Peter Maranroola V. Incorporated Trustees of the First African Baptist Church (2009)
LawGlobal-Hub Lead Judgment Report
SIDI DAUDA BAGE, J.C.A.
This is an appeal against the judgment of Lufadeju J. of the High Court, Shaki, Oyo State in Suit No. HSK/2/2004 – PETER MARANROOLA (For himself and on behalf of the UNITED AFRICAN BAPTIST CHURCH, ISALE-TABA, SHAKI VS. INCORPORATED TRUSTEES OF FIRST AFRICAN BAPTIST CHURCH, ISALE-TABA, SHAKI, delivered on the 4th day of January, 2007. Briefly, the facts culminating in this appeal are as follows:-
The present Appellant in this appeal as Plaintiff, had claimed against the Respondent as Defendant in trial Court as follows:-
(1) Declaration that the Plaintiff as one of the Grantees on behalf of himself and United African Baptist Church, Isale-Taba, Shaki, are the legal owners of the piece or parcel of land measuring approximately 6457.51 Square Yards lying, situate and being at Isale-Taba, Shaki, with all the developments thereon, now being used by the Defendant and more particularly shown in a Deed of Conveyance and Plan registered as No. 22 Page 22 in Volume 1879 of the Lands Registry in the Office at Ibadan.
(2) AN ORDER restoring the said piece or parcel of land with all the physical development thereon to the Plaintiff and the United African Baptist Church, Isale-Taba, Shaki.
(3) N5,000,000.00 (Five Million Naira) being Damages for trespass to the land and the development thereon.
(4) Perpetual Injunction restraining the Defendant, its servants, agents, privies and congregation from making use of the land and physical structures thereon and from asserting any legal rights or title to the property.
The Respondent as Defendant replied the above claims of the Appellant as follows:-
(i) Whether the Appellant’s suit is competent.
(ii) Whether the Appellant’s claim is statute barred.
(iii) Whether the Appellant’s claim is supported with credible evidence for it to be granted.
The learned trial Judge suo motu raised the issue of locus standi after addresses of Counsel, but afforded the opportunity for parties to address the Court on it, before delivering judgment. The Plaintiffs who are Appellants in this appeal, being dissatisfied with the judgment of the High Court, appealed to this Court vide a Notice of Appeal filed on 30th May, 2008.
NOTICE OF APPEAL:
TAKE NOTICE that the Plaintiff/Appellant being dissatisfied with the decision of the Shaki Division of Oyo State High Court, contained in the judgment of Honourable Justice F. C. A. Lufadeju, dated 4th January, 2007, doth hereby appeal to the Court of Appeal on the grounds set out in paragraph 3 and will at the hearing of the appeal seek reliefs set out in Paragraph4.
AND the Appellant further states that the names and addresses of the person(s) directly affected by the appeal are those set out in Paragraph 5.
(2) PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF:
The whole decision.
(3) GROUND OFAPPEAL:
The learned trial Judge erred in law by holding that the Court has no jurisdiction to entertain and adjudicate on the suit for lack of LOCUS STANDI of the Plaintiff.
PARTICULARS:-
(i) The learned trial Judge ignored the contents of title to the land in dispute which is a Deed of Conveyance and Plan registered as No. 22 at Page 22 in Volume 1879 of the Lands Registry in the Office at Ibadan.
(ii) The learned trial Judge misapplied the principles of law regulating the properties owned by a registered corporate body and that of properties granted to an unregistered body through their accredited representative/grantees as contained in Exhibit “A” which is the Deed of Conveyance registered as No. 22 at Page 22 in Volume 1879 of the Lands Registry in the office at Ibadan.
(iii) The learned trial Judge WFERRED erroneously without any evidential justification or legal basis in arriving at the decision that the Plaintiff is precluded to sue on behalf of himself and in a representative capacity as one of the grantees whereas the land in dispute was not conveyed to any registered corporate body in the DEED.
RELIEFS SOUGHT:
(i) An Order setting aside the judgment of the trial Judge.
