EKONGSON v. UDO & ORS (2021)

EKONGSON v. UDO & ORS

(2021)LCN/15148(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Thursday, May 06, 2021

CA/C/258/2012

Before Our Lordships:

Mojeed Adekunle Owoade 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

BARR. EMMS EKONGSON APPELANT(S)

And

ETEIDUNG SUNDAY PETER UDO 2. CHIEF EDO JACK EDOAMA 3. CHIEF ESSIEN USIP 4. CHIEF EFFIONG BASSEY EKPO (For Themselves And On Behalf Of The Then Village Council Of Ikot Akpa Ndua 1 And Ikot Akpa Ndua 11, Ibesikpo, Asutan L.G.A.) RESPONDENT(S)

RATIO

HOW TO DISTINGUISH WHETHER A GROUND OF APPEAL IS A GROUND OF LAW OR OF MIXED LAW AND FACT

In deciding the Respondents’ preliminary objection, I think that both counsel have correctly stated the position of the Courts in the applicable rules to determine whether a ground of appeal is a ground of law or of mixed law and fact. The dividing line remains whether the ground reveals a misunderstanding of the law or a misapplication of the law to the facts already proved or admitted, in which case it would be a question of law. OR whether the ground require questioning the evaluation of facts by the lower Court before the application of the law, in which case the ground of appeal would amount to question of mixed law and fact. See ONIFADE VS. OLAYIWOLA (1990) 7 NWLR (pt. 161) 130 SC; OLANREWAJU VS. OGUNLEYE (1997) 2 NWLR (pt. 485) 12 SC; SHANU VS. AFRIBANK (NIG) PLC (2000) 10 – 11 SC 1; MAIGORO VS. GARBA (2001) 2 WRN 1 at 4 SC;IBIYEYE VS. FOJULE (2006) 3 NWLR (pt. 968) 640 SC. PER MOJEED ADEKUNLE OWOADE, J.C.A.

WHETHER THE MERE DESCRIPTION OF A GROUND OF APPEAL AS OF LAW OR FACT WOULD NOT RENDER IT AS SUCH

Indeed, the mere fact that an Appellant describes a ground of appeal as of law would not necessarily render it so. It is not the label given to a particular ground of appeal by counsel that determines whether it is of law, of mixed law and fact or of fact simpliciter. Although, the line of distinction between a ground of law and mixed law and fact is very thin, that does not convert a ground of mixed law and fact to one of law simply because counsel labels it as such. SeeIN RE: OTUEDON (1995) 4 NWLR (pt. 392) 655 SC; EJIWUNMI VS. COSTAIN (W.A.) PLC (1998) 12 NWLR (pt. 576) 149; OBATOYINBO VS. OSHATOBA (1996) 5 NWLR (pt. 450) 531 SC; YUSUF VS. U. B. A. LTD. (1996) 6 NWLR (pt. 457) 632 SC; OKEKE VS. PETMAG (NIG.) LTD. (2005) 4 NWLR (pt. 915) 245. PER MOJEED ADEKUNLE OWOADE, J.C.A.

WHAT MUST BE CONSIDERED IN DETERMINING WHETHER OR NOT A PLAINTIFF HAS LOCUS STANDI

In deciding Appellant’s issue “a”, what I consider most curious perhaps interesting too is the fact that, even the Appellant appreciates the trite position of the law that in determining locus standi, the Court ought to concern itself only with the Plaintiff’s writ of summons and statement of claim. See BOLAJI VS. BAMGBOSE (1986) 4 NWLR (Pt. 37) 632; AIWA RAMGBO VS. UBN; MOMOH VS. OLOTU (1970) 1 ALL NLR 121. PER MOJEED ADEKUNLE OWOADE, J.C.A.

MEANING OF LOCUS STANDI; WHEN CAN A PERSON BE SAID TO HAVE LOCUS STANDI

Locus standi or standing to sue is the legal right of a party to an action to be heard in litigation before a Court of law or Tribunal. A person is said to have locus standi if he has shown sufficient interest in the action and that his civil rights and obligations have been or are in danger of being infringed. See INAKOJU VS. ADELEKE (2007) 4 NWLR (Pt. 1025) 423 SC; AKANNI VS. ODEJIDE (2004) 9 NWLR (Pt. 879) 575. PER MOJEED ADEKUNLE OWOADE, J.C.A.

WHO CAN RAISE THE ISSUE OF NON-JOINDER OF A PARTY TO A SUIT

… a party to a suit does not have the locus standi to raise the issue of non-joinder of other parties, since the issue of non-joinder of parties can only be raised by the parties themselves who were left out of the action if indeed they have interest in the matter. See MIL. GOV. ONDO STATE VS. AJAYI (1998) 3 NWLR (Pt. 540) 27. PER MOJEED ADEKUNLE OWOADE, J.C.A.

