Benedict Ojukwu V. Louisa Chinyere Ojukwu & Anor (2000)
LawGlobal-Hub Lead Judgment Report
UBAEZONU, J.C.A.
T
his appeal arose out of the ruling of an Nnewi High Court presided over by Ononiba J. The appellant as the plaintiff in the lower court. He sued the 1st respondent claiming as follows:-
1. A declaration that the said Late Christopher Ojukwu is not the father of the 2nd defendant.
2. A declaration that the said Late Christopher Ojukwu died leaving only three female issues as between him and the 1st defendant.
3. A declaration that the 2nd defendant is not a member of the Ojukwu family of Okpuno Ebenator Uruagu Nnewi, and cannot inherit therefrom.
4. An order of injunction restraining the defendants either by themselves, agents or privies from insisting that the 2nd defendant is a member of the Ojukwu’s family of Okpuno Ebenator, Uruagu Nnewi and should inherit therefrom.
The 2nd respondent who is the son of the 1st respondent was later joined as the 2nd defendant. The 1st respondent was formerly married to the full brother of the appellant. On the death of her husband, Christopher Ojukwu, in 1987 the appellant re-married to one Gregory Agupusi. She however had three female children by her first marriage.
The 2nd respondent was subsequently born on the 25th September, 1989 a little over two years after the death of Christopher Ojukwu the first husband of the 1st respondent. Although the 2nd respondent was born during the marriage of the 1st respondent to Gregory Agupusi yet he was named Tochukwu Ojukwu instead of Tochukwu Agupusi.This is in spite of the fact that Gregory Agupusi apparently acknowledged the paternity of the 2nd respondent.
The appellant duly filed his statement of claim which contained the above facts. Although a number of properties was mentioned or referred to in the statement of claim yet there was no specific claim in this suit as regards the said properties. The claims before the court as set out above were for declaration and injunction. The declaration and injunction claimed do not concern any of the properties referred to in the statement of claim.
The respondents, pursuant to Order 10 of the High Court Rules of Anambra State, filed a demurrer asking that the suit be dismissed on the grounds, that:
(a) the appellant had no locus standi to bring the suit;
(b) the statement of claim did not disclose any valid or reasonable cause of action against the respondents in this appeal;
(c) the suit is frivolous, vexatious and constitutes an abuse of the process of court;
(d) the reliefs sought will not effectively determine the dispute and will serve no useful purpose.
On 8/10/97 the lower court delivered its ruling and dismissed the suit.
Against the ruling, the plaintiff/appellant has appealed to this court. He has also filed his brief of argument in which he formulated five issues for determination, viz:
(a) Whether the learned trial Judge was correct to have dismissed the appellant’s claims on the admitted facts disclosed in the statement of claim.
(b) Whether the learned trial Judge was correct in holding (as he did) that the appellant had no locus standi to bring the action in the lower court.
(c) Whether the learned trial Judge was correct in his holding that the failure to join the three female children of the respondent was fatal to the appellant’s case therefore a ground for refusal of the claims and dismissal of the suit.
(d) Whether the appellant’s case was so manifestly and incurably bad in law that no amendments however ingenious would cure the defects?
(e) Whether the learned trial Judge was correct in holding that failure to aver the nature of marriage contracted by Christopher Ojukwu was a vital omission in the appellant’s statement of claim which rendered his suit unjusticiable or wrong in law?
Although the appellant’s Counsel formulated five issues, he argued only four issues and mixed the issues up in his argument – a rather careless presentation. He did not make any mention of locus standi in his first issue but he argued it as his first issue. Locus standi which is the crux of this appeal is contained in his second issue. I will therefore review his argument on locus standi first. Counsel submits that the learned trial Judge in his ruling-stated that the plaintiff (appellant) does not claim that he is entitled to the property of late Christopher Ojukwu by the custom and did not indicate his interest beyond being the head of Ojukwu family. Counsel refers to Okoye v. Lagos State Government (1990) 3 NWLR (Pt.136) 115 at 117 and 118 where the Court of Appeal held that when a party’s standing to sue is in issue in a case, the question is whether the person whose standing is in issue is a proper person to request an adjudication of an issue and not whether the issue is justiciable. He submits that the question whether or not a claimant has sufficient justiciable interest or sufferance of injury or damage depends on the facts and circumstances of the case. It is submitted that interference or threatened interference with an individual’s property will always sustain an action for declaration or injunction. He refers to Oloriode v. Oyebi (1984) 1 SCNLR 390; (1984) 5 SC 1 at 28; Adesanya v. President of Nigeria (1981) 5 SC 112 at 115. Counsel contends that applying the above principles to the undisputed facts of this case, the appellant as the Head of Ojukwu family is entitled to sue to protect the property mentioned in the claim.
