Position Of The Law on the Adoption of Originating Summons Procedure for the Commencement of an Action

CASE TITLE: CALEB UNIVERSITY & ANOR v. ODERINDE & ORS (2022) LPELR-59123(CA)

JUDGMENT DATE: 13TH DECEMBER, 2022

PRACTICE AREA: CIVIL PROCEDURE

LEAD JUDGMENT: MUHAMMAD IBRAHIM SIRAJO, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on civil procedure.

FACTS:

This is an appeal against the decision of the High Court of Lagos State in Suit No. IKD/925MJR/2016, delivered by Lawal-Akapo, J., on 5th day of March, 2018.

Following an intra-family dispute amongst the members of the various branches of Onofonyin family, Isiwu, Ikorodu Local Government Area of Lagos State, a section of the family, made up of the current 1st – 4th Respondents and 4 others, commenced an action at the Lagos State High Court in 2003 against some members of another branch of the family. The action was Suit No. IKD/63/2003. Judgment was entered for the Claimants in that case on 11/09/2008. They also obtained an order for possession from the Lagos State High Court on 19/05/2015. In June, 2016, the Appellants were served with originating processes in Suit No. IKD/2317LMW/15, wherein the 1st – 4th Respondents and 4 others claimed for declaration that they are entitled to statutory/customary right of occupancy to a parcel of land in Isiwu, Ikorodu Division of Lagos State. While the suit was pending, the Appellant received a letter from a Law firm called “Law Update Consultancy” on 13/07/2016 notifying them about the judgment of 11/09/2008 and the order for possession of 19/05/2015 and threatening that they will take possession of the 1st Appellant’s land within 7 days of the receipt of that letter.

The Appellants (as Claimants) approached the High Court of Lagos State, vide an Originating Summons seeking for reliefs against the current Respondents and 5 others, as follows:

1. An order setting aside the judgment of the High Court of Lagos State delivered on 11th September, 2008 and the order for possession made on 19th May, 2015 in Suit No. IKD/63/2003: Chief Ashiru Oderinde & 7 Ors vs. Yekini Owolegbon Bangbaiye & 9 Ors, having been obtained by fraudulent misrepresentation and deceit.

2. An order of mandatory injunction restraining the 9th Defendant from issuing a writ of possession for the execution of the judgment dated 11th September, 2008 of for the enforcement of the order of possession made by the High Court of Lagos State on 19th May, 2015 in Suit No. IKD/63/2003: Chief Ashiru Oderinde & 7 Ors vs. Yekini Owolegbon Bangbaiye & 9 Ors.

3. Cost of this action.

The case of the Appellant at the trial Court was that they are the lessee of the Lagos State Government in respect of land consisting of 1,170,000 sq meters, particularly delineated and verged red on survey plan No. LA/D/KD/97 dated June, 2006. That the land was allocated to them after it was compulsorily acquired vide “Notice of Revocation of Customary Rights of Occupancy” published in Lagos State Notice No. 108 and gazetted in Lagos State Gazette No. 33, volume 18 of 4th July, 1985.

According to the Appellants, in line with the purpose of the allocation, the 1st Appellant substantially developed the University with several houses and structures placed on the land for educational purposes and running full University academic sessions on the land peacefully. The 1st – 4th Respondents maintained in their counter-affidavit that their land was never compulsorily acquired by Lagos State Government and allocated to the 1st Appellant.

At the conclusion of the hearing, the High Court of Lagos State presided over by Lawal-Akapo, J., dismissed the Appellants’ claim in a considered Ruling delivered on 05/03/2018.

Dissatisfied with the outcome of the suit at the trial Court, the Appellants filed an appeal in the Court of Appeal.

ISSUES FOR DETERMINATION:

The Court determined the appeal based on the following issues for determination:

(1) Whether the trial Court was right to have held that the Appellants, not being a party to Suit No. IKD/63/2003: Oderinde & Ors v. Bamgbaiye & Ors and the resulting judgment of 11 September 2008 given therein, are disentitled from applying to set aside the said Judgment.

(2) Whether the trial Court was right to have held that the Judgment of a Court of competent jurisdiction does not come within the purview of Order 3, Rule 5 of the High Court of Lagos State (Civil Procedure) Rules, 2012 and that the reliefs sought by the appellants cannot be pursued by an action instituted by originating summons.

DECISION/HELD:

In the final analysis, the Court dismissed the appeal. The ruling of the High Court of Lagos State in Suit No. IKD/925MJR/2016, delivered by Lawal-Akapo, J., on 5th day of March 2018 was affirmed.

RATIOS:

• ACTION – ORIGINATING SUMMON(S): Circumstances, when the adoption of originating summons will/, will not be appropriate to commence an action
• ACTION – ORIGINATING SUMMON(S): Whether the judgment of a Court is an instrument that can be interpreted in a proceeding commenced by originating summons
• ACTION – ORIGINATING SUMMON(S): When to adopt the originating summons procedure for the commencement of an action
• JUDGMENT AND ORDER – SETTING ASIDE JUDGMENT/ORDER: Whether a person who is not a party to an action can apply to a Court to set aside its judgment in such action