Alhaji Umaru Malittafi V. Salisu Dahiru Modomawa & Ors (2016)
LawGlobal-Hub Lead Judgment Report
TUNDE OYEBANJI AWOTOYE, JCA
This is the judgment in respect of the appeal filed by the appellant against the decision of High Court of Zamfara State Gusau delivered on 10/2/2014 in Suit No ZMS/GS/SS/2/204.
2 By Paragraph 26 of their further amended statement of claim, the plaintiff claimed as follows: ?Where the plaintiffs pray:-
a) An order of this Court declaring the plaintiff as the rightful owner of the land.
b) An order setting aside the revocation order, and declaring same as unconstitutional.
c) An order ejecting the defendant from the land.
d) An order directing the defendants to evacuate all blocks, bricks, sand, (sic) gravels deposited and or any (sic) braiding on the aforesaid land and their vehicles displayed for sale on the said land.
e) An order of perpetual injunction retraining the defendants from further act of trespass on the aforesaid land.?
The plaintiff?s claim was in respect of that parcel of land lying and being at opposite Juma?at Mosque at Block 1 flat 1 & 2 Zaria Road Gusau Zamfara State.
?Parties
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filed and exchanged pleadings, after hearing the parties, the learned trial Judge gave judgment dismissing the plaintiff?s claim in the following terms:
?On the whole, this case lacks merit, the plaintiff is not the entitled to any of the reliefs claimed and is accordingly dismissed. A cost of twenty thousand Naira only (N20,000) is hereby awarded against the plaintiff in favour of the Defendant. ”
Miffed by the decision of the lower Court, the appellant filed a notice of appeal challenging the decision on 5 grounds. The 5 grounds of appeal (shorn of the particulars) read as follows
?Ground one
The learned trial Judge erred in law when he held that a sale of land conducted without Governor?s consent is still null and void without due regard to the Supreme Court decision in Aderemi?s case.
Ground two
The learned trial Judge erred in law when he held that the plaintiff appellant has no locus standi to file the action.
Ground three
The learned trial Judge erred in law when he placed reliance on Exhibit D, the minutes of meeting of the presidential implementation committee in uploading the
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revocation.
Ground four
The learned trial Judge erred in law when he upheld the revocation of the plaintiff offers without due regard to the content of Section 28 of Land Use Act.
Ground five
The judgment is unreasonable unwarranted and cannot be supported by the weight of evidence.?
The record of appeal was deemed transmitted to this Court on 5/5/2015 after which parties filed and exchanged briefs of argument.
The appellant?s brief of argument was prepared by Abdulrahman K. Adeyi and deemed filed on 13/10/2015. The Respondent?s amended brief of argument was deemed filed on 2/3/2016.
The appellant filed a reply brief on 18/4/2016.
Appellant?s counsel formulated 3 issues for determination in this appeal, they are
1. Whether the plaintiff does not have the locus standi to institute this suit, having established that he purchased the property from PW1 and PW5. (this issue is distilled from grounds 1 & 2 of the notice of appeal)
2. Whether there is valid revocation of PW1 and PW5, interest on the landed properties. (this issue is distilled from ground 4 of the notice of appeal)
3. If issue
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2 is answered in the affirmative, whether the subsequent reallocation to the defendants for private purposes does not invalidate the revocation of the appellant right to the property. (This is distilled from ground 3 of the appeal).?
On issue 1, learned appellant?s counsel submitted that the plaintiff had locus standi to institute this action having established that he purchased the property from PW1 and PW5. He contended that parties to a sale of landed property could enter into agreement before processing their application for governor?s consent. He relied on WOJUGBAGBE LIGHT INDUSTRIES LTD V CHINUKWE (1995) 4 WLR (PT 390) 379 at 438; INTERNATIONAL ILE INDUSTRIES (NIG) LTD V OYEKANMI ADEREMI & 4 ORS (1999) 8 NWLR (PT 614) 268 at 298.
He submitted that by this an equitable interest existed, He cited ANIMASAUN V OLOJO (1990) 10 SCNJ 43 at 45; SOREMEKUN V SHODIPO (1959) LLR 30. Hence the plaintiff had locus standi to file the action.
