Barbara Majomi & Ors V. Clarkson Majomi, Jnr & Ors (2007)

LawGlobal-Hub Lead Judgment Report

HUSSEIN MUKHTAR, J.C.A.

This is an interlocutory appeal against the ruling of High Court of Lagos State delivered on the 30th October 2001. The appeal as per the amended notice of appeal dated and filed 13th December 2001 is premised on the following six grounds:

(1) The learned trial judge erred in law when he ordered that the case of the 3rd plaintiff be stayed.

Particulars of Error

a) The plaintiffs’ application dated 1st June 2001 did not contain any prayer for stay in respect of the 3rd plaintiffs case in particular or entire suit in general.

b) The plaintiffs’ application was incompetent having been brought by the plaintiffs including the 3rd plaintiff who had no capacity to make the application.

c) In this premise, the court ought to have dismissed or struck out the 3rd plaintiffs name as a party to the suit.

(2) The learned trial Judge erred in law in holding that the plaintiffs are all children of Dr. Clarkson Majomi deceased when the defendants in their statement of defence and counter affidavit sworn to by Mr. Taiwo Akinpelu on 18th September 2001 denied this fact which is yet to be proved by the plaintiffs at the trial of the action.

(3) The learned trial judge misdirected himself in law by holding that he would be denying little Onome Majomi an infant her entire inheritance if he followed the decision in R. Savage vs. J. Johnson 19267 NWLR 53 which he said was persuasive only when:

(a) The plaintiffs including the infant Onome were yet to prove their entitlement to inherit the estate of the deceased.

(b) The said application dated 1st June 2001 was brought by the plaintiffs including the said Onome an infant seeking to substitute Ms. E.A. Farah as the next friend of Onome.

(4) The learned trial judge erred in law by refusing to strike out or dismiss the action when:

(a) The proper applicant was not before the court.

(b) The action as commenced by the present plaintiffs was incompetent.

(c) The counter-affidavit of the defendant sworn to by one Taiwo Akinpelu on 18th September 2001 denied all the facts deposed to in paragraphs 1,2,3,4,5 and 7 of the affidavit of Kojo Onwaeze sworn to on 1st of June 2001 in support of the plaintiffs’ application the infant to be substituted by a next friend.

(d) The learned trial judge admitted that the substantive suit brought by the plaintiffs including the infant Onome has to do with their entire inheritance.

(5) The order for stay of proceedings if found to have been properly made (which is not conceded) should have related to the entire suit and not just in respect of the 3rd plaintiff.

(6) The learned trial judge erred in law when he failed to reject all the reliefs sought by the plaintiffs in their motion dated 1st June 2001.

(a) There were not enough materials in the motion affidavit and exhibits supporting the motion to enable the learned trial judge grant all the reliefs sought by the plaintiffs in their motion.

(b) The discretion of the court could only be exercised upon sufficient materials being placed before the court.

(c) In the absence of relevant and cogent materials on the identity of the proposed next friend, the court was wrong to conclude that :Mrs. B.A. Farah is the mother of the 3rd plaintiff’.

The relief sought for in the appeal is: –

“to allow the appeal, set aside the ruling of Honourable Justice B. Rhodes Vivour delivered on the 31st day of October, 2001 and strike out the motion, set aside the writ and make such further or other orders as the Court of Appeal may deem necessary in the circumstances of this case.”

The facts leading to this appeal may be summarised thus: –

On 5.1.2002 the appellants who were defendants in the court below caused an application for letters of administration to be lodged at the probate registry of the High Court of Lagos State Ikeja in respect of the estate of the deceased Obarisi Dr. Clarkson Majomi (hereinafter referred to as the deceased) The deceased died intestate on 30.12.2000 in London United Kingdom (see pages 17, 18 and 27 of the record). The 1st defendant/appellant who claims to be married in London to the deceased (see pages 40, 64-68 of the record) under the UK Marriage Act 1949 since 18.8.69, applied for the letters of administration of the deceased estate along with some of the alleged children of the marriage namely 2nd, 4th and 5th defendants/appellants. The 3rd defendant/appellant by his letter of 104.01 sent to the Probate Registrar High Court of Lagos State in Ikeja has withdrawn his name from the list of applicants for letters of administration.

On 6.3.01 the 1st plaintiff/respondent entered a caveat in the probate registry Ikeja against the grant of letters of administration to the defendants/appellants by a notice to prohibit grant-dated 9.3.01 (see p. 30 of the record).

Thereafter the plaintiffs/respondents commenced this action by writ of summons on 16.3.01 seeking several reliefs including a declaration that:

“The plaintiffs are the children of the deceased (see pages 1-3 of the record) and as such they are therefore entitled to participation in the administration and distribution of the affairs and properties real and personal of the estate of the said deceased.”

The statement of claim-dated 16.3.01 filed by the plaintiffs/respondents is reflected on pages 4 to 9 of the record. The defendants/appellants filed a statement of defence and counter claim dated 17.5.01 denying plaintiffs’/respondents’ claims (See pages 84-89 of the record of appeal). Various declarations and orders sought by the defendants/appellants in their counter claim included the following

“The defendants deny that plaintiffs are children of the deceased and require strictest proof of all plaintiffs’ allegation of their paternity by the deceased. In particular the defendants’ contend that the 1st plaintiffs birth certificate issued in the United Kingdom as No. 143 in Greenwich First Sub District OMW on 1.11.66, registered the plaintiff with the surname of Brown and as son of Ms Sheila Brown (paragraph 5 of statement of claim (p. 4 of the record) and paragraph 17 of defendants’ counter claim (p. 88 of the record) and see also p.69 of the record where the amended birth certificate of the 1st plaintiff is exhibited. Moreover the defendants aver that the true name of the infant whom the 4th plaintiff purported to represent is Natesha Oghenerume Idowu as contained in the United States of America passport No. 044309743 issued on 20-3-95 to the said infant under the authority of the Vital Records Code of Georgia dated 28.2.95.” (See p. 18 of the statement of defence at p. 88 of the record).