Learned Counsel argues his 5th issue as the second issue, that is, whether the failure to aver the nature of marriage contracted by Christopher Ojukwu and 1st respondent was fatal to the appellant’s claim and therefore rendered the suit unjusticiable or wrong in law. It is submitted that the lower Court was in error in dismissing the suit on the fact that the Administration of Estates Law does not discriminate between male and female children. Counsel says that the learned trial Judge went outside the case before him and started speculating on the nature of the marriage between Christopher Ojukwu and 1st respondent. The nature of the marriage, the provisions of the Administration of Estates of Deceased Persons Law were matters raised suo motu by the trial Judge and decided upon without affording the parties the opportunity of addressing the court on them. Counsel refers to and relies on Ayisi v. Akanji (1995) 7 SCNJ 247; (1995) 7 NWLR (Pt.406) 129.
On the third issue formulated by the appellant’s Counsel, that is, whether the failure to join the three female children of the marriage was fatal to the claim for declaration in that, as the trial Judge found, their interest in their father’s estate is being threatened, learned Counsel contends that in nowhere in the statement of claim is it pleaded that the children’s interest in their father’s estate was threatened.
Furthermore, non-joinder of necessary parties is not envisaged by Order 10 rule 1 of the High Court Rules of Anambra State. In Okafor v. Nnaife (1973) 3 ECSLR (Pt.1) 261, the Supreme Court struck out the case for non-joinder. The Supreme Court did not dismiss the suit.
The 4th issue argued by the appellant in his brief resembles the 1st issue formulated by him. He states as follows in his brief:
“The fourth issue for determination in this appeal is whether the learned trial Judge was correct in dismissing the appellant’s suit based on demurrer application.”
I shall review this fourth issue as the 1st issue formulated in the brief. Learned Counsel submits that all the averments in the statement of claim are deemed admitted for the purposes of a demurrer. The admitted facts entitle the appellant to the reliefs claimed. He refers to Nwama Lines Ltd. v. Elder Demster Agencies Ltd. & Ors. (1966 – 67) 10 ENLR 15; David v. Abdul Cader (1963) 1 WLR 834. It is submitted that two of the grounds upon which the learned trial Judge dismissed the suit, viz: non-joinder of necessary parties and non-disclosure of the nature of marriage are issues upon which more light would be thrown on trial. Furthermore, in the case of Chief Dr. Irene Thomas v. Olufosoye (1986) 2 SC 325; (1986) 1 NWLR (Pt. 18) 669, the Supreme Court held that in matters of this nature, dismissal of a party’s suit must be such that no amendments however ingenious would cure the defects complained of.
The respondents on their part filed a brief of argument and therein formulated two issues for determination thus:
“(i) Whether the learned trial Judge was correct in holding that the plaintiff lacks the locus standi to bring and maintain the suit.
(ii) What is the proper order to make where a court finds that a plaintiff lacks the necessary locus standi to bring or maintain an action?”
Arguing his first issue, learned Counsel for respondents agrees with the proposition of law as it relates to locus standi as contained in the appellant’s brief. He refers, in addition to the cases referred to by the appellant, to the following cases i.e. Ekpan & Ors. v. Uyo & Ors. (1986) 17 NSCC (Pt.1) 616; (1986) 3 NWLR (Pt. 26) 63.
City Property Development Ltd; v. Accountant General Lagos State & Ors. (1976) 10 NSCC 43
Oloriode & Ors. v. Oyebi & Ors. (1984) 15 NSCC 286; (1984) 1 SCNLR 390.
It is submitted that the existence or otherwise of the locus standi of any person suing with determine whether or not the plaintiff will be allowed to continue the litigation and be given a hearing. The plaintiff can only invoke the judicial powers of the court if any civil rights or obligations of his is raised on the pleadings. According to counsel, to entitle him to involve such judicial powers he must show that his personal interest will immediately be or has been adversely affected by the action or that he has sustained an injury which is over and above that of the general public. Counsel submits that it is not enough for the appellant to state that he is the Head of the Ojukwu family or the larger family of Dunuka. He contends that the appellant brought the action in his personal capacity, and not in a representative capacity or as next friend of the female children of his late brother Christopher Ojukwu. He relies on Order 3 rules 5 and 12 of the High Court Rules of Anambra State, 1988. The Statement of Claim does not show that the Ojukwu family has any property to be affected by the claim or that there is any particular or general property in dispute between him and the 2nd respondent which belongs to the appellant or which he is entitled to inherit but which the 1st respondent is insisting that the 2nd respondent will inherit. Counsel maintains that on the death of Christopher Ojukwu, his wife and children succeeded to his estate to the exclusion of his brothers and sisters including the appellant. He relies on sections 119 and 120 of the Administration and Succession (Estate of Deceased Persons) Law Cap. 4 of Anambra State 1986. The form of marriage contracted by the deceased and 1st respondent is irrelevant. It is submitted that the female children of a man who died leaving no surviving male child are entitled to inherit the estate of their deceased father – see Mojekwu v. Mojekwu (1997) 7 NWLR (pt.512) 283.
