Mrs. Grace Ayodele Tabiowo V. Reverend Michael Disu & Anor. (2007)
LawGlobal-Hub Lead Judgment Report
GALINJE, J.C.A.
By a writ of summons dated 10th day of July, 1997, and a statement of claim dated 22nd September, 2007, the respondents herein instituted an action against the appellant at the Lagos State High Court whereby they claimed among others, a declaration of statutory right of occupancy of the plot of land known as No. 10 Araromi Street, Somolu. The appellant through an application dated the 8th day of November, 1999 challenged the locus standi of the respondents to institute the action aforesaid on the ground that the condition precedent to the commencement of the action has not been complied with. This application was heard and in a considered ruling dated 18th day of January, 2002, the trial Judge dismissed the appellant’s application.
Being dissatisfied and aggrieved with the ruling of the lower court, the appellant lodged this appeal against the said ruling by a notice of appeal dated and filed on the 31st January, 2002. This notice contains two grounds of appeal. These grounds of appeal without their particulars read as follows:-
“1. The learned trial Judge erred in law when he held that evidence must first be led before the court can determine the issue of locus standi of the plaintiffs/respondents to institute the suit.
- The learned trial Judge erred in law when he dismissed the appellant’s application whereby the locus standi of the plaintiffs/respondents to institute the suit was challenged on the premise that the defendants/appellants have not filed their defence.
In line with the relevant rules of Order 6 of the Court of Appeal Rules, 2002, parties filed and exchanged briefs of argument.
The appellant’s brief of argument is dated 22nd of January, 2004 and filed on the 23rd January, 2004. At pages 1 – 2 paragraph 3 subparagraphs (i) and (ii) of the said brief, two issues for determination of this appeal were formulated by the appellant. These issues are:-
“1. Whether the learned trial Judge was right when he held that evidence must be led before the issue of locus standi of the respondents can be determined.
- Whether the learned trial Judge was right when he held that the issue of locus standi cannot be raised by the appellant until the statement of defence has been filed.”
In addition, the respondent filed a reply brief on the 15th April, 2004.
The respondents brief is dated 30th March, 2004 and filed on the 2nd April, 2004. The brief has no page numbers. The respondent formulated two issues for determination of this appeal. These issues read thus: –
“1. Whether the appellants could controvert pleadings in the respondents’ statement of claim via affidavit evidence or through statement of defence and oral evidence.
- Whether it is proper for the appellants to raise the issue of locus standi without first filing their defence in view of the provisions of Order 23 of the High Court of Lagos State (Civil Procedure) Rules, 1994.”
I have carefully read through the two grounds of appeal filed by the appellant in her notice of appeal to this court and I am of the view that the two issues raised in her brief are properly distilled from those grounds of appeal. On the other hand, the first issue formulated by the respondents does not appear me to arise from any of the grounds of appeal. The issue stands to challenge the appellant on whether she could contest the pleadings in the respondents’ statement of claim at the lower court by affidavit evidence or through statement of defence and oral evidence. This is not an issue in the grounds of appeal and since the Respondents have not filed a cross appeal, they cannot formulate an issue independent of the Appellant’s grounds of appeal. I will therefore disregard and discountenance the respondents’ first issue. See Brifina Ltd. v. Intercontinental Bank Ltd. (2003) 5 NWLR (Pt. 814) 540; Takum L.G. v. U.C.B. (Nig.) Ltd. (2003) 16 NWLR (Pt.846) 288; Jatau v. Ahmed (2003) 4 NWLR (Pt. 811) 498 at 508 paragraph E – F.
At this stage therefore the appeal will be decided on the two issues formulated by the appellant and the respondents’ sole issue.
In arguing issue one, Adejuyigbe Esq. of counsel to the appellant set out the definition of locus standi as was determined by the courts in Oloriode v. Oyebi (1984) 1 SCNLR 390; Ezeafulukwu v. John Holt Ltd. (1996) 2 NWLR (Pt. 432) 511; Adenuga v. Odumero (2003) 8 NWLR (Pt. 821) 163; Owodunni v. Reg. Trustees of C.C.C. (2000) 10 NWLR (Pt. 675) 315, and submitted that once the issue of locus standi of a party is challenged, it has to be resolved first before any other consideration of the matter. According to the learned counsel, the issue of locus standi of the respondents herein cannot remain in abeyance until the suit is heard on its merit but must be settled one way or the other since it is intertwined with the jurisdiction of the court. In a further argument, learned counsel referred the court to the dictum of Tobi, J.C.A. (as he then was) in In Re Adetona (1994) 3 NWLR (Pt. 333) 481 at 488 and submitted that the locus standi of the plaintiff is a precondition to the Court assuming jurisdiction.