The defendants/appellants in their statement of defence and counter claim further contended as follows: –

“That the I” defendant was married to the deceased under native law and custom of Warri on 27.3.67 and under the United Kingdom Marriage Act 1949 in London on 18.8.69.

That the children of the said marriage are four in number and include 2nd, 4th and 5th defendants the 4th child being then an infant named Zoda.

That the 1st, 2nd, 4th and 5th defendants are the proper persons to apply for Letters of Administration of the deceased’s estate particularly as they have majority right the 1st defendant being the widow of the deceased with prior right to one third (1/3) of the estate, apart from the majority interest of the 1st defendant along with the four children of her marriage to the deceased. (See paragraph 8 of statement of defence at p. 85 of the record).

That the 1st defendant and the said children of the marriage along with any other person declared by the Court to be children of the deceased are entitled as beneficiaries to two third (2/3) of the deceased’s intestate estate after payment of debts, testamentary and funeral expenses. (See paragraph 7 of the statement of defence p. 85 of the record and also paragraphs 86-89 of the record).

That the 1st  plaintiff is not a fit and proper person to be appointed as an administrator to the deceased’s estate due to his intermeddling in the estate and prior questionable activities with properties of the deceased in his lifetime leading to reprimand by the Nigeria Police.

An order declaring a trust for sale on the estate of the deceased in favour of lawful beneficiaries to the estate subject to the 1st defendant’s prior right as deceased widow and also those of her children by her marriage to the deceased.” (See pages 84-89 of the record).

On 7.6.01 or thereabout plaintiffs/respondents filed a motion dated 1.6.01 in the court below under order 14 rules 1, 2 and 8 seeking for the following orders:

“(a) Granting leave for the 3rd plaintiff to be substituted with Ms. E. A. Farah her mother as next friend of the said 3rd plaintiff.

(b) Granting leave for the plaintiffs to amend the writ of summons and statement of claim to reflect the name of the said Ms Farah.

(c) To further amend the statement of claim in the manner contained and “alienated” in the proposed amended statement of claim attached to the supporting affidavit of this motion.

(d) Such further or other orders as this Honourable Court may deem fit to make in the circumstances.” (See p. 113 of the record).

There was attached to the supporting affidavit a writ of summons and statement of claim being Exhibits A1A and A2A respectively (pages 117 to 125 of the record). The 3rd plaintiff was shown on the said exhibits A1A and A1A as Ms. E. A. Farah suing as the next friend of Onome Majomi. The said Onome Majomi is the infant originally named as the 3rd plaintiff in the writ of summons dated 16.3.01 and the statement of claim of the same date by which this action was initially commenced (see pages I and 4 of the record). The defendants/ appellants filed a 5 paragraphs counter affidavit opposing the said motion on notice, and generally denying the facts in the supporting affidavit. Further, the counter affidavit in paragraph 4 declared lack of written authority and proper disclosures on the identity of the said Ms. E. A. Farah sought to be substituted for 3rd plaintiff as infant as her next friend in keeping with order 14 rules 8 and II of the High Court of Lagos State (Civil Procedure) Rules 1999. (See pages 158-160 of the record of appeal). The plaintiffs’ /respondents’ counsel conceded that the requisite papers required by order 14 rule II were not filed and that the decision in Savage v. Johnson (1926) 7 NLR, 53 for dismissing the suit and the application in the circumstances should not be followed. The plaintiffs’/respondents’ counsel asked for time to enable them comply with order 14 rule II. The defendants/appellants’ counsel opposed the application indicating that the rules of court were not complied with. Further that the plaintiffs should not be the applicants to the motion. (See p. 159 of the record).

In the ruling delivered on 31.1 0.02 the court below considered the submissions of both counsel and decided that:

“The best course would be for the court not to rigidly follow arid legalism or technicalities to the extent that justice is not done to the parties”

That the court is not bound to follow the judgment in Savage v. Johnson, being merely persuasive;

That to follow the decision in Savage v. Johnson would be denying the infant Onome her entire inheritance.

That any doubts about Ms. E. A. Farah are easily resolved by learned counsel for the plaintiff making her available with proper documentation and probably parole evidence to resolve the issue of Ms. E. A. Farah as mother and next friend of 3rd plaintiff;

The case of the 3rd plaintiff shall be stayed;

That proceedings shall continue in respect of 1st, 2nd and 4th plaintiffs.”

It is against the foregoing decision that the defendants have appealed per the amended notice of appeal-dated 13.12.01 as set out above.

The learned senior counsel to the appellant’s then raised the following issues for determination in this appeal: –

“1. Whether the 3rd and 4th plaintiffs/respondents had locus standi to invoke the jurisdiction of the court below instituting an action as co-plaintiffs in this suit and also as co-applicants in the motion dated 1.5.01 seeking order for amendment of the writ of summons and statement of claim by substituting Ms. Farah for the infant 3rd plaintiff.

2. Whether plaintiffs/respondents’ motion dated 1.6.01 meets the requirements of the rules of court in relation to the appointment of next friend for an infant plaintiff.

3. Whether the court below has jurisdiction to order a stay of the 3rd plaintiff’s case:

a) When no such prayer was made in the plaintiffs motion dated 1.6.01 under consideration by the court; and

b) Given the parties as presently constituted in this case

4. Having ordered a stay of the 3rd plaintiffs case instead of striking out or dismissing the entire suit:

a) Whether the court below can proceed to exercise its jurisdiction to entertain the case of the other plaintiffs i.e. 1st, 2nd and 4th, plaintiffs?

b) Whether this action is competent:

i. In the absence of locus standi in any of the plaintiffs?

ii. In the absence of all necessary parties to the action?

c) Whether the court below is competent, before the trial of substantive issues, to make any findings on such issues.

