ANKELI v. EKANI (2020)

ANKELI v. EKANI

(2020)LCN/14357(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Friday, June 05, 2020

CA/MK/38/2018

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

PETER ANKELI APPELANT(S)

And

CHIEF MOSES EKANI RESPONDENT(S)

RATIO

WHETHER OR NOT THE MERE FACT THAT AN APPEAL IS AGAINST AN INTERLOCUTORY DECISION MEANS THAT THE LEAVE OF TRIAL COURT MUST BE OBTAINED

The Appellant is challenging the decision of the trial Court which decided the issue of locus standi of the Respondent and this decision in my opinion is an issue of law because it goes to the root of jurisdiction. Section 241(1) (b) excludes the necessity for leave in all decisions where the grounds of appeal involve questions of law alone in any civil or criminal proceedings. In HASSAN v. FRN & ORS (2018) LPELR-44574 (CA) this Court held per Akomolafe-Wilson J.C.A. thus:-
“The mere fact that an appeal is against an interlocutory decision does not necessarily mean that the leave of the Court below must be obtained. It is the nature of the appeal that will determine whether leave of the Court is required pursuant to Section 241(2) of the Constitution. It is only when the grounds of appeal are based on facts or mixed law and facts that the leave of the Lower Court must be sought and obtained before such interlocutory appeal can be competent. Where the interlocutory appeal is based simply on grounds of law, the appellant can appeal as of right to the Court of Appeal.” PER AGUBE, J.C.A.

DEFINITION OF THE TERM “LOCUS STANDI”

Flowing from the above portion, it is evident that the trial Court being a master of the claims before the Court rightly came to the conclusion that the Respondent has the locus to institute the suit. In SUPERMARITIME (NIG) LTD v. ESSENTIAL SEAFOODS LTD (2018) LPELR-45109, this Court held per Ogakwu J.C.A. thus:
“The term locus standi denotes the legal capacity to institute proceedings in a Court of Law. It is often used interchangeably with terms like standing or title to sue. The fundamental aspect of locus standi is that it focuses on the party seeking redress before a Court and not on the issues he wants to have adjudicated. See ADESANYA v. PRESIDENT OF NIGERIA (1981) 5 SC 112.”
From the above definition, locus standi simply means the legal capacity, based upon sufficient interest in a subject matter, to institute proceedings in a Court of law. A person has locus standi to sue in an action if he is able to show to the satisfaction of the Court that his civil rights and obligations have been or are in danger of being infringed. Once this is shown to the satisfaction of the Court, the Court is bound to assume jurisdiction and determine the suit one way or the other. PER AGUBE, J.C.A.

WHETHER OR NOT ISSUES FOR DETERMINATION MUST ARISE FROM THE GROUND OR GROUNDS OF APPEAL

The law is that an issue for determination must arise from a ground or grounds of appeal otherwise such an issue is incompetent and valueless. A respondent is entitled to formulate issues for determination but his issues must be distilled from the grounds of appeal in the notice of appeal except he has filed a cross- appeal or respondent’s notice. Therefore a respondent who has not cross- appealed or filed a respondent’s notice is not entitled to formulate issues outside the grounds of appeal. See Bogobiri V. State (2017) 18 NWLR (Pt. 1597) 247, 261 – 262 and Luna V. Commissioner of Police, Rivers State (2018) 11 NWLR (Pt. 1630) 269, 282 – 283. PER AGUBE, J.C.A.

GNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of the High Court of Benue State, sitting at Makurdi, delivered by Hon. Justice J. M. Ijohor on the 1st of February, 2018 wherein the lower Court struck out the Preliminary Objection raised by the Defendant (now Appellant) for lacking in merit.

Dissatisfied with the decision of the lower Court, the Appellant invoked the jurisdiction of this Court by filing a Notice of Appeal on the 9th of February, 2018 containing Two (2) Grounds which I reproduce without their particulars below, to wit:
“GROUND 1:
The learned trial Judge erred in law, when he heard (sic) that the Respondent has locus standi in the subject matter which is Adigbira.
GROUND 2:
The trial Judge erred in law when he heard (sic) that the Court has jurisdiction to hear the Plaintiff suit (Respondent) even though there was overwhelming evidence/materials placed before the lower Court to decline jurisdiction in the subject matter.”

