Paul Odimegwa & Ors V. Daniel Ibezim & Ors (2019)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C.

The Parties, who are Members of the same “Umudim Ogbujiasili Kindred of Ezeannaja-Amada Village, Oraukwu were fighting over a piece of land known as and called “Obi-be-Dim Ogbujiasili’: The Respondents, for themselves and on behalf of Members of the “Kindred, as a body, sued their “cousins and descendants of a common ancestor” [Appellants] at the Anambra State High Court.

The Appellants, as Defendants at the trial Court, did not file a Statement of Defence, rather they raised a Preliminary Objection by way of Motion on Notice wherein they prayed the trial Court for:

An order of [the] Court dismissing the above case on the ground of incompetence and non-disclosure of a reasonable cause of action.

They argued at the trial Court that since the Respondents brought the Suit representing both Parties, there are no Parties because “a Plaintiff cannot sue himself; and that for it to have jurisdiction, “there must be a dispute between persons of different interest but the quarrel is between the same person and the [trial] Court cannot intervene where someone is quarreling with himself.”

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In its Ruling, the trial Court, relying upon Order 3 Rule 1 of the High Court Rules, which says “any person in whom a relief exists may sue as Plaintiff and any person against whom the relief exists, may be sued as Defendant”: held as follows on this Issue –

The Plaintiffs have sued for themselves and on behalf of Umudim- Ogbujiasili Kindred of Ezannaja Amadi Village of Oraukwu, against the named Defendants, who though members of the said Kindred, had gone into the “Obi” as claimed, which from their pleadings, belong to all the members’ family, demolished same and looted the content therein. From the said Pleadings, which is the focal pointing this Application, a right to a relief, obviously, exist in the Kindred as a body against the named Defendants — The said Order 3 Rule 1 does not support the submission of [Defendants].

It also held that “there is a cause of action by the Plaintiffs against the named Defendants”, and concluded as follows in its Ruling –

This Objection falls and the Defendants are hereby ordered, pursuant to Order 10 Rule 1(3) of the High Court Rules – – to file their Statement of Defence and Plan, if necessary, within 60 Days hereof

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Dissatisfied, the Appellants appealed to the Court of Appeal and, in its Judgment delivered on 23/11/2006, the Court of Appeal held:

The view canvassed for the Appellants that the Respondents sued themselves is not acceptable. These days, in the determination of cases, a Court aims always at achieving substantial justice for the Parties and, therefore, in the exercise of judicial discretion, the primary objective of the Court must be to attain substantial justice. This is a land matter and – – it is both a fundamental and elementary principle of the administration of justice that whenever it is possible to determine a case on its merit, the Court should not succumb to the temptation of hastily determining it in limine. What it all means is that every effort must painstakingly be made to do justice. A snappy short cut decision, bereft of an examination of the merits of the case, often settles nothing but rather exacerbates the conflict between the Parties. In view of the foregoing, coupled with the fact that specific allegations have been made against the Defendants, it could not be presumed that the allegations

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made against the Defendants are in any way directed at the Plaintiffs, therefore, I have come to the inevitable conclusion that the Suit before the lower Court is competent and it has disclosed a reasonable cause of action. The sole Issue in this Appeal is resolved against the Appellants. I hold that the Appeal lacks merit and should be dismissed. In the result, I dismiss the Appeal and order that this case be remitted to the Chief Judge of Anambra State for assignment to the trial Judge or another Judge to hear and determine it without delay. [Per Jimi O. Bada, JCA]

Aggrieved, the Appellants appealed to this Court with a Notice of Appeal containing one Ground of Appeal, and Briefs of Argument, were duly filed and served. The Respondents challenged the competency of this Appeal in their Brief on the ground that the said Ground of Appeal and the Issue distilled there-from, do not arise from the decision of either the High Court or Court of Appeal. But at the hearing of this Appeal on 11/12/2008, the Respondents withdrew the said Objection, and it was, accordingly struck out. With no impediments, the Appeal will be considered on its merits.

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The Appellants submitted in their Brief that the sole Issue for Determination in this Appeal is “whether or not the Respondents have the locus standi to maintain this Suit’: and the Respondents adopted the Issue for Determination “as raised by the Appellants”, in their Brief of Argument. I adopt same in dealing with the Appeal.

