ISU v. WEMA BANK
(2021)LCN/15132(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Monday, May 10, 2021
CA/E/345/2014
Before Our Lordships:
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Between
(HON) CHRISTOPHER OMO ISU APPELANT(S)
And
WEMA BANK PLC RESPONDENT(S)
RATIO
TESTS FOR DETERMINING WHETHER OR NOR A PERSON HAS LOCUS STANDI
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. There are two tests for determining if a person has locus standi. They are: 1) The action must be justifiable 2) There must be a dispute between the parties. To have locus standi, the plaintiff’s statement of claim must disclose sufficient legal interest and show how such interest arose in the subject matter of the action. See Pacers Multi-Dynamics Limited v. The M. V. Dancing Sister & Anor (2012) LPELR – 7848, p.21-22 per Rhodes-Vivour, JSC. PER JAMES SHEHU ABIRIYI, J.C.A.
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling delivered on 29th January, 2014 in the High Court of Ebonyi State sitting at Abakaliki in suit No. HAB/14/2013 between Wema Bank Plc. v. Rt. (Hon) Christopher Omo Isu.
In the main suit, the Respondent as plaintiff Wema Bank Plc., instituted an action against the Appellant Rt. Hon. Christopher Omo Isu claiming title to the land in dispute between it and the Appellant. Although pleadings had been filed and exchanged between the parties, the Appellant filed a notice of preliminary objection on the ground that: “The plaintiff lacks the requisite locus standi to maintain this suit.”
After considering submissions of counsel for both parties, the Court below overruled the preliminary objection and ordered accelerated hearing of the suit.
With leave of the Court below, the Appellant appealed to this Court against the ruling by a notice of appeal dated 3rd February, 2014 but filed on 4th February, 2014. The notice of appeal contains three grounds of appeal. From the three grounds of appeal, the Appellant submitted the following issues for determination:
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1) WHETHER THE RESPONDENT WHO IS A DONEE OR AGENT OF THE DONOR OF A POWER OF ATTORNEY CAN MAINTAIN AN ACTION IN HIS OWN NAME RATHER THAN IN THE NAME OF THE DONOR (Distilled from GROUNDS 1 & 2).
2) WHETHER THE DECISION OF THE LEARNED TRIAL JUDGE IS NOT PER-INCURIAM (Distilled from GROUND 3).
On its own part, the Respondent formulated the following issues for determination:
“1. Whether the Jurisdiction of Court to entertain an action and the Locus Standi of a Plaintiff/Claimant are not interwoven and the Court below is right in refusing the Notice of Preliminary Objection in the circumstances of the case.
2. Whether the Deed of Irrevocable Power of Attorney as a means of Transfer of Ownership in land is not distinguishable from general Power of Attorney on principal agent relationship.”
Arguing Issue 1, learned counsel for the Appellant contended that the action was not initiated by due process in that the proper person to be named in the suit was not named. The Respondent, it was argued, brought the action without reference to the donor and that it was not permitted in law to do so. The Court was referred
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to Vulcan Gases v. Gesellschaft (2001) 9 NWLR (pt.719) 610 at 615. It was submitted that a donee of a power of attorney must sue in the name of the donor even where the power of attorney gives the donee the right to sue. It was submitted that this principle of law applies whether the power of attorney is revocable or irrevocable.
A donee it was contended, is merely a messenger of the owner of title.
In the present action, it was contended, no cause of action is disclosed in the Respondent even though he holds the power of attorney.
The Court below, it was argued, failed to examine or refer to the power of attorney in issue.
On issue 2, learned counsel for the Appellant argued that there was no evidence the Court below relied on the judicial authorities cited before it.
Arguing Respondent’s issue 1, learned counsel for the Respondent submitted that it is a settled principle of law that where an issue of locus standi is raised, it is to the plaintiff’s claim that the Court should turn in order to determine whether or not the Court has jurisdiction to entertain the matter. The Court was referred to Umanah v. Attah (2005)12 NWLR
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(pt. 938) 103 and Ikine v. Edjerode (2001) 18 NWLR (pt.745) 446 at 499.
It was argued that the lone issue which the Appellant wanted the Court to determine was whether the Respondent who averred in his statement of claim that he is the owner (donee) of an irrevocable power of attorney in a land matter cannot maintain this action in its own name i.e. “Wema Bank Plc.” or cannot maintain any action at all.
Paragraph 4 of the Respondent’s statement of claim, it was argued, shows the Respondent’s right, interest and locus standi and the face of a proper person to institute this action. The Court was also referred to paragraphs 5, 7 and 8 of the statement of claim setting out the source and means stipulated by law governing irrevocable power of attorney transferring interest in land. The Court was referred to Section 2 of the Interpretation section Land Instrument Registration Law Cap. 99 Vol. 4 Laws of Ebonyi State 2009, Section 3 of Land Registration Law of Ebonyi State and Section 9 of the same Law. Paragraphs 4, 5, 6 and 7 of the Respondent’s statement of claim were reproduced by Respondent’s counsel at page 7-8 of the Respondent’s brief.
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The Court was referred to the definition of the word “instrument” as defined in Olanrewaju v. Ogunleye (1997) 2 NWLR (pt.485)12 SC. It was then submitted that by the definition, and other provisions of the law, a donee (purchaser) vide irrevocable power of attorney in a land matter will not be taken as an agent to the donor on a principal and agent relationship. The Court was referred to Lawal v. Ejidike (1997) 2 NWLR (pt.487) 319 where this Court held thus:
“Refusal by a vendor/donor to execute a power of attorney in favour of the purchaser pursuant to a contract of sale is an unequivocal breach of his undertaking to the purchaser.”