Learned Counsel argues that the appellant did not institute the action in a representative capacity or as a next friend of the female children of late Christopher Ojukwu who are entitled to the estate of their late father. Nor can the appellant rely on the customary law of inheritance of Nnewi which has been declared as repugnant to natural justice, equity and good conscience in Mojekwu v. Mojekwu (supra). The Headship of Ojukwu family, Counsel contends, is not enough to confer authority on the appellant. Counsel refers to Momoh v. Olotu (1970) 1 All NLR 177; refers also to section 79(1) of the Administrative Law Cap. 5 Laws of Anambra State, 1986.
On his issue No.2, learned Counsel submits that if a person has no locus standi, his claim must be dismissed – see Gamioda v. Esesi (1961) All NLR 584; (1961) 2 SCNLR 237. Where no question as to the civil rights and obligations of the plaintiff is raised in the statement of claim for determination, counsel submits, the statement of claim will be struck out and action dismissed. – See Chief Irene Thomas v. Olufosoye (supra). Counsel also relies on Order 10 rule 1(3) of the High Court Rules of Anambra State 1988 which says that the court on hearing the application shall either dismiss the suit or order the defendant to file his statement of defence. He argues that the trial Court has no discretion in the matter.
On being served with the respondents’ brief, counsel for the appellant filed a reply brief. Dealing with the issue of locus standi as postulated in the respondents’ brief, the appellant refers to paragraphs 21, 25, 26, 27 and 29 of the statement of claim and submits that these paragraphs sufficiently show that the appellant has locus standi. It is submitted that the appellant as the Head of the Ojukwu family can maintain an action to protect family property without necessarily averring that he is suing in a representative capacity. Refers to Anatogu v. Attorney- General East Central State & Ors. (1976) ECSLR 453. Furthermore, the 1st respondent claims a four roomed bungalow the appellant erected jointly with late Christopher Ojukwu.
The crux of the issue in this appeal as arising from the statement of claim which for the moment is admitted by the defence for the purposes of a demurrer application, is as formulated in the respondents’ brief; viz, has the appellant the locus standi to bring the suit. If not, what is the proper order that a court should make. If he has the locus standi, the order to be made is obvious, that is, the defendant shall file his statement of defence.
The other matters raised in the appellant’s brief are largely peripheral.
What is locus standi? Literally, the expression consists of two Latin words meaning a place to stand. Used in connection with a court action, it means a place to stand in a suit. It is usually used in connection with the plaintiff who has commenced a suit. Has he got a place to stand in the suit? Can he in law commence or prosecute the suit he has commenced? Section 79 of the Administrative Law Cap. 5 Laws of Anambra State provides:
“A party has no locus standi in a controversy if he does not have sufficient personal interest in the subject matter or the outcome of the controversy or if he has not suffered or does not stand to suffer some injury either by the enforcement or threatened exercise of some power, authority or right.”
I shall now examine a few of the several decided cases on locus standi and apply the facts of this case to those cases to determine whether the appellant has the locus standi to prosecute this case.
In Amusa Momoh v. Jimo Olotu (1970) 1 All NLR 117 the Chieftaincy declaration had been approved and registered since 1956. The plaintiff sued in respect of the Chieftaincy matter claiming “a declaration that the correct custom for the selection of an Olukare is not father to the eldest son, but devolves on whosoever the Owalukare family in conclave puts forward and is accepted by the kingmakers. The Supreme Court held, reversing the judgment of the lower Court presided over by Kester, acting Chief Judge Western State, that it was not enough for the plaintiff to state that he was a member of the family; he had to state further that he had an interest in the chieftaincy title, and furthermore, state in his statement of claim how his interest in the chieftaincy title arose. It was difficult to say on the pleadings filed that the plaintiff had any locus in the matter. On the standing of the plaintiff who sued in his personal capacity, although he averred in paragraph 2 of the statement of claim that he brings this action on behalf of himself and other members of Owalukare ruling house the court held that the plaintiff has not claimed that he has a standing in this matter which entitles him to bring an action; or that he is representing a certain ruling family whose interests are affected and who are to be benefited by the declaration sought in the writ or that his existing right or his family’s existing right has been infringed. See Lawani Odabanya & 7 Ors. v. Bakare Adefodurin & Ors. WACA 3016 (Cyclostyled reports) decided 19th October, 1949. Mr. Ayoola, learned Counsel for the plaintiff conceded that as the action is not instituted in a representative capacity the court cannot take notice of paragraph 2 of the statement of claim and that this is purely a personal action. On that score, the Supreme Court said that it failed to see the position of the plaintiff who cannot say, and has not alleged, that his personal rights have been infringed. It seems to me that the law has however moved away from that position as the averment on the heading of the claim is not the only material from which it can be gathered that a plaintiff sues in a representative capacity. It seems to me that a plaintiff can show that he sues in a representative capacity by averring the same in the statement of claim without necessarily stating so in the heading of his claim – see Anatogu & 11 Ors. v. A.G. ECS & 3 Ors. (1976) ECSLR 453. In the light of the above premises, the Supreme Court held, inter alia, that the plaintiff has no locus standi to bring the action.