Arguing these issues the learned senior counsel to the appellants submitted that the 3rd plaintiff Onome Majomi being an infant can not initiate a valid action in her own name but can only properly do so by her next friend as provided by order 14 rule 8 of the High Court of Lagos (Civil Procedure) Rules 1994 (being the applicable rules of court at the material time). The provision states: –

“Infants may sue as plaintiff by their next friend and may defend by their guardians appointed for that purpose.”

The plaintiffs/respondents commenced this action by writ naming an infant Onome Majomi as the 3rd plaintiff, and also one Yetunde Idowu in place of Ms. Oghenerume Majomi another infant as 4th plaintiff. (See pages 1 and 4 of the record of appeal for the writ and statement of claim filed herein). It is submitted that there is no next friend appointed for Onome hence her Counsel sought to apply to the court below to appoint same by a motion-on-notice dated 1.6.01. (See pp. 113-114 of the record). The said motion and affidavit in support “sought for leave for 3rd plaintiff to be substituted with Ms. E. A Farah her mother as next friend.”

The affidavit in support did not reflect the full names of Ms. E. A. Farah and a written authority by the said next friend. This seems to be a condition precedent to the use of any person’s name as next friend of the infant. Order 14 rule 11 of the High Court of Lagos State (Civil Procedure) Rules 1994 stipulates this requirement. It is submitted that plaintiffs failed to comply with his requirement.

The defendants/appellants, in paragraphs 4(a) and (b) of the counter affidavit filed in opposition to the said motion-on-notice dated 1.6.01 indicated the absence of these relevant requirements. (See p. 126-127 of the record).

It is submitted that the trial court could have upheld the submissions of defendants/appellants’ counsel to dismiss the motion and also strike out the action.

Similarly the status of the 4th plaintiff is also affected in that the rules permit the infant’s name to be used as plaintiff but not the name of the next friend, which should only be cited immediately after that of the infant. (See pp 122-123 paragraphs 12.99-12.102 in the book on practice and procedure by Dr. T. A. Aguda, 1995 Edition.)

It was further submitted that it is fundamental that a person who initiates an action in court must be competent to do so. Such a person must have the locus standi to maintain the action. See Union Bank Nigeria Plc v. Ntuk (2003) 16 NWLR Pt 845 183 at 205H, 207C and 216-217 H-C. Thus the 3rd plaintiff being an infant has no locus standi to sue on her own whilst the 4th plaintiff has no sufficient interest in the subject matter of the action to establish a locus standi. The learned trial judge was in error when he declined to dismiss the motion, but instead decided to stay the action in respect of the 3rd plaintiff and to proceed with the case of the 1st, 2nd and 4th plaintiffs.

It was further submitted for the appellants that the proposed amendment on the motion-dated 1.6.01 would not clear the fundamental flaw. Order 14 rule 11 requires the citing of the infant’s name as plaintiff followed by that of the next friend. This is the same fundamental defect in the use of the name of Yetunde Idowu as plaintiff instead of that of the infant Ogheneruwe being slated first. The Supreme court in SOFOLAHAN & ANOR V. FOWLER & ANOR (2002) 14 NWLR Pt. 788, 664 at 684-685 GA decided that:

“The next friend in a suit is an officer of the court appointed and allowed to pursue the interests of the minor he represents. He is not regarded as a party to the proceedings and he is not to appear in the proceedings in a way as pursuing his own cause. The default committed by the appellants in the present case in the title of the suit was no technicality. It was fundamental.”

In the premises it is improper for the court to have expressed the intention to proceed with case of 1st 2nd and even the 4th plaintiffs, as that would mean an intention to clothe itself with jurisdiction, which has been affected by lack of locus standi in all the parties.

Moreover the lack of jurisdiction in this case is so fundamental that it will affect the court in exercising its judicial power in any manner over this suit because:

(a) The court should not sever the plaintiffs’ case as this will result in all the necessary parties not being before the court. See Green v. Green (J 987) NWLR (Pt. 76) 480 at 798 especially in an action seeking declaratory reliefs.

(b) It is submitted that by reason of the argument in paragraphs 3.1, 3.2, 3.3(a) herein this action is incompetent and as such the court has no jurisdiction to entertain same.

At page 165 2nd paragraph lines 7-11 of the record of appeal, and page 166 lines 1 And the learned trial judge held that:

“The plaintiffs are all children of Dr. Clarkson Majomi (deceased) … the substantive suit has to do with their entire inheritance” (p. 165).

” … I might be denying little Onome Majomi her entire inheritance” (p. 166).

There is also the finding concerning Ms. E. A. Farah being mother of Onome without any proof as such. (See p. 166 of the record). It is trite law that an interlocutory stage of an action it would be improper for the court, before trial of substantive issues, to make findings on such issues, which have not been proved or tried as in this case. See Adenuga v. Oduberu (2003) 8 NWLR pt. 821 163. The defendants in paragraphs 2, 6, 7, 17 and 20 of the statement of defence joined issue with the plaintiffs in denial of their claim to be children of the deceased.

Accordingly no question of entitlement to inheritance can be determined until the paternity of the plaintiffs has been established in relation to the deceased.

The learned senior counsel to the appellants finally submitted that in the light of the arguments advanced herein, this appeal ought to be allowed the ruling of the court below set aside, the plaintiffs/respondents’ motion of 1.6.01 be refused, the writ of summons and the statement of claim filed herein be set aside with costs in favour of the defendants/appellants.

The learned counsel to the respondents on the other hand raised a preliminary objection to and challenged the competence of grounds 4 and 5 of the amended notice of appeal on the ground that those two grounds have raised fresh issues, which were not raised, argued, considered or pronounced upon by the lower court.

It was submitted that the issue before the lower court that culminated in this appeal was a simple interlocutory application bothering only on one of plaintiffs in the lower court, to wit, the capacity of the 3rd plaintiff only.  The application dated 1st June, 2001 (at pages 113-114 of the record of appeal), which was ruled upon by the Court and which formed the basis of the appellants’ appeal, dealt with and related to the 3rd plaintiffs capacity only and did not relate to all the plaintiffs or the entire action before the Court.