He urged the Court to resolve this issue in favour of the appellant.
?On issue 2, learned appellant?s counsel submitted that the allocation made on 4/1/2010 to PW1 and PW5 was first in time and
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subsisting, since no notice of revocation was served on any of them by the presidential implementation committee. He urged the Court to hold that the presidential committee could not decide anything on the land without hearing from PW1 and PW5, He relied on OBIKOYA & SONS LTD V GOVERNOR OF LAGOS STATE (1987) INWLR (PT 50) 385 at 401 He posited that the subsequent ground was allocated illegally. He referred to section 28 (6 & 7) of the Land Used Act.
On issue No 3, learned counsel for the appellant submitted that subsequently re ? allocation to the defendant for private purpose did not invalidate the revocation of the appellant?s right to property.
He submitted further that act meted out against the appellant was unconstitutional and should be so held. He relied on CHIEF EREKU V THE MILITARY GOVERNOR MID ? WESTERN & OTHERS (1974) 9810SC.42 and other cases. He finally urged the Court to set aside the judgment and affirm the property as that of the appellant.
In the amended Respondent?s brief of argument, the respondent?s counsel raised preliminary objection.
?He objected to Ground 3 of the grounds of appeal. He
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submitted that the ground was incompetent because it did not relate to the case of the appellant and the judgment of the trial Court.
He contended further particulars (a) and (b) did not flow from or relate to the ground.
He argued further that particular (d) of Ground 4 did not have any bearing with Ground 4.
He contended further that issue No 1 was incompetent having been formulated from incompetent grounds.
He posited issue No 1, 2 and 3 were incompetent as issue 1 arose from incompetent ground 1, issue 2 arose from incompetent ground 4 and issue 3 did not relate to the judgment of the trial Court. He finally urged the Court to strike out appeal.
The appellant?s counsel in response filed appellant?s reply brief. Learned appellant?s counsel submitted that the preliminary objection was misconceived in law as there were other grounds of appeal that could sustain the appeal even if the preliminary objection succeeded. He cited ODUNUKWE V OFOMATA (2010) 18 NWLR (PT 1225) 4040 at 423; NEPA V ANGO (2001) 15NWLR (PT 737) 627 and NWAOLISAH V NWABUFO (2011) 14NWLR (PT 1268) page 600 at 641.
He submitted further that ground 3 was directly
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related to the judgment of the trial Court in that it was a complaint against the use of Exhibit D. He urged the Court not strike it out because it carried a clear complaint. He referred to SPLINTERS (NIG) LTD V OASIS FINANCE LTD (2013) 18 NWLR (PT 1385) 188 at 215 ? 216.
On grounds 1 and 4, learned appellant?s counsel submitted that there were other particulars that could sustain the grounds as the Respondent?s complaint targeted some of the particulars He cited TOTAL UPSTREAM (NIG) LTD V AIC (LTD) (2016) 2NWLR (PT 1497) 467 at 491.
He finally urged the Court to dismiss the preliminary objection.
On the main appeal, the Respondent?s counsel formulated two issues for determination.
The two issues are
?ISSUE NO 1:
Whether or not the appellant had the locus standi to institute the action at the trial Court.
ISSUE NO 2:
Whether or not by the pleadings and evidence led the revocation of the leasehold interest was valid and subject to challenge by the appellant.?
ON ISSUE NO 1
Learned Respondent?s counsel submitted that the appellant filed the action claiming ownership of the landed properties in dispute on the ground
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that they were allocated to PW1 and PW5 by the Presidential Implementation Committee and that the said PW1 and PW5 sold the landed properties to him.
He submitted that the appellant did not claim for any specific performance to perfect an inchoate title if there was any. He added that the appellant did not establish any enforceable interest in the properties. He relied on Section 3 (1) of the Contracts Law Cap 34 of Sokoto State. He argued that the alleged sale without the consent of the Governor was void ab initio.
