Alhaja Morufa Disu V. Alhaja Silifat Ajilowura (2000)
LawGlobal-Hub Lead Judgment Report
SULEIMAN GALADIMA, J.C.A.
The respondent, as plaintiff instituted an action at the Lagos State High Court in suit No. LD/1807/94 seeking for the following reliefs:
“(a) A declaration that the deed of gift dated 17th day of May, 1975, purportedly made between Tawakalitu Ajiun, Aminatu Abeke and Momodu Lawani Ishola is null and void and of no effect.
(b) a declaration that late Momodu Lawani Ishola (father of the 1st and 2nd defendants) had no legal or equitable interest/title in both No.48, Aroloya Street, Lagos and 60, Smith Street, Lagos.
(c) An order of perpetual injunction restraining the defendants (particularly the 1st and 2nd defendants) either by themselves, agents or privies from further interfering in any manner whatsoever and however with the rights of the plaintiff and her co-beneficiaries over the control and management of both 48, Aroloya Street, Lagos.
(d) An order directing the 3rd to 15th defendants to produce their last rent receipts to the plaintiff and her co-beneficiaries and to desist from further payment of rents to the 1st and 2nd defendants or to any person other than the plaintiff and her co-beneficiaries or their accredited agents.
(e) An order directing the 1st and 2nd defendants to render account of all rents collected from 48, Aroloya Street, Lagos from October, 1979 to October, 1989.
(f) An order directing the 1st and 2nd defendants to render account of all rents collected from 60, Smith Street, Lagos from October, 1979 to the date of judgment.”
These reliefs in the respondent writ of summons was followed by a 28 paragraphs statement of claim. On service on the defendants now the appellants with the above claim, instead of filling a statement of defence, their counsel filed an objection based on S.8 of the Administration of Estate Law, Cap. 2 Laws of Lagos State, 1973 (now 1994) and Order 22 rule 4 of the High Court Rules wherein they prayed for striking out of the plaintiff/respondent’s court processes. The respondent on the other hand filed a 6 – paragraphs counter-affidavit.
Hon. Justice F.A. Owobiyi took arguments in respect of the appellant’s preliminary objection and subsequently dismissed their objection in a considered ruling dated 13/5/99.
Dissatisfied and aggrieved with the ruling of the learned trial Judge, the appellants have appealed to this court upon 4 grounds of appeal.
In their brief of argument filed pursuant to the rules of this court, the appellants formulated the following two issues for the determination of this appeal, to wit:
“(a) Were the appellants obliged to file a statement of defence before complaining about the capacity of authority of the respondent to institute the action?
(b) Did the respondent have capacity to bring the action?
The respondent in her brief formulated two issues for the determination of this court as follows:
(a) “Has the defendant/appellant in raising his objection to the plaintiff’s case complied with the relevant rules of court i.e. Order 23 rules 2 and 3 of the High Court Rules relating to demurrer?
(b) Has the plaintiff established her locus standi in this suit.”
I shall be guided by the two issues formulated by the appellants. They are similar to the two issues raised by the respondent in her brief of argument.
However in considering, the first issue I will make reference to the relevant rules of High Court of Lagos State (Civil Procedure) Rules, which is Order 22 rule 4 1972, now Order 23 rule 1 of 1994 rules (hereinafter referred to as the “Rules”).
The Rules stated thus:
“Proceedings in LIEU OF DEMURRER
1. No demurrer shall be allowed.
2. No party shall be entitled to raise by his pleading any point of law, unless the court or a Judge in Chambers otherwise orders, any point so raised shall be disposed of by the Judge who tries the cause at or after trial.
3. If, in the opinion of the court or a Judge in Chambers, the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counter-claim or reply therein, the court or a Judge may thereupon dismiss the action or make such other order therein as may be just.
4. The court or a Judge in Chambers may order any pleading to the struck out on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the court or a Judge in chambers may order the action to be stayed or dismissed or judgment to be entered as may be just. (italics mine for exphasis)
5. No action or proceedings shall be open to objection, on the ground that a merely declaratory judgment or order is sought thereby, and the court may make binding declarations of right whether any consequential relief is or could be claimed, or not”
It is pursuant to this Order that the appellant moved the lower court to strike out the writ of summons, statement of claim and the plaintiff’s action for lack of jurisdiction. The grounds upon which this action motion was brought is that the respondent has “no right, capacity or title to institute the action. The appellants by their notice filed on 11/10/95 indicated that they would rely on Sections 8 and 10 of the Administration of Estates Law, Cap. 2, Laws of Lagos State, 1973, the aforesaid High Court Rules and the inherent jurisdiction of the court in support of their motion.