(ii) The Honourable Court of Appeal to enter Judgment in favour of the Plaintiff/Appellant on the basis of the evidence already on record.
When this appeal came up for hearing on the 23rd of April, 2009, Appellant’s Counsel, Ade Fajemiroye, adopted and relied on the Appellant’s Brief of argument dated and filed the 28th of April, 2008, as well as the Appellant’s Reply brief of argument dated and filed the 6th of October, 2008 and urged this Court to allow the appeal. Counsel for the Respondent, Chief Olawuwo Siyanbola, also adopted and relied on the Respondent’s Brief of argument dated the 3rd of September, 2008, but deemed filed on the 18th of November, 2008.
Arising from the sale Ground of appeal contained in the Appellant’s Notice and Ground of Appeal, the Appellant has distilled the following two Issues for determination of this Court and which are contained in page 5 of the Appellant’s Brief of argument viz:-
(1) Whether the trial Judge was right in determining that the Plaintiff has no locus standi to sue the Defendant on the land in dispute in the light of the contents of Exhibit “A” which is a Deed of Conveyance registered as No. 22 at Page 22 in Volume 1879 at the lands Registry in Ibadan.
(2) Whether the trial Judge was right in basing her judgment on Paragraph 4 of the Plaintiff’s Amended Statement of Claim in in the absence of any credible evidence which vested the land in dispute in the Trustees of an incorporated legal personality.
The Respondent at page 2 of its Brief of argument, formulated One issue for determination and that is:-
(i) Whether the Appellant had locus standi to commence the action at the lower Court.
The Respondent raised a point of preliminary objection, although, he did not formally flied one in accordance with the Rules of this Court. The respondent submitted that this Court had deprecated in many decisions the approach of formulating prolix issues as demonstrated by the Appellant’s a single ground of appeal and even grounds of appeal. The Respondent further argued that the two issues as formulated by the Appellant do not arise from the single ground of appeal and should be discountenanced and the appeal be dismissed on this ground.
It needs not be said in so many words that this is not the way the rules require that an objection should be raised to an appeal. The rule is so clear and the peculiar provision is mandatory. Order 10 Rule 1 of the Court of Appeal Rules, 2007, provides as follows:-
“A respondent intending to rely upon a preliminary objection to the hearing of the Appeal, shall give the Appellant three days notice thereof before the hearing, setting out the grounds of objection and shall file such notice together with twenty copies thereof with the Registrar within the same time”.
The method of raising objection to the hearing of an Appeal is prescribed in the Rules. Apart from giving the Appellant three clear days notice of the objection before the date of hearing of the Appeal, it is now settled that the notice may be incorporated or imbedded in the Respondent’s Brief of argument or by a formal separate notice or written objection, or both, there is need for the Respondent to, with the leave of the Court, move the objection formally before the hearing of the substantive Appeal. See:- Nsirim Vs. Nsirim (1990) 3 NWLR (Pt. 138) 285; Okolo Vs. Union Bank of Nigeria Ltd.(1990) 2 NWLR (Pt. 539) 160; Arewa ile Plc. Vs. Abdullahi & Bros. (1998) 6 NWLR (Pt. 554) 508i Tita & Another Vs. Begha (2005) 3 WRN 158 at 171; Patrick D. Magit Vs. University of Agriculture. Makurdi & Others (2005) 2 NSCM 206 at 232-238.
The object of this requirement of formal notice to the Appellant on the objection to his appeal is to safeguard against embarrassing an Appellant and avoid his being taken by surprise at the hearing of the Appeal. See:- Chief Agbake & Others Vs. Chief Amadi & Another (1998) 11 NWLR (pt. 577) 16 at 25; Auto Import-Export Vs. Adebayo & Others (2002) 18 NWLR (pt. 799) 554. In the instant case, the Respondent should not expect to be taken in any way serious on the way he took an objection in the Respondent’s Brief of argument. Indeed, it cannot be said that he has raised any objection to the hearing of this Appeal. But assuming without holding that he raised an objection at all, the method prescribed by the Rules was not employed in raising the preliminary objection, What is more, not only that the said objection was not formally raised as it should be leave of Court was not sought to take the objection before the hearing of the substantive Appeal. This renders the said objection as having been abandoned, and not to be countenanced.