The Appellants contend that the said Suit was brought at the ‘instance of busy bodies and professional litigants’. They argued that for there to be locus standing the action must be justiciable, and must be a dispute between Parties, citing Chief Judge Abia State, Hon. Justice K. O. Amah & Ors. V. Ndionyenna Nwankwo, Esq., (2007) 12 NWLR (Pt. 7049)552- that the term ‘justiciable’: refers to real and substantial controversy, which is appropriate for judicial determination, “as distinguished from a dispute or difference of contingent, hypothetical or abstract character”; and that analysis of Respondents’ Statement of Claim reveals the following facts:

i) The land of Dimogbujiasili, the common ancestor of the Parties, had long been partitioned; and

ii) The land in dispute fell to the share of Nkemadigo, the son of Anulubu, who is the son of Dimogbujiasill

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They submitted that the effect of partitioning is that the property, which belonged to the larger family, is split up into ownership of constituent members of the family and puts an end to communal ownership; and when the division is among constituent branches of the family, as in this case, a new family ownership is created, citing Oyadiji v. Olaniyi & 4 Ors (2005) 5 NWLR (Pt. 919) 561 at 575, and Kaya Oja V. Bello & 2 Ors (2005) 4 NWLR (Pt. 915) 327 at 337/8.

They cited Sections 3(1) & (2) of the Actions Law of Anambra State Cap. 3, Laws of Anambra State 1991, and further argued that not having disclosed any interest in the subject matter of the Suit, the Kindred cannot maintain the action as they have no capacity to do so, and have no legal standing; that to do so, they must show that their interest will be affected by the conduct and acts of the Appellants; and that there is no such interest at stake as the said property, had long been partitioned, and the subject matter of the Suit, had long become Nkemadigho’s share, citing Sehindemi & Ors V. Governor of Lagos State & 7 Ors. (2006)10 NWLR (Pt. 987)1.<br< p=””</br<

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They also submitted that the rule of locus standi evolved to protect Courts from being used as a playground by professional litigants, meddlers, prank-players and other cranks, who may have no real stake or interest in the subject matter of litigation, citing Uzoho & Ors. V. N.C.P. & Ors. (2007) W NWLR (Pt. 1042) 320; and that the facts of this case portray the Respondents as “a mere busybody, who are fighting a battle that does not concern them”.

They further submitted that “the whole gamut of this case demonstrates an uncanny effort or attempt to seek access to the Court for a matter nebulous, the result of which would neither enure to the Plaintiffs/Respondents nor their family”; and that this lack of locus standi goes to jurisdiction of the Court, and denies it the jurisdiction to hear the case, citing Herbert Ohuabunwa Emezi V. Akujobi David Osuagwu & Ors. (2005)12 NWLR (939) 340 at 361.

But the Respondents contend that they disclosed sufficient interest in the subject matter of the Suit and showed enough locus to maintain the said action. They submitted that in considering the issue of whether a Party has locus standi,

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it is the statement of claim alone that the trial Court should look at, citing Omega Bank V. Government of Ekiti State (2007) 16 NWLR (Pt. 1061) 445 and Fawehinmi V. President F.R.N. (2007) M NWLR (Pt. 1054) 275, and they set out the following paragraphs of their Statement of Claim:

1. The Plaintiffs are members of Umudim-Ogbujiasili kindred of Ezennaja-Amada Village, Oraukwu.
2. The Defendants are also members of Umudim-Ogbujiasili kindred of Ezennaja-Amada Village, Oraukwu.
3. The Parties hereto are ipso facto cousins and descendants of a common ancestor
4. The Plaintiffs aver that their great ancestor is Dimogbujiasili.
5. The piece and parcel of land now put in dispute by the Defendants is known as and called the “Obi-Dimogbujiasili” or “Obi- Umudimogbujiasili” (as is now called by his offspring). The said land is verged Red in Survey Plan No–filed along with this Statement of Claim. The Plaintiffs plead the said Plan and all the features thereon which shall be founded upon at the hearing of this Suit.
6. The land in dispute fell into the share of Dimogbujiasili who set up his homestead thereat and lived thereat.

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Dimogbujiasili was the person entitled as of right to live and occupy Epikes’ homestead which today is still vacant and uninhabited but is only resorted to on ceremonial occasions. The reason why Dimogbujiasili moved to a new site was because the Obi-Epike was too small to accommodate him and his Harem.

