Taye Garba & Ors V. Iyabo Ummuani (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment)

Appellants were the claimants in suit No. KWS/232/2011 at the High court of Kwara state, presided over by Mahmud Abdul Gafar J. The suit was brought by originating summons against the Respondent (defendant at the court below) but she raised a Preliminary objection against the action as follows:

“TAKE NOTICE that the (sic) DEFENDANT/OBJECTOR herein named intends, at the hearing of this action, to rely upon the Preliminary objection Notice where of is hereby given to you.

AND TAKE NOTTCE that the grounds of the said objection are as follows:

(1) This suit, (KWS232/2011) is not properly constituted therefore incompetent.

(2) By judgment of upper Area Court 1, delivered on April 8, 2005: (CVF/69/2002) MADAM IYABO IMAM v. MR AKANNI AKIBU, AJIBOLA BAYO, TAIYE GARUBA UMAR, GANIYU L. GARUBA AREMU, RASAKI GARUBA UMIAR AND AFUSAT GARUBA UMAR, the Subject matter of this suit has been resolved by the competent court of Justice.

(3) The Defendant/Objector is a daughter of late Umar Shaaba as held by the (CVF/69/2002) above, consequently by law the Defendant is entitled to possession of her late father.

(4) That by the authority of the suit CVFM/69/2012 paragraph 2 above, the Defendant has commenced action against the Claimants and another person in Upper Area Court 1, Ilorin and the claimants herein are stopped.

(5) That the Claimants in the Motions (CVF/69/2002) filed on 31/03/2011, 9/06/2011 and 21/06/2011 made the subject matter of this action an issue and the Court had resolved the motion filed on 31/03/201 in favour of the Defendant and the remaining two motions are still pending at Upper Area court 1, Ilorin.

(6) By virtue of the aforementioned Judgment, paragraph 2 above, the Claimants have no direct interest in the estate of their grand father but the heirs of the said grand father.

(7) The Defendant/Objector with Permission of her late Father, Umar Shaaba, occupies the estate of her Late Father and not the estate of Garuba Kaduna, the Objectors brother.”

After hearing the Preliminary Objection the High Court Judge held the objection in favour of the Defendant, saying that since the matter was of a contentions nature, it was not one that could be taken under originating summons. The learned Judge there upon directed the parties to file their pleadings and accompanying processes. The Ruling of the lower Court was delivered on 17/02/2012 and the main points were as follows:

“(2) In the resolution of this issue the first observation I want to make is that the action has been commenced by originating summons. I take it as trite that originating summons is only available for proceedings which are not hostile or contentious.

see OSSAI vs. WAKWAH (2006) 2 SCNJ 20. Where the facts are contentious, originating, summons is not appropriate.