See:- Aremo II Vs. Adekanye (2000) 2 NWLR (pt. 644) 247; Equity Bank of Nigeria ltd. Vs. Haliko ltd. (2006) NWLR (Pt. 980) 568 at 579; Alhaji T. Mohammed Vs. Alhaji Abubakar Abdul-Kadir & Others (2008) 4 NWLR (Pt. 1076) 111 at 142-143. The purported objection by the Respondent cannot be considered for non-compliance with the Rules. It is hereby discountenanced.
The next stage is whether the Court can raise it suo motu, the issue of the plurality of issues formulated by the Appellant from only one ground of appeal as contained in his Notice of Appeal. The answer to this is simple. It is already settled law that an issue for determination in an appeal that has no ground of appeal covering it is a non-issue and needs to be struck out. See:- Premier Records ltd. Vs. Ndubuisi Nwachukwu (2009) 9 WRN (1-216) 184 at 187, per Mshelia, JCA (Page 193) line 20 on effect of issue not formulated from ground of appeal:-
“An issue for determination in an appeal that has no ground of appeal covering it is a non-issue and needs to be struck out. See:- Khalil Vs. Yar’Adua (2003) 49 WRN 50; (2003) 16 NWLR (Pt.847) 446.
The law is settled that issues formulated in a brief must arise from, or relate to the grounds of appeal. Any issue formulated in the brief which does not relate to the grounds of appeal is incompetent. See:- Oje Vs. Babalola (1991) 5 SCNJ 110; (1991) 4 NWLR (pt. 185) 267; Western Steel Works Vs. Iron Steel Workers (2004J 7 WRN 58; (1987) 1 NWLR (Pt. 49) 284 at 304; (198Z) 2 SCNJ 1; (1987) 2 SC 11; Republic Bank Ltd. Vs. Central Bank of Nigeria & Another (1998) 13 NWLR1Pt. 581) 306; Korede Vs. Adedokun (1987) WRN 88; (2001) 7 NSCQR 327; (2001) FWLR (Pt. 65) 421; 15 NWLR (Pt. 736) 483; Okumodi Vs. Sowunmi (2004) 2 NWLR (Pt.856) 1.
From the above, it is a matter of law and the Court can suo motu raise the issue of grounds of appeal contained in the Notice of Appeal and the proliferation of issues arising therefrom. The only ground of appeal contained in the Appellant’s Notice of Appeal is:
“The learned trial Judge erred in law by holding that the Court has no jurisdiction to entertain and adjudicate on the suit for lack of locus standi of the Plaintiff.”
The two (2) Issues distilled from the sole ground are:-
(1) Whether the trial Judge was right in determining that Plaintiff has no locus standi to sue the Defendant on the land in dispute in the light of the contents of Exhibit “A” which is a Deed of Conveyance registered as No. 22 at Page 22 in Volume 1879 at the Lands Registry in the office at Ibadan.
(2) Whether the trial Judge was right in basing her judgment on Paragraph 4 of the Plaintiff’s Amended Statement of Claim in the absence of any credible evidence which vested the land in dispute in the Trustees of an incorporated legal personality.
It is clear from above Issue NO.1, locus standi relates directly to the sole ground of appeal. The failure to marry the two, it is trite, is a matter of bad drafting, but does not vitiate the issue. The second issue formulated by the Appellant in relation to the Trustees of an incorporated legal personality is clearly unrelated to the sole ground of appeal. It is not covered at all by the ground of the appeal. It is well settled that any issue raised or argument advanced on issue not arising from a ground of appeal, is incompetent and liable to being struck out. See:- African Petroleum Ltd. Vs. Owodunni (1991) 8 NWLR (Pt. 210) 391 at 423.