Continuing in argument, learned counsel quoted paragraph 7 of the affidavit in support of the appellant’s application at the lower Court, dated 8th day of November, 1999 where the following deposition was made thus:-
“The plaintiffs have no light or interest in the property and assets of the Estate of late Saudatu Ashake Alade but are mere interlopers and busy bodies,”
and submitted that the respondents did not controvert the deposition aforesaid as such they are deemed to have admitted those assertions and the court is bound to act on them. In aid learned counsel cited the authorities in Ladoke v. Olobayo (1992) 8 NWLR (Pt. 261) 605; Ajomale v. Yaduat (No.2) (1991) 5 NWLR (Pt. 191) 266.
Finally learned counsel submitted that the issue of locus standi is a matter of law and the onus is on the respondents to establish their locus standi. In aid learned counsel cited Daniyan v. Iyagin (2002) 7 NWLR (Pt. 766) 346 at 375.
Locus standi or capacity to institute proceedings in a court of law connotes act of standing which is the right of a person to appear and be heard on the question before any court or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever. For a party to possess the necessary capacity to institute proceedings in a court of law, such party must show that, he is affected or likely to be affected or aggrieved by the proceedings in that suit. See Dagazau v. Borkir Int’l Ltd. (1999) 7 NWLR (Pt. 610) 293 at 303; Ojukwu v. Governor of Lagos State (1985) 2 NWLR (Pt. 10) 806; Busari v. Oseni (1992) 4 NWLR (Pt. 237) 557.
In order to determine the question of locus standi, it is the statement of claim that must be looked at in order to ascertain whether the plaintiff is affected or likely to be affected or aggrieved by the proceedings in that suit.
See Ogbo v. Adoga (1994) 3 NWLR (Pt. 333) 469; Panache Communication Ltd. v. Aikhomu (1994) 2 NWLR (Pt. 327) 420.
The respondent’s statement of claim at the lower court is at pages 34 of the record of this appeal. By the nature of the averments contained at paragraphs 3 – 15 of the said statement of claim, it will be difficult to effectively determine the question of locus standi without calling evidence to establish the truth or otherwise of those averments. The trial Judge is therefore right when he held:-
“It is clear that the Plaintiffs in paragraph 3 of their claim stated that they are beneficiaries of the Estate of Mrs. Alade. That is their claim which they will have to prove to succeed at the trial of this case. You therefore need facts to show that they are not, before you can say the plaintiffs have no standi. ”
Where a party initiates an action in which there are facts which must first be elicited by evidence to enable the points to be upheld, it is still open to the court, at the end of the trial to review the evidence and find as a fact that the Plaintiff had no locus standi to prosecute the claim. See Kolawole Tokimi v. Chief Adelekun Fagite & Ors. (1999) 10 NWLR (Pt. 624) 588; Ikpuku v. Ikpuku (1991) 5 NWLR (Pt. 193) 571.
In Attorney General Imo State v. Cooperative Commerce Bank Plc (1994) 2 NACR 164 at 154, this Court, per Acholonu, JCA (as he then was) said:
“Preliminary objection should never be resorted to merely as a way to short circuit a case which otherwise by its very nature and composition ought to be given a full and meritorious trial.”
The dictum of Tobi, JCA, which was referred to by the appellant in Re Adetona (supra) reads as follows:
“In order to clothe the court with jurisdiction, the plaintiff must show that he has the locus standi to commence or institute the action.
This is because the locus standi of the plaintiff is a precondition to the court assuming jurisdiction. Where this initial hurdle, in the judicial process is not satisfied by the plaintiff, he cannot proceed to the next stage of the litigation by way of leading evidence in the matter.” Clearly the dictum here refers to a plaintiff who has failed to disclose any cause of action in the statement of claim, which is the document that is capable of determining whether a plaintiff has locus standi to initiate an action. In the instant appeal the respondents have by their statement of claim disclosed sufficient cause of action in their statement of claim, the question of showing that they have locus standi does not arise.
