Chief Orok. I. Ironbar & Ors V. Federal Mortgage Finance (2008)
LawGlobal-Hub Lead Judgment Report
THERESA. N. ORJI-ABADUA, J.C.A.
The proceeding leading to this appeal was first initiated on the 24th March, 1994 at the High Court of Cross River State of Nigeria, Holden at Calabar presided over by Hon. Justice E. E. Ita, wherein the Plaintiff, suing as next of kin and/or agent and or representative of late Chief Orok Ita Orok as per the endorsement on his statement of claim, sought the following reliefs against the Defendant:
“(i) Injunction restraining the Defendant, its agents, servants and/or assigns from meddling by way of sale, take over or howsoever, with Late Chief Orok Ita Orok’s property at Odukpani Road, Calabar registered as 96/96/62 of the Lands Registry, Calabar.
(ii) An order that the Plaintiff has already cleared Late Chief Orok Ita Orok’s indebtedness to the Defendant through all the lodgments made since the Late Chief’s demise.
(iii) N650,000.00 damages for embarrassing the Plaintiff by sending someone to value/inspect the said property for sale on several days including 23/3/94 while same was occupied by other parties who are tenants and relations of the Plaintiff”.
At the subsequent trial, the Plaintiff alone testified for himself and tendered 16 Exhibits. The Defendant for its part called no witness but rested its case on that case of the Plaintiff.
The Plaintiff’s case briefly, is that his Late father, Chief Orok Ita Orok, who died, in April 1985 was the customer of the Defendant. He obtained a loan from the Defendant, and, as at the time he died, the amount outstanding as his indebtedness was N18, 802.66K. At the demise of Chief Orok I. Orok, the Plaintiff undertook to defray his said late father’s indebtedness to the Defendant. However, to his consternation, various conflicting statements of account were forwarded to him by the Defendant which he promptly protested against. He paid over N40,000 to the Defendant from the date of his father’s demise to the date the suit was fixed for hearing at the lower Court. He claimed he had overpaid the Defendant.
At the conclusion of the hearing, the learned trial Judge, after a careful and meticulous review of the Plaintiff’s evidence before it, and, the eloquent submissions of learned Counsel for the parties found for the Defendant and dismissed the Plaintiff’s claims.
The Court then pronounced thus:
“A proper plaintiff must be before that Court before the Court can exercise jurisdiction. Where there is no proper Plaintiff before the Court, the case is not properly constituted ….. An improperly constituted action is incompetent and liable to be dismissed. This action is accordingly dismissed.”
Dissatisfied with the said judgment, the Plaintiff lodged an appeal against the same to this Court. I shall hereinafter refer to the Plaintiff as the Appellant and the Defendant as the Respondent in this judgment.
Five grounds of appeal were filed by the Appellant against the said decision of the High Court of Cross River State. Needless reproducing the said grounds in this judgment, but, suffice it to state that the Appellant, pursuant to the Rules of this Court, filed his Brief of Argument in which two issues were identified for the determination of this Court. These are as follows:
“1. Whether the Appellant had the capacity and competence to sue the Respondent regarding the account and/or property of Late Chief Orok Ita Orok.
- Whether the Respondent having dealt with the Appellant on Late Chief Orok Ita Orok’s account and caused him to take steps to his detriment which steps the Respondent did not deny, the trial Court was entitled to find/declare such relationship unlawful”.
The Respondent for its own part, submitted only one issue in its Brief of Argument as arising in this appeal for determination. It is couched thus:
“Whether the Appellant has the capacity to maintain the action as constituted”.
Having regard to that, the Appellant filed a Reply Brief.
A close study of the issues set out in the respective Briefs of the parties reveals that they are substantially identical and refer basically to the same questions.
At the oral hearing of the appeal before us, on the 13th day of March, 2008, the Appellant’s Brief of Argument and his Reply Brief filed on 28/6/07 and 31/12/07 respectively which were settled by the Appellant were adopted and relied upon by one Albert Ben Esq.; Learned Counsel for the Appellant, who then urged that the appeal be allowed.