STATEMENT OF FACT:
The Respondent (Plaintiff at the lower Court), by way of Writ of Summons instituted an action

on the 22nd of July, 2015 against the many Defendants inclusive of the Appellant (2nd Defendant at the trial Court) wherein he sought the following reliefs at page 11 of the Record of Appeal: to wit:
“(a) A declaration that all fish Ponds/lakes in Ijaha land belong to the people, community of Ijaha and not a subject of individual or family ownership.
(b) A declaration that Enyigboola (fish pond), Enyi k’bayum (fish pond), Enyi k’ebehi (fish pond) and Enyi g’Adegila (fish pond) as natural lakes belong to the people of Ijeha and are controlled by the ruling Chief, “Agbo Ijaha”.
(c) A declaration that the purported licence/certificate of Registration issued to the 1st Defendant is invalid, null and void.
(d) An order of Court perpetually restraining the Defendants either by themselves, agents, servants or privies from claiming as owners any of these lakes/fish ponds for themselves or their families.
(e) An order of Court permitting the Plaintiff as the Chief of Ijaha (“Agbo” Ijaha) to appoint individual(s) or families to act as manager(s) of these fish ponds to harvest them for the benefit of

the stool of Ijaha which the Plaintiff will pass to the next Chief (“Agbo” Ijaha) that will take over from the Plaintiff.”

In the course of proceedings at the lower Court, the other Defendants’ names were on the application of the Plaintiff struck out leaving only the 2nd Defendant (now Appellant). The Appellant filed his Statement of Defence and on the 5th of November, 2017 filed a Motion MHC/2321M/17 challenging the jurisdiction of the lower Court to entertain the substantive suit. The Appellant’s motion MHC/2321M/17 sought the following reliefs to wit:
“(1) AN ORDER striking out this suit on the ground that the plaintiff lack (sic) locus standi to sue in his capacity claiming ownership of Lake Adigbira.
(2) AN ORDER of this Court directing the Plaintiff to be aware that Natural Water Bodies are owned and controlled by the government and not be an individual.
(3) AN ORDER of Court declining jurisdiction to hear this suit for Plaintiff’s lack of Locus standi.
(4) SUCH OTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances of this application.”

The Respondent filed a counter affidavit in opposition to the motion on the 23rd of November, 2017. This necessitated the Appellant to file a further affidavit on the 4th of December, 2017. The Lower Court heard the motion on the 11th of December, 2017 and on the 1st of February, 2018, ruling on the application was delivered wherein the Lower Court in a well considered Ruling, struck out the Appellant’s motion. The Appellant dissatisfied with the Ruling of the Lower Court, filed this present Appeal.

Predicated on the grounds early enumerated above, the Appellant’s in his Brief of Argument filed on the 28th of February, 2018 and settled by S.A. Akpehe, Esq., distilled two (2) issues for determination to wit:
“(1) Whether or not the respondent (plaintiff at the Lower Court) has locus standi to sue and claimed ownership, management and control of lake Adigbira which is part of River Benue and subject of ownership of Benue State government and by extension the Federal Government of Nigeria (distilled from ground 1).
(2) Whether or not the lower Court is clothed with jurisdiction to hear the suit filed by the Respondent (plaintiff in

the Lower Court) if the plaintiff lacks the locus standi to sue in respect of lake Adigbira which is a natural lake and property of the Government of Benue State and by extension the Federal Republic of Nigeria (distilled from ground 2).”

Conversely, the Respondent pursuant to the Order of this Court on the 23rd of January, 2019 filed his Brief of Argument on the 24th of January, 2019. The Respondent’s Brief was settled by Adakole Ikwue, Esq. and he also distilled two (2) issues for determination to wit:
1. Whether or not this appeal is competent
2. Whether or not the Respondent has the locus standi to institute and maintain the substantive suit.