It was submitted that by reason of the above, the donee (purchaser) can be seen as one with locus standi in this case to bring its action in its own name as the donor/donee exercise in the instant case is one of contract of sale and the power of attorney executed in favour of the purchaser donee Respondent.
It was submitted that the authorities cited by Appellant’s counsel including Vulcan Gases Ltd v. Gesellschaft (2001) 9 NWLR (pt.719)1 at 640 all hinge on
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revocable power of attorney. It was submitted that in Vulcan v. Gesellschaft, the power of attorney in issue in that case was given to a law firm to represent the company. In that case, it was a case of agent/principal relationship.
It was submitted that the power of attorney granted the Respondent in this case carries with it the interest of the Respondent (donee) for valuable consideration whereof the amount and receipt of the purchase was acknowledged in the body of the deed of irrevocable power of attorney by the donor (vendor). That this was done in accordance with the law on transfer of interest in land in Ebonyi State. That the Appellant has not denied or disputed that the irrevocable power of attorney was a means of outright purchase of the land in dispute. It was submitted that the Land Instrument Registration Law defines instrument to include “power of attorney under which an instrument may be executed”. It is by virtue of the above that a power of attorney is made a registrable instrument only in land matters, it was submitted. Except it is registered, it shall not be pleaded or given in evidence, it was submitted. The Respondent, it
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was submitted, has duly registered the land in issue in its name and not in the name of the donor before this suit at the lower Court.
It was submitted that under the Land Instrument Registration Law of Ebonyi State 2009, it is specifically provided that any right or title to or interest in land in Ebonyi State of Nigeria and a certificate of purchase, is to be executed by a power of attorney except a will. The Court was referred to Section 2 of the Land Instrument Registration Law.
It was submitted that the Court is called upon to look at a land matter where the parties to the suit are claiming ownership of the land. That the Respondent pleaded the fact that it is the owner of the land having acquired all the interest in the said land vide purchase by deed of “irrevocable power of attorney” and same registered in the name of the Respondent.
It was submitted that the Respondent cannot be prevented from bringing this action in its name as owner having acquired the whole interest in the property for valuable consideration in line with the provision of the law by acquiring interest in the land by irrevocable power of attorney and duly
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registered by the Respondent.
The only issue for determination in this appeal is whether the Respondent lacks the locus standi to maintain the 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. There are two tests for determining if a person has locus standi. They are:
1) The action must be justifiable
2) There must be a dispute between the parties.
To have locus standi, the plaintiff’s statement of claim must disclose sufficient legal interest and show how such interest arose in the subject matter of the action. See Pacers Multi-Dynamics Limited v. The M. V. Dancing Sister & Anor (2012) LPELR – 7848, p.21-22 per Rhodes-Vivour, JSC. In the instant matter, if the Appellant had bothered to take a cursory look at the claim of the Respondent, he would have noticed the averments of the Respondent that it is the owner of the land in dispute. The Respondent averred to how it acquired the entire interest on the land for a consideration. The Respondent averred that it acquired the property
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for the purpose of building a Bank House. The Respondent averred to the fact that as it set out to prepare to commence building on the land, it discovered a notice of change of ownership on the property. See paragraphs 4, 6, 7, 8 and 9 of the statement of claim. Instead of looking at these averments or the claim of the Respondent as a whole, the Appellant latched on a document pleaded by the Respondent that is “an irrevocable power of attorney” to contend that the Respondent had no locus standi. Learned counsel for the Appellant therefore unnecessarily laid himself astray by plunging himself into arguments on power of attorney and who can institute an action between a donor and a donee. Unfortunately, learned counsel for the Respondent had to respond to arguments on who between a donor and a donee can sue under a power of attorney. These arguments were irrelevant to the determination of whether the Respondent had locus standi to institute this action.
It is clear from the statement of claim as shown above that the Respondent had locus standi to institute the action and that the preliminary objection and the appeal against the ruling of the Court
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below which ordered for accelerated hearing of the suit are intended to stall the hearing of the suit when pleadings had been filed and exchanged. This is condemnable and I condemn it in no uncertain terms.
The only issue for determination is hereby resolved against the Appellant and in favour of the Respondent.
The appeal is hereby dismissed.
Respondent is awarded N100,000 costs to be paid by the Appellant.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: The appeal herein has no merit and deserves to be dismissed as the locus standi of the Respondent had been disclosed in it pleadings in plenitude.
The surplusage reliance on an irrevocable Power of Attorney re-enforced his locus standi which was needlessly objected to. Where there is no defence, parties nay their counsel, as ministers in the temple of justice should proceed to the merit of matters that foist an unnecessary delay in the administration of justice.
I endorse the dismissal of the appeal and the visitation of cost as made in the lead by my learned brother, J.S. Abiriyi, JCA.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I had the opportunity of reading in draft the lead judgment of my
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learned brother, James S. Abiriyi, JCA, just delivered. I agree entirely with the reasoning and conclusion that the appeal is unmeritorious and should be dismissed. I too will dismiss the appeal.
Appeal dismissed. I abide with the order as to costs.
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Appearances:
Appellant served hearing notice on 11th February, 2021 through his counsel P. T. Akan Esq. who did not attend Court and did not excuse his absence or the absence of the Appellant in person For Appellant(s)
A. Aiyamekhue, Esq. For Respondent(s)
