OKANLA & ORS v. ALAFIN

CITATION: (2017) LPELR-42003(CA)

In the Court of AppealIn the Ilorin Judicial Division

Holden at Ilorin

ON THURSDAY, 2ND MARCH, 2017Suit No: CA/IL/90/2015

Before Their Lordships:

MOJEED ADEKUNLE OWOADE Justice, Court of AppealCHIDI NWAOMA UWA Justice, Court of AppealHAMMA AKAWU BARKA Justice, Court of Appeal

Between1. ABDULSALAM AWEDA OKANLA2. SULEIMAN SADIKU ALABI3. RAMONI IDRIS

- Appellant(s)

AndMALLAM ABUBAKAR BABA ALAFIN - Respondent(s)

RATIO DECIDENDI

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1. ACTION - ORIGINATING SUMMON(S): When to adopt theoriginating summons procedure for the commencement of anaction"In general terms, originating summons is used for non-contentiousactions, that is, those actions where facts are not likely to be indispute. Where facts are in dispute or riotously so, as in the instantcase, an originating summons procedure will not avail a plaintiffand he must come by way of writ of summons.In other words, an originating summon, will not lie in favour of aplaintiff where the proceedings are hostile in the sense of violentdispute.See: INAKOJU VS. ADELEKE (2007) 4 NWLR (PT. 1025) 423OSUNBADE VS. OYEKANMI (2007) ALL FWLR (PT. 368) 1004.In the case of: EJUA VS. IDRIS (2006) ALL FWLR (PT.318) 633 AT 646RHODES - VIVOUR, JCA (as he then was) held as follows:-"------ where it is obvious from the state of affidavit that there wouldbe an aid of friction in the proceeding then an originating summonsis no longer appropriate: a Writ of Summons would suffice in thecircumstances in the instant case. A look at the question fordetermination on the face of originating summons, the reliefssought and the affidavit in support, shows beyond doubt that if trialproceeded at the Court below, it would have been hostileproceedings which would involve contentious issues and questionsof fact which can only be resolved by oral evidence from the partiesand their witnesses thus the action should have been commencedvide a writ of summons".The above dictum of Rhodes-Vivour, JCA (as he then was) is quiteappropriate in the instant case. I would in addition like to add thatthere is a great deal of potentiality of injustice when originatingsummons proceeding is forced on parties in cases where writ ofsummons would have been employed. The reverse is notnecessarily the case.?In the case on hand, it is obvious that the only way to meet theends of justice would be writ of summons procedure where theparties will through pleadings and oral evidence contest theirgrievances.I do agree with the learned Counsel for the Appellants that thelearned trial Judge was wrong to have held in favour of the use oforiginating summons procedure in the patently contentious andhostile proceedings presented by the parties in this case."PerOWOADE, J.C.A. (Pp. 26-28, Paras. D-B) - read in context

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2. JUDGMENT AND ORDER - ORDER OF COURT: Proper order to bemade by trial court where a suit is wrongly commenced by anoriginating summons"In this regard, the position of the law is that when a Suit iscommenced by an originating Summons instead of writ ofSummons the appropriate order to be made by the Court is todirect the Suit to proceed with the filing of pleadings.?However, if the facts are contained in an affidavit which has beencontroverted, the Court has a duty to ask the parties to adduce oralevidence to resolve the issues in controversy.OSUNBADE VS. OYEWUNMI (2007) ALL FWLR (PT. 368) 1004; DAPIALONG VS. LALONG (2007) 5 NWLR (PT. 1026) 199."Per OWOADE,J.C.A. (Pp. 28-29, Paras. E-A) - read in context

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MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the

Leading Judgment): This is an Appeal against the

Judgment of Hon. Justice M. O. Adewara of the Kwara State

High Court delivered on 2nd day of December, 2014. By an

originating summons dated 4th April, 2013 but filed on 9th

April, 2013, the Respondent as Claimant claimed against

the Defendants/Appellants for reliefs in these terms:-

1. An ORDER OF THIS COURT that the Claimant is the

trustee of an expanse of land at Ariyibi Village Ilorin East

Local Government Area, Kwara State.

2. AN ORDER that trespass and encroachment of the

Cla imant ’ s fami ly land by the Defendants i s

unconstitutional, i l legal, null and void.

3. A sum of N100,000.00 being damages for an

infringement on the Claimant’s right to their landed

property, situate, lying and being at Ariyibi Village, Ilorin

East Local Government Area, Kwara State.