On this point, Issue NO.2 of the Appellant’s Brief of argument and all the arguments proffered in support thereof, is hereby struck out and discountenanced. I shall therefore proceed to consider the appeal on merit on the premise of Issue 1.
The Appellant submitted that the trial Judge erred in law by foreclosing the contents of Exhibit “A” in establishing the actual parties in the Deed of Conveyance before she decided that the Plaintiff has no locus standi and by extinction that the Court lacks her jurisdiction to adjudicate on the matter. The Appellant further submitted that the parties to the Deed of Conveyance, Exhibit “A”, dated 22/01/76, registered as No. 22 at Page 22 in Volume 1879 at the Lands registry in the Office at Ibadan, did not include expressly or impliedly any trustee of an incorporated juristic entity over which the trial Judge based her judgment.
The Appellant further submitted that it is settled law that one of the Five (5) ways by which a party can prove his title to land is documentary evidence. See:- Idundun Vs. Okumagba (1976) 7-10 SC 277; (1976) NMLR 200. The Appellant submitted further that, in Exhibit “A” which is the Deed of Conveyance, the Plaintiff was recognized as one of the grantees of the land. The Supreme Court has held that only parties to a deed or persons deriving benefits thereunder, can sue in respect of a deed. See:- Olowosabo Vs. Adebanjo (1988) 4 NWLR (Pt. 88) 275 at 278.
Appellant furthered his submission that the Appellant being one of the grantees in the Deed of Conveyance(Exhibit “A”), has the locus standi to maintain an action. He can maintain an action either for himself only and or on behalf of the class or interest he represents in a representative capacity, with effect from the date when Exhibit “A” was executed. See:-
Ibigbami Vs. Military Government of Ekiti State (2004) 21 WRN 53 at 59. Appellant submits further that where parties have embodied the terms of their agreement on contract in a written document extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument. See:- Layade Vs. Panalpina (1996) & NWLR (Pt. 456) 544 at 555.
In his response to the arguments of the Appellant, the Respondent submitted that the trial Judge raised the issue of locus standi and afforded both parties hearing on the issue through addresses of Counsel. The reason adduced by the learned trial Judge for arriving at the decision that the Plaintiff/Appellant lacked locus standi were sound in law and this Court is urged to uphold it. The Appellant has not offered credible opinion or reason to the contrary to render the decision perverse and for it to be set aside. The Respondent further submitted that the Appellant lacked locus standi because as at the time of the commencement of the action, and up till date, there is nobody in existence known and called “UNITED AFRICAN BAPTIST CHURCH, ISALE-TABA, SHAKI” on behalf of whom the Appellant purportedly prosecuted the action. As at the time of commencement of the action and since 1986, up till date, the body in existence is the “FIRST AFRICAN BAPTIST CHURCH, ISALE-TABA, SHAKI”.
The Respondent further submitted that the Appellant and the Respondent/Defendant second witness, Pa Emmanuel Alabi Olaomi, are the two surviving grantees contained in Exhibit “A”, the Appellant’s root of title. However, the second Defendant witness stated in evidence and was never contradicted that he did not authorize the Appellant to prosecute the action at the lower Court. The Respondent furthered that the Appellant is admitted under Cross-Examination that he was not authorized by the supposed United African Baptist Church, Isale-Taba, Shaki, to commence the action at the lower Court.
The Respondent further submitted that proper parties were not before the Court, and the Appellant failed to furnish the lower Court with an appropriate instrument of authority or oral evidence to prove his authorization to commence the action. The respondent further submitted that the following cases may be of assistance to the Court. See;- Oloriode Vs. Oyebi (1984) 5 SC 16-17; The Road Transport Employers Association of Nigeria (RTEAN) Vs. The National Union of Road Transport Workers (NURTW) (1992) 2 NWLR (Pt. 224) 381 at 391. The Respondent submitted that once a Court lacks jurisdiction to entertain a suit, it is no more necessary to consider the merit of the case, but to strike it out as correctly done by the lower Court. See:- Adesokan v. Adetunji (1994) 5 NWLR (pt. 346) 540 at 569.