Learned Counsel for the Respondent, Joe Agi Esq.; SAN, adopted the Respondent’s Brief of Argument dated 15/10/2007 but which was deemed as properly filed and served on 13/3/08. He urged that the appeal be dismissed.
It was argued in the Appellant’s Brief of Argument that by paragraph 1 of the Statement of Defence, the Respondent admitted paragraphs 1, 2, 3, 4, 7, 9, 11, 14, and 16 of the Appellant’s Statement of Claim and as such, it was needless for the Appellant to prove that he was the Late Chief Orok Ita Orok’s biological son, that the Late Chief maintained an account No 28753337-4 with the Respondent, that the Respondent was aware of the late Chief’s demise when his account stood at N18,802.66K debit, that between April 1985 and July, 1988, unexplained sums had been added up to N21,225.90K, and, that the Respondent had been dealing with the Appellant on this account. In support of these assertions, Learned Counsel referred to the decision in Adekunle vs. Adegboye (1992) 2 NWLR Part 223 p. 305 wherein it was stated thus:
“Pleadings are not evidence ……
Neither the parties nor the Court can treat them as such unless certain averments pleaded by a party are admitted by the other party, when they become admitted facts on which the trial Court could properly draw conclusions”.
He claimed that no allegation of deficiency, failure or lack of capacity in the Plaintiff to sue was raised by the Respondent in its Statement of Defence, rather, the Appellant was accepted as the Respondent’s new customer and was appropriately referred to at paragraphs 10, 11, 13, 14, and 15 of the Respondent’s Statement of Defence as the “Mortgagor” and “Customer”.
To buttress this point, learned Counsel referred to Exhibits B, C and D which evidenced the Respondent’s acceptance of the total sum of N58,807.00 paid to it by the Appellant over the years. In further support of this assertion, learned Counsel made reference to paragraph 13 of the Statement of Defence, P.W 1’s testimony on 17/2/2005 and, his further testimony on 11/11/2005 contained at pp.71-73 and 75-77 respectively of the record of appeal. Counsel invoked the provisions of section 151 of the Evidence Act and pointedly argued that the Respondent cannot be allowed to deny the existence of the relationship between him and the Appellant.
Learned Counsel strongly contended that had the trial Court not misconceived the Appellant’s case and had it acquainted itself with the relevant laws defining the relationship between the parties, it would not have, at the 2nd paragraph of p. 90 of the Record of Appeal, after referring to the cases of Fawehinmi vs. Akilu (1987) 4 NWLR Part 671 p. 797 & Olowosago vs. Adebanjo (1988) 4 NWLR Part 88 p. 275 and, conceding that friendship in law was sufficient to ground locus, held that, the instant case being in the realm of law of contract, strangers to contracts, cannot sue on a contract and that only parties to a deed or persons deriving benefit therefrom can sue upon the deed and, too, that the Appellant was not a party to Exhibit A which conferred no benefit on him. He argued that the compelling evidence of P. W. 1 at p. 71 of the record, showed that the Appellant was the next of kin and representative of the estate of Late Chief Orok Ita Orok who maintained an account with the Defendant before he died, and he had suffered damages as the next of kin.
Learned Counsel stated that that piece of evidence was not rebutted or controverted by the Respondent. Rather the Respondent adopted and relied upon the same. He submitted that by the trial Court holding as it did, it was obviously making a case for the Respondent.
Counsel further submitted that the trial Court was also wrong in holding that the Appellant could only have sued as Chief Orok with Letters of Administration. He stated that the same was not raised by the Respondent at the trial and no issue was joined by the parties on any type of inheritance, that is to say, if it was customary inheritance requiring traditional evidence in respect of which the Court would not have expected issuance of Letters of Administration. He stressed that the aspect of the Respondent’s Counsel’s address introducing this issue for the first time in his address should not have been countenanced by the Court since his address is never a substitute to evidence.