4. AN ORDER of this Honourable Court vesting the land in

dispute in the Claimant family being the customary owner

of same, for a very long time unchallenged.

5. AN ORDER of perpetual injunction restraining the

Defendants, their privies, agents, servants,

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assign or any person(s) acting through them or for them

from further trespassing on the said expanse of land at

Ariyibi Village, Ilorin East L.G.A Kwara State.

THE CLAIMANT THEREFORE SEEKS FOR THE

DETERMINATION OF THE FOLLOWING QUESTIONS:

1. WHETHER the Claimant is the trustee of an expanse of

land situate at Ariyibi Village, Ilorin East L.G.A. Kwara Sate

for his family, Ile Tuntun Oke-Oyi, Kwara State.

2. Whether the Defendants herein are not privies to the

judgment delivered on 2/11/1995 between the Claimant and

one Issa Akano (the late Baale of Oke-Oyi) and the one

delivered on 7/5/2010, between the Claimant herein and

the 1st Defendant and 3 other persons.

3. WHETHER the originating summons before this Court is

competent, and/or whether the Defendants herein can

approbate and reprobate.

PARTICULARS

1. The Claimant is the customary owner of the expanse of

land situate at Ariyibi Village, Ilorin East L.G.A., Kwara

State from the immemorial unchallenged.

2. The Claimant’s family had exercised long possession of

tribute and control of the said expanse of land at Ariyibi

Village without any challenge from any person and/or

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authority.

3. Sometimes in 1992, the Claimant herein sued one Issa

Akano (the late Baale of Oke-Oyi) when the said Issa Akano

trespassed on the said land and in 1995, judgment was

delivered in the Claimant’s favour, wherein the Claimant

was pronounced as the trustee of his family land situated at

Ariyibi Village, Ilorin East L.G.A Kwara State.

4. Sometimes in 1996, the late Isa Akano appealed against

the decision of Upper Area Court II, Oloje to the Shariah

Court of Appeal of Kwara State but same was struck out for

want of jurisdiction.

5. Sometimes in 1998, the late Issa Akano applied for

extension of time to file his appeal out of time before High

Court Ilorin, but unfortunately same was accordingly struck

out on 26/1/1998 for want of diligent prosecution by the

said Issa Akano.

6. Sometimes in 2000, the late Issa Akano conspired with

the 1st Defendant and some other 3 persons by harvesting

the economic trees on the said land and the Claimant

dragged them to Upper Area Court II, Oloje and the

judgment was delivered in the Claimant’s favour in 2010,

by the said Court who equally went further to affirm the

Claimant’s position as

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the “Accredited trustee” for his family in respect of the said

expanse of land At Ariyibi Village, Ilorin East L.G.A Kwara

State.

7. Sometimes in February, 2013, the Claimant discovered

to his surprise that the 2nd and 3rd Defendants on the

instruction of the 1st Defendant trespassed on the land in

question without the prior consent and approval of the

Claimant (Trustee of the said expanse of land) by

destroying the economic trees and in return, putting

signboards as a way of claiming adverse title to the land in

question.

8. It is the law that the decision that binds former Magaji

Ariyibi i.e.Raji Akano, equally binds the incumbent Magaji

Ariyibi (the 1st Defendant) Mallam Sadiku Alabi, because

they are privies and blood brothers from the same family.

9. The Defendants i.e. (members of Magaji Ariyibi family)

are caretakers of Ariyibi land vide the judgment delivered

on 2/11/1995 in favour of the Claimant’s family i.e. Ile

Tuntun, Oke-Oyi, Ilorin East L.G.A. Kwara State.

On 7/05/2013, the Appellants as Defendants to the action

filed a Notice of preliminary objection to the Claimant’s

Respondent’s suit on the

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ground inter alia that the Suit was not properly constituted,

that originating summons cannot be employed for a hostile

proceedings and that the Suit is an abuse of process of

Court.

In a considered Ruling delivered on 3/03/2014, the learned

trial Judge overruled the Appellants preliminary objection

and declared the Suit as instituted to be competent.

The trial of the originating summons proceeded with the

Respondent’s originating summons supported by a 25

paragraph affidavit and documents including photographs

marked as Exhibits A, A1, B, C, D, E & F.

The documents include previous judgments and evidence in

previous proceedings in the Upper Area Court, the Sharia

Court of Appeal and the High Court of Kwara State.

