Benedict Ojukwu Vs Loiusa Chinyere Ojukwu (2008)
LAWGLOBAL HUB Lead Judgment Report
ADEREMI, J.S.C.
The appeal is against the judgment of the Court of Appeal (Enugu Division) delivered on the 21st of June 2000 wherein that court dismissed with costs the appeal lodged thereto by the present appellant but substituted the order of dismissal made by the trial court (High Court sitting at Nnewi) with an order striking out the suit instead.
Per his statement of claim dated 15th September, 1994 but filed on the 21st September 1994, the plaintiff/appellant claimed against the defendants/respondents 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 and the 1st defendant .
(3) a declaration that the 2nd defendant is not a member of the Ojukwu family of Okpono Ebenator Uruagu, Nnewi, and cannot inherit therefrom.
(4) an order of injunction restraining the defendant either by themselves, agent or privies from insisting that the 2nd defendant is a member of Ojukwu’s family of Okpono Ebenator, Uruagu, Nnewi and should inherit therefrom.
The plaintiff/appellant thereafter filed a statement of claim while the defendant/respondent brought two application filed on 31st October, 1991 and 22nd March 1996 praying the trial court to hold that the plaintiff had no locus standi to bring the suit, that the statement of claim did not disclose any valid or reasonable cause of action against the defendant and that the suit is frivolous, vexatious and an abuse of court process. The application was supported by a three paragraph affidavit with paragraph 2 thereof divided into four subparagraphs. Arguments for and against the grant of the application were taken by the trial judge. The said application, if I may say, is more of demurrer. In his ruling delivered on the 8th of October, 1997 granting the prayers and dismissing the suit, the learned trial judge said inter alia:
“I have carefully studied the statement of claim filed in this suit. It is not disclosed anywhere the nature of marriage contracted between the.1st defendant and late Christopher Ojukwu. This is a vital omission as the nature of the marriage would have assisted in determining the law applicable to Christopher Ojukwu at death.
The plaintiff does not in his claim state that he is entitled to the property of late Christopher Ojukwu by the custom as, per paragraph 24 of the statement of claim. The plaintiff has not indicated his interest beyond being the head of the family. In other words, has the plaintiff locus standi to prosecute his suit
In my view the plaintiff has no locus standi to bring this action and all the necessary defendants have not been joined.
The demurrer succeeds and this suit is hereby dismissed,”
Dissatisfied with the trial court’s ruling, the plaintiff appealed to the court below (Court of Appeal). The plaintiff/appellant in his statement of claim referred to supra had averred:
Para 3
“The plaintiff is the head and Obi of the Ojukwu’s family of Okpono Ebenator Village, Uruagu, Nnewi. The plaintiff is also the head and Obi of Dunuka, family, (which is the larger family tow which the Ojukwu’s family belongs) of Okpono Village Uruagu Nnewi.
Para 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 re-married to one Gregory Agupusi of The Agupusi family of Okpono Ebenator village, Uruagu Nnewi.
Para 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 Chima obi 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 it was biologically impossible.
Para 15
That the 1st defendant mischievously and with an intent to deceive named the 2nd defendant as Tochukwu Ojukwu to pass him off as a member of the Ojukwu’s family.
Para 20
The said late Christopher Ojukwu before his death left his six stores situated 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 the late Christopher Ojukwu in which the late Christopher Ojukwu lived in before his death.
Para 21
Despite the fact of 1st defendant’s remarriage to the said Gregory Agupusi, she has insisted and also makes (sic) 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.
Para 22
The plaintiff has, in his magnanimity, left the 1st defendant use of all the aforementioned properties being that if she remained a member of the Ojukwu’s family, she can only have a life interest therein.
Para 24
The age long custom and tradition of Nnewi people being that where a man dies intestate without a male issue surviving him, (his father being dead) the eldest male of his parents would inherit his property.