Furthermore, learned Counsel referred to Order 37 Rule 17 of Cross River State High Court (Civil Procedure) Rules and argued that the Respondent’s Counsel having not led any evidence, had no right to address the Court.
He made reference to Black’s Law Dictionary, 6th Edition at p. 1044 which defined the phrase “next of kin” as the persons nearest of kindred to the descendant, that is, those who are most nearly related by blood. He stated that, Chambers 20th Century Dictionary defines it to include the relatives (lineal or collateral) of a deceased person among whom personal property is distributed if he dies intestate. He then asserted that letters of administration do not determine next of kin.
Learned Counsel further submitted that in the instant case, the Respondent continually received monies from the Appellant on the strength of Exhibit A., and, it never contended that the Appellant was a stranger to Exhibit A as it relied on the Appellant’s case. He cited the cases of Oil field Supply Centre Ltd vs. Johnson (1987) 2 NWLR Part 58 p. 625 and Bank of Baroda vs. Iyalabani Co. Ltd (2002) 13 NWLR Part 785 p. 551 and submitted that since there was no challenge of the Appellant’s locus standi to institute the action by the Respondent, there was nothing therefore, to prove. He further referred to Okpala vs. Ibeme (1989) 2 NWLR Part 102 p. 208 in support. He then expressed that if a party did not file any preliminary objection why wouldn’t the Court consider the matter on the merit instead of relying on extraneous facts not borne out of the evidence before the Court.
He referred to Famfa Oil Ltd vs. A. G. Federation (2003) 11 MJSC 66 where it was held that justice can only be done in substance and not by impeding it with more technical procedural irregularities that occasion no miscarriage of justice. He cited New Breed Organization Ltd vs. Eromosele (2006) 5 NWLR Part 974 p. 499 and submitted that this is a proper case for the Court to intervene with the findings of the trial Court. He further relied on Ezeani vs. Atta (2004) 7 NWLR Part 873 p. 466 at 515 – 516 para. B.D and urged the Court to allow this appeal, set aside the judgment of the lower Court and grant the reliefs claimed by the Appellant.
For the Respondent, the Learned Senior Advocate of Nigeria, Joe Agi Esq., submitted that the Appellant by suing as next of kin and/ or agent and/ or representative of Late Chief Orok Ita Orok commenced this suit in a speculative capacity, and as such the Learned trial Judge cannot be blamed for dismissing the suit. He cited Oguntokun vs. Carew (2000) 13 NWLR Part 683 p. 108 at 116 per Oguntade J.C.A (as he then was) and Re Williams, Williams vs. Bell (1917) 1 CH p.1 and submitted that it is trite law that no action can be maintained for and on belief of a dead man nor can an agency be created on behalf of a deceased person. When a person dies, neither he nor afortiori, his agent can litigate in his stead.
He vehemently argued that the Appellant having held himself out as an agent, representative and next of kin can definitely not maintain this action in law.
He urged the Court to so hold.
Furthermore, the Learned Senior Advocate queried, assuming but not conceding that the Appellant sued as representative or next of kin of his late father, can he in law do so without formally obtaining letters of administration.
He answered in the negative given the Appellant’s averments at paragraphs 5 and 6 of his Statement of Claim and exhibit A, the Mortgage deed. The Learned Senior Advocate stressed that the property in issue is not a family property but personal property of his late father. He further stressed that the Appellant admitted under cross-examination that he did not obtain Letters of Administration.
The Learned Senior Advocate finally relied on Olowosago vs Adebanjo (1988) 4 NWLR Part 88 p. 285, Oilfield Supply Centre vs. Johnson (1987) 2 NWLR Part 58 p. 625 at 640 and Prince Valentine B. Adam 111 vs. ICON Ltd (Merchant Bankers) Appeal No CA/E/86/92 delivered on the 24th April, 1995 and emphasized that the Appellant, not being a party to that contract cannot sue on it, and, also, by not having Letters of Administration, has no locus standi to institute the action in the first place. He then urged the Court to dismiss the appeal and affirm the judgment of the lower Court.
