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In The Supreme Court of Nigeria

On Friday, the 13th day of October 1978

 

Before Their Lordships

 

George Sodeinde Sowewimo

......

Justice, Supreme Court

Chukwuweinke Idigbe

......

Justice, Supreme Court

Kayode Eso

......

Justice, Supreme Court

 

S.C. 139/76

 

 Between

 

National Bank of Nigeria & Anr

 .......

Plaintiffs

 

And

 

Lady Ayodele Alakija & Anr

.......

Defendants

 

 

 

Judgement of the Court

Delivered by

Kayode Eso. J.S.C

 

In this court counsel representing the defendants abandoned grounds 1 and 4 of the grounds of appeal and argued all the other grounds of appeal, including ground 20A. As ground 20A is in the alternative to all the other grounds of appeal, it becomes necessary that we examine the submissions of counsel thereupon first, particularly as the alternative relief sought, that is a claim for a rehearing of the case on pleadings, flows from that ground of appeal and our decision on this ground of appeal might put a stop to our consideration of the other grounds of appeal.

 

Counsel submitted that this case was not suitable for an originating summons. He referred to the affidavit of the acting General Manager of the first defendant (Mr Samson Olatunde Banjo), paras 6 and 7 of which disclosed that there was some controversy on the facts.  Counsel further referred to the affidavit of the first plaintiff and urged that no reason was given in that affidavit for the invalidity of the transaction as claimed in the originating summons. The affidavit, counsel continued, left room for conjecture and the reasons for the invalidity of the lease only came out in the submissions of counsel for the plaintiffs during the hearing of the case. Counsel for the defendants referred us to Re   Old Wood Common Compensation Fund [1967] 2 All ER 1146, at 1149, and also to Re Doherty, Doherty v Doherty [1968] NMLR 241.

 

On this ground, counsel for the plaintiffs' reply was that the judge was right to have tried the case on an originating summons. There was an unconditional appearance by the defendants and, thereafter, it was too late for them to ask for pleadings. What the court was asked to determine was the nature of the interest which the first defendant had in the property and also the interest of the two plaintiffs in the property. In so far as the first question is concerned, counsel submitted that the court was to determine whether or not the first plaintiff was a trustee for the purpose of granting the lease. The second question followed from the first. The question was whether the first plaintiff, assuming she was a trustee, could make the grant. Counsel further urged that Mr Banjo's affidavit supported the originating summons procedure which was adopted at the trial. There was nothing, counsel concluded, that stopped the defendant from asking the court to permit them to cross-examine the parties. And, in so far as cross-examination could be permitted, the procedure by originating summons was proper.

 

Now, in determining the issues raised by this ground of appeal, we think it is necessary to examine the rules of court relevant at the time of the institution of the proceedings.  The rules of court are the Supreme Court (Civil Procedure) Rules, first made on 19th September 1945 (see Cap 211, Vol X, Laws of Nigeria 1948 edition, the 'Old Supreme Court' Rules (Nigeria). We will now proceed to examine these rules. Order II, r 1, provides that 'Every suit shall be commenced by a writ of summons

 

[emphasis supplied]

 

This is mandatory.  However, note must at once be made of Section 12 of the High Court of Lagos Law (Cap 80) which provides:

 

‘The jurisdiction vested in the High Court shall, so far as practice and procedure are concerned, be exercised in the manner provided by this or any other Ordinance, or by such rules and orders of court as may be made pursuant to this or any other Ordinance, and in the absence of any such provisions in substantial conformity with the practice and procedure for the time being of Her Majesty's High Court of Justice in England.

 

It is trite law that where our rules are silent on any point of procedure the rules of procedure in the English courts are applicable and it is only this provision that could bring in Ord 5 of the Rules of Supreme Court (England), which provides for the procedure of originating summons and under which the instant proceedings were obviously begun. RSC Ord 5, r 1 (England), was derived from RSC (Revision) 1962; Ord 5, r 1. It provides for different modes of initiation of civil proceedings in England. It reads:

 

'Subject to the provisions of any Act and of these rules, civil proceedings in the High Court may be begun by writ, originating summons, originating motion or petition.'

 

[emphasis supplied]

 

A very important distinction between the provision of the old Supreme Court Rules of Nigeria and the English rules is that the Nigerian rules make it mandatory to initiate all suits by a writ of summons while the English rules permit a choice of four alternatives. This we think is very important. In support of Ord II, r 1, of the old Supreme Court Rules (Nigeria) is Ord XXXII, r 1, which provides:

 

‘In all suits written pleadings shall be ordered by the court unless the court considers in any particular suit that written pleadings are unnecessary.