In support of their application the appellants filed a 5-paragraphs affidavit. In paragraph 4 of the affidavit deposed to on behalf of the appellants it was stated
“4 My perusal of the processes do not reveal the authority which enables to (sic) the plaintiff to institute this action”
In paragraph of the counter-affidavit deposed to on behalf of the respondent it was stated that:
“5 That I know that defendant (sic) have no defence to this action hence their delay tactics through vexatious objection.”
In dismissing the motion, the learned trial Judge found thus:
“The issue raised in the motion on notice is clearly and unambiguously one of law. And therefore clearly one of demurrer. Demurrer is no longer available to any party in Lagos State having been abolished by Order 23 rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 1994. It is premature at this stage for the defendants to raise an issue of law while they have not yet filed their statement of defence in which they are enjoined by law to raise that issue of law first before filing an application to set that down for hearing before trial. Having regard to all what I have stated in the foregoing the motion on notice filed by the defendants is incompetent. That being so the issue of locus standi of the plaintiff is not properly before the court the defendants having not filed a defence to this action yet.”
The appellant’s learned counsel submitted in their brief that the lower court was in error in the view it took that their application complaining of locus standi was a demurrer and that they ought to have filed a statement of defence. Referring further to the finding of the learned trial Judge at page 14 of the Record learned counsel for the appellants further submitted, that apart from the fact that it is settled law that the point of jurisdiction can be raised at any stage of proceedings their obligation as defendants in the lower court to answer to the plaintiff’s claim by filing a statement of defence would only arise on the assumption that the jurisdiction of the Court of Appeal had been properly invoked.
Further submissions have been made to the effect that if there was no jurisdiction in the court to entertain the plaintiff, any defence filed by the appellants would have amounted to a nullity, as would have any processes filed by the respondent. Having refused to make the assumption that the lower court had jurisdiction, the appellants submitted that they were entitled as they did to have applied by way of motion (without filing a defence) to have the question of the plaintiff’s competence to invoke the jurisdiction of the court tried and determined. Reliance was placed on a number of Supreme Court cases, notably, Akintola v. Solano (1986) All NLR 395 at 422 (1986) 2 NWLR (Pt.24) 598; Dada v. Ogunsanya (1992) 3 NWLR (Pt. 232) 754; Bambe & Ors. v. Alh. Yusuf Adetunji Aderinola & Ors. (1977) All NLR 5.
Order 23 rule 1 of the Lagos State High Court (Civil Procedure) Rules, 1994, and similar Rules of other State High Court have been given judicial interpretations by the Supreme Court and this court in a number of cases some of which will be considered in the course of this judgment.
Order 23 (formerly Order 22) is similar to Order 25 of the Rules of Supreme Court applicable in England in 1963. Order 23 not only abolished demurrer proceedings but substitutes a more summary procedure of getting rid of pleadings which show no reasonable cause of action. This being the case strict compliance with the procedure of the order ought to be observed. In Akintola v. Solano (supra) per Oputa JSC has this to say on the rule:
“It is high time our courts (and counsel for the plaintiff especially) began looking critically at the pleadings and where appropriate giving judgment on the pleadings if no triable issue of fact has been raised. There the plaintiff’s case should be considered on his pleadings and the applicable law. Where the plaintiff’s statement of claim does not disclose a cause of action that is where, even if all the allegations of fact therein averred are established yet still the plaintiff would not be entitled to the relief sought, there instead of filling a statement of defence, the defendant should move the court to have the case dismissed.”
The appellants have submitted that if all the facts alleged by the respondent in her statement of claim are established, the respondent would still not be competent to invoke the jurisdiction of the court as she would not be entitled to claim the reliefs she is seeking and they were therefore entitled to have applied by motion without filing a statement of defence to have the issue of the respondent’s competence tried.
The crucial question here is the applicable laws. There is no doubt that demurrer proceedings have been abolished in view of clear provisions of Order 23 rule (1) of the High Court (Civil Procedure) Rules of Lagos State. To my mind the applicable law under which a preliminary point of law can be raised is Order 23 rule 2. This is clear from the Supreme Court’s decision in Lasisi v. Attorney-General of Oyo State (1982) 1 All NLR(Pt.1) 24. When confronted with a similar situation it held thus:
“Order 22 rule 1 (now Order 23 Rule 1) of the High Court (Civil Procedure) Rules of Western Nigeria abolished “demurrer” and substituted Order 22 rule 2 under which a preliminary point of law (as done by the appellant in this case) could be raised after both the statement of claim and defence have been filed.”
It is clear that the appellant in the objection at the lower court came under Order 22 rule 4 (now Order 23 rule 4). This is so confirmed in the appellant’s brief of argument at page 2 paragraph 5 2.2. I agree with the submission of the learned counsel for the respondent in their brief that the relevant question, having regard to the nature of the appellant’s objection, based on absence of locus standi or jurisdiction is an issue of law. If so, have the appellants in coming under Order 22 rule 4, invoked the correct provision or the applicable law as held in Akintola v. Solano (supra).