Grounds 4 and 5 of the appellants’ amended notice of appeal however raise issues that touch on the entire action as a whole, whereas issues relating to the entire action was not raised, argued, considered or pronounced upon by the lower court and for which requisite leave of Court was neither sought nor obtained by the appellants.

The application argued at the lower court does not relate to the entire action, so also the Court’s ruling of 31″ October 2001 which the appellants’ appealed against, was not in respect of the substantive or of the entire suit. The 4th and 5th grounds of appeal relate to the entire action as opposed to the singular issue of the capacity of the 3rd plaintiff, which is the only subject of the application/ruling appealed against to this Honourable Court. Consequently the afore stated two (2) grounds of appeal identified does not emanate from the ruling.

The present appeal before this Court is an interlocutory appeal which relates to only to a fraction of the entire action, as the entire action as a whole is still pending before the lower court. Consequently, the issues formulated in grounds 4 and 5, which are related to the entire action not yet considered by the lower court, are improperly raised as of right by the appellants in this appeal without the requisite leave of Court being sought and obtained.

The learned counsel to the respondents added that the appellants did not submit or urge the lower court to strike out or dismiss the entire action before the lower court as a whole. The entire suit was not the contention of the respondents’ application; the sole issue involved in the said application was the capacity of the 3rd plaintiff. In summary, the submission of the appellant at the lower court was that the application dated 1/6/2001 is incompetent and that the application ought to be dismissed or struck out or the 3rd plaintiffs proceedings ought to be stayed or his name struck out. In actual fact, the appellants conceded that plaintiffs No. 1, 2 and 4 are capable (see page 159 lines 16, 17 and 18 of the records). The defect in the capacity of the 3rd plaintiff to sue is that she is an infant and must sue by her next friend, who should also make the application. Appellants’ counsel even conceded at the lower court that respondents counsel ought to go and re-do.It is trite that where fresh issues which were not raised at the lower court is raised in a ground of appeal before your lordships for the first time without first seeking and obtaining the leave of Court, such grounds are deemed to be incompetent and are liable to be struck out. See DIELI vs. IWUNO (1996) 4 NWLR (pt 445) page 622 at 632H-633A and YUSUF vs. UBN LIMITED (1996) 6 NWLR (pt.457) page 632 at 641G.

what should have been done.

Accordingly, the learned counsel to the respondents urged the court to hold that Grounds 4 and 5 of the notice of appeal raise fresh issues, which are therefore incompetent and are liable to be struck out.

One he said, is not unmindful of the fact that pursuant to a notice of motion dated 22nd April, 2002, and filed on 23rd April, 2002, the Appellants obtained, inter alia, leave of Court to appeal on grounds of mixed law and fact. Therefore, the Appellants may find it difficult to resist the temptation to contend that the aforesaid order granting, “leave” to appeal on grounds of mixed law and fact also suffices as “leave” to raise and argue a fresh issue on appeal for the first time. He contended that the leave of Court that is required to raise either a fresh issue on appeal, adduce fresh evidence on appeal or appeal on grounds of mixed law and fact e.t.c., must be distinctly and specifically obtained as each process constitute a distinct proceeding on its own such that the fact that one obtained leave of court to take any of the step for which leave of court is required does not, in any way, obviate the need to seek and obtain leave to take another step which is distinct from the earlier one. In effect, the mere fact that a party obtained leave of Court to appeal out of time would not obviate the need for that same party to seek and obtain specific leave of Court to, for instance, raise a fresh issue or to appeal on ground of mixed law and fact, where such leave is required. Therefore, whenever leave of Court is required before a particular act can be done, leave of Court to specifically do that act must be sought for and obtained. See the decision of the Supreme Court in YUSUF vs UNION BANK OF NIGERIA LIMITED (supra) at 644 A-E. In that case, the appellant sought and obtained leave of Court to file and argue some additional grounds of appeal. Some of the additional grounds of appeal, raised fresh issues which where not pleaded or canvassed at the lower court. The respondent objected to the competence of the grounds, which raised the fresh issue. The appellant countered the respondent’s objection and argued that the grounds which raised the fresh issues were competent since he (the appellant) had obtained “leave” of Court to file and argue additional grounds of appeal. At page 644 A-E of the above-cited report, the Supreme Court held thus:

“Did the application for leave to file and argue additional ground 3 simpliciter, which was granted by the Court of Appeal, give the appellant the right to argue issue or issues not raised in the pleadings or canvassed in the trial court but contained in that ground and being raised for the first time, without specifically applying for and obtaining leave of Court of Appeal to that effect? .

Where an appellant is seeking leave of the Court to raise and canvass issues for the first time in the appellate court, and which were not raised in the trial court, leave of the appellate court must specifically be sought and obtained to that effect. The application must contain a prayer that the issue or issues are being raised for the first time in the Court of Appeal, and same not having been canvassed in the trial court, as In this present appeal.

The prayers contained in the appellant’s motion filed in the Court of Appeal on 1st July 1988 did not contain a prayer for leave to raise the fresh issue for the first time, relating to fair hearing. The conclusion of the Court of appeal that “Issues 3(a) and (b) were not pleaded nor were they an issue at the trial court (and) cannot, without leave, be entertained on appeal cannot be faulted. Leave to file and argue additional ground simpliciter did not per se clothe the appellant with authority to argue issues being raised for the first time in the Court of Appeal, which were not pleaded and canvassed in the trial court. The order was not a blanket authority.”

The learned counsel to the respondents also relied on another Supreme Court decision in AJUWON vs. ADEOTI (1990) 2 NWLR (pt 132) 271 at 284H. In circumstances that are similar to those in this present appeal, the Apex Court held as follows:

“As regards the new issues being introduced by the defendants for the time in this suit, no leave was sought to raise and argued them. The facts that leave was granted to the defendants to file ground 6 does not automatically confer on them the authority to urge and argue the new issues. They must seek and obtain leave of court to do that.”

See also TEMCO ENGINEERING & CO. LTD. vs. SAVANNAH BANK OF NIGERIA LTD (1995) 5 NWLR (pt 397) 607 at 617H-61SC.