In the Appellant’s Reply Brief, the cases of Mohammed vs. Klargester (Nig) Ltd (2002) 14 NWLR Part 787 p. 335, Uzoechi vs. Onyenwe (1999) 1 SCN 34 were referred to. In the Mohammed’s case, it was held inter alia that where a person dies intestate leaving many heirs behind, his property will devolve on his heirs and will become a communal or family property. Furthermore, that a family member can sue by himself or in a representative capacity to protect his interest as well as that of his kindred. He equally made reference to the Book on the Law and Practice of Nigeria Wills, Probate and Succession by Brain W. Harvey (Law in Africa No. 26) at pp 178 and 180 and submitted that as a biological/natural son of late Chief Orok I. Orok, the Appellant could succeed to his property as pleaded and stated in evidence without the need to obtain Letters of Administration and then reiterated his request for the Appeal to be allowed.
As could be gleaned from the five grounds of appeal filed by the Appellant, only two issues were formulated therefrom. It is obvious in the argument of Learned Counsel for the Appellant in respect of issue NO.1, that grounds 1, 2 and 3 were subsumed therein. Then issue NO.2 was predicated on ground No.4. A perusal of the Respondent’s lone issue easily gives it away as a repetition of the Appellant’s issue NO.1, or summary of the two issues distilled by the Appellant. It is equally subsumed therein. Therefore, the justice of this appeal shall be served by considering together the two issues distilled by the Appellant as they connote one or the same thing.
With respect to the issues raised, whether the Appellant had the capacity and competence to sue the Respondent regarding the account and/or property of late Chief Orok Ita Orok, and whether the Respondent having dealt with the Appellant on Late Chief Orok Ita Orok’s account and caused him to take steps to his detriment which steps the Respondent did not deny, the trial Court was entitled to find/declare such relationship unlawful”, it must be emphasized that locus standi is the competence of the Plaintiff to institute an action in Court.
Without it, the trial court itself cannot be clothed with jurisdiction to hear or entertain the suit. In Eboh vs. Ogbu (1994) 5 NWLR Part 347. p. 703 at 715, it was held thus:
“It is a vital factor for the plaintiff in an action, to state the capacity in which he instituted the action. Failure to so prove, would make the action incomplete. This is because it is fundamental that a person who institutes an action in Court must be competent to do so. It must be established on the face of the writ in what capacity the plaintiff is suing”
Furthermore, in U.S.N. PLC vs. Ntuk (2003) 16 NWLR Part 845 p. 153 decided by this Court, per Thomas J.C.A., it was held that where a case is presented not in a representative capacity but for the benefit of a dead principal like the dissolved “Conference” and also for third party creditor of the “Conference”, the suit will be defeated as the plaintiff has no locus standi to sue.
It is an established principle of law that 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.
In ascertaining whether the plaintiff in an action has the standing to institute the proceedings, the Statement of Claim should be examined. So the question whether or not the plaintiff has locus standi is usually deduced or determined from all the facts averred in the Statement of Claim. The Court’s approach is to look at the statement of claim to ascertain whether or not the plaintiff’s sufficient interest has been disclosed, and how the interest has arisen from the subject matter of litigation. Where in the course of scrutinizing the statement of claim, the averments disclose the interest of the Plaintiff, and, the interest is threatened with violation or actually violated by the defendant, the party would be adjudged by the court to have clearly shown sufficient interest to entitle him to sue on the subject mater.
It is trite law that endorsement on the Writ of Summons must show the capacity in which the Plaintiff is claiming, whether as a Creditor, an Administrator, a legatee, a next of kin, heir at law, a successor under customary law, a devisee, e.t.c.
In the present case, both at the head of the Writ of Summons and Statement of Claim, the Appellant endorsed his name as “Chief Orok I. Ironbar (suing as Next of Kin and/or agent and/or representative of late Chief Orok Ita Orok)”.
The only paragraphs of his Statement of Claim which scantly explained his relationship or position vis a vis his late father’s house at Odukpani Road, Calabar, and his late father’s account with the Respondent are 3, 4, 5, 8, and 20. They read thus:
“3. The plaintiff’s father late Chief Orok I. Orok was an account holder with the defendant until he died on/about April, 1985.