In Chief Dr. Irene Thomas & Ors. v. The Most Rev. Timothy Olufosoye (supra) the plaintiffs sued as representatives of the laity of the Anglican Communion in the Diocese of Lagos seeking a declaration that the appointment of Bishop Joseph Adetiloye as Bishop of Lagos was unconstitutional, null and void because it was done in breach of and in non-compliance with the Constitution of the Diocese. They also sought an injunction to restrain the installation of the said Bishop Adetiloye as the Bishop of Lagos Diocese. The defendant filed a motion to strike out the statement of claim and dismiss the claim on the ground, among others, that the plaintiffs had no locus standi to bring the action. The application was granted, and the statement of claim was struck out, and the action dismissed. On appeal to the Court of Appeal their appeal was dismissed. The appellants further appealed to the Supreme Court and sought to contend that by reason of the appellants being communicants there existed a contract between each member and the Anglican Communion entitling them to take action whenever there was a breach of the Diocesan Constitution. The alleged contract was not pleaded by the appellants. It was pleaded by the appellants that they were not interested in any particular candidate. The Supreme Court held that:
(1) A statement of claim must not only disclose a cause of action, it has to show the locus standi of the plaintiffs. The questions of the civil rights and obligations of the plaintiffs were not raised in the statement of claim. A plaintiff must show in some way how his rights have been infringed or how the matter directly affects him. The plaintiffs in this case have not disclosed any locus standi.
(2) Where the statement of claim or the particulars disclose some cause of action or raise some question fit to be decided by a judge or jury, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. But where it discloses no cause of action and if the court is satisfied that no amendment, however ingenious, will cure the defect the statement of claim will be struck out and the action dismissed. Where no question as to the civil rights and obligations of the plaintiff is raised in the statement of claim for determination, the statement of claim will be struck out as disclosing no reasonable cause of action and the action dismissed. Neither the disqualification of some members of the Archbishop Advisory Committee nor the summary dismissal of complaints by anonymous persons against the appointment of the Archbishop, raised any question as to the civil rights and obligations of the plaintiffs.
(3) Everything that is sought to be relied on should be contained in pleadings. The court will not allow evidence not contained in pleadings, to be admitted and if it is admitted, it will be expunged from the records. The plaintiffs not having pleaded any contractual relationship with the defendant cannot rely on such.”
In Ekpan & Anor. v. Uyo & Ors. (supra) the action was in damages for trespass to land and injunction. The land was, however not in the possession of the plaintiff who had let the land to other tenants. There was no evidence that his reversionary interest was affected. It was held by the Supreme Court that since action in trespass was founded on possession and since the plaintiff was not in possession and since there was no averment that his reversionary interest was affected by the alleged trespass, he had no locus standi to maintain the action. See also Abraham Adesanya v. President of Nigeria (1981) 5 SC 112; (1981) 2 NCLR 358.
On the proper order to make when proper parties are not before the court the case of Buraimoh Olariode & Ors. v. Simeon Oyebi & Ors. (1984) 1 SCNLR 390 is pertinent. In that case, the Supreme Court held that all the plaintiffs in each of the consolidated suits had no locus standi to institute the action because all the parties necessary for the invocation of the judicial powers of the court were not before the Court; consequently, the Court had no jurisdiction to grant the relief claimed. The Court therefore struck out the action instead of dismissing it. Irekefe, J.S.C had this to say at page 400:
“A party prosecuting an action would have locus standi where the reliefs claimed would confer some benefit on such a party. See the decision of this court in Senator Adesanya v. President of Nigeria (1981) 2 NCLR 373.In Duke & Ors. v. Henshaw 6 WACA 200, the West African Court of Appeal entered a non-suit in an action where it held that it had not been shown that the proper representatives of the plaintiffs were before the court. In Onwunalu v. Osedeme [Osademe] (1971) 1 All NLR 14, this Court struck out the case, having held that it had not been properly constituted. This was also the course adopted by this court in Ekpere & Ors. v. Aforije & Ors. (1972) 1 All NLR 220.
The learned Justice went on as follows:
“I am of the view that the learned trial Judge in this matter was clearly in error in the face of his earlier finding that the proper parties in Suit No. IK/74/73 were not before him to have dismissed the case instead of striking it out. A dismissal in that circumstance postulates that that action was properly constituted, a direct antithesis of his finding on representation.”
Per Eso, J.S.C. at page 406 – 407:
“…It is in this con that I will admit the linking of locus standi with the jurisdiction of the court, for as Obaseki, J.S.C. said in the case of Senator Adesanya v. President of Nigeria (1981) 2 NCLR 358 at 393 it is the cause of action that one has to examine to ascertain whether there is disclosed a locus standi or standing to sue.
