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In The Supreme
Court of Nigeria On Friday, the 13th day of October 1978
Before Their Lordships
S.C. 139/76
And
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 (
Counsel
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