- The plaintiff’s late father maintained at the Calabar branch of the defendant account No. 2875337-4.
- Sometime before his demise the plaintiff’s father applied for and obtained advance of N9,000 from the Defendant and offered to mortgage his property at Odukpani Road, Calabar registered as 96/96/62 of the Lands Registry, Calabar. The application is hereby pleaded.
- The plaintiff avers that he undertook to liquidate the said debt as it stood but surprisingly the defendant continued to unilaterally without due notice to plaintiff herein or any other of the late Chief’s children and or representative by not only raising the rate of interest charges but increasing thereto the said indebtedness arbitrarily.
20 The plaintiff was therefore surprised and shocked when someone was sent by the defendant on several occasions including the 23/3/94 to value/inspect for sale of late Chief’s property situate at Odukpani Road, Calabar which is still occupied by other parties including plaintiff’s brothers”
It must be emphasized that a relief sought by a party to a suit does not constitute part of the facts in the pleading and it cannot be granted unless there are facts contained in the party’s pleading in support of it upon which evidence can be called. See the case of Ishola vs. U.B.N Ltd (2005) 6 NWLR Part 922 p. 422, per Kalgo, J.S.C.
I have painstakingly studied all the paragraphs of the Appellant’s Statement of Claim including the aforementioned, and could hardly observe any paragraph at which the Appellant averred that, he was either the Next of Kin or the agent or the representative of the estate of his deceased father, Chief Orok Ita Orok or whether his father died intestate and he became a successor under customary law, that is to say, that the said property at Odukpani Road, Calabar devolved on him alone or both on him and other sons of his late father under customary law. Also there was no averment that he obtained Letters of Administration to administer his late father’s estate or was appointed a legal representative of the same.
He did not give an inkling as to whether since his late father’s demise, he had been administering the said estate or meddling with it to the extent of exposing himself to the position described by law as that of “Executor De Son Tort”.
It was only in respect of the loan agreement his deceased father entered into with the Respondent that he had interfered with by opting to liquidate the said indebtedness. He never said he lived in the property, rather the property was occupied by other parties including his brothers.
Whatever be the case, it must be recognized as rightly submitted by the Learned Counsel for the Appellant, that where a person died intestate leaving many heirs behind, the property will devolve on the heirs and will become a communal or family property of all the members of the family. See Mohammed vs. Klargester (Nig) Ltd. (supra).
Also, the Supreme Court in Mozie vs. Mbamalu (2006) 15 NWLR Part 1003 p. 466 unequivocally stated that a member of a family has capacity to sue to protect family property, i.e., a member whose interest is threatened by wrongful alienation or wrongful interference with the family property can sue to protect his interest whether with the consent or without the consent of the other member. See also Ladejobi vs. Oguntayo (2004) 18 NWLR Part 904 p. 149.
First and foremost, the attention of the Appellant must be drawn to the hard fact that an action brought in the name of a dead person is incompetent. See In Re: Egbo 11 (2002) 10 NWLR Part 774 p. 41 and the case of Oguntokun vs. Carew (supra) cited by the Respondent’s Counsel where it was held that when a person dies neither he nor afortiori, his agent can litigate in his stead. The death of the principal deprives the agent of the power to act for the principal.
By the above proposition, it is clear as crystal that the Appellant lacked the locus standi to institute the said action in the capacity of an agent of his late father, for he could not have been an agent of a deceased principal.
The Appellant equally guessed on suing as a representative of late Chief Orok Ita Orok. The salient question is, could he, in law be a representative of a deceased person or did he mean legal representative of the deceased father?
If that were the position, there must have been a document appointing him as such. Unfortunately, as I observed earlier, he did not plead the same in his Statement of Claim nor did he tender any document at the trial Court to establish that he was so appointed. It was only during his cross-examination he emphatically answered that he had not obtained Letters of Administration.