I have come back again to what the order of the court ought to have been. In Senator Adesanya v. President of Nigeria (supra) the claim of the plaintiff was dismissed and not struck out – see the judgment of Fatayi- Williams, C.J.N., at page 378 of the report. All the Justices in the case agreed with that order. The Supreme Court in Abubakri v. Smith (1973) 6 Sc. 31 merely dismissed the appeal of the appellant from the judgment of the High Court which had earlier dismissed the plaintiff’s claim. The question of what order to make in the circumstances was not raised before the Supreme Court in the two cases. Incidentally, the Court in Abubakri v. Smith (supra) approved of, and applied the reasoning of Plowman, J., in Heyting v. Dupont (1963) 1 WLR 1192 who instead of dismissing the plaintiff’s claim merely indicated that he had no jurisdiction to adjudicate upon the plaintiffs claim – see page 1199.
I think the proper order when the court has no jurisdiction to adjudicate upon a matter for whatever reason, like the parties before the court having no locus standi, is to strike out the action. It is for these reasons and the reasons well stated by my brother Irikefe, J.S.C in his judgment that I will also allow this appeal and strike out the claims before the Court.
Per Uwais, J.S.C. at page 409:
“From the foregoing, it is clear that not all the 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 the branches of the families that were not joined in the actions. This will undoubtedly cause hardship to the families of Osu Kehinde and Onsegun who have not had the opportunity of contesting the claims. I accordingly agree that the proper order to have been made by the trial court was to strike out both claims instead of dismissing the appellants’ case and entering judgment in part for the respondents.”
In Okoye v. Lagos State Government & Ors. (supra) which is a Court of Appeal decision, the court held, following the Supreme Court decision in Oloriode v. Oyebi (supra) that when a party’s standing to sue is in issue in a case, the question is whether the person whose standing is in issue is a proper person to request an adjudication of an issue in the case and not whether the issue itself is justiciable (not “justifiable” as stated in the Nigerian Weekly Law Report); the question whether or not the claimant has suffered justiciable interest or sufferance of injury or damage depends on the facts and circumstances of each case following Adesanya v. President of Nigeria (supra); that it is trite that interference or threatened interference with an individual’s property will always sustain standing for a declaration and injunction.
I think that the above cases which I have reviewed are sufficient for the purposes of this appeal. Those cases decided by the Supreme Court remain the locus classicus on locus standi. But first, let me dispose of one or two preliminary points. In the 1970 case of Amusa Momoh v. Olotu (supra) following Mr. Ayoola’s (plaintiff’s counsel) concession that the action was not brought in a representative capacity the Supreme Court held that since the action was not brought in a representative capacity but in a personal capacity it could not see how the plaintiff could maintain the action as the plaintiff has not alleged that his personal rights have been infringed. This is in spite of the averment of the plaintiff in paragraph 2 of his statement of claim that “the plaintiff brings this action on behalf of himself and other members of Owalukare ruling house. However, in the 1976 case of Anatogu v. A. G. of East Central State (supra) the Supreme Court expressed the view that averment in the body of the claim that a party claims for and on behalf of a class of people is sufficient to show that he sues in a representative capacity. If Ayoola, learned Counsel for the plaintiffs, did not make the concession he made in Amusa v. Olotu case (supra), it is doubtful whether the Supreme Court would have held that the claim was not in a representative capacity. If one goes by the Anatogu case (supra) the mere fact that a plaintiff does not aver in the claim that he sues in a representative capacity or obtain the approval of the court to so sue would not defeat his action if he avers in the body of his statement of claim that he sues in a representative capacity. If my proposition of the law in this respect is correct, the failure of the appellant in this appeal to aver that he sues in a representative capacity simpliciter should not defeat his claim if the tenor of his pleading shows that he brings the action as the Head or for himself and on behalf of the Ojukwu family of Okpuno Ebanto, Uruagu Nnewi. Paragraph 3 of the statement of claim states as follows:
“3. The plaintiff is the head and Obi of the Ojukwu’s family of Okpuno Ebenator Village, Uruagu, Nnewi. The plaintiff is also the head and Obi of Dunuka Family (which is the larger family to which the Ojukwu’s family belong) of Okpuno Ebenator Village, Uruagu, Nnewi.”
The law is that the Head or Obi of a family can take action to protect family property. The mere fact, without more, that the plaintiff did not aver at the heading of the statement of claim that he brings this action for and on behalf of the Ojukwu family of Okpuno Ebenato Uruagu Nnewi does not deprive him of the locus standi to bring and prosecute the action.