For clarity, the list of the documents which accompanied

the Respondent’s originating summons are as follows:-

1. Exhibit “A” – Judgment of the Upper Area Court “2”

Oloje, Ilorin delivered on 2/11/95.

2. Exhibit “A1” – another Judgment of Upper Area Court

“2” Oloje, Ilorin.

3. Exhibit “B” and “C” are certified true

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copies of the proceedings of the Sharia Court of Appeal and

the Ruling of their Lordships at High Court Ilorin

respectively.

4. Exhibit “D” is the certified true copy of the Direct

complaint filed by the Respondent on 21/09/2010 before

Upper Area Court “2” Oloje, Ilorin.

5. Exhibit “E” is the photographs of the signboards put on

the land in question by the Defendants.

6. Exhibit “F” is the proceeding evidencing the testimony of

the 1st Defendant at the Upper Area Court in Exhibit “A1”

dated 12/07/2007 and 8/10/2011 respectively.

The Appellants as Defendants filed a 32 paragraph counter

affidavit and both parties filed written addresses in the

Court below.

The learned trial Judge adopted the following issues

nominated by the Claimant Respondent for the

determination of the case between the parties.

1. Whether the Claimant is the trustee of an expanse of

land situate at Ariyibi Village, Ilorin East Local Government

Area, Kwara State for his family, Ile-Tuntun, Oke-Oyi Kwara

State.

2. Whether the Defendants herein are not privies to the

Judgment delivered on 2/11/1995

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between the Claimant and one Issa Akano (the Late Baale

of Oke-Oyi) and the one delivered 07/05/210 between the

Claimant herein and the 1st Defendant 3 other persons (sic)

and 3 other persons.

3. Whether the originating summons before this Court is

competent and or whether the Defendants herein can

approbate and reprobate.

On Issue One, the learned trial Judge concluded at page

147 of the record that:

“I hold that the decision in Exhibit A is still extant

and subsisting having not been set aside by a

competent Court. ---------- On the whole, I hold that

the Claimant has been adjudged the trustee of the

disputed land. Accordingly, I resolve Issue 1 in favour

of the Claimant.

The learned trial Judge also held in favour of the

Respondent Claimant on Issue 2 when he held at page

149 of the record of Appeal that “it is obvious

therefore that the defendants in this present case are

privies to the Judgments in Exhibit A, A1 and B and I

so hold”

The learned trial Judge also held in favour of the Claimant

Respondent on the Third Issue and finally held that the

Respondent proved his claim through Exhibits A-F. At page

150 of

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the record, he had this to say:

“-------- it will be recalled that in the Rulings delivered

on 03/03/2014 dismissing the defendants preliminary

objection against the Claimant’s Suit, this Court held

that the originating summons adopted by the

Claimant in commencing this Suit is prosper.

Having earlier resolved as stated above; I hold that

the issue of competency of the originating summons

is spent and has become mere academic. Therefore, it

is highly unnecessary to re-determine same...

On the basis of the above, I hold that the originating

summons of the Claimant is competent. I hereby

resolve Issue 3 in favour of the Claimant.

Finally, I hold that the Claimant has been able to

prove his case through the documents attached as

Exhibit A-F.

Therefore I hold that the claim succeeds”.

Dissatisfied with the judgment, the Appellants filed a

Notice of Appeal containing three (3) Grounds of Appeal in

this Court on 03/12/2014.

The relevant briefs of argument for the appeal are as

follows:-

(i) Appellants brief of argument dated

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and filed on 06/06/2016 settled by Babatunde Olomu Esq.

(ii) Respondent’s brief of argument dated 21/11/2016 and

filed on the same day but deemed filed on 22/11/2016 –

settled by Y.Y. Babatunde Esq.

(iii) Appellants’ reply brief dated and filed on 06/12/2016.

Learned Counsel for the Appellants nominated two (2)

Issues for determination. They are:-

1. Whether from the documents attached to the originating

summons, title to the land in dispute is not raised and

whether same can be determined by originating summons.

2. Whether the Respondent’s family can be declared the

customary owners of the land based on Exhibit “A”

Learned Counsel for the Respondent adopted the Issues

formulated for determination by the Appellants.

On Issue One, learned Counsel for the Appellants submitted

that originating summons as a method of commencing

action is confined to cases where statutory provision exist

for its application, interpretation or construction of

statutory, provisions and/or documents.

He submitted that the Respondent case at Court below was

incompetent, abuse of Court process and same cannot be

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commenced by way of originating summons. Originating

summons, said Counsel is not suitable for hostile

proceedings where issues of facts are in dispute.

