civil Procedure) Rules 2004, applicable to the Suit, provides that Originating Summons can be invoked if

"(a) the main issue is or likely to be one of construction (1)of a written law or of an instrument made under any written law; or (ii) of any deed, will, contract or other document or some other question of law; or

(b) there is unlikely to be a substantial dispute of facts."
From the foregoing, it is evident that when the issue concerns the construction or interpretation of a written law or an instrument made under it, will, deed or contract, then Originating Summons is the appropriate method of commencing the Suit This can arise, when a section of the Constitution or a piece of legislation is to be interpreted. Where however the issue is contentious and disputes as to facts are likely to be substantial, then the Suit cannot be commenced by way of Originating Summons - INAKOTU VS. ADLEKE (2007) 4 NWLR (Pt. 1025) 423; EZEIGWE VS. NWAWULU (2010) 4 NWLR (Pt. 1183) 159 and AMASIKE VS. REGISTRAR-GENERAL (2010) 13 NWLR (Pt 1211) 337.

In his affidavit in support of the Originating Summons, the 1st respondent as plaintiff deposed at paragraphs 4 and 5, that he purchased the property in dispute from the 1st and 2nd
defendants for N16,500,000 and that an Official sale receipt was issued to him "by the Defendants", "headed PROFUND PROPERTIES which is the name of the 1st and 2nd Defendant's property manager." At paragraph 8, he deposed to the fact that the 3rd defendant (appellant) was aware of the sale of the property to him.

But in the affidavit in Support of the Notice of Preliminary Objection by the appellant/objector (page 37) he denied at paragraph 10, that the plaintiff has any legal title to the property in dispute. There is therefore the question to be answered as to whether the house in dispute belonged to the 1st respondent. In his counter-affidavit to the Originating Summons (page 43 of the record), the appellant as 3rd defendant, denied that the plaintiff is the owner of the house in dispute and that the issue is contentious as there is a pending suit in the High Court of the FCT concerning the disputed house,

The 1st defendant in the Originating Summons, now the 2nd respondent, filed a counter-affidavit, to be found at pages 123 - 125 of the record. It deposed at paragraph 5 thereof, that it had transferred all its investments including landed properties to the 2nd defendant (3rd respondent). This raises the questions as to whether it could pass title to the 1st respondent herein, when it did so, if it did. It also very positively
averred at paragraph 8 thereof,

"That the plaintiff never made any payment to the first defendant or its agents."

This is a complete denial to the deposition of the 3rd respondent, that he paid the purchase price and the 1st and 2nd defendants had issued him with an official receipt This is highly controversial or contentious. To make matters worse, the 1st defendant deposed at paragraph 9 thereof, that it never received any payment in respect of the disputed house from either the plaintiff or the 3rd defendant, and that there is no binding contract between the plaintiff and the 1st defendant, giving the lie to the deposition of the plaintiff that there is a contract of sale between him and the 1st and 2nd defendants. The 1st defendant disassociated itself from "Profund Properties", the body that allegedly issued the purchase receipts to the plaintiff saying that it is not its agent and could not have collected any payments on its behalf.

Now all these, cannot but give a very good indication that the facts in the Suit are substantially and materially in dispute. The affidavits, contrary to the submission of learned counsel to the 3rd respondent, clearly show that there are disputes as to whether a contract exists between the parties. Whilst the plaintiff says there is, the 1st and 3rd defendants aver to the contrary,

The facts are therefore violently in dispute and I cannot fathom, how those disputes could be resolved without calling oral evidence. It was a very clear case for the trial judge to have ordered pleadings to be filed for a just determination of the case. His haste in determining the Suit, on the Originating Summons, especially when a Suit concerning title and contract agreement between the appellant and others and the 1st and 2nd defendants, is pending in the same High Court of the FCT, to the knowledge of the trial judge, militates against fairness. Nothing would have been lost, but everything proper could have been gained, by ordering pleadings. Again, a possibility has been opened. If the pending Suit No. FHC/ABJ/SC/112/2009 is determined in favour of the plaintiffs, (page 46 of the record) now transferred to the FCT High Court (paragraph 24 of page 46), then there will be a conflict, with attendant criticisms on the judiciary.