Now, what justiciable interest or right as distinct from fanciful interest has the appellant in commencing this suit? What injury or damage would or does the appellant suffer for which he has brought this action claiming declarations and injunction? What are the facts as pleaded by the appellant in his statement of claim that gave rise to the claim? It must be appreciated that none of the allegations of fact pleaded by the appellant has been denied. Order 10 rules 1(1) and (2) of the Anambra State High Court on which the respondents brought their motion to dismiss the appellant’s case provide that the defendant is taken to have admitted the facts. The rules provide as follows:-
“1(1) Where on the receipt of the statement of claim, a defendant conceives that he has a good legal or equitable defence to the suit, so that even if the allegations of the plaintiff were admitted, or established, the plaintiff would not be entitled to judgment against the defendant, instead of filing a statement of defence, may raise the legal defence by a motion that the suit be dismissed without any answer upon questions of fact being required from him.
(2) For the purposes of such application, the defendant shall be taken as admitting the truth of the plaintiff’s allegations, and no evidence respecting matters of fact, and no discussion of questions of fact, shall be allowed.
What facts which are relevant to this appeal does the appellant rely on for his claim? Paragraphs 3, 4, 13, 20, 21, 23, 25, 26, 27, 28 and 29 of the statement of claim are relevant. Following the example of the Supreme Court in Chief Dr. Irene Thomas v. Rt. Rev. Olufosoye (supra) and for ease of reference, I shall set out hereunder verbatim et literatem the above relevant paragraphs of the statement of claim. I had set out earlier in this judgment, paragraph 3 and part of paragraph 29 i.e. the claim in the statement of claim. I shall not repeat them here. In the above relevant paragraphs the appellant pleaded as follows:-
“(4) The 1st defendant was a member of the Ojukwu’s family by virtue of her marriage to the Late Christopher Ojukwu until sometime after the death of the said Christopher Ojukwu when She remarried to one Gregory Agupusi of the family of Okpuno Ebenator Village, Uruagu, Nnewi.
(13) However, on the 25th day of September, 1989, approximately two years and two months after the death of Christopher Ojukwu, the 1st defendant gave birth to the 2nd defendant at the Chimaobi Hospital and Maternity, Nnewichi, Nnewi. People were surprised to hear the 1st defendant claim that the said child born on the 25th day of September, 1989 belonged to Christopher Ojukwu who had died on 19th July, 1987, as this is biologically impossible.
(20) The said late Christopher Ojukwu before his death, left six stores situate at No. 38 New Market Road/Ojukwu Street, Nnewi. He also left behind a three bedroom bungalow owned by the Mother of the plaintiff and late Christopher Ojukwu, in which the late Christopher Ojukwu, lived in before his death,
(21) Despite the fact of 1st defendant’s remarriage to the said Gregory Agupusi, she has insisted and continued to manage the said six stores, and also make use of the said three bedroom bungalow. The 1st defendant is also claiming for herself a four bedroom bungalow jointly erected by the plaintiff and Christopher Ojukwu before their father’s death in 1982.
(23) The 1st defendant has however moved further to claim and insist that the 2nd defendant is a child of the Late Christopher Ojukwu, and therefore a member of the Ojukwu’s family and must inherit therefrom.
(25) The plaintiff as the head of the Ojukwu’s family cannot sit idly by and allow a non-family member to inherit therefrom.
(26) The 1st defendant has by her conduct of going to court to state on oath that the 2nd defendant is a child of Christopher Ojukwu and by giving him the surname of “Ojukwu”, bringing him up within the Ojukwu family; claiming and agreeing with certain persons in the village, that the 2nd defendant must inherit from the Ojukwu’s family; by such conduct of the 1st defendant, there is a clear threat of injury to the property of Christopher Ojukwu, and that of Ojijkwu’s family.
(27) The 1st defendant’s conduct of imposing a non-family member upon the family has been affecting, and causing a depreciation of the non-tangible rights of the family.
(28) That the 1st defendant would persist in her claims that the 2nd defendant would inherit from the Ojukwu’ s family unless restrained.
(29) That the plaintiff and the Ojukwu’s family have suffered due to the 1st defendant’s conduct, and the family faces an imminent threat to it’s property if the 1st defendant is not restrained…”
As can be seen from the said paragraphs of the statement of claim, in paragraph 3 the appellant pleaded that he was the Head and Obi of the Ojukwu family of Okpuno Ebenatar Uruagu Nnewi. In paragraph 4, he showed that the 1st respondent was originally married in the family but following the death of her husband she got remarried into another family, vis the Agupusi family. In paragraph 13, he averred that 2nd respondent was born after the death of the 1st respondent’s husband and during her marriage with Agupusi. In paragraphs 20 and 21, the appellant pleaded three properties, viz six stores and two bungalows owned severally by Christopher Ojukwu the late husband of the 1st respondent, the mother of the appellant and the appellant. In paragraphs 24, 25, 26, 27 and 28 the appellant pleads that as the Head of Ojukwu family he could not stand by while a non-member of the family i.e 2nd respondent inherits properties belonging to the family. In paragraph 29, the appellant pleads that he and the Ojukwu family have suffered as a result of the 1st respondent’s conduct. He did not however say what they had suffered. He therefore claimed as set out at the beginning of this judgment.