Para 25
The plaintiff as, the head of the Ojukwu’s family cannot sit by and allow a non-family member to inherit therefrom:
The court below after taking the arguments of the respective counsel for the appellant and the respondent based on their respective briefs in dismissing the appeal held inter alia:
“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 declaration and injunction he claims that brought him into trouble. But for these three properties pleaded in paragraphs 20 and 21 of the statement of claim, it is possible that this action might not have arisen.
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.
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 VS. 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 to the above order, the appeal is dismissed.”
Again, being dissatisfied with the judgment of the court .below, the plaintiff/appellant appealed to this court and the only issue he formulated for determination as set out in his brief of argument filed on 1st November, 2002, is in the following terms;
“whether the Court of Appeal was correct after holding that the appellant had proprietary interest in two properties pleaded in paragraph 20 and 21 of the statement of claim and entitled to react in court of law to protect the said properties to have finally struck out the suit on grounds of lack of locus standi and non- joinder of necessary parties”
The respondents, in their brief filed on 23rd January 2003 also identified a substantially similar issue which, as set out in their brief of argument is as follows:
“Whether the learned Justices of the Court of Appeal were right in upholding the opinion of the learned trial judge that the plaintiff lacks the locus standi to bring and maintain the suit,”
The gravamen of the argument in the appellant’s brief of argument is that the appellant has locus standi to bring this action while the respondents contended to the contrary in their own brief of argument. What does LOCUS STANDI denote Going by settled judicial authorities, the term LOCUS STANDI denotes legal capacity to institute proceedings in a court of law. The fundamental aspect of LOCUS STANDIS that it focuses on the party seeking to get his complaint laid before the court. In matters where a. plaintiff seeks to establish a “private right” or special damage” whether under administrative law, in non-constitutional litigation, by way of an application for certiorari, prohibition or mandamus or for a declaratory and injunctive reliefs, as in the instant case, the law is sacrosanct that the plaintiff will have LOCUS STANDl in the matter only if he has a special legal right or alternatively if he can show that he has sufficient or special interest in the performance of the duty sought to be enforced, or where his interest is adversely affected. All of the above will however depend on the facts of each case. However, whether an interest is worthy of protection is a matter of judicial discretion which often varies according to the remedy asked for, see: (1) OWODUNNI VS. REGISTERED TRUSTEES OF C.C.C. (2000) 6 S.C (PT.111) 60 (2) OLORIODE VS OYESI (1984) 5 S.C 1 and PROF.YESUFU VS GOV. OF EDO STATE & ORS (2001) 13 NWLR (PT.731) 511. What then is the interest the plaintiff/appellant has manifested through the averments that will enable him to say and contend that he has legal capacity to institute this action To answer this all important question, I must have a resort to the averments in the pleadings again. In paragraph 3 of the statement of claim, the plaintiff/appellant avers that he is the head of Obi of the Ojukwu’s family. In paragraph 20, he avers that standing is a three-bedroom bungalow owned by the plaintiff’s mother together with the late Christopher Ojukwu. Again, in paragraph 21, he avers that there is a four-bedroom bungalow .Jointly erected by the plaintiff and Christopher Ojukwu which property was presently being claimed by the 1st defendant/respondent who had since remarried after the death of Christopher Ojukwu. His interest in the subject-matter of the suit is also played up in paragraph 24. From the averment on the afore-mentioned paragraphs, I have no doubt that the plaintiff/appellant has shown sufficient and special interest in the subject-matter of the suit which interest is adversely affected or threatened that confers LOCUS STANDI on him. See OLORIODE & ORO VS. OYEBI & ORS (1984) See 1. The only issue raised by the appellant is consequently answered in the negative. I answer the only issue identified by the respondent in their brief of argument in a similar manner – in the negative.
This appeal is consequently meritorious and it is allowed. The judgment of the court below and the ruling of the trial court are hereby set aside. In their place, I hereby enter an order that the plaintiff has LOCUS STANDI in this case and I hereby order that the trial of the case shall commence, in the High Court of Justice, Nnewi Judicial Division before another judge.
The cost of this appeal is assessed at N50, 000.00 in favour of the plaintiff/appellant.
SC.284/2002