He referred to the cases of:-

OSUNBADE VS OYEWUNMI (2007) ALL FWLR (368)

1004 AT 1006, EJUA VS IDRIS (2006) ALL FWLR (PT.

318) 633 AT 646, OSSAI VS. WAKWAH (2006) ALL

FWLR (PT.303) 239 AT 242.

He submitted that from the affidavit in support of the

originating summons and the counter affidavit, there are

irreconcilable contradictions and conflicts in the affidavits

for which oral evidence ought to be called to resolve in

order to get to the Justice of the case.

He submitted further that the commencement of this action

by way of originating summons is a breach of the provision

of Order 53 Rule 1 of the Kwara State High Court Civil

Procedure Rules which provides instance where an action

can be commenced by originating summons as follows:-

“Where a person claims possession of land which he

alleges is occupied by a person not being:

(a) A tenant or

(b) A tenant holding over after termination of his

tenancy or

(c) A licence of the owner or person

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entitled to possession or

(d) A person who had the consent of the predecession

in title of the person who is entitled to possession.

Proceeding may be brought by originating summons

in accordance with the provision of this Order”

He submitted that from reliefs two and four of the

Respondent in the originating summons, paragraphs 3, 5,

13, 18 of the affidavit in support and paragraph 7, 8, 11,

12, 22, 29 and 30 of the counter affidavit of the Defendants

Appellants, it is clear that it is a case of rival claim to

ownership of land.

Appellants' Counsel submitted also that where a person is

sued for trespass over a piece of land and he counter

claims for the same land as in the instant case, title to the

piece of land had been put in issue and same cannot be

resolved in an action commenced by originating summons.

He referred to the cases of:-

MORENIKEJI VS. ADEGBOSIN (1995) 3 NWLR (PT.

381) 77, 95-96, AKINTOLA VS. LASUPO (1991) 3

NWLR (PT. 180) 508 AT 518; ONABANJO VS.

EWETUGA (1993) 4 NWLR (PT. 228) 445 AT 458.

He submitted that the appropriate order the trial Court

ought to have made is to order parties to file pleadings

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and not to arm-string the Appellant by pronouncing on the

merit of the case.

He referred again to the case of:- OSUNBADE VS

OYEWUNMI (2007) all FWLR (PT. 368) 1004 AT 1005

PER AKINTAN JSC. He submitted that the learned trial

Judge was in error to have tried the case by way of

originating summons. He submitted further that the trial

Court had no jurisdiction to entertain the originating

summons of the Respondent because it constitutes abuse of

Court process.

He referred to the cases of:-

ATTORNEY GENERAL OF LAGOS STATE VS.

ATTORNEY GENERAL OF THE FEDERATION (2014)

ALL FWLR (PT. 740) 1296 AT 1325–1326.

AKINWALE VS. AKINWALE (2011) ALL FWLR (PT.

577) 799

For the proposition that “All Court including the apex

Court, lacks the jurisdiction to entertain incompetent

claims and/or those that constitute abuse of their

process. They proceed in vain if they do”.

Appellants’ Counsel submitted that the originating

summons by which the Respondent commenced this action

was filed on the 9th day of April, 2013. However, the same

Respondent had earlier filed an application for direct trial

for the offences of criminal trespass and

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mischief punishable under Section 348 and 327 of the

Penal Code against the Appellant at the Upper Area Court 2

Oloje, Ilorin. That the trial of the case is still pending before

that Court till date. He added that a careful look at page 49

of the record of appeal and the reliefs 2 and 5 of the

Respondent on page 2 of the record will show that they are

the same and to that extent constitute an abuse of process.

Learned Counsel for the Appellants submitted that it is trite

that where there is a pending action before a Court

involving same parties and borders on the same subject

matter, the latter should be dismissed as constituting abuse

of Court process.

He referred to the case of:- VAB PETROLEUM INC. VS.

MOMOH (2014) ALL FWLR (PT. 712) 1627 AT 1656.

He urged us to resolve this Issue in favour of the Appellants

and dismiss the case of the Respondent as being improperly

constituted and abuse of process.

Learned Counsel for the Respondent on the other hand

submitted that the Suit at the Court below was competent

and not an abuse of process. The originating summons used

in prosecuting the Respondent’s case in the Lower Court

was proper. The

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reason being that the 1st Defendant at the Lower Court and

Appellants herein were privies to Exhibits “A” and “A1”

respectively attached to the Respondent's originating

summons.