The Appellant in his Reply Brief to the Respondent’s argument to Issue NO.1, submitted that the issue of locus standi must be related to Exhibit “A” to determine the parties to the Land Agreement and not the imputation of extraneous factors to determine locus standi.
The Appellant further submitted that the Respondent was registered by Corporate Affairs Commission on 14th July, 2000. This is contained at Paragraph 21 of the Amended Statement of Defence of the Respondent on Page 128 of the Record. The Respondent cannot acquire the land in dispute retroactively. The Appellant submitted the proper parties are before the Court. See:- Oghene & Sons Vs. W. E. Amoruwa & 1 Other (1986) 3 NWLR (pt. 32) 856 at 857. Appellant further submits that Appellant as one of the grantees in Exhibit “A”, has the locus standi to institute action alone and also in a representative capacity for the class of people on behalf of whom the land was granted in Exhibit “A”. See:-
Dantata Vs. Dantata (2001) 26 WRN 104 at 114 Lines 15-25.
Finally, the Appellant submitted that the locus standi of the Appellant is well and solidly rooted in law and in fact.
The first point to consider by this Court after the arguments proffered by the parties is, the issue of the power of trial Court to raise locus standi suo motu. The Appellant had contended that the trial Court had erred in law by raising locus standi, not propelled by either party. This Court will be quick to state that the contention of the Appellant is not right. The issue of locus standi is a jurisdictional one which can be raised at any stage of the trial by either party or even by the Court as in the instant case. This Court has since settled on the effect of action of Plaintiff without locus standi. See:- Unaka Vs. Agili (2007) 11 NWLR (pt. 1044) 123 at 129 Ratio 9.
“Where a Plaintiff has no locus standi, the Court has no jurisdiction to entertain the the action, and the same must be struck out. In the instant case, the 1st set of Respondents lacked locus standi to commence the suit. See:- Nwankwo Vs. Nwankwo (1992) 4 NWLR (Pt. 238) 693; Erebor Vs. Major & Company (Nig.) Ltd. (2001) 5 NWLR (Pt. 706) 300.
The issue of competence of the trial Court to raise locus standi suo motu is proper and under the law. The next stage is to determine whether the decision by the trial Court, after hearing the argument of the parties which found the Appellant as having no locus standi to institute the present action was right. The trial Court in its judgment, contained on Pages 187 and 188 of the Record, states:-
“Since the United African Baptist Church, Isale-Taba, Shaki, is one of the Churches under the Registered Trustees of the United African Baptist Church, Shaki, the Plaintiff is precluded to sue for himself and on behalf of the Members of that Church. The Certificate of Incorporation of the Registered Trustees of the United African Baptist Church, Shaki, was obtained on the 29th day of June, 1944, under the Land (Perpetual Succession) Ordinance 1924 Paragraph 3 which states thus:-
“The Certificate of Incorporation shall vest in such body corporate all and or any interest therein of what nature tenure so ever belonging to, or held by any person or persons in trust for such community, body or association of persons”.
By virtue of this provisions, the land in question owned by United Baptist Church, Isale-Taba, Shaki, of which the Plaintiff is one of the representatives automatically vests in the Registered Trustees of United African Baptist Church and it is in that name that the Defendant may be sued and not in the name of individuals.