I have set out Order 22 rule 4 above. Rule 4 related to absence of a reasonable cause of action or vexatious or frivolous actions not point of law. The question of locus standi is intertwined with concept of jurisdiction which to my mind, is a point of law: See Egbe v.Adefarasin (1987) 1 NWLR (No. 2)(Pt. 47) 1; Ibrahim v. Osim (1988) 3 NWLR (Pt. 82) 257; Fetus Keyamo v. Lagos State House of Assembly & 40 Ors. (2000) 12 NWLR (Pt. 680) 196 at 217.
The Court of Appeal in the case of Otunba Adeniran Ogunsanya v. Chief Dada (1990) 6 NWLR (Pt.156) 347 at 360, when considering the question whether locus standi can be raised in a motion under Order 22 rule 4, Awogu JCA had this to say:
“The question here is whether locus standi can be raised in a motion under Order 22 rule 4, as appears to have been done in this case. Although, the appellant was said to have been heard in reply, was the issue of locus standi really before the trial Judge on a motion under Order 22 rule 4? I do not think so. Order 22 has five limbs. The first abolished demurrer, the second and third provide for points of law to be raised by pleadings and disposed of by the Judge, if successful. Under rules 2 and 3 therefore, an issue of locus standi or jurisdiction may be so raised and disposed of. They cannot however be so raised under rule 4, which deals with the striking out of a claim and pleadings where no reasonable cause of action or answer is disclosed, or where the action is shown to be frivolous, or vexatious. In other words, the issue of locus standi being a point of law to be disposed of before trial, was not before the trial Judge.”
The above judicial opinion was re-affirmed by the Supreme Court, when that case went on appeal (in Dada v. Ogunsanya (1992) 3 NWLR (Pt.232) 754 at 770-771. That court per Kawu J.S.C. held that:
“The issue of locus standi being a question of law cannot be raised in a motion under Order 22 rule 4 of the High Court of Lagos State (Civil Procedure) Rules as the said Order 22 rule 4 deals with the striking out of a claim and pleadings where no reasonable cause of action or answer is disclosed or where the action is shown to be frivolous or vexatious.”
Applying the above judicial decisions to the present one, it can be said that the learned trial Judge was right in dismissing the appellant’s preliminary objection as same clearly transgressed Order 22, rules 2 and 3.
The appellants in their brief made allusion to the legal principles in Bambe v. Aderinola (1977) 7 SC 1. This is a case in which the Supreme Court allowed a summary procedure as adopted herein after the trial court had rejected same as being a transgression of Order 22 rules 1-3. This is a case in which the Supreme Court has tacitly adopted its earlier decision in Imam Abubakri v. Abudu Smith (1973) All NLR 730.
I must say that this position taken in Bambe and Abubakri’s cases is opposite those in the latter cases of the Supreme Court on the subject-matter of demurrer. Placing side-by-side the principle or position taken by the Supreme Court in such cases as Bambe and Abubakri cases (supra) on the one hand and the case of Dada v. Ogunsanya (supra) which is much later and current case, I can see conflicting decisions which in principle ought to be resolved in favour of the Supreme Court later cases in Lasisi Fadare v. Attorney-General of Oyo State and Dada v. Ogunsanya (both supra).
Recent decision of Ibadan Division of this court in Akinade v. N.A.S.U. (1999) 2 NWLR (Pt. 592) 57 further buttressed the above conclusion. That court when faced with an apparent conflict between Bambe’s and Madu v. Ononuju (1986) 3 NWLR (pt.26) 23, my learned brother Okunola J.C.A. upheld the inviolability of Order 22 rules 2 and 3.
“I have considered the arguments of both learned counsel to the parties on this issue of jurisdiction vis-a-vis the records and the prevailing law. The arguments of both learned counsel to the parties can be narrowed down to whether the ratio in 1977 Bambe’s case and the later decisions based on them have the same ratio. To find out the ratio in both set of Supreme Court’s decisions it is necessary to summarise the decisions, particularly since Bambe’s case had been reviewed.”
The learned justice referred to Madu’s case (supra). In that case the Supreme Court while considering the wordings of Order 22 rules 2 of Lagos State High Court Rules held thus:
“It seems to me that having regard to this close look at the wording of Order 22 of rules 2 that it envisages a situation in which pleadings have been filed by both parties and issues joined. The issues can be disposed off by trial Judge at or after the trial.
In Lasisi Fadare’s case the Supreme Court similarly held as follows:-
Order 22 rule 1 of the (Civil Procedure) Rules of Western Nigeria abolished this procedure and substituted Order 22 rule 2 under which a preliminary point of law could be raised after the statement of claim and defence have been filed. Such an application may lead to the dismissal of the suit as happened in the instant case. If on the other hand it fails, the action will proceed to trial, issues have been already joined in the pleading.”