EFFECT OF NON-JOINDER AND MISJOINDER ON THE JURISDICTION OF THE COURT

Indeed, as rightly noted by the learned trial Judge, where as in the instant case there are proper or necessary parties in an action but in their midst, there exist those ought not to be joined or others ought to be joined but not joined, the Court is not divested of jurisdiction. The raison d’etre is that such is a case of misjoinder or non-joinder of parties which the Court can, on application or suo motu strike out or add. See CROWN FLOUR MILLS LTD. VS. OLOKUN (2008) 4 NWLR (Pt. 1077) 254; OLUWANIYI VS. ADEWUMI (2008) 13 NWLR (Pt. 1104) 387. PER MOJEED ADEKUNLE OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision Ruling of the High Court of Akwa Ibom State Uyo Judicial Division delivered by Hon. Justice Joy I. Unwana on 30th October, 2012.

The Respondents as Plaintiffs brought this action by a writ of summons accompanied with Statement of Claim on 19th November, 2009.

The Respondents’ claim as shown in paragraph 23 of the Amended Statement of claim is:
“23. The Plaintiffs therefore claim from the Defendant the sum of N1,845,465.00 being sums due to them and the entire village, interest on the said sum at the current Bank rate being 21% per month from October, 2004 till date and thereafter at the rate of 10% from date of judgment until the entire sum is finally liquidated.”

Pleadings were filed and exchanged.
On 20th January, 2012, the Appellant as Defendant/Applicant filed a motion on notice praying for an order striking out the Plaintiffs/Respondents statement on the ground that:
a) The Plaintiffs have no locus standi to maintain the suit and robs the Court of jurisdiction to entertain the same, and
b) The

Defendant acted on behalf of a known and disclosed principal and so incurs no liability.

Affidavits and written addresses were filed and exchanged. The learned trial Judge gave a considered ruling and dismissed the application of the Appellant/Defendant/Applicant.

In doing so, the learned trial Judge first held at page 153 – 154 of record that:
“The Plaintiffs instituted this suit “for themselves and on behalf of the then village council of Ikot Akpan Ndua village now recognized as Ikot Akpan Ndua 1 and Ikot Akpan Ndua 11, Ibesikpo Asutan Local Government Area. The claim of the Plaintiffs against the Defendant is for the sum of N1,845,465.00 said to be compensation paid by the Akwa Ibom State Government for shrines/deities, sacred grooves and community interest which sum the Plaintiffs alleged that the Defendant received on their behalf but failed to remit to them. The Plaintiffs averred in paragraphs 1 – 3 of the statement of claim that, though Ikot Akpan Ndua village had been split into Ikot Akpan Ndua 1 and Ikot Akpan Ndua 11, as such, one village council, headed by the 1st Plaintiff shall administer the two villages as such,

they remain the custodians of the culture and customs of the two villages. If, as claimed by the Plaintiffs, the Akwa Ibom State Government did, as a matter of fact give the Defendant the sum of N1,845,465.00 for the said community interest, the Plaintiffs as representatives of the community would have a civil right to protect where the Defendant failed to remit same to them. The Plaintiffs have by these averments set out their locus standi in this action. The issues raised by the Defendant, disputing the Plaintiffs claim are issues which would be determined at trial. Whether compensation is paid for duties (sic) deities etc, under the Land Use Act, whether the Plaintiffs are still administering the two villages and thus entitled to the sum claimed are all issues for trial. In the circumstance therefore, I hold that the Plaintiffs have the locus standi to maintain this action. Issue (a) is accordingly resolved in favour of the Plaintiffs/Respondents.”

And, secondly at pages 154 – 155 of records that:
“The case of the Plaintiffs is that, Ikot Akpan Ndua village whom they represent, was one of the beneficiaries of the compensation, and by the

Defendant/Applicant’s submissions, being none of the beneficiaries would be entitled to maintain this suit against him. Further, the principle that a person who acts on behalf of a disclosed principal incurs no liability is not absolute for where it is shown that the agent acted outside the scope of his authority, he will be personally liable. The law is now well settled that, an action cannot be rendered incompetent for failure to join all necessary parties and that the Court may determine the issues in dispute so far as regards the right and interest of the parties actually before it. See the case of R. C. A. P. (NIG.) LTD. VS. GOV. OYO STATE (2009) ALL FWLR (pt. 458) 326 at 337 para D – F. This Court is thus entitled to determine the issues in dispute between the Plaintiffs and the Defendant as far as it affects their rights and interest. Issue (b) is accordingly resolved in favour of the Plaintiffs/Respondents.”