On the deposition at paragraph 7 of the affidavit in support of the appellant’s motion on notice dated 8th November, 1999, the issue raised therein is the issue to be determined in the main Suit. The deposition reads as follows:
“The plaintiffs have no right or interest in the property and assets of the estate of late Saudatu Ashake Alade but are mere interlopers and busy bodies.”
Clearly this is the central pivot upon which the main suit rests.
In Bamaiyi v. The State (2003) 17 NWLR (Pt. 848) 47 at 63 – 64 paragraph G-A, this Court, per M.D. Muhammad, JCA said:-
“Courts must decline deciding at interlocutory stage the very same matter that would race in the substantive appeal. Indeed, arguments in respect of such substantive matters must not be heard from counsel now and where such arguments are made the court must decline making decisive comments on them. See Inter Agric Ind. (Nig.) Ltd. v. Chika Bros. Ltd. (1990) 1 NWLR (Pt. 124) 70. In resolving an application where such arguments have been raised, the court’s focus must remain on deciding whether or not parties have disclosed favourable conditions for or against the grant of the relief sought.”
See ICON v. FB.N. Ltd. (1995) 6 NWLR (Pt. 401) 370; Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129 at 137.
The trial Judge was right therefore when he ignored the deposition at paragraph 7 of the supporting affidavit. Accordingly I hereby decline making comments on the said paragraph of the affidavit also.
This issue is therefore resolved in favour of the respondents and the ground of appeal upon which it is framed, that is ground one is hereby dismissed.
On issue 2, the appellant argued forcefully that locus standi being a threshold issue, it is open to a Defendant to raise the issue in limine before filing a statement of defence. Learned counsel faulted the decision of the lower court in which it was held that the appellant ought to have filed a statement of defence before challenging the locus standi of the respondents. To buttress his submission, learned counsel cited Bolaji v. Bamgbose (1986) 4 NWLR (Pt. 37) 632; Disu v. Ajilowura (2001) 4 NWLR (Pt. 702) 76.
Finally on this issue, learned counsel urged this court to resolve same in favour of the appellant.
In reply Mr. Ogunnaike, learned counsel for the respondents submitted that in Lagos State demurrer has been abolished by virtue of Order 23 rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 1994. In a further argument, learned counsel submitted that the appellant’s motion seeking to strike out the respondents’ suit without the appellant first filing her defence is a demurrer and it is not allowed by the rules of court in Lagos State.
According to the learned counsel, the appellant’s failure to file her defence operates to deny her the privilege of raising a point of law independently to strike out the respondents’ suit. In support of the argument herein, learned counsel cited Disu v. Ajilowura (2001) 4 NWLR (Pt. 702) 76; Provisional Council Ogun State University V Makinde (1991) 2 NWLR (Pt. 175) 613; Akinade v. N.A.S. v. (1999) 2 NWLR (Pt.592) 570 at 581.
On obedience to the rules of court, learned counsel submitted that the appellant acted in disobedience to Order 23 of the High Court of Lagos State which had abolished recourse to demurrer and made provisions for a party to raise any point of law in his pleadings and therefore it is premature for the Appellant to raise an issue of law while they have not filed their statement of defence.
Finally, learned counsel urged this court to resolve this issue in favour of the respondent.
In resolving this issue, the learned trial Judge held at page 15 paragraph 2 as follows:-
“Apart from the above the defendants/applicants have not filed their defence. Order 23 rule 2 of the High Court of Lagos State (Civil Procedure) Rules, 1994 enjoins the applicants to raise any point of law by their Pleadings as demurrer has been abolished in Lagos State.”
With these remarks, the learned trial Judge refused to strike out the case.
I agree with the learned trial Judge on this score. The first prayer of the appellant in her application of 8th November, 1999 is that the suit pending at the lower court is incompetent and should be struck out on the ground that the respondents have no locus standi to institute the action.