He urged this court to hold that the failure of the Appellants herein to seek and obtain leave of this Honourable court to raise fresh issues in this appeal is fatal to the sustenance of the above identified fresh issues, which constitute the complaints in Grounds 4 and 5 of the appellants’ amended notice of appeal; and that the fatality of their failure to so obtain the leave required leave to raise fresh issues on appeal is not cured by the fact that the Appellants had earlier obtained leave of Court to appeal on grounds of mixed law and fact.

He further submitted that since issues (a) and (d) in the Appellants’ brief of argument are formulated and based on grounds 4 and 5 of the appellants amended  notice of appeal, which are by themselves incompetent, the issues are therefore liable to be struck out.

In the case of Thor Ltd vs First City Merchant Bank Limited (2002) 4 NWLR (pt 757) page 427 at 446, the Supreme Court held that where a ground of appeal is incompetent, any issue for determination based on such incompetent ground of appeal goes to no issue and should be struck out.

Based on the above submission, he urged the Court to strike out Grounds 4 and 5 of the appellants’ amended notice of appeal as well as issues (a) and (d) formulated and argued at paragraph 3.2 and 3.3 of brief of argument, for being incompetent.

The learned counsel to the respondent then formulated the following three issues for determination from the six grounds of appeal in the appellant’s amended notice of appeal. These are

1. In an action where there are more than one plaintiff (i.e multiple/several plaintiffs) and one of the plaintiffs lack the requisite capacity as a party, would the lack of capacity of one of the plaintiffs render the entire action in relation to the other plaintiffs (with requisite capacities) incompetent and liable to be stayed, struck out or dismissed?

2. Having held that there are no sufficient material before the Court for the grant of the plaintiffs’ application as made to the Court, does the learned trial judge have the power to make consequential orders in attainment of justice in the circumstances of the case before the Court when such consequential orders would not occasion miscarriage of justice to any of the parties.

3. In a ruling on an interlocutory application, does a trial judge have the right to recapitulate counsel’s submission and express its understanding and/or observation of the facts relevant to the application before the Court?

The learned counsel to the respondents drew a distinction between the facts and circumstances in the case of R. Savage vs J. Johnson (1926)7 NLR 53 which was equally distinguished by the trial court to refuse dismissing a striking out the entire action. In Savage’s case, he said, there was only one plaintiff and one defendant while in the present case there is more than one party on each side and the incapacity of one party can not therefore affect the entire action since that may affect the interest off other parties in the action who are not similarly or in anyway incapacitated. He added that in the present case there are four plaintiffs in the suit and assuming without conceding that one of the plaintiffs lacks the capacity to sue in the suit, each of the remaining plaintiffs to wit; the 1st, 2nd and 4th plaintiffs, could independently sustain the maintenance of the action as instituted. Therefore the learned trial judge has at the back of his mind that the action before it, is a multiple plaintiffs’ action and the incapacitation of one of the plaintiff’s could not render the entire action of all the plaintiff’s incompetent since the other plaintiff’s have their respective and requisite capacities as parties before the Court.

The respondents, he submitted, are fortified in the above submission by the provision of order 14 rules 1, 2, 14, 19 and 20 of the High Court of Lagos State (Civil Procedure) Rules which provides as follows:

Order 14 rule 1:

“All person may be joined in one action as plaintiffs in whom any right to relief (in respect of or arising out of the same transaction or series of transaction) is alleged to exist whether jointly, severally, or in the alternative, (where if such persons brought separate actions any common question of law or fact would arise provided that, if upon the application of any defendant it shall appear that such joinder may embarrass or delay the trial of the action, the court of judge in chambers may order separate trials, or make such other order as may  be expedient) and judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment:

Order 14 Rule 2:

“Where an action has been commenced in the name of the wrong person as plaintiff, or where it is doubtful whether it has been commenced in the name of the right plaintiff, the court or judge in chambers may, if satisfied that it has been so commenced through a Bona Fide mistake and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon which such terms as may be just”

Order 14 Rule 14:

“Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may with the leave of the court of a judge sue or be sued, or may be authorised by the court or a judge in chambers to defend any such cause or matter, on behalf or for the benefit of all persons so interested.”

Order 14 Rule 19:

No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of parties, and the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The court or a judge in chambers may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court of judge in chamber to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants be struck out, and that the names of any parties whether plaintiffs or defendants, who ought to have been joined or whose presence before the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added. No person shall be added as plaintiff suing without a next friend, or as the next friend of a plaintiff under any disability, without his own consent in writing thereto. Every party whose name is so added as defendant shall be served with a writ of summons or notice in manner hereinafter mentioned or in such manner as may be prescribed by any special order, and the proceedings as against such party shall be deemed to have begun only on the service of such writ or notice.”

Order 14 Rule 20:

“Any application to add or strike out or substitute a plaintiff or defendant may be made to the court or a judge in chambers at any time before trial by motion or summons, or in a summary manner at the trial of the action.

He submitted that the combined effect of the above provisions of the Lagos State High Court (Civil Procedure) Rules (1994) is to the effect that the other plaintiffs’ cause of action could still be prosecuted and continued with notwithstanding the incapacitation of one of the plaintiffs in a multiple/several plaintiffs” action. He added that even, in the case of R Savage vs. J. Johnson (supra) relied upon by the Appellants at the lower court, the learned trial judge in the said case, Tew. J dismissed the application before it only and he did not dismiss nor strike out the entire action of the plaintiff.

Since 1926, the Nigeria law and justice system has been modified and improved upon from the position taken by Tew J in the case of R. Savage vs J. Johnson (supra) as the Supreme Court has held in the case of Governor Kogi State vs Yakubu (2001) 6 NWLR (pt 710) page 521 at 528H-529A that” when a court finds an action improperly constituted, the proper order to make is to strike it out and not to dismiss it.”