Respondent’s Counsel reviewed the evidence of one Raji

Akano, the late Magaji Ariyibi in Exhibit “A” and also that

of late Mallam Sadiku Alabi Magaji Ariyibi who was 1st

Defendant in Exhibit “A1” and submitted from the extracts,

the Appellants are privies to Exhibits “A” and “A1”.

He further submitted that Exhibits “A” and “A1” binds the

Appellants herein as the relations of Raji Akano who

testified in Exhibit “A” that the said Exhibit “A” attached to

the originating summons having bound Late Raji Akano

(DW3) the predecessor of the 1st Appellant (Mallam Sadiku

Alabi Magaji Aribi) it equally binds the latter since they are

of the same family and caretakers to Aribi Land which

belongs to Ile-Tuntun Family, Oke-Oyi. He referred to the

case of:-ASAFA FOODS FACTORY LTD VS. ALRAINE

NIG. LTD (2002) 10 NSCQR 553 A T 565 and submitted

that facts admitted need no

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further proof.

Respondent’s Counsel submitted that the cases of:-

OSUNBADE VS. OYEWUMI (2007) ALL FWLR (PART

368) 1004 AT 1006 and EJUA VS. IDRIS (2006) ALL

FWLR (PT. 318) 633

relied on by the Appellants are not apposite to the appeal

as the employment of originating summons by the

Respondent at the Lower Court was proper.

This, he said is because it is clear that the 1st Defendant at

lower Court (Late Mallam Sadiku Alabi) in Exhibit “A1” and

Late Raji Akano (DW3) in Exhibit “A” were brothers and

caretakers of Aribi Land for the Ile-Tun-tun Family, Oke-

Oyi.

He submitted further that at one breath the 1st Defendant

at the Lower Court made a u-turn in Exhibit “A1” and at

another breath he admitted that Late Raji Akano (in Exhibit

“A”) as his brother and his predecessor as MAGAJI Aribi.

Respondent’s Counsel further submitted that the

employment of the originating summons procedure is not in

contravention of the provisions of Order 53 Rule 1 of the

Kwara State High Court (Civil Procedure) Rules because

the contents of Exhibits “A” and “A1” as documents

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speak for themselves.

After referring to the case of:- OPARAJI VS. AHIHIA

(2012) 4 NWLR (PT. 1290) 266 AT 281 on the above

point, he submitted further that the trial Court had

jurisdiction to entertain the originating summons of the

Respondent and it is not abuse of Court process.

He referred us to page 49 of the Record of Appeal which he

said shows that the Respondent is the trustee of the Aribi

land which belongs to his Ile-Tuntun Family Oke-Oyi.

He urged us to hold that the Criminal Case is quite distinct

from the civil case and urged us to resolve the issue in

favour of the Respondent.

The All important question in Appellants’ Issue One is to

determine whether or not this Suit was properly instituted

by the procedure of originating summons.

The claims of the Respondent as Claimant have earlier on

been reproduced. In essence it is for declaration of title to

land, damages for trespass and injunction though couched

in different language.

The first indication in this claim that the Respondent’s

claim is contentious is the “particulars” of the originating

summons which showed the history of previous contests

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between the parties or their privies in the Upper Area

Court, the Sharia Court of Appeal and indeed in the Kwara

State High Court. The affidavit in support of the motion and

the Appellants Counter-Affidavit revealed more properly

the contentious nature of the claim as a contest not just on

the trusteeship of land but on the ownership of the land in

dispute.

It is important in the circumstances to fully reproduce the

contents of the Respondent’s affidavit in support of the

originating summons and the Appellants counter-affidavit

to the same.

AFFIDAVIT IN SUPPORT OF ORIGINATING

SUMMONS

I, MALLAM ABUBAKAR BABA ALAFIN, Male, Adult,

Muslim and a Nigerian of Ile Baba Ekeje, lIe-Tuntun, Oke -

Oy, llorin East L. G. A, Kwara State do state as follows:-

1. That I know as a fact that I am the Claimant in this suit.

2. That I know as a fact that by virtue of my position

aforesaid, I am very conversant with the facts of this case.

3. That I know as a fact that my family Ile Baba Ekeje of Ile

Tuntun Oke - Oyi is the traditional and customary owner of

the expanse of land at Ariyibi Village, llorin East L. G. A,

Kwara State from time

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immemorial.