27. By the custom of Oraukwu town, and indeed of the entire Igboland, the land now in dispute became the portion of Nkemeadigo as the 1st son of Dimogbujiasili. He, however, acquired land elsewhere where he built another homestead He however left the land in dispute as a symbol of unity amongst all the descendants of Dimogbujiasili.
28. The land in dispute consequently became a symbol of unity amongst all the descendants of Dimogbujiasili until in recent times when late Mr. Jerome Odimegwa from time to time tried to encroach on the said Obi. Each time he was resisted and repelled and his efforts albeit subtly were without success.
29. Despite the accepted decision with the plan, quoted above, late Mr. Jerome Odimmegwa with his son led by Rev. Fr. Augustine Odimmegwa demolished and looted the content of the house.

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The items removed from the house – (the Obi) include:

(a) Akwali Epike

(b) Okike Epike

(c) Ikenga

(d) Okwa Mmuo

(e) Offor Dim

(f) Ekpeke Dim

(g) Mpi Atu Dim

(h) Oche Mmuo Dim, the carved stool where the reigning oldest member of the kindred sits while pouring libations to the ancestors.

44. WHEREFORE THE PLAINTIFFS claim against the Defendants jointly and severally as follows –

(a) A Declaration that the Parties hereto having submitted themselves to the 3 different customary arbitrations are bound by the outcome of and the decisions of the said arbitrations.

(b) A declaration that the Plaintiffs as a body are the persons entitled to the Customary Right of Occupancy in respect of the piece and parcel of land more clearly shown and delineated in Survey Plan No. MES/LD 09/2004 accompanying this Statement of Claim otherwise known and called “Obi-Dimogbujiasiii” or “Obi Umudimogbujiasill

(c) Perpetual Injunction restraining Defendants by themselves, servants, agents or privies from trespassing into the piece and parcel of land to be more clearly shown and delineated in a Survey Plan to be made and accompanying the Statement of Claim otherwise known and called Obi-be-Dim Ogbujiasill.

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(d) An order directing the Defendants to return to the “Obi-Dimogbujiasili” or “Obi-Umudimogbujiasili” all the items referred to in paragraphs 38 and 39 above.

(e) The sum of N1, 000,000.00 being general, special Damages and exemplary Damages for the loss resulting from the trespass.

They contend that in the face of these averments, it cannot be said “they do have not locus stand! or the capacity to sue or sufficient interest in the subject matter of contest”: and submitted that the Statement of Claim, which is the only document to be relied upon in determining locus standi did not say, as argued by Appellants, that the land was partitioned and ceased to be a family property: that it is a notorious fact of custom that needs no proof, that an Obi in Igboland is owned by the family in union and they traced how the property became a “Symbol of Unity”, and thus their joint property: and that the Plaintiff does not have to be owner of the land since the fact that he is in possession is enough for him to maintain an action in trespass, citing Amakor V. Obiefuna (1974) 3 SC 67.

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They also argued that this Issue cannot even be raised in this Appeal in the face of findings made by the Court of Appeal, which were not appealed against; that Court of Appeal made this finding:

I have come to the inevitable conclusion that the Suit before the lower Court is competent and it has disclosed a reasonable cause of action.

That there is no appeal against the above finding, and the result is that it is deemed to have been accepted by the Appellants because it is the law that where a Party fails to appeal against a finding or a decision of a Court, he is deemed to have accepted that decision, citing Umana V. Attah (2006)17 NWLR 503 @ 536 (sic); and that –

Having accepted that [the] Suit disclosed reasonable cause of action, the Appellants cannot in this Court question the locus standi of the Respondents, when the said Appellants have acceded that the Respondents have reasonable cause of action.

First off, the Respondents’ argument that the Appellants having acceded that the said Suit disclosed a reasonable cause of action, cannot question their locus standi in this Court, is misconceived. Locus standi and reasonable cause of action may apply to divest a Court of jurisdiction but they cannot be equated with each other.

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“Reasonable cause of action” is simply a cause of action with a chance of success – see Dantata V. Mohammed (2002) 5 SC 1 and Rinco Construction Co. V. Veepee Industries Ltd. (2005) 3-4 SC 1. In other words, where the endorsement on the Writ of Summons and Statement of Claim discloses a “cause of action”: the Court, unless precluded by other statutory provisions, can exercise jurisdiction – seeUtih V. Onoyivwe (1991)1 NWLR (Pt. 166) 166 SC.