The Appellant’s Counsel on receipt of the Respondent’s Brief filed a Reply Brief on the 28th of January, 2019.

When the Appeal came up for hearing on 20th March, 2020, learned Counsel to the Appellant was absent but the Court adopted the Appellant’s Brief of Argument and Appellant’s Reply Brief as the argument of the Appellant in this appeal under Order 19 Rule 9(4) of the Court of Appeal Rules, 2016 thus:-
“When an appeal is called and the

parties have been duly served with the notice of hearing, but if any party or any Legal Practitioner appearing for him does not appear to present oral argument even though briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having been duly argued.”

The learned Counsel for the Respondent, Adakole Ikwue, Esq., adopted the Respondent’s Brief of Argument as the argument of the Respondent in contesting the appeal.

It is glaring that the two issues distilled by the Appellant are intertwined and related to the second Issue distilled by the Respondent. The Respondent’s first issue is more like a preliminary point which brings the jurisdiction of this Court to question and ordinarily if properly raised, ought to be considered first before delving into the other issues for determination. Be that as it may, the Respondent failed to properly raise the preliminary point in compliance with Order 10 Rule 1 of this Honorable Court Rules, 2016. The said provision states thus:
“A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant

three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time.”
For emphasis, the Respondent has not filed any notice of objection to that effect neither was same argued as a preliminary point. Be that as it may, the argument of Counsel on both sides will be considered as argued despite the Respondent’s non-compliance.

From the issues as distilled by learned counsel to both parties, I consider that the Respondent’s Issue 1 will due to its nature as a preliminary point be treated and considered first before reframing the corresponding issues, that is, the Appellant’s Issue 1 and 2 and the Respondent’s Issue 2 into an issue for determination of this appeal which I do to wit:
“Whether the Respondent was clothed with the requisite locus standi to invoke the jurisdiction of the trial Court.”

RESPONDENT’S ISSUE ONE:
The Respondent has argued that the appeal as presently constituted is incompetent and ought not to be entertained. Learned Counsel for the Respondent

predicates his argument on the provision of Section 14(1) of the Court of Appeal Act, 2004 which provides thus:
“Where in the exercise by the High Court of a State or as the case may be the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an Appeal shall by leave of that Court or of the Court of Appeal lie to the Court of Appeal but no appeal shall lie from any order made ex parte, or by consent of the parties or relating only to cost.”

Predicted on the above provision, it is the submission of learned Counsel for the Respondent that this appeal being an interlocutory appeal, the Appellant ought to have first obtained leave before filing this appeal. According to the learned Counsel for the Respondent, the consequential effect on the failure to obtain leave before filing the appeal, means there is no appeal before this Court for determination. To support his argument, learned Counsel for the Respondent relied on AUTO EXPORT IMPORT v. ADEBAYO (2003) FWLR (PT 140) 1686 at 1703 PARAS D-E; KUDIABOR v. KUDANU 6 WACA 14; and OHENE MOORE v. AKESSEH TAYEE 2 WACA 43; and

urged this Court to hold that the appeal is incompetent and same should be dismissed.

Conversely, the Appellant’s Counsel in his Reply Brief in opposition to the Respondent’s issue challenging the jurisdiction of this Court contends that the Appellant did not require the leave of any Court to appeal against the ruling of the Trial Court. The learned Counsel for the Appellant argues that his appeal touches on the jurisdiction of the trial Court to continue further proceedings in suit No.MHC/136/2015, that is, the substantive suit and as such leave of Court is not mandatory required. To support his position, Learned Counsel for the Appellant relied on: ELUGBE v. OMEKFAJE (2004) 18 NWLR (Pt. 905) at 334; MINISTER WORKS AND HOUSING v. SHITTU (2007) 16 NWLR (Pt. 1060) 351 and STATE v. ONAGORUWA (1992) 2 SCNJ (PT. 1) 308. Learned Counsel for the Appellant contends that since the appeal is on jurisdiction, the provision of Section 14(1) of the Court of Appeal Act, 2004 relied by the Respondent is not applicable and should be discountenanced.