The Appellant disagrees with this judgment which he contends that the learned trial Judge had based her decision on a document which was not an evidence before her. The said Certificate of Incorporation of the United African Baptist Church, Isale-Taba, Shaki, was never tendered as an Exhibit in the course of the proceedings at the lower Court. In Exhibit “A” which was tendered by the Appellant and admitted in evidence at the trial Court, which is the Deed of Conveyance, the Appellant was recognized as one of the grantees to the land in dispute. For an apt decision in this matter, this Court reproduces the content of Exhibit “A”, the Deed of Conveyance:-
“THIS Deed of Conveyance is made this 22nd day of January, 1976 BETWEEN:- Suberu Olawore and Raji Layiwola, both of Suberu Olawore Compound, Isale Ogunna Quarters, Shaki, Oyo North Division, Western State of Nigeria (hereinafter called “the Grantors” which expression shall where the con so admits include their respective heirs, successors in-title, executors, administrators and assigns) of the part AND (1) Joseph Ogunjinmi Adenle of Olokunesin Compound, Oke-Elefun Quarters, Shaki, Oyo North Division, Western State of Nigeria, (2) Emmanuel Alari Olaomi of Olaomi Compound, Oke Sabo Quarters, Shaki, Oyo North Division, Western State of Nigeria, (3) Samuel Abiodun of Abiodun Compound, Ogbalaja Quarters, Shaki, Oyo North Division, Western State of Nigeria, (4) Elijah Adelakun Adegunwa of Alaran House, Ogbalaja Quarters, Shaki, Oyo North Division, Western State of Nigeria, (S) Samuel Okunlola of Okunlola’s House, Oke-Elefun Quarters, Shaki, Oyo North Division, Western State of Nigeria, (6) Emmanuel Olaogun of Balode Compound, Isale Ogunna Quarters, Shaki, Oyo North Division, Western State of Nigeria and (7) Peter Maranroola of Daodu Compound, Oke Sabo Quarters, Shaki, Oyo North Division, Western State of Nigeria (all of whom are hereinafter called “the Grantees” which expression shall where the con so admits include their representative heirs, successors-in-title, successors-in-office, heirs, executors, administrators and assigns) of the other part.
WHEREAS the Grantors are the absolute owners under Native Law and Custom of all that parcel of land hereinafter described, granted and conveyed unto the Grantees.
AND WHEREAS the Grantees are Members of the United African Baptist Church, Isale-Taba Quarters Shaki, Oyo North Division, Western State of Nigeria (hereinafter referred to as “United African Baptist Church, Isale-Taba, Shaki”).
AND WHEREAS the Grantors are the Accredited Representatives of the United African Baptist Church, Isale-Taba, Shaki, and they enter into this Deed for themselves and on behalf of and as the Accredited Representatives of the United African Baptist Church. Isale-Taba, Shaki.
(1) The 1st Grantee, Joseph Ogunjinmi Adenle, being the Balogun of the Church:
(2) The 2nd Grantee, Emmanuel Alari Olaomi, being a Deacon of the Church.”
From the contents of Exhibit “A”, the Deed of Conveyance, the Appellant, Peter Maranroola of Daodu Compound, Oke Sabo Quarters, Shaki, Oyo North Division, Western State of Nigeria, is listed as one of the grantees, and in particular NO.7 amongst the list of the grantees. The fulcrum of the Appellant’s contention from the trial Court, and in this appeal is, his locus standi to sue for himself and on behalf of the United African Baptist Church, Isale-Taba, Shaki, in respect of the land in contention. That is all that is in this appeal. The Supreme Court has since settled on the issue of locus standi in respect of a grantee to a Deed of Conveyance like the present Appellant in this appeal; in the Case of Alhaji Lamidi Daodu Olowosago &. Others Vs. Alhaji Amuda I. Adebanjo (1988) 4 NWLR (Pt. 88) 275 at 278 Ratio 11. The Supreme Court states:-
“It is a well settled law that only parties to a deed or persons deriving benefit thereunder can sue in respect of a deed.
The respondent not being parties to Exhibit “A” or deriving benefit thereunder are not competent to maintain the action in respect of Exhibit “A”.
The Supreme Court decision of Olowosago Vs. Adebayo (Supra) cited above, is very much in pari material with the appeal before this Court.
The Deed of Conveyance listed the Appellant – Peter Maranroola as NO.7 in the list of grantees, which has established the locus standi of the Appellant to sue in respect of the Deed. The Supreme Court further in Ratio 13 of the Olowosago’s Case (Supra) stated:-
“In interpreting a Deed, an unambiguous operative past cannot be controlled by the recital. The clear and unambiguous operative past must be given full expression and effect.”
