Instances where adoption of summary judgment procedure will be inappropriate

MINISTER FEDERAL CAPITAL TERRITORY & ANOR v. SOUTHLAND ASSOCIATES LIMITED CITATION: ( 2020) LPELR- 51179 ( CA)

In the Court of Appeal

In the Abuja Judicial Division

Holden at Abuja

ON TUESDAY, 20TH OCTOBER, 2020

Suit No: CA/ A/ 215/ 2019

Before Their Lordships:

STEPHEN JONAH ADAH - Justice, Court of Appeal

YARGATA BYENCHIT NIMPAR - Justice, Court of Appeal

MOHAMMED BABA IDRIS - Justice, Court of Appeal

Between

MINISTER FEDERAL CAPITAL TERRITORY FEDERAL CAPITAL DEVELOPMENT

AUTHORITY - Appellant( s)

And

SOUTHLAND ASSOCIATES

LIMITED -

Respondent( s)

LEADING JUDGMENT DELIVERED BY YARGATA BYENCHIT NIMPAR, J. C. A. FACTS]

The respondent by way of writ of summons initiated a claim before the High Court of the Federal Capital Territory and sought the following reliefs: a. A declaration that the Claimant is the beneficial owner and the person entitled to possession of all that piece of land known as plot 767 Cadastral Zone A00 of the Central Business District Abuja. b. A declaration that the claimant’s title and ownership of plot 767 Cadastral Zone A00 is still valid and subsisting same having not been revoked by the defendants in accordance with the Land Use Act. c. An order mandating the defendants to issue the claimant the Certificate of Occupancy in respect of the plot. d. An order of perpetual injunction restraining the defendants, their agents, assigning, privies or anybody claiming for or through them or on their behalf from trespassing in any manner whatsoever or tampering with the claimant’s quiet enjoyment or ownership of the plot.

Upon issues being joined by the pleadings, the respondent also filed a motion for summary judgment under Order 11 Rule 1 of the High Court the Federal Capital Territory ( Civil Procedure) Rules, 2018, wherein it sought an order to enter summary judgment as per the reliefs claimed in its statement of claim. It was supported by an affidavit, which enumerated facts of its allocation with Plot 767 Cadastral Zone, Central Business District, and as it was processing its Certificate of Occupancy, it was informed that there was an existing title and therefore the allocation was revoked. It claimed that it was not served with the revocation notice and consequently the Respondent instituted the action at the High Court. The Appellant opposed the motion for summary judgment. The motion was taken and granted.

Dissatisfied, the Appellant appealed to the Court of Appeal.

Issues for determination

The Court determined the appeal on the following issues:

1. Whether the judgment of the lower Court is not perverse and against the weight of evidence before the Court.

2. Whether having regards to the statement of claim, the statement of defense, the affidavit in support and its annexures and the counter affidavit filed in opposition to the motion for summary judgment, the appellant did not, prima facie, disclose a good defense to the respondent’s claim.

3. Whether the learned trial judge was right when he entered summary judgment in a suit that borders on declaration of title to land relying on photocopies of public documents that were neither original copies nor certified true copies.

Appellants’ submissions

On issue 1, appellants contended that the decision of the High Court was perverse. Relying on Govt. Akwa Ibom State V. Polaris Bank LTD ( 2019) 8 NWLR ( PT. 1674) AT P.

363. Appellants argued that the decision of the High Court declaring title over the plot of land in issue to the respondent under Summary Judgment Procedure was perverse and against the weight of evidence considering the clear evidence which showed that the third party interest had not been revoked and also the position of law in resolving conflict in Affidavit and priority of interest ( double allocation) in land matters between two contending parties. Appellants submitted that in law where parties claim and succeed in tracing their title in respect of the same piece of land to the same grantor, the later to obtain a grant cannot maintain an action against the first to obtain because the grantor has already divested himself of his title and has nothing left to convey to a subsequent purchaser. Appellant cited Adelaja V. Fanoiki ( 1990) 2 NWLR ( PT. 131) at P. 151. Appellants submitted that from the pleadings filed by both parties, it was clearly shown that the said plot was first allocated to New Nigeria Development Company Limited before the allocation to Southland Nigeria Limited. Since the High Court declared title in favour of the 2nd Allottee instead of the 1st Allottee whose title had not been revoked, the decision was perverse and against the weight of evidence. Reliance was placed on Gbedu V. Itie ( 2020) 3 NWLR ( PT. 1710) at P. 125.

