PARTIES IN FULL:
Global Fleet Oil & Gas (Nig.) Ltd.
Chief Emmanuel Ito Nyong Orok
(For himself and on behalf of Orok Odo family Ikpari Qua town Calabar)
Government of Cross River State
Attorney General, Cross River State
Registrar of Deeds, Cross River State
China Civil Engineering Construction Company Limited
CITATION: 1 NWLR PT.1758 AT 451.
Courtesy: Moruff O. Balogun Esq.
Summary of Facts:
The 1st respondent’s family leased a parcel of land to one Chief Michael A. A. Etim, now deceased, for a term of 99 years from 31st January 1978 at an annual rental of N200 subject to a periodic review.
Chief Etim commenced the building of a hotel on the land, but could not complete the project before he died. In March 2001, the administrators of his estate advertised the uncompleted structure for sale. The 2nd respondent indicated interest, negotiated, and agreed with the administrators of the estate to buy the property.
On being informed about the planned sale of the uncompleted hotel, the 1st respondent objected to the sale on the ground that his family was not given the first option to purchase in accordance with the terms of the lease agreement between his family and chief Etim, and that Chief Etim was in arrears of rent for 15 years as at that time.
In addition, the 1st respondent sued the administrators of Chief Etim’s estate and the 2nd respondent for orders stopping the purported sale and for forfeiture of the lease by the administrators of the estate. In spite of that case, the administrators of the estate sold the property to the 2 respondent for N100 million naira only.
The case was eventually settled out of court and the terms of settlement was filed as the judgment of the court. By the terms, the 2nd respondent paid N5 million naira out of the N1OO million naira purchase amount to the 1st respondent as arrears of rent, and paid the balance N95 million naira to the beneficiaries of the estate of Chief Etim.
After purchasing the uncompleted hotel, the 2nd respondent published a notice of revocation of the right of occupancy over the land on ground of public purposes; particularly, urban renewal and re-development. Further, by invoking section 28(1) of the Land Use Act, the 2nd respondent acquired both the land and the uncompleted hotel on it.
Subsequently, the 2nd respondent assigned her entire interest in the land to the 5th respondent, a limited liability company. The 5th respondent, in turn, assigned its interest to the appellant, another limited liability company, by way of sale.
The 1st respondent was aggrieved by the turn of events. He filed an originating summons against the appellant and the 2nd-5th respondents. His case was that the 2nd respondent’s sale of the land to the 5th respondent after the 2nd respondent acquired it for public purpose was illegal and that his family was entitled to a reversion of the land as it was not being used for public purposes absolutely after its acquisition. The 1st respondent sought the following reliefs:
A declaration that the 2 respondent had no right to assign the land to a private person and/or a limited liability company after acquiring it for public purpose.
An order voiding the deeds of respective assignment of the land to 5th respondent and appellant.
An order vesting the land on him to reflect the true ownership of the land.
An order of perpetual injunction restraining all the appellant and the 2nd-5th respondents from trespassing on the land.
An order ejecting the appellant from the land.
Before the trial court, the issue arose as to whether the suit could be validly determined without calling oral evidence. Addresses were then filed on the issue and adopted. After hearing the parties, the trial court granted all reliefs sought by the 1st respondent.
The appellant appealed. It filed a notice of appeal of eight grounds. Later, it filed an amended notice of appeal of seven grounds.
The 1st respondent raised a preliminary point that issue 2 distilled by the appellant from grounds 1,4, and 5 in the appellant’s amended notice of appeal was incompetent. He argued that the issue whether the action was appropriately commenced by originating summons was abandoned by the appellant at the trial court and so the Court of Appeal lacked jurisdiction to hear same. He further argued that the appellant waived its right to challenge the propriety of commencing the suit by originating summons by filing affidavit joining issues in the suit, and therefore could not raise the matter on appeal. He also argued that the appellant did not canvass the issue at the trial court and because the appellant did not seek leave of court to raise it at the Court of Appeal, the appellate court lacked jurisdiction to entertain the issue.