The Respondents in their Brief of argument contended that the Appellant and the Defendant’s second witness, Pa Emmanuel Alabi Olaomi, are the two surviving grantees contained in Exhibit “A”, the Appellant’s root of title. However, the second Defendant Witness stated in evidence and was never contradicted that he did not authorize the Appellant to prosecute the action at the lower Court. The question here is, does the law require the Appellant as one of the grantees to Exhibit “A”, the Deed of Conveyance, to sought for, and obtain the authority of another grantee to the same Deed, (Pa Emmanuel Alabi Olaomi), the Second Defendant witness, before he can sue in Court in respect of the Deed of Conveyance (Exhibit “A) as did by the Appellant at lower Court as Plaintiff? The Supreme Court has since settled his question:-
“When a party’s standing to sue is in issue in a case the question is whether the person whose standing is in issue a proper party to request an adjudication of a particular issue and not whether the issue is itself justiciable. See:- Oloriode Vs. Oyebi (1984) 1 SCNLR 390; Adesanya Vs. President of Nigeria (1981) 2 NCLR 358; Thomas Vs. Olufosoye (1986) 1 NWLR (Pt. 18) 669.
The Appellant as grantee to Exhibit “A”, the Deed of Conveyance, is also established by this Court based on Olowosago’s Case (Supra) to be a proper party to sue in respect of this case at the lower Court. The Supreme Court further state that:-
“A member of the family is competent to bring an action to protect the interest of the family in respect of family property, even if he has no authority of the family to bring the action. See:- Sogunle Vs. Akerele (1967) NMLR 58.
The Appellant as a grantee to Exhibit “A”, the Deed of Conveyance, has the same right and privileges with the member of a family after the execution of the Deed of Conveyance, to bring an action to protect the deed even if, he has no authority of another grantee, as in the present case. (Pa Emmanuel Alabi Olaomi). The Respondents’ contention is this regard is therefore wrong and thus discountenanced by this Court. At this point, I wish to comment on the fundamental reason given by the trial Judge in declaring that the Appellant in person, or as an individual, cannot maintain this action. Since the United African Baptist Church, Isale-Taba, Shaki, is one of the Churches under the Registered Trustees of the United African Baptist Church, Shaki, the Plaintiff is precluded to sue for himself and on behalf of the members of that Church. The Certificate of Incorporation of the registered Trustees of the United African Baptist Church, was obtained on the 29th day of June, 1944, under the Land (Perpetual Succession) Ordinance, 1924. The trial Judge proceeded to examine Paragraph 3 of the Ordinance which states thus:-
“The Certificate of Incorporation shall vest in such body corporate all land or any interest therein of what nature and tenure so ever belonging to, or held by any person or persons in trust for such community, body or association of persons.”
By virtue of this provision, according to the trial Judge in her judgment, the land in question owned by United Baptist Church, Isale-Taba, Shaki, of which the Plaintiff is one of the representatives automatically vests in the Registered Trustees of the United African Baptist Church and it is in that name that the Defendant may be sued and not in the name of individuals. After a very careful examination of the entire record of the Appeal before this Court, and as rightly canvassed by the Appellant in his Brief of argument, the said Certificate of Incorporation of the Registered Trustees was never tendered as an Exhibit before the trial Court. In that respect therefore, the trial Judge based her judgment on an evidence that was never before her. I agree with the submission of the Appellant in his Brief of argument on this issue at Page 7 Paragraph 3.02 when he said:-
“The only credible evidence to substantiate the nexus between the Plaintiff and the Registered Trustees of the United African Baptist Church, Shaki, is the production of the Certificate of Incorporation as Exhibit upon which the Court can put reliance”.
The Supreme Court has pronounced on this issue in Fawehinmi Vs. N.B.A (No. 2) (1989) 2 NWLR (Part 105) 558 Paragraph “D” where it held:-
“Thus, the onus is in the party claiming the status of a juristic person derived from Incorporation or not to establish it in this Court. In Apostolic Church Vs. A. G. (MID-West) (1972) 4 SC 150, it was held that the corporate status of a body is established by the production of its Certificate of Incorporation.”