 

[emphasis supplied]

 

No doubt this is complementary to Ord II, r 1, which makes it mandatory to initiate proceedings by writ. It seems clear to us that the whole essence of the old Supreme Court Rules (Nigeria) was to provide for determination of civil proceedings when the issues are clear on the pleadings and the parties were clearly seised of the issues in controversy between them.

 

It is with this, as background, that the effect of Ord 5, r 4(1) and (2), of the Rules of the Supreme Court (England) should be considered. That rule provides:

 

“(1)      Except in the case of proceedings which by these rules or by or under any Act are required to be begun by writ or originating summons or are required or authorised to be begun by originating motion or petition, proceedings may be begun either by writ or by originating summons as the plaintiff considers appropriate.

 

(2)        Proceedings –

 

(a)       in which the sole or principal question at issue is, or is likely to be, one of the construction of an Act or of any instrument made under an Act or of any deed, will, contract or other document, or some other question of law, or

 

(b)       in which there is unlikely to be any substantial dispute of fact are appropriate to be begun by originating summons unless the plaintiff intends in those proceedings to apply for judgment under Ord 14 or Ord 86 or for any other reason considers the proceedings more appropriate to be begun by writ.”

 

[emphasis supplied]

 

The old Supreme Court Rules (Nigeria) make no specific provision for the procedure of construction of a deed or contract. By virtue of section 12 of the High Court of Lagos Law therefore, Ord 5, r 1, of the English 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 Ord II, r 1, and Ord XXXII, r 1, of the old Supreme Court Rules (Nigeria).

 

In other words, it is our considered view that originating summons should only be applicable in such circumstances as where there is no dispute on questions of fact or the likelihood of such dispute. Where, for instance, the issue is to determine short questions of construction, and not matters of such controversy that the justice of the case would demand the settling of pleadings, originating summons could be applicable. For, it is to be noted that 'originating summons' is merely a method of procedure and not one that is meant to enlarge the jurisdiction of the court: see Re King, Mellor v Soulh Australian Land Mortgage & Agency Co (1907) 1 Ch 72, at 75, per Neville J.

 

Even, under the English rules where there is an option to proceed either by writ or originating summons, and where the courts in England have developed a trend to extend the use of the procedure by originating summons to declaratory actions, the courts still take good care not to substitute the use of that procedure for contentious actions with disputed facts. Lord Denning MR in Puritan v Ministry of Pensions and National Insurance [1963] 1 All ER 275 seemed to have had this in mind when he said, at p 278:

 

'Before us, counsel on behalf of the plaintiffs did not rely on the affidavits which they had filed on the facts. Counsel did not even read them. He made it quite clear that he was no longer challenging the findings of fact by the commissioner. All counsel desired, he said was a determination of the point of law, what was the proper interpretation of the words in the statute "directly interested"? Were the plaintiffs, on the facts found by the commissioner "directly interested" or not in the trade dispute which caused the stoppage of work? When the case is put that way, it seems to me to be a very proper matter for determination for originating summons for a declaration. Indeed it is a sensible and modern way of approach.'

 

[emphasis supplied]

 

That the application by originating summons is no substitute for initiating contentious issues of facts is not far-fetched if one takes a quick look at a short history of the evolution of the procedure. Until 1962, when RSC (Revision) 1962, Ord 5, r 1, took effect, there was not, in England, an absolute right to proceed by originating summons. A plaintiff coming by way of originating summons was under obligation to show that his use of the procedure was required or permitted by a rule or statute. Indeed, the first advent of the term 'originating summons' itself was by the Chancery Procedure Act 1852 which replaced the old mode of commencing proceedings in the Court of Chancery by 'bill' (later simplified by introduction of ‘claims’) with the commencement of a suit in certain cases only by  a summons originating proceedings in chambers'. In 1883 the Rules of the Supreme Court (1875) were recast and the term 'originating summons' was, for the first time, introduced into the terms and defined: see Re Holloway (A Solicitor), ex parte Pallister [1894] 2 QB 163, at pp 167 et seq, per Lindley L.J.

 

However, the main advantage of the procedure by originating summons has always been simplicity relating from the elimination of pleadings. And from the early times the courts have refrained from trying matters of disputed questions of facts on originating summons. In Re Powers, Lindsell v Phillips (1885) 30 Ch D 291, Cotton LJ said:

 

‘As regards the view taken by the Vice-Chancellor, it is true that it is not a right course to take out an originating summons to obtain payment of a disputed debt, where the dispute turns on matters of fact’

 

Lindley L.J in the same case was of the following opinion:

 

'I think the Vice-Chancellor can hardly have understood that in this case there are no facts in dispute. A summons is not the proper way of trying a disputed debt where the dispute turns on questions of fact, but where there is no dispute of fact the validity of the debt can be decided just as well on summons as in an action.'