On issue 2, appellants contended that declaration of title in land cannot be determined under the summary judgment procedure. It is usually for liquidated money demand. Reliance was placed on U. B. N PLC V. GAP Consultant Ltd ( 2017) 11 NWLR ( Pt. 1577) P. 369; Carling

Int’l ( Nig.) Ltd V. Keystone Bank Ltd ( 2017) 9 NWLR ( Pt. 1571) P. 363. Appellants added that notwithstanding the improper procedure used, they filed a robust counter affidavit, which disclosed triable issue and a good defense, which were neither contradicted nor controverted.

On issue 3, appellants contended that the High Court was wrong to have attached weight to photocopies of public documents instead of the originals or the Certified True Copies as provided by the Evidence Act. Relying on Iteogu V. L. P. D. C ( 2009) 17 NWLR ( PT. 1171) 614. Appellants stated that the law is settled that a Court of law can only admit and rely on legally admissible evidence for its decision or any finding in respect of issues of fact in dispute between the parties in a case. Where a trial Court admitted inadmissible evidence and relied on it for its decision, an appellate Court has the duty to interfere with such a decision.

Respondent’s submissions

On issue 1, respondent argued that the judgment of the High Court was not perverse. The trial judge properly evaluated the evidence and came to the conclusion that had there been any third party interest, the 3rd party would have challenged the respondent. Okoye V. Centre Point Merchant Bank ( 2008) ALL FWLR ( 441) 810 AT 834 and Ifeanyichukwu Okonkwo V. Federal Republic Of Nigeria & Anor ( 2011) LPELR 4723( CA) were cited in support. Respondents also stated that the Court’s failure to suo motu join the 3rd cannot defeat the case because by virtue of Order 13 Rule 18 of the High Court of the Federal Capital Territory Civil Procedure Rules, 2018, the Court is not mandated to join every party mentioned in a Court process. It is rather at the discretion of the Court.

On issue 2, respondent argued that under Order 11 Rule 1 of the High Court of the Federal Capital Territory Civil Procedure Rules, 2018, summary judgment applied to all causes of action where the Claimant believes that there is no defense to his claim. Reliance was placed on A. A Macaulay V. Nal Merchant Bank Ltd ( 1990) LPELR- 1801. Appellant’s argument that a declaration of title cannot be determined vide summary judgment was therefore totally misconceived.

On issue 3, respondent argued that Section 102 and 103 Evidence Act, 2011 does not apply to documents annexed to the affidavit in support of an application during the pendency of a suit. Moreso, the appellants conceded issuing the documents but their grouse is that the documents were not Certified True Copies. Respondent cited Director General Defence Inductries Corporation Of Nig. & Anor V. Mr. Monday Dinwabor & Ors ( 2016) LPELR- 41316 ( CA) in support.

Resolution of the issues

On the issue of the propriety of declaration of title to land being granted vide summary judgment procedure, the Court held that a Defendant under the procedure is not required to show that his defense would succeed but should raise a triable issue. See Okoye V. International Trust Bank Plc ( 2007) LPELR- 4441 ( CA). The Court on the foregoing point held that the fact of an earlier allocation to a 3rd party is a serious legal point that must be thrashed in a full trial because of its implication. At that stage, it was not open to the Judge to discountenance the deposition and waive it off as unconvincing. See Ubah & Anor V. Fidelity Bank Plc ( 2013) LPELR- 20657 ( CA). As such, the appellants raised facts that should have convinced the Court to set down the suit for full trial under the general cause list. Also, the procedure is not applicable where facts or issues are contentious and will throw doubt on the claim of the Plaintiff. See Imoniyame Holdings Ltd v. Soneb Ent Ltd ( 2010) 4 NWLR ( Pt. 1185) 561, 577.

Based on the resolution above, the Court set aside the judgment of the High Court and remitted it to the High Court for determination of the claim in a full hearing.

On the remaining two issues, the Court held that although a Court is expected to determine all issues presented by parties before the Court as held in the case of Garba V. Mohammed & Ors LPELR- 40612 ( SC), there are exceptions to the rule, one of which is when the Court is returning the suit back for trial de novo. See Edem V. Canon Balls Ltd & Anor ( 2005) LPELR- 1007 ( SC) and Bolou V. Federal College Of Education, Obudu & Anor ( 2019) LPELR- 47465 ( CA). The rationale for the exception is so as not prejudice the mind of the trial judge before whom the suit would be retried.

Held

The Court allowed the appeal, set aside the judgment of the High Court and remitted same to the Chief Judge of the High Court of the Federal Capital Territory for reassignment to another Judge for trial on the merit.

Appearances

RAMALAN JIBOH ABDULLAHI ESQ.

For Appellant( s)

OBINNA AJOKU ESQ., with him, EZEKIEL EGBE ESQ.

For Respondent( s)