I hold, that the facts in the Suit of the 1st respondent as plaintiff, commenced by Originating Summons, are violently and fundamentally in conflict, such that that method of commencement cannot be the appropriate route.

Furthermore, from the questions posed in the Originating Summons, I agree with learned counsel for the appellant, that it is recovery of premises that was intended, as no clause in the contract was put up for interpretation nor was any document sought to be construed. Whether the recovery could succeed in law or not, is not the issue. The process shows that that was the intendment and so, Originating Summons cannot be the appropriate method - section 10 of the Recovery of Premises Act Cap 544 Laws of FCT and MINISTER FEDERAL MINISTRY OF HOUSING AND URBAN DEVELOPMENT VS. A-G FEDERATION (Supra) at page 367.

Issue No, 1 is thus resolved in favour of the appellant and against the respondents.
This should ordinarily determine the appeal, but I need to resolve the issue of locus standi of the 1st respondent, to institute the Suit, which is the second Issue for determination.

The main submission of learned counsel for the appellant on this, is that the plaintiff claimed to have purchased the house in a dispute from the 2nd and 3rd respondents, which gave him the locus to sue - paragraph 3 of the Affidavit in support of the Originating Summons. The 2nd respondent in her counter- affidavit, denied that the plaintiff made any payment. Counsel argued that since the plaintiff did not file an affidavit to challenge this, the facts deposed to by the 2nd respondent are deemed admitted and so the 1st respondent had no locus to sue.

I do not share this view that the affidavit of the 2nd respondent is uncontroverted and unchallenged. The affidavit of the 2nd respondent is the challenge to the deposition of the 1st respondent and so there is a conflict between the two, since they are divergent facts. A court is supposed to look at some other documents before it, to see if it could resolve the conflicts. Where this is not possible, then oral evidence has to be called. In the instant matter, the plaintiff front-loaded the receipt of sale of the house in dispute and the Deed of sub-lease (pages 6 - 10 of the record). Prima facie, they show his interest as having purchased the house in dispute, and that clearly donates him with the locus standi to institute the action. Whether the documents are accepted and relied upon by a court, is another matter I altogether, I hold that the plaintiff had the locus to institute the Suit. Issue No. 2 is thus resolved in favour of the 1st
On abuse of process, which is Issue No. 3, it is clear that the parties in the earlier pending Suit No. ABJ/CS/112/2009, are –

SANI MOHAMMED & 2 ORS (for themselves and as representing the Residents of Katampe Housing Estate Abuja)

These parties are different from the parties in the Suit filed by the 1st respondent. He was not a party to the earlier Suit, and his Suit cannot, as submitted by the learned counsel to the appellant, be an abuse of process of court. Issue No. 3 is thus resolved in favour of the 1st respondent and against the appellant.

Issue No 4 is whether the learned trial judge was right in entering judgment for the 1st respondent. In view of the resolution in Issue No. 1, it is not possible to resolve this Issue, now since I have already held that the Suit could not be adequately and justifiably decided on such fundamentally conflicting facts, without calling for oral evidence to resolve them. Issue No. 4 is therefore hereby struck out.

This appeal has therefore scored a pass mark, and it succeeds. It is allowed. The judgment of the trial court, including the Ruling on the Preliminary Objection filed by the 3rd defendant, now appellant, is set aside. In its stead, pleadings are ordered to be filed by the parties to the Suit, commencing from the date the case is first mentioned by the High Court of the FCT. Consequently, I remit the Suit No. FCT/HC/CV/5682/11, back to the Chief Judge of the FCT, for hearing before another judge
No order as to costs.

TANI YUSUF HASSAN, (JCA): I read before now the judgment just delivered by my learned brother, Abubakar Datti Yahaya, JCA.
My brother has thoroughly dealt with the issues in this appeal, I have nothing useful to add. I abide by the order made.

JOSEPH E. EKANEM. JCA: I read in its draft form the judgment which has just been delivered by my learned brother, A. D. Yahaya JCA. I agree with the reasoning and conclusion therein. 1 also allow the appeal and abide by the consequential Orders made in the judgment.


Dr. Soni Ajala with Uche Onyenefuna (Miss) for the appellant,
Nnoye Okpor for the 1st & 3rd respondents.
Onyeka Ikemefuna for the 2nd respondent.

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