I have set out, not only the relevant paragraphs of the statement of claim but also a summary a kernel of these paragraphs. Can it be seriously said that the appellant has no proprietary interest in two of the properties pleaded in paragraphs 20 and 21 of the statement of claim i.e. the bungalow formerly belonging to the mother of the appellant and late Christopher; and the bungalow jointly erected by the appellant and his late brother Christopher. I think he has a clear justiciable proprietary interest in those properties. If any person is trying to claim those properties or being projected to lay claim on those properties should the appellant not react? It is my view that he is entitled to react in a court of law to protect properties he claim to have interest in. If he folds his hands and stands by he could eventually be caught by the doctrine of larches or standing-by.
On the other side of the story, the appellant would seem to be obsessed by the idea of giving the name “Ojukwu” to the 2nd respondent who was not a child of his late brother Christopher. He feels that giving the 2nd respondent that name is a ploy to lay claim on Ojukwu family property. I ask, what is in a name? Is everybody not free to answer any name he likes? The appellant has no exclusive right to the name “Ojukwu”. There are many Ojukwus all over the place who do not belong to the Ojukwu of the appellant. The appellant contends that the 1st respondent having remarried into the Agupusi family should no longer answer Ojukwu yet he sues her as “Louisa Chinyere Ojukwu” not Agupusi. He contends that the 2nd respondent is not Ojukwu yet he sues him as “Tobechukwu Ojukwu” not Tobechukwu Agupusi. The stormy waters in which the appellant got himself in this case is largely due to the careless pleading of his counsel. Counsel should be more careful in settling pleadings and not plead with an air of careless abandon. Counsel should know exactly what is the crux of his case, whether it discloses a cause of action and if it does he should go straight to it. His claim should also be tied to the cause of action which gives him right to the suit.
I have set out at the beginning of this judgment what the appellant is claiming. It consists of declarations and an injunction. It is the justiciability or otherwise of the declarations and injunction he claims that brought him into trouble. But for those three properties pleaded in paragraphs 20 and 21 of the statement of claim it is possible that this action might not have arisen.
I now come to certain laws in Anambra State which deal with or touch on the claims in this suit. Firstly, the Actions Laws of Anambra State Cap. 3 defines a cause of action in Section 2 as meaning “the sum total of facts which are necessary to establish a plaintiff’s entitlement to the remedy which he claims”.
There is the Administration Law of Anambra State Cap. 5 Laws of Anambra State 1986. Sections 78 and 79 are relevant. Section 78 provides:
“78.(1) A declaratory judgment shall not be awarded in respect of a controversy that is not real, justiciable or ripe for adjudication.
(2) A dispute is not real and cannot sustain an action for a declaration if it is moot, academic or hypothetical.
(3) No declaration shall be granted in respect of any claim, right or duty that is not recognized or protected by law.
(4) A dispute is neither justiciable nor ripe nor fully developed for adjudication if some legally recognized or protected right or duty is not violated or exposed to some real and immediate threat of violation.
Section 79 (1) and (2) provide:
“(1) A declaration shall not be made in favour of a party who has no locus standi in a controversy.
(2) A party has no locus standi in a controversy if he does not have sufficient personal interest in the subject matter or the outcome of the controversy or if he has not suffered or does not stand to suffer some injury either by the enforcement or threatened exercise of some power, authority or right.”
These laws of Anambra State which are applicable to this appeal are in accord with the decided cases of the Supreme Court which I have already reviewed in this judgment. Section 120(1)(b) of the Administration and Succession (Estate of Deceased Persons) Law Cap. 5 Laws of Anambra State provides how the estate of a deceased person should be distributed. It provides that
“(b) If the intestate leaves a husband or wife as well as children’s children (whether or not he also leaves parents or brothers or children of brothers or sisters)”
Then, the estate shall be distributed as follows:
“the residuary estate shall be held on trust as to the value of one third thereof for the surviving spouse whose interest shall be absolute in the case of a husband, or for her life until her remarriage (which ever first occurs) in the case of a wife; the remainder of such estate together with the residue upon cesser of the wife’s interest (if any) shall be held on trust for the children shares absolutely or, failing children, on trust for the children of the children in equal shares absolutely.”
The relevance of all these to this appeal is to show that even the three female children of Christopher Ojukwu are not parties to the suit although their rights and interests are affected. In an action such as this, all persons interested must be made parties in order to give the plaintiff a locus standi. In Oloriode v. Oyebi (supra) the Supreme Court held that the plaintiffs in each of the consolidated actions have no locus standi to institute the actions because all the parties necessary for the invocation of judicial powers of the court were not before it and consequently, the court has no jurisdiction to grant the reliefs in the claims.