4. That I know as a fact that my family land situate at

Ariyibi Village, starts from the right side of Oke-Oyi when

coming from Ilorin, it has boundary with Ganbe Village,

Ariyibi and Agbaku Village and up toAlaruko Village.

5. That I know as a fact that the said expanse of land at

Ariyibi Village belongs to my family.

6. That I know as a fact that I am the adjudged trustee of

the said expanse of land at Ariyibi Village, by virtue of the

Judgement delivered on 2/11/1995 in the suit between me

and one lssa Akano (the Baale of Oke-Oyi) with suit No.

CVF/36/92.

7. That I know as fact that the immediate past Magaji of

Ariyibi (Mallam Raji Akano) testified in favour of the late

Issa Akano (the immediate past Baale Of Oke - Oyi)

8. That I hereby attached the certify true copy of the said

judgement of HON. ALH. YAHYA NURUDEEN, HON. D. Y.

BALOGUN AND HON. MALL. I. G. ABUJIYA of the Upper

Area Court II, Oloje, Ilorin to this effect as Exhibit 'A'.

9. That I equally know as fact that the said Mallam Raji

Akano (former Magaji Ariyibi) maintained that his family

(Magaji Ariyibi Family) is the caretaker of Ariyibi land for

and

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on behalf of Baba Ekeje of Ile Tuntun family, Oke-Oyi, Ilorin

East Local Government Area, Kwara State.

10. That upon my victory at the Upper Area Court II, Oloje,

the Defendant in the said case appealed to the Shariah

Court of Appeal but same was unfortunately struck out for

want of jurisdiction in 1996.

11. That subsequently, the Defendant in the said suit

further applied for the extension of time to file his appeal

before the High Court of llorin which was accordingly

struck out by their Lordship (Hon. Justice D. I. ADENIYI

and Hon. Justice A. O. BAMIGBOLA respectively) for want

of diligent prosecution.

12. That the certified true copy of the proceedings of the

Shariah Court of Appeal and the ruling of their Lordships at

High Court are hereby attached and marked as Exhibit 'B'

and ‘C’ respectively.

13. That sometimes in 2000, the late Issa Akano together

with the 1st Defendant and some other 3 persons conspired

and encroached on the said expanse of land at Ariyibi

Village and their strange attitude prompted me to file a suit

against them before Upper Area Court II Oloje, to come and

render proper account to me as

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the adjudged and accredited trustee of the said expanse of

land for my family.

14. That the said Upper Area Court II, Oloje in 2010,

affirmed the decision of the former suit and equally went

further to confirm my position as the accredited trustee of

the said expanse of land and no person should enter on the

land in question without my prior consent formally sought,

approved and granted. The copy of the said judgment is

attached as Exhibit ‘A1’.

15. That sequel to the judgement of the said Court, I have

been dutifully performing the role of trusteeship for my

family without any challenge from any quarters.

16. That thereafter after the said judgement, one Saliu

Ajagbe Ariyibi, Ahmed Ariyibi Akanbi and Kehinde Ariyibi

encroached on the said land in question and causing

mischief therein by destroying the structures and

signboards put on the land by me and this strange attitude

prompted me to file direct complaint against them before

Upper Area Court II, Oloje and the said suit (i.e. Direct

complaint) is still pending before Upper Area Court II,

Oloje, Ilorin.

17. That the certified true copy of the said Direct Complaint

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is hereby attached as Exhibit 'D'.

18. That I know as a fact that sometimes in January, 2013,

when I visited the land in question, I met the 2nd and 3rd

Defendants destroying the economic trees and in return put

their signboards on the said land as a way of laying adverse

title to the expanse of land at Ariyibi Village and when they

were quizzed they responded that they were acting in

accordance with the instruction of the 1st Defendant

herein.

19. That the photographs of the signboards put on the land

in question by the 2nd and 3rd Defendant herein are

hereby attached as Exhibit ‘E'.

20. That I know as a fact that the 1st Defendant herein and

previously testified before the Upper Area Court II, Oloje in

the said suit with suit No. CVF/40/2000 that they were

mere caretakers on the land in question for the Claimant's

family of Ile Tuntun Oke-Oyi.

21. That the proceeding evidencing the testimony of the 1st

Defendant in the said suit dated 12th day of July, 2007, and

that of 8/10/2011, is hereby attached as Exhibit 'F'.

22. That I know as a fact that the Defendants in this suit

are privies members of Magaji Ariyibi family to the

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two suit i.e. CVF/36/92 and CVF/40/2000 while the

judgement of the said suit are accordingly attached to the

affidavit.