The learned trial judge in this action at the lower court could not strike out the plaintiffs action because it was only just one of the four plaintiffs on record (i.e. the 3rd plaintiff) in the action that was incapacitated. The action as it relates to the 1st, 2nd and 4th plaintiffs is still properly constituted before the court, hence the trial court ordered that the action of the 3rd plaintiff be stayed whilst proceedings in respect of the 1st, 2nd and 4th plaintiffs was ordered to continue.

It is the contention of the Appellants at paragraphs 3.2 and 3.3 of their brief of argument dated 17th March, 2005 that the incapacity/lack of locus standi of the 3rd and 4th plaintiffs has robbed the trial court of jurisdiction to entertain the plaintiffs’ action. The respondents disagree entirely with this submission.

The respondents submit and urge this court to hold that since there are two other plaintiffs; to wit; the 1st and 2nd plaintiffs who are capable and competent to maintain their actions against the defendants notwithstanding the incapacity/incompetency of the 3rd and 4th plaintiffs as submitted by the defendants/appellants, the court has the jurisdiction to entertain the action of the remaining plaintiffs and consequently the plaintiffs’ action cannot be and must not be dismissed or struck out in such circumstances.

In the same vein, where there are several defendants in an action and it is discovered that some  defendants lack capacity or were wrongly sued, the proper order to make is to strike out the names of those who are not competent or wrongly sued and allow the suit to proceed against the other defendants. The court in Tigris Intl. Corp. vs. Ege Shipping & Trading Ind. Inc. (1999) 6 NWLR (pt 608) 701 was faced with a situation similar to the one at hand and stated at page 720 paragraphs C-E per Oguntade, JCA (as he then was) as follows:-

“The plaintiffs claims in its writ of summons and amendment statement of claim were joint and several. Even if the lower court was correct (and I think it was not) to have held (1) that the plaintiff ought not have brought an action in rem against 4th defendant (2) and that the 3rd defendant ought not to have been sued, the course open to the lower court was to strike out the names of the 3rd  and 4th defendants from the suit and allow the suit proceed as an action in personam against the 1st and 2nd defendants. It was clearly a mistake to have set aside the plaintiffs suit against 1st and 2nd defendants when the whole claim before the lower court against the defendant was joint and several. If I had been able to hold that the procedure adopted by the lower court was right and that the conclusion reached concerning the 3rd and 4th defendants was correct, I would have struck out the defendants from the suit and allowed the action to proceed as one in personam against the 1st and 2nd defendants.”

However, where there is only one plaintiff, as in the case of Union Bank of Nigeria Plc vs. Ntuk (2003) 16 NWLR (pt 845) 183 cited by the appellants, then the Court could strike out the sole plaintiffs action for lack of plaintiffs locus standi and for want of jurisdiction in the court.

Consequent upon the foregoing submission, the respondents submit and urge this court to hold that in an action where there are multiple and or several plaintiffs (as in this case) and one of the plaintiffs lack the requisite capacity as a party; such incapacity/incompetence will not render the entire action of the remaining plaintiffs (with requisite capacity) incompetent or liable to be stayed, struck out or dismissed since the remaining plaintiffs are competent and capable of continuing and or prosecuting the action.

In view of the foregoing, it is submitted, for the respondents, that the learned trial judge in this matter was therefore right to have ordered that only the action of the 3rd plaintiff be stayed for lack of capacity of the 3rd plaintiff to sue and that the action of the remaining plaintiffs should continue.

On the second issue districted from grounds 1 and 6 as raised by the respondents, it was further observed by the learned counsel to the respondent that the court below in it’s ruling (at page 166 of the record of proceedings) agreed with the appellants’ contention or opposition to the application that:

“a) There is no written authority or proper disclosure of the identity of the said E. A. Farah sought to be joined as mother and next  friend of the 3rd plaintiff put before this Honourable Court.

b) There are no sufficient material put before the Court for the indulgence being sought by the plaintiffs in their application for amendment”

The court below then made the following pronouncement: –

Ms E. A. Farah is said to be the mother of the 3rd plaintiff. Any doubt about that are easily resolved by learned counsel for the plaintiffs making her available with proper documentation and probably parole evidence to resolve the issue.

Accordingly, the case of the 3rd plaintiff shall be stayed to enable counsel for the plaintiff resolve the issue of Ms. E.A. Farah as mother and next friend of the 3rd plaintiff. Proceedings shall continue in respect of the 1st 2nd and 4th plaintiffs.”

The learned counsel to the respondents further submitted that the order for stay of proceedings against the 3rd plaintiff/respondent’s case while allowing the mother to proceed with regard to other plaintiffs i.e 1st, 2nd and 4th plaintiffs/respondents was rightly made under to omnibus prayer in that motion.

The respondents further submit that a consequential order can be made whether or not the motion/application before the Court is granted or refused. In the case of Akeem vs University of Ibadan (2002) 10 NWLR (PART 827) P. 584 AT 59 paragraphs A – B, it was held that a consequential order  not be claimed but must flow and give effect to a substantive relief sought and either granted or refused. See also Badejo vs Federal Ministry of Education (1996) 8 NWLR (PT 464) p. 15.

It is the Respondents’ further submission that the consequential order for a say of the case of the 3rd plaintiff and continuation of the case of the 1st, 2nd and 4th plaintiffs case goes to the serious question of fairness of the proceedings before the Court, and such order will not and cannot occasion any miscarriage of justice on the part of any of the parties before the Court.

Consequent upon the foregoing submission, the respondents submit that since the learned trial judge has inherent power to make consequential orders and the consequential order was made in attainment of justice in the light of the case before the court and coupled with the fact that the orders would not occasion miscarriage of justice to any of the parties, the consequential orders made by the lower court is justified in law.