The fundamental problem with the suit of the Appellant is that he was not certain in which capacity he had wanted to initiate the proceeding so he seemed to have embarked on shopping for capacity, to sue. He set out on a huge gamble so that which ever capacity the Court had accepted would have been alright with him. If his Statement of Claim had been properly couched describing fully his interest in the said property and how it devolved on him, after his father’s demise, even without obtaining Letters of Administration, he would have availed himself of the law. For instance, in Otukpo vs. John (2000) 8 NWLR Part 669 p. 507 it was stated that it is right that before the grant of Letters of Administration, the children of the deceased should protect the property of their deceased father so as to avoid waste.
If he had simply sued as the next of kin of his deceased father in respect of the property alone, when Letters of Administration had not been obtained, that would have also yielded a favourable result. In the case of Udo vs. William (1997) 1 NWLR Part 483 p. 548, Ejiwunmi J.C.A. (as he then was) at p. 560 referred to the Supreme Court Case of Menkiti vs. Agina (1965) NWLR 127 where the Plaintiff claimed as next of kin of the deceased for possession and injunction restraining the defendant from trespassing, it was held that the Plaintiff had the capacity to sue as she did not give a wrong description of herself.
Further referred to in Udo vs. William was Rickett vs. B.W.A. (1960) SCNLR 227; 5 FCS 113 where the Supreme Court observed inter alia that all the lawful acts of an executor de son tort are good. It was stated therein that an executor de son tort can properly do for the benefit of the estate anything which a legal personal representative can do. His Lordship stated that the two cases emphasized that capacity is not lost simply because of the fact of being an executor de son tort.
In Udo vs. William (supra) one of the issues was that the Respondent being the wife of her husband only had no capacity on her to institute the action, it was contended by the Respondent in her Brief that issues were not joined by the parties on the capacity of the Respondent to sue. Ejiwunmi J.C.A (as he then was) noted that the Appellant did not make issue of the Respondent’s capacity to sue before the trial by pleadings. That being the case the issue whether the respondent had the capacity to have instituted and prosecuted, the action was resolved against the Appellant.
The Appellant in this appeal was terribly undecided as to the capacity in which he wanted to institute the action so, he went on speculating.
He did not sue specifically as the next of kin of his deceased father.
This, to my mind, in the light of the above cited cases has contributed in robbing him of the capacity to sue in the present case in respect of his late father’s property at Odukpani Road and I so hold.
Now dealing with the second segment of the Appellant’s capacity to sue in respect of his deceased father’s account, it is important to note, as strongly contended by the Respondent’s Counsel, the Learned Senior Advocate, that a stranger to a contract, though a beneficiary cannot enforce it. A contract only affects the parties to it and cannot be enforced by or against a person who is not a party even if the contract was made for his benefit and purports to give him right to sue on it.
The fundamental question now is, notwithstanding the fact that the Respondent had in its letters to the Appellant or in its Statement of Defence referred to the Appellant as “Customer” or “Mortgagor”, and that the Appellant had paid several monies of his into his late father’s personal account with the Respondent, could the Appellant rightly be regarded as such in the eyes of the law so as to entitle him to sue on the account?
This now leads me to the next question; “who is a “Customer” in the con of Banker/Customer relationship? In the case of Nigeria Deposit Insurance Corporation (Liquidator of Allied Bank of Nigeria Plc.) vs. Okem Enterprises Ltd. (2004) 10 NWLR Part 880 p. 107, the Supreme Court held that “Customer of a bank” in relation to banking is any person having an account with a bank or for whom a bank has agreed to collect items, and, includes a bank carrying on account with another bank. To expatiate on this, I should also have recourse to Chitty on Contracts, 25th Edition Vol.2 Specific Contracts, paragraph 2597 at p. 252 where it was stated that a person becomes a customer either when the banker opens an account in his name, or when the banker accepts his instruction to open an account and receives a deposit to be credited to it. It must be emphasized that the fact that a banker habitually performs a casual service for a person, e.g cashes over the counter cheques obtained by that person from third parties, does not render that person a customer. Duration, is thus, not the essence of the relationship of banker and customer.