In determining the appeal, the Court of Appeal examined the originating summons in the record of appeal and found that the 1st respondent’s counsel signed it by making a mark by his name on it.
Held: Unanimously allowing the appeal in part.
The following issues were raised and determined by the Court of Appeal:
On Whether land can be acquired for purpose not enumerated in section 28 of Land Use Act-
A title acquired outside the purposes enumerated by section 28 of the Land Use Act is illegal. In this case, the trial court rightly decided that the 2nd respondent’s acquisition of the 1st respondent’s land was illegal. But the trial court erred when it held that the sale of the hotel on the land to the 2nd respondent, and thereafter to the 5th respondent and the appellant with the tacit approval of the 1st respondent was also illegal. In the circumstance, the trial court was wrong when it vested the ownership and immediate possession of the hotel on the 1st respondent, and particularly so as there was no evidence that the lease between the 1st respondent’s family and the late Chief Etim had been terminated.
On Power of court to draw inferences from evidence-
A court can draw inferences from established oral or documentary facts in the discharge of its adjudicative duties. In this case, it is deducible from the established facts before the trial court that by the terms of settlement filed in the 1st respondent’s first suit, he was paid the arrears of rent due from the lease with the deceased Chief Etim. It is also deducible that by accepting the rent of N5 million naira, and by consenting to payment of the balance purchase price of N95 million naira to the children of Chief Etim, the 1 respondent not only waived his right of first offer of the property to be sold, but also endorsed the earlier sale agreement between the administrators of the estate of Chief Etim and 2nd respondent. In other words, the sale of the hotel to the 2nd respondent cannot be said to be unlawful.
On When appropriate to commence suit by originating Summons-
An originating summons is used to commence an action where the issue involved is one of the construction of a written law, instrument, deed, will, or other document, or some question of pure law; or where there is unlikely to be any substantial dispute on issues of fact between the parties. In other words, it is used to commence an action where the issues for determination turn on the simple questions of construction and do not call for settlement of pleadings. In this case, the issue before the trial court was whether the 2nd respondent who compulsorily acquired the leased land for public purpose, could later turn round and grant or sell the same land to an individual instead of using it for public interest. And the parties placed several documents before the trial court for its interpretation in determining the issue. In the circumstances, what was before the trial court was the matter of interpretation of the various documents placed before it, which it so did in its judgment. Therefore, the judgment cannot be faulted.
On Whether filing of counter affidavit and address amount to waiver of objection to commencement of suit by originating summons-
Where a defendant objects to the commencement of a suit by originating summons, and thereafter files a counter affidavit and a written address in the suit, his counter affidavit and written address do not per se translate to a waiver of his objection to the hearing of the suit under the originating summons.
On Whether filing of counter affidavit containing matters irrelevant and remote to suit turns non-contentious action to a contentious one –
A respondent to an originating summons cannot, by deliberately swearing to facts which are irrelevant or remote to the real issue submitted for determination, turn an otherwise non-contentious case to a contentious one. Further, where it is clear that the questions for determination under the originating summons are linked with the construction of exhibits, as in this case, the dispute as to facts does not become substantial as to stall a clear construction of the documents.
On how legal practitioner should sign court process and effect of unsigned court process-
It is the seal or signature of the author on a document that authenticates the document. A legal document or process of court must be settled or signed by either the litigant or the litigant’s legal practitioner. Where a court process is ex facie uncertain whether it was signed by the litigant or the litigant’s legal practitioner, the process is incompetent. A court process that purports to be settled by a legal practitioner must as a requirement of statute, have not only the signature of the legal practitioner, but also his name clearly shown and indicate that the signature is his. In other words, the process must have the signature or mark of the legal practitioner either against his name, or over and above his name. In this case, the 1st respondent’s counsel signed the originating summons by making a mark by his name on it. In the circumstance, the 1st respondent’s counsel duly signed the originating summons as required by law. Therefore, the appellant’s complaint that the originating summons was unsigned is unfounded.
Moruff O. Balogun Esq.
IJEBU ODE, OGUN STATE.