RESOLUTION OF RESPONDENT’S ISSUE ONE:
I have read the arguments submitted by both parties and

considered the authorities referred to.

As a starting point, interlocutory appeals are regulated by Section 24(2) (a) which provides a 14 days period as the time frame within which an interlocutory appeal should be filed. In this appeal, it is glaring that the time frame is not in issue but rather the Appellant’s failure to seek the leave of Court before filing his notice of appeal. The Respondent’s argument is anchored on Section 14(1) of the Court of Appeal Act, 2004. This provision requires that when an interlocutory decision is made in the course of a suit, leave will be required to file an appeal. In as much as the Respondent’s position seems right, it is not applicable to this appeal. The combined effect of Section 241(1) (a) and 241(1) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is to the effect that an appeal to the Court of Appeal on any interlocutory decision of the High Court shall be by leave except where the grounds of appeal involve questions of law alone.
I have carefully examined the two grounds of appeal formulated by the Appellant and they in my opinion involve questions of

law which do not require leave of the trial Court or this Court. The Appellant is challenging the decision of the trial Court which decided the issue of locus standi of the Respondent and this decision in my opinion is an issue of law because it goes to the root of jurisdiction. Section 241(1) (b) excludes the necessity for leave in all decisions where the grounds of appeal involve questions of law alone in any civil or criminal proceedings. In HASSAN v. FRN & ORS (2018) LPELR-44574 (CA) this Court held per Akomolafe-Wilson J.C.A. thus:-
“The mere fact that an appeal is against an interlocutory decision does not necessarily mean that the leave of the Court below must be obtained. It is the nature of the appeal that will determine whether leave of the Court is required pursuant to Section 241(2) of the Constitution. It is only when the grounds of appeal are based on facts or mixed law and facts that the leave of the Lower Court must be sought and obtained before such interlocutory appeal can be competent. Where the interlocutory appeal is based simply on grounds of law, the appellant can appeal as of right to the Court of Appeal.”

From the above, it is glaring that this preliminary issue despite its defective nature holds no water because the grounds of appeal reveals that what is being questioned, are grounds of law. This Court therefore has the jurisdiction to entertain this appeal. In conclusion, the preliminary issue is resolved against the Respondent and in favour of the Appellant. Consequently, the preliminary issue fails and is accordingly struck out.

Having resolved that this Honourable Court has the jurisdiction to entertain this Appeal, I will then proceed to consider the arguments concerning the reframed issue for determination to wit:
“Whether the Respondent was clothed with the requisite locus standi to invoke the jurisdiction of the trial Court.”

In the course of considering this reframed issue, I will jointly consider the Appellant’s argument on his two issues and the Respondent’s argument on his issue two and thereafter proceed to make my resolution.

APPELLANT’S ARGUMENT:
Learned Counsel for the Appellant contends without equivocation that the Respondent lacks the locus standi to institute the suit. According to learned

Counsel for the Appellant, by virtue of Part 1, Second Schedule, Paragraph 29 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended), lake Adigira belongs to the Government of Benue State and by extension the Federal Government of Nigeria and as such the trial Court erred in law when it held that the Respondent has the locus standi to maintain action against the Appellant in Suit No. MHC/136/2015.

The learned Counsel for the Appellant strongly contends that by the combine provisions of Sections 1, 10(1), 10(3) and 16 of the Inland Fisheries Act Cap.110 Laws of the Federation 2004; Sections 10 and 29 of the National Inland waterways Authority Act CAP N.47 Laws of the Federation of Nigeria; and Section 4 of the Fisheries Regulation Laws of Benue State of Nigeria, as well as the Constitution of the Federal Republic of Nigeria 1999 (as amended), it is clear that all natural water bodies are being owned, controlled and managed by the government and not an individual except licensed by government. According to the Counsel to the Appellant, it is those statutes he relied on that takes away the locus of the Respondent to maintain the substantive

suit.

