⦿ CASE SUMMARY OF:
Emeka Okoli & Ors v. Alhaji Ibrahim Gadan Gaya (2014) – CA
by PipAr Chima
⦿ LITE HOLDING
An originating summons cannot be used in a land case where the plaintiff’s title will be disputed.
⦿AREA OF LAW
Land Law
⦿ TAG(S)
Originating summons.
Persons unknown.
Order 50.
⦿ PARTIES
APPELLANT
Emeka Okoli & Ors.
v.
RESPONDENT
Alhaji Ibrahim Gadan Gaya
⦿ CITATION
(2014)LCN/7150(CA)
⦿ COURT
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Habeeb Adewale Olumuyiwa Abiru, J.C.A.
⦿ APPEARANCES
* FOR THE APPELLANT
– Abubakar Garga Gunda.
* FOR THE RESPONDENT
– O. I. Habeeb.
⦿ CLAIM
The Respondent raised two questions on the Originating Summons for the determination of the lower Court and these were:
i. Whether having regard to the sale of the property situate at Panteka, adjacent to the New Pantaka Market, off Nnamdi Azikiwe Way, Kaduna (and as depicted and verged red in the sketch plan) by the customary owners of the property to the Plaintiff as manifested in the Sale Agreement dated 17th September, 2002, the Plaintiff can be said to have acquired an equitable interest in the said property.
ii. Whether having regard to the dismissal of the claims of the Defendants as licensees on the said property by virtue of judgment in suit No KDH/KAD/909, the Plaintiff is entitled to recovery of the said property from the Defendants.
Consequent on the determination of the two questions, the Respondent prayed for an order directing the Appellants to vacate and deliver vacant possession of the property situate at Panteka, adjacent to the New Panteka Market, off Nnamdi Azikiwe Way, Kaduna and as depicted and verged red in the sketch plan to him forthwith.
The originating summons was supported by an affidavit with exhibits attached and the Respondent filed a written address thereon.
⦿ FINDING-OF-FACT
The Respondent, as plaintiff, commenced the action in the Lower Court against the Appellants, as defendants, by an Originating Summons for Possession under the provisions of Order 50 of the High Court of Kaduna State (Civil procedure) Rules and he prayed for recovery of possession of property situate at Panteka and adjacent to the New Panteka Kaduna as depicted on the sketch plan of the area verged red and more particularly identified by the boundaries it shares with the shops/plot of Murtala painter, Abubakar, Samuel Panel Beater, Sule Panel Beater, Fatayi Panel Beater, etc on the ground that he is entitled to possession and that the persons in occupation are in occupation without his licence or consent.
⦿ ISSUE(S)
1. Whether the trial court was justified in holding that the Respondent was right in initiating the suit by way of originating summons pursuant to order 50 of the Kaduna State High Court (Civil Procedure) Rules 2007 for recovery of possession of the disputed property.
2. Whether having regard to the circumstances of this case, the trial Court was right in holding that the Respondent has acquired equitable interest in the disputed property and therefore entitled to possession.
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: ALLOWED]
1 & 2: ISSUES 1 & 2 WERE RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
RULING:
i. The use of the Order 50 procedure by the Respondent to seek recovery of possession of the property in dispute from the Appellants was inappropriate in the circumstances. The procedure adopted by the Respondent was not available to him on the facts of this case because he did not show that his title to ownership of the property in dispute had been confirmed, was untainted, clear and without dispute. The lower court thus fell into error when it held that the procedure was proper and when it went ahead to grant the order for recovery of possession of the property in dispute. The issue for determination in this appeal is resolved in favour of the appellants.
