IN THE SUPREME COURT OF NIGERIA
On Friday, the 13th day of October 1978
NATIONAL BANK OF NIGERIA AND ANOR .................... APPELLANTS
LADY AYODELE ALAKIJA AND ANOR ...................... RESPONDENTS
The plaintiffs (herein the respondents) took out an originating summons in the High Court of Lagos against the defendants (herein the appellants) seeking the declaration of the count on the following questions to wit: the validity of a lease agreement; whether the lease conferred an estate on the first respondent, what estate had the second respondent and the nature of the estate of interest owned by the second respondent.
When the matter came before the trial Court, counsel for the appellant objected to the trial by originating summons. The trial Judge overruled the objection of the counsel and held that the action was properly 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 and all the other questions for determination are ancillary to the proper question. The matter was therefore tried on originating summons and the trial Judge delivered judgment on the matter. It is against this decision that the appellants have appealed to the Supreme Court.
(1) The Old Supreme Court Rules (Nigeria) made no specific provision for the procedure of construction of a deed or contract. By virtue of section 12 of the High Court Law therefore, Order 5 Rule 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 rule 1 and order xxxii, rule 1 of the Old Supreme Court Rules (Nigeria).
(2) Originating summons could only be applicable in such circumstances as where there is no dispute on questions of fact on the likelihood of such dispute. Where, for, instance, the issue is to determine short questions of construction, and not matter of such controversy that the justice of the case would demand and settling of pleadings, originating summons could be applicable.
(3) The trial Judge should have ordered pleadings in this case as there are obvious questions or disputes which were raised both in the submissions of counsel and the decision of the court which have neither been proved nor admitted.
(4) In our view, and on all the authorities we have reviewed, this is not a case where it could be said that there is unlikely to be any substantial dispute, nor that the facts are even undisputed, not that they are uncontentious. They are in fact hostile proceedings Where pleadings must be ordered. To proceed merely on originating summons would not meet the justice of the case.
Appeal allowed. A retrial on pleadings ordered.
Cases referred to:
Solicitor Ex-parte Pallister (1894) 2 A.B. 163.
Doherty Vs. Doherty (1963) N.M.L.R.241.
In re Bushfield Whale Vs. Bushfield (1886) 32 Ch.D. 123.
In re Giles Real and Personal Co. Vs. Michell (1890) 43 Ch.D. 391.
In re Nobbs, Nobbs, Vs. Law Revisionary Interest Society (1896) 2 Ch. 830.
Lewis Vs. Green (1905) 2 Ch.D. 340.
Nutten Vs. Holland (1894) 2 A.B.163.
Old Wood Young Compensation Fund, Arnott Vs. Master Agricultural Fisheries Food & Ors (1967) 2 All E.R.
Re King, Mellor Vs. South Australian Land Mortgage & Agency Co. (1907) 1 Ch. 72.
Re Power, Lindsell Vs. Phillips (1855) 30 Ch. Div 291.
Re Sir Lindy Parkinson & Co. Ltd. Trusts Deed Bishop & Ords Vs. Amith & Anor (1965) 1 All E.R. 60.
Runton Vs. Ministry of Pensions (1963) 1 All E.R. 275.
Statutes referred to:
Chancery Procedure Act 1852.
High Court of Lagos Law, Cap 80.
Supreme Court (Civil Procedure) Rules, Cap. 211 Vol X Laws of Nigeria, 1948 Edition.
Supreme Court (United Kingdom Rules).