 

Re Nobbs, Nobbs v Law Reversionary Interest Society [1896] 2 Ch 830 turned on the question of construction, as in the instant case before us, though unlike it, it dealt with the issue of mortgage. Yet Kekewich J's view is of relevance.  He said:

 

'The point which I have to decide is a question of construction arising under a mortgage deed, which is clearly a written instrument within the words of the rule; but it is contended on behalf of the defendants that I ought not to decide the point in this case because the instrument is a mortgage deed, and the person claiming to have the deed construed is a mortgagor, and there is no offer by her to redeem. It is perfectly well settled, indeed engrained in the practice of the court, that no mortgagor can bring an action against the mortgagee in respect of the mortgage without offering to redeem, and the reason is perfectly plain, and is commented on in the case of Dalton v Hayter (1844) 7 Beav 313 before Lord Langdale. A decree for redemption is also a decree for foreclosure, and a mortgagor seeking to redeem can only do so subject to the penalty of being foreclosed if he does not redeem within the time limited; and therefore it is very important that the mortgagor should not be allowed to come and harass the mortgagee without offering to redeem. The rule is for the protection of the mortgagee in view of the doctrine of courts of equity which confers on the mortgagor a power to redeem. Ought I to apply that rule to proceedings under Ord LIV A? It seems to me that if I were to do so I should be running counter to that which, as is notorious outside the rule and apparent from the rule itself, was the intention of the framers of it, namely, to facilitate the determination of short questions of construction which could be examined without affidavits upon the instrument itself, and to make the determination expeditious, easy, and inexpensive.'

 

[emphasis supplied]

 

See also Nutter v Holland [1894] 3 Ch 408. In Re Giles, Real and Personal Advance Co v Michell (1890) 43 Ch D 391, Cotton L.J believed that ‘originating summons was intended -

 

to enable simple matters to be settled by the court without the expense of bringing an action in the usual way, not to enable the court to determine matters which involve a serious question.’

 

The main difference between a writ of summons and an originating summons, being, in the opinion of Chitty J (see Re Busfield, Whaley v Busfield (1886) 32ChD 123, at 126) :

 

'that in the one case the proceedings are in court, and there are or may be pleadings, whereas in the other case the proceedings are in chambers and there are no pleadings.'

 

Buckley J in Re Sir Lindsay Parkinson & Co Ltd Settlement Trusts [1965] I All ER 609 sounded a note of warning:

 

'Under that rule [i.e., RSC Ord 5, r 4(2), applicable for the purpose of originating summons], it was, I think, open to the plaintiffs to institute these proceedings either by originating summons or by writ; by the terms of the rule the matter is left in the discretion of the plaintiffs, but I desire to say that in my view clearly, proceedings by beneficiaries against trustees of a contentious nature charging the trustees with breach of trust or with default in the proper performance of their duties, whether the matters with which the trustees are charged are matters of commission or omission, ought normally to be commenced by writ and not by originating summons, for in such proceedings it is most desirable that the trustees should know before trial precisely what is alleged against them. The appropriate form of proceedings, therefore, in my view, are proceedings by writ in which what is alleged by the parties will be clearly defined in the pleadings in which the parties can, if they wish, seek better and further particulars of the matters alleged by their opponents.'

 

Those are English authorities. The Nigerian courts exhibit the same reticence, as the English courts, in regard to the procedure by originating summons. This court, in Re Doherty, Doherty v Doherty (1968) NMLR 241 (per Ademola C.J.N) warned against the use of originating summons in hostile proceedings.

 

Having examined all these authorities, it is now necessary to examine the instant case in the light of the authorities, to see if, in the circumstances, the trial judge was right to have permitted the case to proceed on originating summons.

 

All the facts disclosed in the affidavit attached to the summons were that the first plaintiff was the sole surviving executor and trustee of the will, that she granted the lease in question as such trustee and that on the advice of her counsel she has brought this action. It was only during hearing in court that it was known for the first time that her case was based on the Settled Lands Act. It was only in the submission of her counsel, unsupported as it were by any evidence, that it was realised that the plaintiffs' case was that:

 

(1)        there were no trustees of the settlement of the property which was in law to be regarded as settled land;

 

(2)        the two plaintiffs did not terminate the settlement, if any, when the second plaintiff became sui juris;

 

(3)        the two plaintiffs did not ask for a vesting deed from the trustees of the will; and

 

(4)        no trustees of the settlement had been registered as owners of the land pursuant to Section 75 of the Settled Land Act.