The relationship of banker and customer comes into existence only if both parties have an intention that it be established. Usually, this intention is expressly manifested when the account is opened at the customer’s request. So, when a banker opens an account for the customer the relationship established is one of debtor and creditor.
When the account is in credit, the customer is the creditor and the banker the debtor. The position is reversed when the account is overdrawn.
In the present case, the only averments regarding opening an account with the Respondent were made at paragraphs 3 and 4 of the Appellant’s Statement of Claim, indicating that it was only the Appellant’s late father who was the only account holder and customer of the Respondent.
There were no averments nor evidence before the trial Court indicative of the fact that the Appellant was a signatory to the said account opened and operated by his father nor was he a party to the contract of loan executed between his deceased father and the Bank. Even if he was lured into liquidating his said father’s indebtedness by the Bank by paying monies into the account, he still cannot qualify to sue on that account except he obtained Letters of Administration. Also, the fact that the Respondent allowed him to liquidate his late father’s indebtedness, did not endow him with any power to sue as the next of kin, an agent or representative of his deceased father in respect of the account.
I am afraid to state that such a situation can not be saved or remedied by invoking the principles of estoppel by conduct or the provisions of section 151 of the Evidence Act. The only remedy he has is to sue the Bank and claim his money back but not to sue the Bank on the Banker/Customer relationship, his late father had with it without Letters of Administration.
Since the Appellant was not the owner of the account and has not obtained Letters of Administration he cannot sue on that account. See USN vs. Ntuk (supra) where it was held that a mandate given to a person to sign and operate a bank account on behalf of other persons is not a blacket authority to the person in whose favour the mandate is given to institute a suit in respect of the bank account in his own name.
It should also be noted that Banks are legal personalities regulated by law and as such they cannot be subjected to customary inheritance. The Courts therefore cannot be used as instruments for enforcement of illegality, or circumvent the law itself.
In the same vein a person cannot seek for the setting aside or cancellation of a deed executed between two other persons and to which he is not a party. The exception to this is that a member of a family may, in appropriate cases, apply to set aside a deed relating to the sale of family land which was made without the consent of principal members of the family or to which they were not parties. See [Odor vs. Nwosu (1974) 1 All NLR 478; Okusoga vs. Ajani (1990) 3 NWLR (Part 141) 721; Foko vs. Foko (1968) NWLR 441)
On this premise I am inclined to agreeing with the Learned Senior Advocate for the Respondent that the Appellant does not have the capacity to maintain the action.
It was also contended on behalf of the Appellant that having not led any evidence, the Respondent had no right to address the Court. Reliance was placed on the provisions of Order 37 Rule 17.
I must observe that there is nothing in the said provisions which precludes a defendant who decides not to call evidence from addressing the Court. The significance is that at the close of the Plaintiff’s case where defence did not call evidence, the Plaintiff will be the first to address the Court after his last witness has testified. Then the address of the Defendant’s Counsel follows which is naturally directed at what he considers the flaws in the Plaintiff’s case both in law and facts. At this point the Plaintiff’s Counsel will have no right to general reply. At the end of address judgment will be delivered. See Order 37 Rules 17, 18 and 19 of the Cross River State High Court Rules. It is an established principle of law that the trial Court, must afford each party the opportunity to address it. Failure to do so may lead to the Appeal Court interfering with the judgment as it offends the rules relating to fair hearing.
Consequently, the Learned Counsel’s argument in this respect is hereby disregarded as it has no force of law.
One of the outstanding points raised by Learned Counsel for the Appellant in the Appellant’s Brief is that if a party did not file any preliminary objection why wouldn’t the Court consider the matter on the merit instead of relying on extraneous facts not borne out of the evidence before the Court.
It is instructive to note that the issue whether the Appellant obtained Letters of Administration or not was elicited by the Respondent’s Counsel during the cross-examination of the Appellant. The Appellant at the heading of his Writ claimed he was suing inter alia as a representative of his deceased father.