Order 23 rule 2 of the High Court of Lagos State (Civil Procedure) Rules, 1994, provides as follows:-
“Any party shall be entitled to raise by his pleading any point of law and, unless the court or a Judge in chambers otherwise orders, any point so raised shall be disposed of by the Judge who tries the cause at or after the trial.”
In Lasisi Fadare & Anor. v. A.-G., of Oyo State (1982) 4 SC 1 at 19, the Supreme Court held that Order 22 rule 1 of the Civil Procedure Rules of Western Nigeria abolished demurrer and substituted Order 22 rule 2 under which a preliminary point of law could be raised after both the statements of claim and defence have been filed. Such an application may lead to the dismissal of the suit. If on the other hand it fails, the action will proceed to trial, issues having been joined in the pleadings. Order 22 of the Civil Procedure Rules of Western State is the same as Order 23 of the High Court of Lagos State (Civil Procedure) Rules of 1994. In Madu v. Ononuju (1986) 3 NWLR (Pt. 26) 23 at 24, the Supreme Court again held thus:-
“An application under Order 22 rule 2 of the High Court (Civil Procedure Rules) of Lagos State envisages a situation where both parties have filed their pleadings and thus joined issues. Thus a defendant cannot without having filed his defence bring an application under that rule to have the claim against him struck out or his name struck out from the suit.”
Order 22 rule 2 of the High Court (Civil Procedure) Rules of Lagos State referred to herein is equivalent to Order 23 rule 2 of the Lagos State High Court (Civil Procedure) Rules, 1994.
The question of locus standi, which was raised by the appellant in her application at the lower courts intertwined with the concept of jurisdiction, which makes it a point of law. A defendant cannot without having filed his statement of defence bring an application under the Lagos State High Court (Civil Procedure) Rules, 1994 to have the claim of the plaintiff dismissed or struck out for non-compliance with a pre-action condition to the court’s competence. An objection cannot be raised other than as may be contained in the statement of defence, which must have been filed. In her reply brief, the appellant made extensive reference to several authorities to buttress her contention that under the Lagos State High Court (Civil Procedure) Rules, 1994, an applicant can raise a preliminary issue to have a claim against him dismissed in limine without first filing a statement of defence. Chief among these authorities are: Imade v. Mil. Admin., Edo State (2001) 6 NWLR (Pt. 709) 478; F.B.N. Plc v. Jimiko Farms Ltd. (1997) 5 NWLR (Pt. 503) 81; Oroh v. Euraimoh (1990) 2 NWLR (Pt. 134) 641.
These authorities which the appellant cited on this issue are Court of Appeal decisions. The Supreme Court decisions, which I have considered herein, are recent decisions. Whereas the decisions of the Court of Appeal referred to, dealt with where the defendants without having filed their statement of defence brought applications under the rule to have the claim against them struck out, which applications were granted, the decisions of the Supreme Court herein, on the other hand, stood firmly on the principle that Order 23 rule 1 of the High Court (Civil Procedure) Rule abolished the plea of demurrer and substituted Order 23 rule 2 under which a preliminary point of law could be raised after the statements of claim and defence have been filed, which application may lead to the dismissal of the suit.
The court therefore cannot refuse to be bound by the decisions of the Supreme Court. In Dalhatu v. Turaki & Ors. (2003) 15NWLR (Pt. 843) 310, Edozie, J.S.C. in his contribution to the lead judgment of Katsina-Alu, JSC, in which their Lordships unanimously dismissed the appeal, said:-
“The doctrine of judicial precedent otherwise known as stare decisis is not alien to our jurisprudence. It is a well settled principle of judicial policy which must be strictly adhered to by all lower court. While such lower courts may depart from their own decisions reached per incuriam they cannot refuse to be bound by decisions of higher courts even where that decision was given erroneously.”
I am therefore bound by the decisions of the Supreme Court as enunciated in the two cases I have cited here and I hold that the appellant is not entitled or competent to raise the issue of condition precedent since she did not file a statement of defence.
The 2nd issue is also resolved in favour of the respondents and the ground upon which it is formulated is hereby allowed.
Having resolved the two issues formulated by the appellant in favour of the respondents, this appeal ought to be and it is accordingly dismissed. The appellant shall pay to the respondents N10,000.00 (ten thousand naira) as costs.
Other Citations: (2007)LCN/2388(CA)