Apart from the non-joinder of interested parties the facts pleaded in the statement of claim are what I may describe as fanciful interests with the exception of facts pleaded in paragraphs 20 and 21. The reliefs claimed in paragraph 29 of the statement of claim are equally largely fanciful. I am unable to appreciate what damage the appellant will suffer or what benefits will accrue to him if the declarations claimed are refused or made. This is as regards the reliefs claimed in paragraph 29(1) and (2) of the statement of claim. As regards the reliefs claimed in paragraph 29(3) and (4), no wrong doing has been alleged against the 2nd respondent. A claim against a person against whom no wrong doing is alleged is merely fanciful and not justiciable in a court of law. Courts exist not for fanciful or merely academic claims but to grant reliefs or remedy to an injured party.What does the appellant lose or what damage does he suffer by the 1st respondent’s “insisting” that the 2nd respondent is a member of Ojukwu’s family of Okpuno Ebenator Uruagu Nnewi and should inherit from the family? The 1st respondent can insist till the doom’s day but what does such insistence matter to the appellant? In the words of Section 79(2) of the Administrative Law Cap. 5 of Anambra State 1986 and the judicial decisions which I have reviewed in this judgment, the appellant does not have sufficient personal interest in the subject-matter or the outcome of the controversy nor has he “suffered” and “does not stand to suffer some injury” by any act of the respondents particularly the 2nd respondent against whom nothing has been alleged and therefore has no locus standi. The reliefs claimed and the entire set up in the statement of claim may be good for an academic work in the classroom but not good enough for the court.
The appellant could have a locus standi in respect of some of the properties mentioned in paragraphs 20 and 21 of the statement of claim if proper reliefs are claimed in respect of them. As regards the 6 stores left by Christopher Ojukwu, the appellant avers that the 1st respondent “has insisted and continued to manage” them. Why should the 1st respondent not manage them when she has three female children of Christopher Ojukwu to look after? As regards the four bedroom bungalow erected by the appellant and Christopher Ojukwu, no meaningful relief has been claimed in respect of it. The pleading and the reliefs claimed do not bring out the real interest of the appellant in the properties or the wrong he suffers in respect of them. As I remarked earlier, the pleading is replete with careless work. Be that or it may, it cannot be denied that on a more careful and proper pleading the locus standi which does not exist in the present state of the pleading may be given rise to. I am not prepared to say that with measure of ingenuity in amendment, locus standi may be restored, at least, with respect to part of the claim. As the statement of claim stands, with the reliefs claimed thereon I am of the view that the lower court was right in holding that the appellant lacked the locus standi to prosecute the action.
I now come to another aspect of the matter. Having found that the appellant has no locus standi, what is the proper order to make? The absence of locus standi imports that the court has no jurisdiction to entertain the suit.
Order 10 Rule 1 of the High Court Rules of Anambra State under which learned counsel for respondents made his demurrer application provides in sub-rule (3) that the court shall, on hearing the application either “dismiss the suit or order the defendant to file his statement of defence”. On finding that a plaintiff has no locus standi, the court would seem to have no option than to dismiss the suit. The rule uses the word “shall” which is mandatory. In Dr. Irene Thomas v. Olufosoye (supra) the High Court dismissed the suit. The Court of Appeal and subsequently the Supreme Court uphold the dismissal. In Abraham Adesanya v. The President of Nigeria (supra), the Supreme Court dismissed the suit. In Oloriode v. Oyebi (supra), however the Supreme Court held that the proper order to make is to strike out the case instead of dismissing it. At the expense of prolixity, I shall repeat here what Eso J.S.C. said in this regard at page 407:
“I think the proper order when the court has no jurisdiction to adjudicate upon a matter for whatever reason, like the parties before the court having no locus standi, is to strike out the action.”
Now, what order do I make in the face of these decisions and the provision of Order 10 Rule 1(3) of the High Court of Anambra State already referred to in this judgment? Must the court give a mandatory interpretation to the word “shall” used in the rule as learned counsel for the respondents has contended. It is Lord Collins, M.R. who said in Coles and Ravenshea in re. (1907) 1 K.B. 1 at page 4:
“Although the Rule of Court stands as a guide to the court in conducting court business, the court must not hold it as a “mistress” but as a mere “handmaid.”
In Nishizawa Ltd. v. Strichard Jethwani (1984) 12 SC. 234 Kawu, J.S.C. observed that “Rules of Court are made to help the courts achieve their primary objective of doing justice…”
In this case on appeal, I have shown that the appellant could have locus standi in respect of some of the items of the claim if with a measure of ingenuity some amendments are made or if the claims have been properly framed and facts properly pleaded. An order of dismissal will not in the peculiar circumstances of the case meet the justice of the case. I shall therefore follow the reasoning in Oloriode v. Oyebi (supra) and make an order of striking out. In the final analysis the order of dismissal made by the lower Court is hereby set aside, and in its place the order striking out the suit is substituted. Save as to the above Order, the appeal is dismissed. The respondents shall have reduced costs of this appeal which I fix at N2,000.
Other Citations: (2000)LCN/0838(CA)