He posited further that the finding of the trial Court that the purported sale was unenforceable was not appealed against. He urged the Court to deem the said finding of the lower Court as accepted He cited WEMA BANK PLC V OLUDARE (2015) 6 C. A. R. 1 at 15. He finally urged the Court to resolve this issue in favour of the Respondents.
ON ISSUE NO 2
Learned Respondent?s counsel submitted that the validity of the revocation letter could not be challenged against the Respondents who were not the persons who revoked the leasehold. He cited INEC V DPP & ANOR (2015) 7 CAR 67 at 81; and ETIM V ETTA (2012) 53 WRN 169 – 170.
?He argued
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further that the appellant did not challenge the proceedings in Exhibit B and the findings of the lower Court thereon.
He urged the Court to resolve this issue in favour of the Respondents.
I have carefully considered the submissions of the learned counsel on both sides as well as the contents of the record of appeal.
I shall first deal with the preliminary objection raised by the Respondents before delving into the main appeal.
I have deeply considered the grounds of appeal and the issues formulated therefrom in the light of the preliminary objection of the Respondents. The preliminary objection attacks Grounds 3 and 4 of the Grounds of Appeal and issues 1 ? 3 formulated therefrom. I am, with due respect unable to see any merit in the preliminary objection of the Respondents.
Ground 3 of the Grounds of Appeal attacks pages 16 of the judgment of the lower Court. See page 154 of the Record of Appeal.
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Ground 4 of the grounds of appeal attacks the finding of the trial Court on the validity of the revocation of PW1 and PW5 interests on the properties. The two grounds attack the ratio decidendi, and core of the judgment. They identify isolate and
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accentuate and attack the reasonableness of the decision of the lower Court. See OLUFEAGBA V ABDULRAHEEM & ORS (2010) 17 WRN 23; (2009) 12SCNJ 349. SARAKI V KOTOYE (1992) 1142 SCNJ.26 and EGBE V ALHAJI (1990) INWLR (PT 128) 546 at 590.
I have also examined the particulars of the grounds 3 and 4. They are competent and flow from the respective grounds. I hold that grounds 3 and 4 of the grounds of appeal are competent, I also hold that issues 1, 2 and 3 formulated from the grounds are competent.
I need to state that a preliminary objection is not just filed to attack every imaginary microscopic error that is not weighty enough to terminate the appeal. The purpose of preliminary objection is to scuttle the hearing on appeal See GALADIMA V TAMBIA (2000) 6 S. C. (PT 1) 196 at 707. A preliminary objection is filed against the hearing of the appeal and not against one or some of the grounds of the grounds of appeal which should have been challenged by filing a motion on notice. See ODUNUKWE V OFOMATA (2010) 18 NWLR (PT 1225) 404 at 423; ALARIBE V OKWUONU (2015) LPERL 24297; NWAOLISAH V NWAOBUFOH (2011) 14 NWLR (PT 1268) 600.
According to Rhodes ? Vivour
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JSC, in ODUNUKWE V OFOMATA (supra) 404 at 423
?Nowadays preliminary objections are filed once a respondent notices any error in the appellant processes. This is wrong. Where the respondent complains of the competency of a ground/s of appeal as in this appeal, and the other ground/s are in order are in order and can sustain the appeal, the respondent ought to have file a motion on notice to strike out the incompetent grounds and not a preliminary objection See MUHAMMED V MILITARY ADMINISTRATOR PLATEAU STATE (2001) 16 NWLR (PT 740) 524; NDIC V ORANU (2001) 18 NWLR (PT 744) 183.?
Viewed from all angles this preliminary objection lacks merit. It targets a few of the grounds of appeal while there are other grounds of appeal to sustain the appeal. It is totally devoid of merit. It is also improperly raised. It is accordingly overruled.
Now to the main appeal.
I have soberly considered the issues formulated by both parties for determination. I am of the respectful view that the issues formulated by Respondent?s counsel are adequate and wide enough for the just determination of this appeal. I therefore adopt them.
?For ease of reference I
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reproduce the two issues hereunder
?ISSUE NO 1:
Whether or not the appellant had the locus standi to institute the action at the trial Court?