23. That up till now, I still discover that Defendants are still

parading themselves as the customary owner of the said

expanse of land and are prepared of disposing same to the

unsuspecting buyers.

24. That I urge this Honourable Court to order the

Defendants, their agents, privies or anybody whatsoever

that is encroaching on the said expanse of land to remove

their signboards put on the land in question and to desist

forthwith from further trespass on said expanse of land.

25. That I depose to this affidavit in support of originating

summons in good faith and in accordance with Oaths, 2004.

COUNTER AFFIDAVIT AGAINST ORIGINATING

SUMMONS

I, Suleiman Sadiku Alabi, Male, Muslim, Businessman, of

Ariyibi Village, Via Oke-Oyi do hereby make oath and says

as follows:-

1) That I am the 2nd Defendant in this case.

2) That I know as a fact that by virtue of my position, I

am conversant with the fact of this case.

3) That I have the consent and authority of the other

Defendants to depose to

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this affidavit.

4) That paragraphs 3, 4, 5, 7, 9, 10, 11, 13, 15, 16, 17, 19,

20, 22, 23, 24, & 25, are abject falsehood.

5) That I know as a fact that the Claimant sued Issa Akano

(now Late) before the Upper Court Oloje over their fathers

land situate at Oke-Oyi.

6) That I know as a fact that myself, 1st and 3rd Defendants

were not parties to the suit.

7) That I know as a fact that the Claimant family land does

not extend to Ariyibi Village.

8) That I know as a fact that Ariyibi Village is different from

Oke- Oyi.

9) That I know as a fact that Ariyibi Village has its own

separate existence from Oke-Oyi under the leadership of

the 1st Defendant.

10) That I know as a fact that the Defendants herein were

not parties to Exhibit A, B, and C.

11) That I know as a fact that Ariyibi Land was founded by

the progenitor of the Defendants.

12) That I know as a fact that the family of the Defendants

have exercised control and ownership of Ariyibi Land from

time immemorial.

13) That I know as a fact that Exhibit A, B & C are in

respect of cases between the Claimant and his family.

14) That I know as a fact

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in Exhibit A, B, & C the Claimant's witnesses stated that

they had boundary with Ariyibi and not that their land

extend to Ariyibi.

15) That I know as a fact that the Claimant commenced the

case in Exhibit A1 against the 1st Defendant (among

others) because the 5th defendant (now late) went unto the

land when the claimant did not report to his brothers as

beneficiary.

16) That I know as a fact that Exhibit F is not a complete

proceeding of the Upper Area Court 1.

17) That the Claimant deliberately excluded the aspect

where the village heads of neighboring villages testified for

the 1st respondent.

18) That I know as a fact that the Claimant fought against

other members of his family in both Exhibit A and Exhibit

A1.

19) That I know as fact that Exhibit B and C are product of

Exhibit A.

20) That I know as a fact that Exhibit C was issued due to

the refusal of late Issa Akano to prosecute the appeal to the

fact that parties had settled.

21) That I know as a fact that despite the settlement

alluded to above, the claimant sued two members of his

family alongside the 1st Defendant.

22) That I know as a fact that in

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this case, the Claimant is allegedly claiming title to Ariyibi

land which is not his own.

23) That I know as a fact that the Claimant made a direct

complain of criminal trespass and mischief against

Defendants.

24) That the Criminal Trespass is still pending before the

Upper Area Court Oloje.

25) That the Defendants put signboard on the land to

prevent the Claimant from selling their land.

26) That the Claimant in connivance with his brother who is

now the Baale of Oke-Laji had brought prospective buyers

to the land and had actually sold some part of it.

27) That I know as a fact that the belligerent attitude of the

Claimant and his brother was reported to the Emir of Ilorin.

28) That I know as a fact that after series of meeting at the

Emir's palace the Claimant and his brother were seriously

warned not to disturb the fragile peace in Oke Oyi and its

environ.

29) That I know as a fact that the Emir told the Claimant

and his brother in clear terms that Oke-Oyi land does not

extend to Ariyibi.

30) That the Claimant is only laying claim to what does not

belong to him.

31) That it is in the interest of

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Justice to dismiss this case.

32 ) That I depose to th i s a f f idav i t so lemnly

conscientiously believing same to be true and correct in

consonance with the provision of the Oath Act.