 

Surely all these facts could only be within the peculiar knowledge of the plaintiffs and, if they are to be relied upon, it is for them to allege and prove and not just assume them. As counsel for the defendants said in his submission, the affidavit of the first plaintiff left room for conjecture. And it was upon this conjecture and subsequently the submission of plaintiffs’ counsel that the trial judge made his finding of fact for he said:

 

'There were no trustees of the settlement and none were appointed as provided for under Section 38 of the Act.'

 

Having argued that the plaintiffs could have called upon the trustee of the estate to vest the property in them ‘if they had been appointed by the court and had been registered as the proprietors of the property under Section 75 of the Registration of Titles Act’, he held that no trustees of the settlement were appointed up till 1955 when the lease was granted. Of course, there was no evidence whether or not the plaintiffs were appointed as trustees of the settlement by the court, though the first plaintiff granted the lease to the first defendant in her capacity as trustee of the will. Yet, it was on this finding of fact that the trial judge proceeded to base his reason in answering the first question and he held that the lease of 1955 between the first plaintiff and first defendant was invalid. The first question obviously was the most important question in the case for, in the decision of the trial judge, the answers to the remaining three questions flowed from the first.

 

Even as regards issue of delay, the judge appreciated that if certain facts had been brought to the attention of the court, there would have been established some considerable delay in the plaintiffs instituting these proceedings. The judge was also of the view that the defendants would have applied to cross-examine the plaintiffs as regards the facts deposed to in the affidavit in support of the originating summons.

 

But as we have earlier pointed out, the affidavit is bare; it disclosed nothing more than that the first plaintiff, trustee of the will, granted the lease as such trustee and relied on an unspecified advice of her solicitor to bring this action.

 

In our view, what is revealed throughout the proceedings, following upon the submissions of counsel for the plaintiffs at the hearing and the findings of the trial judge and also on the submissions of the counsel for the plaintiffs who said that the defendants should have requested cross-examination of the plaintiffs, is that, facts do exist, but were not presented and that they were necessary for a just decision to be reached. The affidavit of the plaintiff could not be a substitute for these full facts which should have been brought before the court. It only leaves the matter for a conjecture.

 

We are of the firm view that this is a case where facts should have been brought before the court, indeed, by both parties before a just decision could be reached. Mr Banjo said in his affidavit, in support of his application, that this was a case where pleadings were necessary, that the defendants would like to put all facts —

 

'relating to and surrounding the transactions including certain material facts about the plaintiffs and also the part each of the plaintiffs played before, during and after the transactions'.

 

We think that the trial judge should have ordered pleadings in this case as there are obvious questions of dispute which were raised both in the submissions of counsel and the decision of the court which have been neither proved nor admitted. 

 

Warrington J in Lewis v Green [1905] 2 Ch 340, at 342, said (and we agree)-

 

‘...  Of course, in a sense, every question of construction may involve some question of fact. It may be a question about which there is no dispute, but in order to raise any question of construction some facts must be proved or admitted.

 

Here no facts have either been proved or admitted.

 

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 (RSC Ord 5, r 4(2) (6) (England); nor that the facts are even undisputed as Re Powers, Lindsel v Phillips (1885) 30 Ch D 291; nor that they are uncontentious as in Sir Lindsay Parkinson's case [1965] 1 All ER 609). They are, in fact, hostile proceedings (Re Doherty, Doherty v Doherty [1968] NMLR 241) where pleadings must be ordered. To proceed merely by originating summons would not meet the justice of the case and we think the trial judge should have made an order for pleadings.

 

It follows that ground 20A of the grounds of appeal must succeed. We have already stated that the defendants asked for a retrial on this ground. Having regard to the order we intend to make, we do not think it would be wise to pronounce on the other grounds of appeal, notwithstanding so much learning brought by both counsel into their arguments, as this may inhibit the trial judge on the issues raised on the grounds, which may be issues he might have to decide.

 

We therefore allow this appeal. The judgment and order of Kazeem J, including his order as to costs, are hereby set aside. We order a retrial of the case before another judge of the High Court of Lagos State. The trial judge shall proceed, at the retrial, to treat the case as if it has been commenced by writ, order pleadings and he shall hear this case on the pleadings so ordered and delivered.

 

Appeal allowed.

 

Costs of appeal (N500) to defendants.

 

  

Counsel

 

 

Prof. A.B. Kasunmu

......

For the Plaintiffs.

 

 

 

Dr. F.A. Ajayi

......

For the Defendants.