On the third issue, which is distilled from grounds 2 and 3 of the amended notice of appeal, it was submitted for the respondents in the determination of the motion before it, the court considers and relies on affidavit evidence and the pleadings filed. Facts relevant to the suit are succinctly averred in the pleadings, which, he said, are the yard stick for measuring the merit of the parties cases. The court, he noted, observed in its ruling

The Court observed in its ruling (See 2nd paragraph of page 164 of the record) thus:

“The plaintiffs are all children of Dr Clarkson Majomi (deceased) they claim in the main that they are entitled to participate in the administration and distribution of the affairs and properties of their late father. The substantive suit has to do with their entire inheritance.”

The court observed further with respect to a decision cited to it by counsel in the course of the argument on the application before it thus:

“If I stay bound by the judgment in R. Savage vs Johnson (supra) which I am not bound to follow, it being merely persuasive, I might be denying little Onome Majomi- her entire inheritance.

The better course would be for this court to rigidly follow arid legalism or technicalities to the extent that justice on the matter is not done to the parties.”

The respondents’ submit that the court was right to have expressed its understanding/observation of the fact relevant to the application before the court as put across by counsel to both parties in their oral submissions in respect of the application before the court as well as the pleadings before the court.

In the case of Chindi Worldwide Ltd vs Total (Nig) Plc (2001) 16 NWLR (part 739) p. 365 at 304 paragraphs D-E, the court held that:

“In civil cases both the parties as well as the courts are bound and guided by issues as settled in the pleadings. See also Okechukwu Adimora vs Nuanyelugo Ajufo (1988) 3 NWLR (pt 80) page 1. The learned trial judge was right in his observation above because in the appellants statement of defence at paragraph 6, (i.e at page 85 of the record of appeal) and in the respondents statement of claim at paragraph 3 (i. e. at page 4 of the record of appeal) both parties are adidem that B” the 2nd, 3rd and 4th plaintiffs claim to be children of the deceased” and the judge’s observation does not derogate from the parties consensus. It only reiterated the obvious from the pleadings, which is to the effect that “the plaintiffs are all children of Dr Clarkson Majomi (deceased), they claim in the main that they are entitled to participate in the administration and distribution of the affairs and properties in their late father.”

It was submitted that the observation of the court in the above regard is not prejudicial to the substantive suit before the court. In order for the court to do justice to the application before it, the relevant fact from the pleadings and as submitted in the course of argument by counsel to both parties had to be referred to by the court for a proper background understanding of the matter that led to the application being considered and ruled upon by the court.

He said, if the court is to do justice in an application before it, the respondents submit that an application before the court is not in isolation of the facts already placed before the court by the parties’ pleadings. This is because “court is not a mechanical and automatic calculator” as stated by Oputa J.S.C. in Ohuka vs. State (1988) 1 NWLR (pt 72) p. 539 and that “it is a court of law dealing with varying situations and applying the same law to the situations in order to do justice in each and every situation according to its peculiar surrounding circumstances.” Also, it is settled law that a court will be right, in law, to look inside the case file for documents not made part of the application under consideration, if such documents will lead to disbursing justice. See WELLINGTON vs REGISTERED TRUSTEES IJEBU-ODE (2000) 3 NWLR (part 647) page 130 at 138 para. E-G.

The respondents then urged the court to hold that the learned trial judge was right to express and make known its observation as to the facts relevant to the application before the court, not withstanding that the matter is at an interlocutory stage, mores, when such observation cannot and did not cause any miscarriage of justice to any of the parties.

In her reply brief, the learned senior counsel to the appellant submitted that the respondent’s preliminary objection is frivolous, irrelevant, and speculative and constitutes a gross abuse of the court’s process. This is because this Court considered and granted on 9/3/05 the motion on notice dated 7/3/05 filed herein on behalf of the appellants for several reliefs including: –

1. “An order granting leave to argue fresh jurisdictional issue on appeal concerning the competence of this action as commenced by the present plaintiffs particularly the 3rd and 4th plaintiffs which issue can be argued under ground No. 3(iv)(b ) of the amended notice of appeal dated 13/12/01 filed herein.”

In the light of the foregoing the said preliminary objection is untenable and should dismissed. Furthermore, contrary to the respondents’ argument, grounds 4 and 5 of the amended notice of appeal both deal with the competency of the action filed herein, which in turn raise jurisdictional Issues. It is submitted that such jurisdictional issues raised on these grounds of appeal can be raised on appeal where they were not raised in the trial court. See the case of Oloriode v. Oyebi (1984) 1 SCNLR, 390 at 407 per UWAIS JSC (as he then was) stating thus:

” … The point has been raised for the first time in this court. It was not previously considered by either the trial court or the Court of Appeal since it was not taken up before them. Chief Williams, learned counsel for the appellants in justifying the step taken submitted on the authority of Heyting v. Dupont (1963) 1 NWLR 1192 AT 1194 AND 1199 AND (1964) 1 NWLR 847, that the issue involves the jurisdiction of the trial court and it could be properly raised before us. I agree with the submission.”

Further at page 409 of the report UWAIS, JSC (as he then was) stated:

” … From the foregoing it is clear that not all parties interested in the land in dispute were joined in each of the consolidated actions. To dismiss or grant the claims made would amount to giving judgment against branches of the families that were not joined in the action.”

Having regard to the foregoing decisions of the Supreme Court per UWAIS JSC (as he then was), it is submitted that the nature of the issues raised are such that leave nee not be sought by the appellants before raising the issues of jurisdiction of the court which was brought about through lack of competency of 3rd and 4th plaintiffs.

Moreover, the issue of competency affects the entire action even though this is an interlocutory appeal. The reason that the entire action is affected is because competency affects the jurisdiction of the court. See Heyting v. Dupont (1963)1 NWLR, 1192 AT 1194 and 1199 cited with approval in the case of Oloriode v Oyebi (supra) at page 407. See also the case of Trustees of Pentecostal Assemblies of the World inc. v. The Registered Trustees of the African Apostolic Christ Church 2002 15 NWLR Pt. 790, 424 at 449 B-D where the Court of Appeal decided that:

“Generally, no court has jurisdiction to entertain a suit in which either the plaintiff or the defendant is not a legal person or ajuristic person.”