ISSUE NO 2:
Whether or not by the pleadings and evidence led the revocation of the leasehold interest was valid and subject to challenge by the appellant
ISSUE NO 1
In resolving this issue, the facts of the case now on appeal needs to be brought into proper perspective for clarity?s sake.
Sometimes in January 2010, the Federal Government allocated the parcel of land at Block 1 Flat 2, Zaria Road Gusau Zamfara State to the 1st plaintiff.
The offer of leasehold was accepted by 1st plaintiff. The 2nd plaintiff was also allocated Block 1 flat 1 Zaria Road Gusau Zamfara State by the Federal Government around the same period. The offer of leasehold was also accepted by him.
The two plaintiffs subsequently transferred their properties to Alhaji Umaru Mailittafi (3rd plaintiff).
The 3rd plaintiff wanted to start construction on the said allocated parcels of land but the defendant did not allow him.
?The plaintiffs later received information that the allocations of the portions of land had been revoked by
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the Federal Government, the plaintiff being dissatisfied then filed this action.
At the trial Court, the learned trial Judge after hearing the parties held that the plaintiff (Alhaji Umaru Mailittafi) lacked locus standi to institute the action.
What is locus standi? Aderemi JSC. In OJUKWU V OJUKWU & ANOR (2008) 4NWLR (PT 1078) 435, explained it thus ?Going by settled judicial authorities the LOCUS STANDI denotes legal capacity to institutes proceedings in a Court of law. The fundamental aspect of LOCUS STANDI is that it focuses on the party seeking to get his complaint laid before the Court?
According to Chukwuma ? Eneh JSC. In ATTORNEY GENERAL OF ANAMBRA STATE V ATTORNEY GENERAL OF THE FEDERATION (2007) 12 NWLR (PT 1047) ?No other person excepting the person on whom is vested the aggregate of the enforceable right in a clause has the standing to sue. And so the point must be made that where a person has brought an action claiming a relief which on the facts of the matter is referable to another … then he cannot succeed for want of locus standi simply because there is no dispute between them. See BRAIMOH OLARIODE & ORS
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V OYEBI & ORS (1984) 5SC. At 16.?
The learned trial Judge held that the plaintiff lacked locus standi because according to his lordship? he has failed to prove his title to the properties of any interest and also failed to prove possession of the landed properties.? Indeed if the plaintiff did not have any interest in the parcel of land subject matter of the action and was not in possession of the said land then he would have no locus standi to institute the action now on appeal. So the pertinent question to ask in resolving this issue is did the plaintiff have any interest whatsoever in the land in dispute? Was there any dispute between the plaintiff and the defendants at the lower Court?
From the evidence of the plaintiff, the parcel of land was sold to him by 1st plaintiff and 2nd plaintiff.
According to him
?Later I heard that the houses were advertised on the National Dailies and have been purchased, I looked for those who brought the houses. I called one Garba Muhammed the 1st plaintiff and informed him I was the one who bided (sic) for the house. He sold the house to me at the cost of N5,250,000 (Five Million, Two Hundred
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and Fifty Thousand) I also complain to him to inform the owner of the 2nd house of my intention. The 2nd plaintiff offer to sell his own at the rate of N5, 500,000. I also paid him 2 or 3 Weeks later?
Garba Mohammed, the 1st plaintiff was PW1. He sold one of the parcels of land to the plaintiff, He gave evidence as follows
?In 2009 I saw an advertisement in a National Daily (Daily Trust) for the sale of landed property in respect of Nigeria postal services. I express my intent and applied for the sale of same. They acknowledge the receipt of my application and also informed me of the allocation of the landed property. I accepted the offer and paid the necessary fees. I was given the necessary document in respect of the land. After documentation I sold the said property to Umaru Mailittafi. We followed the sale procedures and he paid me and I handed over the documents to him that is all. Later I was invited by the Court. I saw the advert in the daily trust newspaper (identified the daily trust newspaper publication)?