Counsel for the Appellant further contends that to determine the locus of the Respondent, it is the statement of claim that must be considered. To support his contention, he relied on AG FEDERATION v AG ABIA (2001) 11 NWLR (Pt 725) 689 at 742; and argued that the Respondent’s statement of claim as contained at pages 5-12 of the Record does not disclose sufficient interest in the matter.

Furthermore, learned Counsel for the Appellant contends that where a Court lacks jurisdiction no matter how well the proceedings are conducted, it amounts to a nullity. In support of his contention, Counsel relied on EKE v OGBONDA (2007) All FWLR (Pt 351) 1456. He also contends that parties lack the legal capacity to waive jurisdiction in any manner and relied on MOBIL PROD. (NIG) UNLTD v MONOKPO (2003) 18 NWLR (Pt 852) 346 at 434-435. In conclusion, he argued that the lower Court erred in holding that the Respondent has the locus standi to institute the substantive suit and he proceeded to urged that the appeal be allowed and the Ruling of the trial Court set aside.

RESPONDENT’S ARGUMENT:
Learned Counsel for the Respondent is of the firm

view that the Respondent has the locus standi to institute and maintain this suit. Learned Counsel for the Respondent contends that in determining the locus standi of the Plaintiff in any action, regard must be had to the statement of claim as the Plaintiff has the additional burden in showing his interest has been injured or is in immediate danger of being injured. To support his contention, reliance is made to OWODUNNI v REDG. TRUSTEES OF CELESTIAL CHURCH (2000) FWLR (Pt 9) 1455. According to learned Counsel to the Respondent, paragraphs 1 and 6 of his statement of claim as contained in pages 5 and 6 respectively of the Record of Appeal, establishes the Respondent’s interest in the suit and this interest give the lower Court the jurisdiction to entertain the suit. Learned Counsel for the Respondent has urged that the Appeal be dismissed with punitive cost.

RESOLUTION:
As a take off point, I will for purpose of emphasis reiterate the reframed issue distilled for determination to wit:
“Whether the Respondent was clothed with the requisite locus standi to invoke the jurisdiction of the trial Court.”

It is pertinent to state

that locus standi is not dependent on the claim succeeding at the end of trial but largely on the facts averred in the statement of claim which must disclose an interest which deserves to be protected by the Court determining the claim on the merits.

In the course of reading through the Ruling of the trial Court, I found that reference was made to a similar application filed by the Appellant at the Lower Court. In the Ruling as contained at pages 79 of the Record of Appeal the trial Judge held thus:-
“I have thoroughly perused this application together with the attached documents. The application seeks an order of Court striking out this suit on the ground of lack of locus standi to sue. The applicant on the 22/12/16 had filed a similar application challenging the jurisdiction of this Court. The Court in her ruling overruled the applicant and held that the Plaintiff has the locus standi to bring this action. Although the grounds upon which this application is brought are not the same as the grounds under which Motion No. MHC/5088m/16 of 22/12/16 was brought, the reliefs are the same. This Court maintains that the Plaintiff/respondent has the

locus standi to bring this action.”

A person has locus standi to sue in an action if he is able to show to the satisfaction of the Court that his civil rights and obligations have been or are in danger of being infringed. Once this is shown to the satisfaction of the Court, the Court

is bound to assume jurisdiction and determine the suit one way or the other.

I have carefully considered the arguments and decisions relied on by both parties in this appeal and I am of the position that the Appellant has jumped the gun by going further to determine before the hearing of the substantive suit whether the Respondent is the owner of the Lake Adigbira. The Statutes referred to by the Appellant are with respect best reserved for the substantive suit. With due respect to the learned Counsel for the Appellant, this issue should better be left for determination on the merit as rightly pointed out by the trial Court when he held at page 80 of the record thus:
“…l also want to add that the issue of ownership of Lake Adigbara is a very pertinent issue. One which in my view will require the calling of evidence for the Court to properly and effectively determine whether or not the Lake Adigira is the property of Benue State Government…”

It is my belief that the trial Court upheld the trite position of the law and carefully perused the statement of claim before arriving at the conclusion she arrived at. I find no fault in the

Ruling of the trial Court on the issue of locus standi. I am also on the same page with the trial Court. Consequently, this issue is resolved against the Appellant and in favour of the Respondent.