In the circumstances of the facts in contention between the

parties as demonstrated by the affidavit and counter

affidavit demonstrated before the learned trial judge, I do

not think it is in the spirit of the law to hold as the learned

trial Judge did at page 150 of the record, that:

“I hold that the originating summons of the Claimant

is competent -----------"

In general terms, originating summons is used for non-

contentious actions, that is, those actions where facts are

not likely to be in dispute. Where facts are in dispute or

riotously so, as in the instant case, an originating summons

procedure will not avail a plaintiff and he must come by

way of writ of summons.

In other words, an originating summon, will not lie in

favour of a plaintiff where the proceedings are hostile in

the sense of violent dispute.

See: INAKOJU VS. ADELEKE (2007) 4 NWLR (PT.

1025) 423 OSUNBADE VS. OYEKANMI (2007) ALL

FWLR (PT. 368) 1004.

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In the case of: EJUA VS. IDRIS (2006) ALL FWLR

(PT.318) 633 AT 646 RHODES – VIVOUR, JCA (as he

then was) held as follows:-

“------ where it is obvious from the state of affidavit

that there would be an aid of friction in the

proceeding then an originating summons is no longer

appropriate: a Writ of Summons would suffice in the

circumstances in the instant case. A look at the

question for determination on the face of originating

summons, the reliefs sought and the affidavit in

support, shows beyond doubt that if trial proceeded at

the Court below, it would have been hostile

proceedings which would involve contentious issues

and questions of fact which can only be resolved by

oral evidence from the parties and their witnesses

thus the action should have been commenced vide a

writ of summons”.

The above dictum of Rhodes-Vivour, JCA (as he then was) is

quite appropriate in the instant case. I would in addition

like to add that there is a great deal of potentiality of

injustice when originating summons proceeding is forced

on parties in cases where writ of summons would have

been employed. The reverse is not necessarily the case.

In

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the case on hand, it is obvious that the only way to meet the

ends of justice would be writ of summons procedure where

the parties will through pleadings and oral evidence

contest their grievances.

I do agree with the learned Counsel for the Appellants that

the learned trial Judge was wrong to have held in favour of

the use of originating summons procedure in the patently

contentious and hostile proceedings presented by the

parties in this case. For this reason, Issue One is resolved

in favour of the Appellants.

Having resolved Issue One which deals with procedural

incompetence in this appeal in favour of the Appellants, I

do not consider it necessary to consider the Second Issue

raised.

The appeal is meritorious and it is allowed. What is left of

me is to do that which the learned trial Judge ought to do

but did not do.

In this regard, the position of the law is that when a Suit is

commenced by an originating Summons instead of writ of

Summons the appropriate order to be made by the Court is

to direct the Suit to proceed with the filing of pleadings.

However, if the facts are contained in an affidavit which

has been controverted, the

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Court has a duty to ask the parties to adduce oral evidence

to resolve the issues in controversy.

OSUNBADE VS. OYEWUNMI (2007) ALL FWLR (PT.

368) 1004; DAPIA LONG VS. LALONG (2007) 5 NWLR

(PT. 1026) 199.

In the instant case, judging from the reliefs contained in

the originating summons of the Respondent and the nature

of the affidavit and counter affidavit filed, the only order

that meets the justice of the case is for the parties to file

pleadings and adduce oral evidence.

Once again, the appeal is allowed. The Judgment of the

Kwara State High Court per M. O. Adewara, J. delivered in

Suit No. KWS/20/2010 on 2nd Day of December, 2014 is

hereby set aside.

The parties in the case are hereby ordered to file pleadings.

The Suit is remitted to the Honourable, the Chief Judge of

Kwara State for assignment to another Judge for trial.

The sum of Thirty Thousand Naira (N30,000:00) costs is

hereby awarded to the Appellants.

CHIDI NWAOMA UWA, J.C.A.: I read before now, the

judgment of my learned brother, MOJEED ADEKUNLE

OWOADE, JCA.

I agree with my learned brother's decision allowing the

appeal. I also

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order that pleadings be filed by the parties while the suit is

remitted to the Chief Judge of Kwara State for assignment

to another judge for trial. I abide by the order made as to

costs in the leading judgment.

HAMMA AKAWU BARKA, J.C.A.: I was opportuned to

have read before now the Judgment just delivered by my

Lord, MOJEED ADEKUNLE OWOADE, JCA, PJ, with which I

am in full agreement. I adopt the reasoning and conclusions

reached as mine, and abide on Order of costs made.

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