Dissatisfied with this Ruling, the Appellant filed a Notice of Appeal containing two grounds of appeal in this Court on 6th November, 2012.

The relevant briefs of Argument are as follows:-

Appellant‘s brief of

Argument which was first filed on 25th January, 2013 and deemed filed on 8th October, 2013 was refiled by order of Court on 21st January, 2020. It is settled by Emms Ekongson (the Appellant himself).
2. Respondents’ brief of Argument was filed on 7th November, 2013. It is settled by Edidiong Akpanuwa, Esq.
3. Appellant’s Reply brief was filed on 22nd October, 2014 but re-filed by order of Court on 21st January, 2020. It is settled by Emms Ekongson (the Appellant himself).

THE PRELIMINARY OBJECTION
Learned counsel for the Respondent raised preliminary objection to the competence of this appeal on the ground that, the two grounds of appeal contained in the notice of appeal are grounds of mixed law and facts which ought to have been brought with leave of Court. He refers to the provision of Section 241 and 242 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). And, also to the cases of U. B. N. PLC VS. SOGUNRO (2006) 16 NWLR (pt. 1006) 504 at 519 – 520; ANOGHALU VS. ORAELOSI (1999) 13 NWLR (pt. 364) 297; AKINSANYA VS. U. B. A. LTD. (1986) 4 NWLR (pt. 35) 273.

He submitted that, in determining whether

a ground of appeal is that of mixed law and facts, the Court will have to examine clearly the ground and its particulars.

Respondents’ counsel referred on this, to the cases of UKO VS. EKPENYONG (2006) 5 NWLR (pt. 972) 70 at 92; NWABUEZE VS. NIPOST (2006) 8 NWLR (pt. 983) 480 at 511 – 512; MADUABUCHUKWU VS. MADUABUCHUKWU (2006) 10 NWLR (pt. 989) 475 at 495; IBIYEYE VS. FOJULE (2006) 3 NWLR (pt. 968) 640 at 654.

He argued that Ground ‘b’ is a ground of mixed law and facts. That the ground is challenging the discretion of the lower Court in applying the law based on disputed facts. That, it is the case of the Respondents that the Appellant did not act bona fide on behalf of the Ministry of Lands in disbursing compensation money due to them, whereas Ground ‘b’ is alleging that the Appellant acted bona fide on behalf of the Ministry of Lands in disbursing compensation to the beneficiaries. The lower Court upon consideration of the statement of claim exercised its discretion in favour of the Respondents to the effect that they have disclosed sufficient interest to confer them with the locus standi to institute Suit No.

HU/479/2009.

Respondents’ counsel referred to the case of NASIRU VS. BINDAWA (2006) 1 NWLR (pt. 961) 355 at 359 where the Court held thus:
“As the principles and manner in which a Judge ought to exercise his discretion in a particular case is a question of fact depending on the facts and circumstances of each case, whether or not he exercises it rightly in any particular case, is at least a question of mixed law and fact.”

Respondents’ counsel further referred to the particulars to ground (b) of appeal, particularly particular No. 1 where the Appellant is clearly disputing the facts as presented in the statement of claim of the Respondents. He submitted that, having disputed the facts in the statement of claim, the particular and the ground cannot be of law.

On ground ‘a’, learned counsel for the Respondents referred to particulars No. iv in Ground “a” of the grounds of appeal and submitted that if the Appellant is suggesting that there has never existed a village known as Ikot Akpan Ndua, then the Appellant is clearly disputing facts in the Statement of claim of the Respondents in the lower Court. He

submitted that based on such assertion, Ground “a” is also a ground of mixed law and facts and should be accordingly struck out.

Finally, on the preliminary objection, Respondents’ counsel submitted that particulars No. (III) and (IV) of Ground ‘a’ of the ground of appeal are not connected in any way to the ground of appeal. He submitted, relying on the case of EZOMO VS. N. N. B. PLC (2006) 14 NWLR (pt. 1000) 624 at 642 that a ground of appeal and its particulars must be compatible. He urged us to strike out the Grounds of Appeal and dismiss the appeal.

The Appellant responded to the preliminary objection in his Reply brief. He submitted that the grounds of appeal as shown on pages 157 and 158 of the record are grounds of law and so, no leave was required to file the same. That in the two (2) grounds aforesaid, the Appellant is complaining, in the main, that the lower Court, misunderstood or misapplied the law on locus standi and Agency in relation to the case. These complaints, he said are issues of law exclusively.