PW5 was the 2nd plaintiff. He gave evidence inter alia thus
?I could remember, that at that time a friend of mine
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drew my attention to a newspaper publication in respect of a committee to dispose FGL property I became interested I applied, my application was processed and it was successful, I received an allocation letter paid the prescribed amount and was given the necessary document that qualified me as the legitimate owner of that property in January 2010, when I needed the money to solve some of my financial constraint, I approached one Alhaji Umaru Mailittafi, here in Gusau and informed him of my desire to sell the property to him, we agreed, and I sold the property to him in March, 2010.?
What was the nature of the interest of 1st plaintiff and 2nd plaintiff in the parcels of land which they sold to the plaintiffs?
What was offered to the 1st plaintiff and 2nd plaintiff was leasehold. It is like a right of occupancy under the Land Use Act. See ABIOYE & ORS V YAKUBU & ORS (1991) 5 NWLR (PT 190) 130 Obaseki JSC. explained it thus ?Statutory right of occupancy are granted by the Governor (See Section 5 (1) & (2) and customary right of occupancy by the Local Government in whose area, the land situates (See Section 6 (1)) these rights of occupancy
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bear resemblance to leasehold interests. They can be assigned. They can be mortgaged and they can be under ? let or sub ? let.?
However, contrary to the finding of the learned trial Judge, unlike a right of occupancy under the Land Use Act, a leasehold as in this case is granted by the Federal Government and the provision of the Land Use Act with regards to seeking of consent of the State Governor is in applicable to it. The leasehold is in respect of Federal Government Land Section 49 of the Land. Use Act exempts Federal Government lands from the operation of the Land Use Act. The section reads thus
?Nothing in this Act shall affect any title to land whether developed or undeveloped held by the Federal Government or any agency of the Federal Government at the commencement of this Act and accordingly any such land shall continue to vest in the Federal Government or the agency concerned.?
The terms of the leasehold as contained in the offer i.e. Exhibits F and Exhibits G included
a) Clause 1:- That the offer is not assignable, negotiable or transferrable in any manner however.
b) Clause 2:- the offer is given on the
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understanding that the offeree has not accepted any other offer of residential accommodation in Abuja or anywhere else in the country otherwise this offer will stand forfeited.
c) Clause 11:- upon full payment of the consideration within the stipulated time frame, the offeree shall enter into a valid lease agreement with the Federal Government at no further cost.
For ease of reference I shall reproduce some of the terms of the offer hereunder:-
?This letter shall constitute the terms of an understanding between your good self and FGN in respect of the lease of the property.
1. You have been offered the property by virtue of your having satisfied the FGN that you are entitled civil servant/public officer in accordance with the published guidelines. As you are aware, the offer is not assignable, negotiable or transferable in any manner however
2. This offer is made to you on the understanding that you have not accepted any other offer of residential accommodation in Abuja or anywhere else in the country from the FGN or any of its agencies. Please note that if it is so found that you have accepted an offer or any other
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residential property from the FGN, this offer will stand forfeited and all sums paid pursuant to this offer will be forfeited. The within mentioned shall be without prejudice to any other administrative, statutory or other discipline measures that the FGN shall deem proper to be meted out to you in the circumstances.
3. The property is being offered to you on an as is basis consideration will be given to you for … you may claim to have made on the property ….
4. The consideration for the lease of the property shall be N1,250,000;00 (One Million, Two Hundred and Fifty Thousand Naira) only payable in not more than three (3) installments, each installments to be paid by certified bank draft issued by a bank that has met the minimum capitalization requirement of the Central Bank of Nigeria. Kindly note that personal cheques will not be accepted for whatever reason and under any circumstances. You shall be expected to pay, by certified bank draft, a sum equivalent to ten percent (10%) of the consideration within two (2) weeks from the date of your receipt of this offer, along with the duly completed and signed acceptance form annexed to this offer.
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5. In addition to the consideration, you are expected to make the payment of a further sum equivalent to five percent (5%) of the consideration for the transaction costs of this offer, that is N62,500,00 (Sixty Two Thousand, five Hundred Naira) only. This amount will cover all the administrative costs, including the issuance of the certificate of occupancy. It will, however not cover the costs of any further transactions.