In the Ogun State University case (supra) on similar issues the Court of Appeal held unanimously:
“To allow the appellant to raise the objection to the competence of the court as herein desired before statement of defence is filed will be tantamount to reviving the extinct plead of demurrer which has been buried. Demurrer has been expressly abolished in Ogun State. The appellant’s application was in the nature of demurrer not permitted by the Ogun State High Court (Civil Procedure) Rules, 1987. I am therefore convinced that the learned counsel for the appellants was clearly in error in the procedure he has adopted. The court is bound by the decisions in Fadare and Ononuju cases referred to above.”
I have carefully reviewed these Supreme Court judgments to show clearly that the ratio in Bambe’s case is opposite those case of the Supreme Court decided in recent times. Whereas Bambe’s case dealt with where the defendant without having filed his statement of defence, brought an application under the rule to have the claim against him struck out, which application was granted, the latter decisions of the Supreme Court, on the other hand stood finally on the principle that Order 22 rule 1 of the High Court (Civil Procedure) Rules abolished the plea of demurer and substituted Order 22 rule 2 under which a preliminary point of law could be raised after the statement of claim and defence have been filed which application may lead to dismissal of the suit.
Although there is no provision in the rules governing precedents generally at the Court of Appeal but the principle of stare decisis, the Supreme Court has great respect for its previous decisions. It would depart from its previous decision whenever necessary in the interest of justice as it had done in the above case after Bambe’s case. With the two divergent set of judgment from the apex court it is necessary to consider which one should be followed. Bambe was decided in 1977; Fadare was decided in 1982; Onanuju was decided in 1986 while Ogun State University case was decided in 1991. The Court of Appeal is bound by its previous decisions save it will decide which of its two conflicting decisions it will follow. It is bound to refuse to follow a decision of its own which though not expressly overruled cannot, in its opinion, stand with a decision of the Supreme Court. No court is bound to follow a decision if it is satisfied that the decision is given per incuriam.
From the foregoing decisions, I hold that this court should follow the decisions of the Supreme Court in Fadare and Onanuju cases (supra) rather than the case of Bambe. In the same vein, the court is also bound by its previous decisions in Akinade, Ogun State University cases and the decision of Ibadan Division of Rasheed Adeoye v. Adekola Olayemi in the unreported appeal No. CA/1/67/95 dated 24/11/98 and the recent case of Adesanya v. Olayeni (1999) 2 NWLR (pt.592) 558.
The rules of court are meant to be observed, no matter the situation: See Co-operative and Commerce Bank (Nig.) Ltd v. Attorney-General Anambra State & Anor (1992) 8 NWLR (Pt. 261) 528; Dada v. Ogunsanya (Supra).
On the second issue, the appellant has contended that the plaintiff had failed to prove or establish their locus in the action. I have carefully perused through prayers 1-4 of the respondent’s reliefs as contained in the writ of summons and paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and particularly, paragraph 14 of the statement of claim. To my mind, the respondent has established not only her source of title, but also her capacity and locus standi.
The case of the respondent in the lower court was that she was the great grand child of the original owner and that her grandmother was one of the children of the original owner who made the will.
The case of the appellants was that the respondent had not pleaded any proprietary right or interest (in the properties at 48, Smith Street, Lagos, which belonged to late Disu Dada. It is the appellant’s contention that as long as the respondent by her own showing admitted that the original owner of the properties made a will she could not invoke the jurisdiction of the court without pleading legal title to the properties either as executrix under the will or a devisee in whom the properties has become vested.
For any statement of claim to be struck out for non-disclosure of a cause of action, care ought to be taken so that the party affected may not be deprived of his right to a plenary trial. It is only where pleading is obviously incontestably bad or is ex-facie unsustainable or where it is unarguable that it will be struck out. See Ibrahim v. Osim (1988) 3 NWLR (Pt.82) 207; Mills v. Awoonor Renner (1940) 6 WACA 144.
There is no doubt that as far as the respondent was concerned and as established in paragraphs 3 -4 of her statement of claim, she has disclosed a reasonable cause of action.
The respondent as an individual member of late Disu Dada’s family can sue to protect her interest in the family and the family property. See Haladu Dadi v. Garba (1995) 8 NWLR (Pt.411) 12 at 14 (ratio 5); and Ugwu v. Agbo (1977) SC 27 at 40.
In view of the foregoing, this appeal is dismissed. The ruling of the learned trial Judge is hereby affirmed. The case is remitted to the Chief Judge of Lagos State, High Court to be re-assigned to another Judge for hearing and determination. There shall be costs which I assess at N5, 000 in favour of the respondent.
Other Citations: (2000)LCN/0814(CA)