It was further submitted that rules of court (such as were quoted extensively from the order 14 rules 1,2,14,19 and 20 of the High Court of Lagos State (Civil Procedure) Rules 1994 in the respondents’ brief do not by themselves confer jurisdiction where none existed in a court. Court rules are merely auxiliary to regulate the practice of the court in the exercise of power or jurisdiction it already possess – see the case of Guinness (Nigeria) Limited v. Udeani (2000) 14 NWLR PT. 687, 367 AT 394 C-H. Order 14 rules 1,2,14,19 and 20 of the High Court of Lagos State (Civil Procedure) Rules 1994 cannot invest the court below with jurisdiction to adjudicate this matter with only the 1st and 2nd plaintiff/respondents without all the necessary and proper parties before the court for reasons given in the appellants’ brief and in the reply brief. Furthermore, the decision in Tigris International Corporation v. Ege Shipping & Trading Ind. Inc. (1999) 6 NWLR (PT 603) 701 at 720 paragraphs C-E relied upon by respondents’ counsel is not relevant to this case. This is because the necessary and proper parties must all be before the court to invest the court with necessary jurisdiction in a declaratory action. Furthermore, the incompetency in this suit does not relate to joinder or misjoinder of parties or even actions in rem or in personou as in the Tigris International Corporation v. Ege Shipping & Trading Ind. Inc. Case (supra). Rather this appeal has to do with ensuring that all the proper, necessary and competent plaintiffs are before the court. See the decisions in The Permanent Secretary Ministry of Works etc Kwara State & anor v. Balogun (supra); Bambe v. Aderinsola 1977 All NLR 5 at pages 9 and 10 and Ajao v. Senola & anor 1973 All NLR, 449 at 454 (3rd paragraph) where the Supreme Court decided thus:

“We think it is settled that competency to institute an action is an essential or indeed a vital factor in deciding the competency of the action itself.”

On failure of a motion for appointment of a next friend it was submitted the motion should have been dismissed because the proper applicant and relevant affidavit, facts and documentation were not put before the court. The said motion should have been dismissed whilst the writ herein should have been set aside for incompetency. This is more so as the 4th plaintiff has no locus standi – see arguments in paragraph 3.2 of the appellants’ brief. Furthermore, in keeping with the  decision in Heyting v. Dupont (supra) the court lacks jurisdiction to entertain an incompetent action.

-It is trite law that where the court lacks jurisdiction, parties cannot waive or agree to ignore the issue of jurisdiction by agreeing that the case should proceed with only the 1st, 2nd and 4th plaintiffs. Even the court itself is entitled to raise its lack of jurisdiction suo moto. See the case of Matanmi & ors v. Governor of Ogun State & ors (2004)5 NWLR pt. 866,255 at 302 G-H; Olutola v. Unilorin (2004)18 NWLR pt. 905, 416 at 446 F-H; 459 CG.

The learned Senior Counsel to the appellant then urged the Court to uphold the submissions in the appellants’ brief and reply brief and allow the appeal.

The issues for determination as raised by learned counsel on both sides may be recapitulated thus:-

1. Whether the plaintiffs/respondents especially the 3rd and 4th plaintiffs are incompetent to sue by themselves without a next friend.

2. If the answer to (1) above is in the affirmative, then whether such incompetence on the part of the 3rd and 4th plaintiffs/respondents affects the competence of the entire action.

3. Whether it was proper for the lower court to stay the case of the 3rd plaintiff/respondent and continue with the other plaintiffs’ case.

4. Whether leave was sought for and obtained by the appellants to challenge the competence of the substantive suit for the first time on appeal.

5. Whether the pronouncement of the lower court that the plaintiffs/respondents are the children of Dr. Clarkson Majomi (deceased) was tantamount to deciding substantive issues for the main trial at interlocutory stage.

The first two issues seem to be the bedrock upon which this appeal lies. The provision of order 14 rule 8 of the High Court of Lagos (Civil Procedure) Rules 1994 (being the applicable rule of court at the material time) is apt and clear on the status of infants in litigation. It provides: –

“Infants may sue as plaintiffs by their next friend and may defend by their guardians appointed for that purpose.”

The 3rd plaintiff/respondent is admittedly an infant and therefore non sui juris.

He, therefore, has to sue only by a next friend. In this case the 3rd plaintiff sued by  himself and subsequently brought a motion to replace his name with that of Ms E. A. Farah as his next friend, which is the subject of this appeal. There is no doubt that the validity of that motion defends on the competence of the main suit. In Akinola Aguda’s book 2’d edition titled “Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria”, the learned author states: –

“An infant who wants to sue at all must do so by his next friend. But no one can sue as a next friend of a child who had not come into existence at the time the action was commenced: Udeaka Ito v. Udegbe Oji and others (1968)8 ENLR 125. Similar to the case of the infant, a person of a weak or unsound mind cannot commence or continue proceedings except by his next friend or committee in lunacy if one has been appointed. In both cases, if the action has been commenced by the plaintiff himself, the proper procedure is for the defendant to apply to the court to stay the proceedings until the next friend or committee has been added: Re Townshend (1908)1 Ch. 201; Re Hunt (1906)2 Ch. 295. It will be improper for the plaintiff himself to make an application to the court for the appointment of a next friend, or other gnardian ad litem. The court should not dismiss the suit merely because of a failure to commence it by the next friend, although it may set aside the writ if there is no next friend willing, or the committee is not willing or able to carry on the proceedings on behalf of the plaintiff: Roland Savage v. John Buxtoff Diodorus Johnson (1926) 7 NLR 53. The legal practitioner who has commenced the proceedings in which the writ has thus been set aside may be liable to pay the costs of the proceedings: Geilinger v. Gibbs (1897) 1 Ch. 479; Fernee v. Gorlitz (1915) I Ch. 177. An application by the next friend or committee to be added to the suit should in ordinary circumstances be granted, after which the suit should proceed normally.”

Thus, although an infant may only sue by his next friend, where as in this case he brings the action in his own name, the suit is not ipso facto incompetent.