6. For the purpose of clarity, the payment procedure for this offer is stated hereunder:-
a) A certified bank draft in a sum equivalent to ten percent (10%) of the consideration together with the duly completed and signed acceptance letter form annexed to this offer should reach the committee within two weeks (2) from the date of your receipt of this offer. This sum is non ? refundable, whether or not the transaction is completed.
b) Within ninety (90) days from the expiration of the two weeks period stipulated in Paragraph 6 (a) above, two banks draft shall reach the committee; the first shall be in sum equivalent to a further fifteen percent (15%) of the consideration. The offer should be in a sum equivalent to
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five percent (5%) of the consideration which shall be the transaction cost referred to in Paragraph 5 above.
c) The balance of seventy five percent (75%) of the consideration shall be payable within 90 days of the payment in Paragraph 6 (b) above. All payment must be effected within a total one hundred and eighty (180) days of the initial non ? refundable 10% payment in paragraph 6 (a) above.
d) Any default in effecting payment in line with the foregoing procedure will automatically void this offer and you shall consequently become entitled to all payments already made by you in excess of the initial ten percent (10%) referred to in Paragraph 6 (a) above, less administrative costs that may have been incurred by the committee in respect of this transaction.
e) Payment will be made in not more than the number of installments specified herein and no intermediate payments will be accepted, except it is full payment.
f) The bank drafts are to be made in the name of the presidential implementation committee on FG Landed Property.
7. …
8. …
9. …
10. …
11. Your acceptance of tis offer shall constitute an
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undertaking on your part that:-
a) Upon full payment of the consideration within the stipulated time frame, you shall enter into a valid lease agreement with the FG at no further cost to your good self
b) You shall abide by all relevant planning, environmental, health and safety laws, rules and regulations which may from time to time, be required or stipulated by the appropriate authorities.
c) Time being of the essence in the performance of each conditions mentioned herein, no extinction of time shall be granted for the performance of any of the conditions.
12. This offer shall be deemed to have been withdrawn at the close of the business on the fourteenth (14th) day from the date of your receipt of this offer unless the prior to that time, the committee shall have received a valid acceptance hereof as specified in paragraph 7 above.
13. The laws of the Federal Republic of Nigeria shall govern the terms stated in this letter.?
It is clear from the above terms that the offers of the lease to the PW1 and PW5 were untransferable and unassignable.
?This was moreso when the offers were subject to the entry into a valid
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lease agreement with the Federal Government. In which case, mere completion of payment of the consideration did not turn the acceptance of the offer into a valid lease See Clause 11 (a) of the offer of leasehold.
The offers were still untransferable and unassignable, without a valid lease agreement between the offeree and offeror. The contention of the appellant in the above regard to the effect that the PW1 paid the consideration for the leasehold offer before the sale to him therefore holds no water. It is a non ? sequitur. There was no valid lease agreement with PW1 and PW5 which they could transfer.
What is clear from the above is that PW1 and PW5, transferred no interest to the plaintiff. The plaintiff therefore had no locus standi to institute an action in respect of a parcel of land in which he had no interest.
I must state at this juncture with due respect to the learned trial Judge that the provisions of the Land Use Act on which his Lordship relied with regards to the requirement for governor?s consent are inapplicable to Federal Government Lands. See Section 49 of the Land Use Act. However it is not every error in a case that will
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result in an appeal being allowed. Only an error that has occasioned miscarriage of justice will so result. See NWAEZE V STATE (1996) 2 NWLR (PT 428) 1. This error of the learned trial Judge has occasioned no injustice.
I need to also state that I agree with the submission of learned Respondent?s counsel that the unwritten assignment of leasehold in land to the plaintiff violated the provision of Section 3 (1) of the Contracts Law of Sokoto State.
The section reads
?3. (1) No action may be brought upon any contract for the disposition or any interest in land unless the agreement upon which such action is brought, or some memorandum or note thereof, is a writing, and signed by the party to be sued or by some other person lawfully authorized by him.?
It follows from the above that the plaintiff is forbidden from maintaining an action on any contract for the disposition or any interest in land unless such a transaction is backed up by a written agreement or some memorandum or note. Therefore the alleged assignment of leasehold interest to the plaintiff is unenforceable.