On this issue of the Incorporated Trustees of the United African Baptist Church, which the lower Court pronounce as the only juristic person to sue and can be sued only in that name, is hereby set aside by this Court, as the said Certificate of incorporation was never tendered in the Court to constitute an evidence that the Court can act upon. Any pleading or oral evidence adduced thereon in the absence of the Certificate of Incorporation goes to no issue. It is only to add here as a rider that, the only valid document that the lower Court could have acted upon would have been Exhibit “A” tendered by the Appellant, which is the Deed of Conveyance.
Another issue is that, both the Appellant and the Respondent in their respective Briefs, canvassed the invocation of the powers of this Court under Section 16 of the Court of Appeal Act, Cap 75, Laws of the Federation, 1990, to re-hear the case without remitting same back for retrial at the trial Court, as all relevant materials for the exercise of this power are already before the Court. The Respondent went further to file Notice of Intention to contend that the judgment should be affirmed on grounds other than those relied on by the Court below.
The scope of power of Court of Appeal under Section 16 of the Court of Appeal Act was examined by this Court in the Case of Usman Vs. Kaduna State House of Assembly &. Others (2007) 11 NWLR (Pt.1044) 148 at 161 Ratio 12 per Ba’Aba, JCA:
“By virtue of Section 15, Court of Appeal Act, the Court of Appeal may from time to time make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its finding on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings, as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may rehear the case in whole or in part or may remit it to the Court below for the purpose of such re-hearing, or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court or, in the case of an appeal from the Court below in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.
In the instant case, the learned trial Judge did not utilize the opportunity of the evaluation of evidence and ascription of probative value to the evidence adduced in this case. Thus, the Court of Appeal could exercise the discretion of the trial Court by virtue of the provision of Section 16 of the Court of Appeal Act. See:- Balogun Vs. Agboola (1974) 1 All NLR (Pt. 11) 66; Omoregie Vs. Idugremwanve (1985) 3 NWLR (pt. 5) 41; Nzekwu Vs. Nzekwu (1989) 2 NWLR (Pt. 104) 373.
Both the Appellant and the Respondent are both at consensus adidem in urging this Court in the exercise of its powers under Section 16 of the Court of Appeal Act, to rehear this case in whole, since all the materials in the case are before this Court. And also not to remit it back to the lower Court in the event of reaching the position, the Court has attained in this judgment. It is pertinent to mention here again that the appeal proceeded on only one issue, distilled from the sole ground of appeal, and that is the issue of the locus standi of the Appellant to institute this action. Earlier on in this judgment, this has already resolved that sole issue and establish that the Appellant has the locus standi to institute this action. This appeal was not determined or any other issue outside the locus standi of the Appellant to institute this action. All the materials argued upon and considered by this Court relates to the locus standi of the Appellant to commence this suit at the lower Court which this Court has now pronounce he has and nothing more. There is no material left more for consideration of this Court to warrant the invocation of its powers under Section 15 of the Court of Appeal Act to rehear this case in whole as submitted by the parties. What is left to be emphasized here is that, this Court has resolved the only issue in this appeal the locus standi to commence this action in favour of the Appellant. The mode by this Court in the circumstance is to order re-trial by a different Judge to enable the Appellant the opportunity to prove his claims properly based on his Statement of Claim. This will best serve the interest of justice. In the result, the appeal succeeds in part.
The judgment of the trial Court in Suit No. HSK/2/2004 delivered on the 4th day of January, 2007, is hereby set aside by this Court. I accordingly order a re-trial of the case by a different Judge of Oyo State High Court. The case is hereby remitted to the Honourable Chief Judge, Oyo State High Court to assign same to another Judge, to hear and determine the suit afresh.
There shall be N30,000.00 Costs in favour of the Appellant.
Other Citations: (2009)LCN/3285(CA)