⦿ CONTRIBUTIONS OF OTHER JUSTICES TO ISSUE(S)
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
⦿ REFERENCED (OTHERS)
⦿ NOTABLE DICTA
* PROCEDURAL
This is an out-flow of the elementary principle of law that where a specific procedure is provided for commencing an action, a party seeking to use the procedure must bring his case within those covered by that procedure otherwise his action will be incompetent. – Abiru, JCA. Okoli v. Gaya (2014)
* SUBSTANTIVE
In a case where the landlord does not know the names of the illegal occupiers of his land or cannot even physically identify all of them, the requirement that the persons be made defendants to the action would result in great injustice and hardship to the landlord or land owner thus giving rise to the procedure under Order 50 – Nnodi v. Thanks Investment Ltd (2005) 11 NWLR (pt 935) 29. – Abiru, JCA. Okoli v. Gaya (2014)
The use of the summary procedure for possession under the provisions of order 50 of the High Court Rules is limited only to virtually uncontested cases for which default of summary judgment can be obtained or in clear cases where there is no issue or question to try, i.e. where there is no reasonable doubt as to claim of the claimant to recover possession of the land or as to the wrongful occupation of the land without licence or consent and without any right, title or interest thereto – Henderson V. Law (1984) 17 HLR 237. It is only applicable in the clearest of cases where the title of the claimant to the land is not in dispute and has been confirmed. Where the existence of a serious dispute is apparent, this procedure should not be used – Adedipe v. Theophilus (2005) 16 NWLR (Pt 951) 250. In Madam Sinotu Osinowo V. Persons Named Unknown (1976) 10 CCHCJ 2551, Cole J, speaking of order 113 of the English Rules, stated at page 2555 thus: “This Order, in my view, is meant only to be employed in uncontested cases, where there is no issue or questions to be tried, and there is no reasonable doubt to the claim of the plaintiff to recover possession of the land, as example where the person wrongfully occupying the land cannot claim any right, title or interest in the land whatsoever.” – Abiru, JCA. Okoli v. Gaya (2014)
It is axiomatic in our jurisprudence that there are two clear and distinct ways in which land can be properly and rightly sold, valid acquired and legally transferred in Nigeria and these are either under customary law, or under the received English law. – Abiru, JCA. Okoli v. Gaya (2014)
It is trite law that in order to constitute a transfer of legal title under English Law by purchase, there must be a valid sale, payment of money accompanied by acknowledgement of receipt and execution of a deed of conveyance. If a person sells his land to another and fails to put the person in possession, retains possession, the payment of money to the owner of a parcel of land does not per se amount to a transfer of title to the purchaser. The payment of purchase price must be accompanied either by a conveyance executed in favor of the purchaser to invest him with legal title or by entry into possession by the purchaser to give him equitable title to the land. – Abiru, JCA. Okoli v. Gaya (2014)
As stated earlier, payment of purchase price alone does not vest equitable title of property and the best that the payment of purchase price can do is to entitle the purchaser to a claim for specific performance of the contract of sale. – Abiru, JCA. Okoli v. Gaya (2014)
Additionally, the property said to have been sold to the Respondent by the Sale Agreement, Exhibit B1, was described by vendors as “our plot that is located close to Panteka Kurmin Mashi Kaduna”. The parcel of land claimed by the Respondent to belong to him in the instant case by the said purchase was described as the property situate at Panteka and adjacent to the New Panteka Market, off Nnamdi Azikiwe Way, Kaduna as depicted on the sketch plan of the area verged red and more particularly identified by the boundaries it shares with the shops/plot of Murtala painter, Abubakar, Samuel Panel Beater, Sule Panel Beater, Fatayi Panel Beater, etc and sketch plan was attached as Exhibit A. Clearly, the description of the property sold by Exhibit B1 is not the same as the description of the property claimed by the Respondent in this matter, and as depicted on Exhibit A, and there is nothing in the affidavit of the Respondent showing the correlation between the properties described in both documents. – Abiru, JCA. Okoli v. Gaya (2014)
It settled law that where a party claims ownership of a parcel of land and relies on a plan, he must show that his plan corresponds with the land to which he lays claim. It is usually not enough for a party simply to file or tender a plan of land and rest content that the boundaries have been defined when there is nothing in the pleading and evidence against which to test the boundaries and even as well as the location and features of the said land. – Abiru, JCA. Okoli v. Gaya (2014)