I resolve this issue in favour of the Respondents.
?ISSUE NO 2:
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Whether or not by the pleadings and evidence led the revocation of the leasehold interest was valid and subject to challenge by the appellant.?
It was the case of the plaintiff at the lower Court that the Federal Government revoked the offers of leasehold without giving PW1 and PW5 notice of revocation. The plaintiff (now appellant) also summoned PW3 Ahubi Sussan Ochida to tender the letters of revocation. Since it was the act of the revocation by the Federal Government that the plaintiff complained about the Federal Government should have been joined in the action as it was a necessary party. The decision of the Court would definitely affect the Federal Government on the leasehold. A necessary party was defined by Ogbuagu JSC. In THE REGD. TRUSTEE N. A. C. P. N. V M. H. W. U. N. (2008) ALL FWLR (PT 412) 1013 at 1028 as follows:-
?All those who claim some share or interest in the subject matter of the suit or who may be affected by the result, as well as those who the Court may join even suo motu, are necessary parties, for their presence before the Court may be necessary in order to enable the Court, effectively and completely to adjudicate
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upon and settle all the questions involved or in controversy. See EGONU V EGONU (1973) E. C. S. L. R. 664; COKER V ADEYEMO (1968) NMLR 323; UKU V OKUMAGBA (1974) 3SC. 35; GREEN V GREEN (1987) 3NWLR (PT 61) 480? (1987) NSCC 1115 (1987) 7SCNJ 262, (2001) FWLR (PT. 76) 795; LONG V CROSSLEY (1879) 13 CHD. 388?
I agree with the learned Respondents counsel that it is wrong to adjudicate on the validity of the conduct (i.e. the revocation of the lease of a person who is not a party to the action in his absence). You cannot shave a man?s head in his absence. The revocation of the leasehold was done by an agency of the Federal Government.
In my respectful view, the Federal Government ought to have been a party to the action now on appeal. The validity of the revocation by the agency of the Federal Government cannot be rightly determined in its absence. See AYORINDE V ONI (2000) 3 NWLR (PT 649) 349 where Karibi ? Whyte held as follows:
?Where the nature of the evidence before the Court is such that the case of the parties before it can be determined in the absence of those not joined. It can proceed to do so. It is only in those cases
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where it will not be right and the Court cannot properly determine the issues before it in the absence of the parties whose participation in the proceedings is essential for the proper, effectual and complete determination of the issues before it, will it necessary to insist on the joinder of such necessary parties.?
Also in OKWU V UMEH & ORS (2016) ISCNJ. 129 at 150 ? 151 Okoro JSC. Stated thus
?However, while it is the law that no cause or matter shall be defeated by reason of mis ? joinder or non ? joinder of any party, yet, in the absence of a proper party or necessary party before the Court, it appears an exercise in futility for the Court to make an order or decision which will affect a stranger to the suit who was never heard or given an opportunity to defend himself. This will certainly be against the tenets and tenor of Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), in the instant case, there is no way the questioned posed by the appellant for the determination would be effectually and completely answered in the absence of APGA, the ultimate beneficiary of the outcome of the
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decision. Also, without APGA as a party, the relief sought would not have any effect as APGA cannot be bound by an order of a Court in a matter it was not a party. This is sadly, the lot of this case. See OLAWOYE V. JIMOH (2013) 13 NWLR (Pt.1371) 362, NDP V. INEC (2013) 6 NWLR (PT.1350) 392.
The end result of what I have said above is that although the trial Court had the jurisdiction to hear the suit as constituted, the judgment generated thereby which have massive impact on the activities of AFGA, including its leadership, cannot be allowed to stand. A plaintiff is not bound to sue a particular party. However, where the outcome of the suit will effect that party one way or the other, it will be foolhardy not to join him in the suit. In fact, it would amount to an exercise in futility as the said party will not be bound by the outcome of the case.”
I resolve this issue in favour of the Respondent in view of the above.
This appeal lacks merit. It is accordingly dismissed with N60,000 cost in favour of the Respondent.
Other Citations: (2016)LCN/8857(CA)