“Locus standi is Latin for “place of standing’, and it means – “the right to bring an action or to be heard in a given forum” – see Black’s Law Dictionary.9th Ed. This concept is predicated on the assumption that no Court is obliged to provide remedy for a claim in which the Applicant has a remote, hypothetical or no interest – see Att. Gen. Kaduna State V. Hassan (1985) 2 NWLR (Pt. 8) 483 SC.

See alsoAdesanya V. President, FRN (1981) 2 SCNLR 358, wherein this Court held that a “fundamental aspect of locus standi is that it focuses on the Party seeking to get his complaint before the High Court not on the issue he wishes to have adjudicated.”

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So, the person instituting an action in Court must have legal capacity, otherwise the Court is robbed of the jurisdiction to entertain it.

Simply put, locus standi beams a searchlight on the Party, while “cause of action” focuses on the grievance, he wishes to air in Court. Thus, both concepts connote different things in law and are distinguishable from each other – seeA.G., Anambra V. Eboh (1992) 1 NWLR (Pt. 218)1, where Uwaifo, JCA (as he then was) said:

The objection as to locus standi was not canvassed on the question whether there was a reasonable cause of action…. The issue of standing to sue must with due care be separated from whether a Plaintiff as a reasonable cause of action. They are not coextensive, nor does a finding in favour of the former depend on the examination of the latter. All that is required is to ascertain whether the person, whose standing to sue, is in issue is a proper Party to request an adjudication of a particular issue.

In other words, a determination that the Plaintiff has locus standi does not depend on whether he has a reasonable cause of action.

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But the Statement of Claim must do both; it must disclose a cause of action and it must also show the locus standi of the Plaintiff – see Thomas V. Olufosoye (1986) 1 NWLR (Pt 18)669SC.

In this case, the Appellants only complained to this Court that Court of Appeal erred when it “failed to strike out the suit for want of locus standi.

They did not challenge its finding that the Respondents had a reasonable cause of action, therefore, the Respondents are right, and this Court has no business whatsoever to deal with it because it is settled law that if a finding of a lower Court is not challenged on appeal, such a finding or decision, rightly or wrongly, must not be disturbed by an appellate Court for the purpose of that appeal- see Oshodi V. Eyifunmi (2000)13 NWLR (Pt. 684) 298 at 332 SC.

In effect, the only question for determination in this Appeal is whether Respondents had locus standi to institute the action at the trial Court; not whether they had reasonable cause of action.

It is settled that a Plaintiff will have locus standi only if he has a special 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

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where his interest is adversely affected- see Nyame v. FRN (2010) 7 NWLR (Pt 1193) 344; Busari V. Oseni (1992) 4 NWLR (Pt. 237) 55Z wherein this Court Tobi, JCA (as he then was) stated:

The determination of locus standi zeroes on two major and telling words. One is ‘Sufficient”. The other is “interest’: They both make up the “sufficient interest” concept. The term sufficient interest is broad and generic. It is also vague and nebulous. It lacks a precise and apt legal meaning. It could only be determined in the light of the facts and circumstances of the particular case. The question of what constitutes sufficient interest is one of mixed law and fact; that is to say, it is not a question of law only or a question of fact only but both. In arriving at a decision one way or the other, the Court will be guided by the overall interest of the Parties in the litigation process in the absence of a specific enabling statute. This involves two apparently conflicting duties of the Court to vindicate the rights of the Plaintiff to set the litigation process in motion and the concomitant rights of the Defendant not to be dragged into unnecessary litigation by a

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person, who has no standing in the matter, or a mere busybody parading the corridors of the Court– The trial judge, in determining locus standi, will be involved in the delicate balancing of divergent interests, which are diametrically opposed – – It is a very complex exercise based on the pleadings of the Plaintiff — In Maradesa V. Mil. Gov., Oyo State (1985) 3 NWLR (Pt. 7)125, the Court held that the term “interest” – – should be regarded as including any connection, association or interrelation between the Applicant and the matter to which the Application relates. One other test of sufficient interest is whether the Party seeking for the redress or remedy will suffer any injury or hardship arising from the litigation. If the Court is satisfied that he will so suffer, then he must be heard as he is entitled to be heard.