Even in his examination in-Chief he stated he was the representative of the estate of Chief Orok I. Orok. It seems clear therefore that the issue was never introduced for the first time in the address of Respondent’s Counsel.
The Appellant’s answer during cross examination clearly exposed the shaky foundation of his case. It is important to recall that the Appellant stated about three capacities in which he sued on behalf of his deceased father. It is trite law that evidence elicited during cross-examination is as valid and authentic as evidence given during examination in chief. Consequently, evidence elicited under cross-examination is admissible provided it is relevant to the fact in issue. See Daggash vs. Bulama (2004) 14 NWLR Part 892 p. 144.It is so glaring on this Writ of Summons that he was speculative on the capacity he instituted the action.
It should be noted that, the issue of the competence of the trial court is so fundamental that it can be raised at anytime even in the supreme court for the first time. This is so because the issue of locus standi is an indirect questioning of the jurisdiction of the court to adjudicate on the matter.
Ordinarily, where a defendant defends an action knowing that the plaintiff had not been authorized to do so by the third party alleged by the defendant to be the rightful plaintiff, he might not, under the general law, be heard to complain later of the Plaintiff’s want of locus standi as he would ordinarily be deemed to have waived his right to complain about such want of locus standi. However, this will not constitute an absolute waiver as an objection to locus standi goes to the jurisdiction of the court. Thus, a defendant cannot be held to have waived his right to object to the locus standi of the Plaintiff merely because he did not raise it in the trial court. This is because the issue of locus of the plaintiff is fundamental to the exercise of the judicial powers conferred on the court. See C.C.B. Nig. ltd v. Mbakwe (2002) 7 NWLR Part 765 p.158.
Also in E.T. & E.C. Nig Ltd v. Nevico International Ltd (2004) 3 NWLR Part 860 p.327, Ikongbeh J.C.A on the stages in a case at which issue of locus standi can be raised and how raised at each stage stated inter alia,
“when however, all the evidence is in; the defendant would be perfectly within the right to ask that the plaintiff’s claim be dismissed on the ground that contrary to the assertion in the statement of claim that the Plaintiff had the necessary standing, the evidence that came out at the trial showed that he did not.”To authenticate this proposition further, Iguh J.S.C. in Woheren vs. Ewereuwa (2004) 13 NWLR Part 890 p. 398 at 419 held interalia
“If facts exist which must first be adduced in or established by evidence to enable a point of law to be sustained, the preliminary objection may not properly be taken. See Banjo and others vs. External Sacred Order of Cherubim and Seraphim (1975) 3 SC 37.
Similarly if the facts to sustain the preliminary point are obscure or at large, a preliminary objection may not properly be taken. A matter, therefore, which is raised by way of preliminary point but which may be answered if evidence is adduced cannot be properly raised as a preliminary objection. Such a matter is more properly answered by evidence during trial and constitute an issue for determination at the trial”
In the instant case since the preliminary point was illuminated during the cross-examination of the Appellant, it was therefore proper for the Respondent to have made that an issue for determination at the trial Court.
Therefore argument of Learned Counsel for the Appellant on the point is of no moment as Respondent’s Counsel was still within time considering the stage at which the issue reared it’s head before the trial Court.
On the strength of the foregoing, it is my profound view, with due respect to the Appellant’s Counsel, that the two issues distilled in this appeal for determination shall be and are hereby resolved against the Appellant.
It is pertinent to state that once it is established that the Plaintiff at the trial Court has no locus standi to sue the defendant, it means that the Court had no jurisdiction to entertain the action in the first place and it will be liable to be struck out. See Umar vs. W.G.G Nig. Ltd (2007) 7 NWLR Part 1032 p. 117.
In the light of the above, the decision of the trial Court dismissing the suit is hereby set aside. The same will be and is hereby substituted with an Order striking out the suit for lack of competence.
Accordingly, the appeal praying for judgment to be entered for the Appellant is hereby disallowed.
I make no order as to cost.
Other Citations: (2008)LCN/2786(CA)