In conclusion, having resolved the germane issues for determination, I come to the irresistible conclusion that this appeal lacks merit and it is accordingly dismissed. Parties are to bear their cost.

ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read in advance a copy of the lead Judgment just delivered by my Learned Brother, Ignatius Igwe Agube, JCA, in which this appeal has been dismissed. The resolution of the issues arising for determination have been fully considered and resolved, and I adopt same as mine.
I therefore also dismiss this appeal and abide by the orders made in the lead Judgment.

JOSEPH EYO EKANEM, J.C.A.: I had the privilege of reading a copy of the lead judgment of my learned brother, Agube, JCA. I agree with the reasoning and conclusion that the appeal lacks merit and therefore ought to be dismissed.

In his brief of argument, respondent’s counsel formulated two issues for the determination of the appeal. One of

the issues, to wit; issue 1 reads
“Whether or not this appeal Is competent”.
Surely the issue does not arise from any of the grounds of appeal and is therefore incompetent. The law is that an issue for determination must arise from a ground or grounds of appeal otherwise such an issue is incompetent and valueless. A respondent is entitled to formulate issues for determination but his issues must be distilled from the grounds of appeal in the notice of appeal except he has filed a cross- appeal or respondent’s notice. Therefore a respondent who has not cross- appealed or filed a respondent’s notice is not entitled to formulate issues outside the grounds of appeal. See Bogobiri V. State (2017) 18 NWLR (Pt. 1597) 247, 261 – 262 and Luna V. Commissioner of Police, Rivers State (2018) 11 NWLR (Pt. 1630) 269, 282 – 283. Respondent’s issue 1 therefore is incompetent and valueless.

What the respondent sought to do in respect of issue 1 is in essence an attempt to raise a preliminary objection to the hearing of the appeal but he masked it as an issue. A preliminary objection cannot properly be raised as an issue for

determination in an appeal as it does not arise from any ground of appeal. Such a preliminary objection masquerading as an issue is incompetent and ought to be struck out. See Luna V. Commissioner of Police, Rivers State supra. 283.
Nevertheless, the Court can still consider any apparent defect on the face of the notice of appeal and rule thereon. See Ayoade V. Spring Bank Plc (2014) 4 NWLR (Pt. 1396) 93, 117.

My learned brother has considered the point as to the validity of the appeal and has come to the conclusion that the appeal is competent and valid since though it is against an interlocutory ruling it raises question of law alone. Section 241(1)(b) of the Constitution of Nigeria. 1999 (as amended) provides that:
“(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:
(b) where the ground of appeal Involves questions of law alone decisions in any civil or criminal proceedings.”
In Ugo V. Ugo (2017) 18 NWLR (Pt. 1597) 218, 238, Eko JSC, held that:
“…the law is now settled that by virtue of Section 241(1)(b) of the 1999 Constitution, a

decision of the High Court, whether final or interlocutory, is appealable as of right and without leave of Court first sought and obtained”.
Section 14(1) of the Court of Appeal Act, 2004, relied upon by respondent’s counsel cannot eclipse the provision of Section 241(1)(b) of the Constitution as the latter is the supreme law of the land and is therefore superior to the Court of Appeal Act.
In view of the facts pleaded and the reliefs sought by the respondent in the lower Court, and the issue of the ownership of the fish ponds/lakes, it was right for the trial court to held that the issue required the calling of evidence.

Consequent upon the foregoing, I agree that the appeal lacks merit and I accordingly dismiss the same.

Appearances:

…For Appellant(s)

Adakole Ikwue, Esq. For Respondent(s)