A person is said to have an interest in a thing when he has rights, advantages, duties, liabilities, losses or the like connected with it, whether present or future, ascertained or potential; provided that the possibility is not too remote, and the question of remoteness, depends upon the purpose which the interest is to serve

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Imade V. Mil. Admin. Edo State (2001) 6 NWLR (Pt. 709) 478. What is more, the fact that the person may not succeed does not have anything to do with his standing to bring the action – see A.G. Kaduna State V. Hassan (supra), wherein Oputa, JSC, also observed as follows:

Another test of Standing is whether there exists a dispute between the Parties. Proof of a dispute is in effect proof that the judicial intervention is not only helpful but also necessary indeed, for the resolution of the issue – – – There should be someone to decide the dispute one way or the other. The Courts below were, therefore, justified in hearing the Plaintiff’s claim, even if the dispute went beyond the strict legal relationship of the Parties, as long as it concerns a real question of substance.

In this case, the trial Court asked “whether from the facts pleaded in the Statement of Claim there is, indeed a dispute between the Parties in this Suit or whether the Plaintiffs are quarreling with themselves as submitted by learned defence counsel, and it held:

The Plaintiffs have sued for themselves and on behalf of Umudim-Ogbujiasili Kindred of Ezannaja Amadi Village

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of Oraukwu, against the named Defendants, who though members of the said Kindred, had gone into the “Obi” as claimed, which from their pleadings, belong to all the members’ family, demolished same and looted the content therein. From the said Pleadings, which is the focal point in this Application, a right to a relief, obviously, exist in the Kindred as a body against the named Defendants.

The Court of Appeal may not have specifically dealt with the issue of locus standi, however, it also held that the Appellants’ view that “the Respondents sued themselves is unacceptable” and I agree completely with these views expressed by the two lower Courts.

The Appellants centered their contention on the fact that the said land devolved from their “common ancestor” to Nkemadigo, but an averment in the Statement of Claim cannot be considered in isolation from the other averments, which put together, paint a clear picture of what the dispute is, and what part the Parties play.

The Respondents clearly averred in their Statement of Claim that after the land in dispute became the portion of Nkemeadigo, he built another homestead, and left the land

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in dispute, an Obi, as “a symbol of unity amongst all the descendants of Dimogbuftasilf”;

They also averred in paragraphs 31-36 of the Statement of Claim:

31. All the Parties submitted to the arbitration of Ezennaja Village Executive, which gave hearing to all the Parties, and gave their decision on 30/9/95, to which all the Parties in dispute gave sincere acceptance.
32. All the Parties in the dispute were given copies of the said decision and each expressed gratitude to the arbitrators.
33. The Kindred Members, the Umuada and Ndi lnyom did the “ILULU ONU” party as part of the traditional ceremony, which signifies cessation of hostilities and acceptance of verdict.
34. The late father of the Defendants, Jerome and his sons, contributed like every other member to the ceremony referred to.
35. The ceremony referred to above is sacred and revered. Having performed same, the Plaintiffs relaxed believing all is well.
36. Unfortunately, however, in a very embarrassing manner to the Kindred, the Arbitrators and all and sundry in the Village, in 1996 January, late Jerome and children demolished the small house, the Obi, in the center of the compound to put a storey-building.

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In paragraph 38, they narrated how the late Jerome Odimegwa and his sons “demolished and looted the contents of the house”, which they listed, and that they also removed personal effects of Henry Ezumba listed in paragraph 39. They further averred that:

40. The Plaintiffs believing in the efficacy of dialogue as well as the “Iruru Onu”ceremony referred to above called for further arbitration.
41. While the Plaintiffs were dialoguing, the Defendants unfortunately were busy building. The climax was the burial of late Jerome Ddimegwa, the Defendants’ father on the land in dispute, which stands as an abomination.
42. It was at this point that it became obvious to the Plaintiffs that unless the coercive powers of the Court are invoked the Defendants would not respect the other members of the family.

Clearly, the Appellants may be members of the Kindred, however, the Kindred as a body had a stake in the dispute over the said Obi which they described as a “Symbol of Unity” amongst all of them. The truth or otherwise of the assertion is a matter left for the trial; as it is, the Respondents have locus standi to pursue their claims.

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The Appeal lacks merit and is hereby dismissed. I affirm the decision of the Court of Appeal, including the orders it made that the case should be remitted to the Chief Judge of Anambra State.

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SC.24/2008