He submitted that, when a party objects to a ground of appeal for the alleged reason that the same sets up a

question of fact or mixed law and fact, and that, leave had not been sought and obtained to raise the same, the Court must resolve that objection by focusing on, and dissecting the nature of the ground complained of. That, in that respect, the Court must not focus on what the objector may have misconceived to be the question raised in the ground of appeal.

He submitted that, it is settled from the cases that where, as in the instant appeal, the Appellant is challenging or complaining about the lower Court’s appreciation or application of a settled principle of law, the complaint is one of law alone. The same required no leave. He referred to the cases of NWADIKE & ORS. VS. IBEKWE (1987) NSCC 18 (pt. 18) 1220; ABIDOYE VS. ALAWODE (2001) 6 NWLR (pt. 709) 463; EZEOBI VS. ABANG (2000) 9 NWLR (pt. 691) 516; COKER VS. UBA PLC (1997) 2 NWLR (pt. 490) 641.

misunderstanding of the law or a misapplication of the law to the facts already proved or admitted, in which case it would be a question of law. OR whether the ground require questioning the evaluation of facts by the lower Court before the application of the law, in which case the ground of appeal would amount to question of mixed law and fact.
See ONIFADE VS. OLAYIWOLA (1990) 7 NWLR (pt. 161) 130 SC; OLANREWAJU VS. OGUNLEYE (1997) 2 NWLR (pt. 485) 12 SC; SHANU VS. AFRIBANK (NIG) PLC (2000) 10 – 11 SC 1; MAIGORO VS. GARBA (2001) 2 WRN 1 at 4 SC;IBIYEYE VS. FOJULE (2006) 3 NWLR (pt. 968) 640 SC.

For ease of reference, I reproduce the Appellant’s grounds of appeal in this case together with particulars as contained on pages 157 – 158 of the record:
GROUNDS OF APPEAL
a) The lower Court erred in law when it held that the Plaintiffs/Respondents – who are suing for “the entire people of Ikot Akpan Ndua as it then was” – have the locus standi to maintain this suit, when they have not shown by their Statement of Claim that their personal interest will immediately be affected by the Defendant’s

alleged omission over and above the interest of other members of their village.
PARTICUALRS OF ERROR
i. In their Statement of Claim the Plaintiffs/Respondents are seeking an alleged compensation due to “the entire people of Ikot Akpan Ndua as it then was…” (See paragraph 2 of Statement of Claim).
ii. Throughout their pleading, the Plaintiffs/Respondents have not shown how the alleged non-payment of compensation for “shrines/deities, sacred groove and community interest” to their village ‘as it then was” breached their civil rights and or threatens their personal interest over and above the interest of other members of their community.
iii. In their Statement of Claim, the Plaintiffs/Respondents are seeking compensation for “shrines/deities, sacred grooves, community interest”. These items – not being personal property – are not justiciable items confer the standi to sue under the Land Use Act and
iv. In Akwa Ibom State there is no village known as and called Ikot Akpan Ndua. The Plaintiffs/Respondents cannot, in law, maintain this suit on behalf of a non-legal,

non-existing entity.
b) The lower Court was in error when it ruled that the Defendant/Appellant who had acted bona fide on behalf of a known and disclosed principal can be sued alone.
PARTICUALRS OF ERROR
i. The Government of Akwa Ibom State had appointed the Defendant/Appellant as “the Authorized Agent” for the purpose of paying compensation to the individual holders or occupiers of the sites which it had acquired for a public purpose.
ii. All the affected individuals were duly paid their compensation. These individual holders and the Government of Akwa Ibom State are well known and are well disclosed to the Plaintiffs/Respondents, and
iii. The Plaintiffs/Respondents cannot validly maintain this action against the Defendant/Appellant alone without joining as Defendants the Government of Akwa Ibom State and/or the individual holders who received the compensation complained of.

In applying the laid down rule of critically examining the ground of appeal together with its particulars, I do not see how particular (iii) and (iv) do make Ground ‘a’ of the grounds of appeal, a ground of law simpliciter. In the

same vein, Ground ’b’ itself and its particulars 1 and 2 questions unproven and unadmitted facts and are therefore grounds of mixed law and facts.

In the instant case, I do agree with the learned counsel for the Respondents that a careful scrutiny of the Appellant’s Grounds ‘a’ and ‘b’ together with their particulars reveal that the grounds question the misapplication

of law to facts that were never proven or admitted and clearly grounds of mixed law and fact.
The Respondents preliminary objection has merit and it is accordingly upheld.

THE MAIN APPEAL
The Appellant nominated two (2) issues for the determination of the appeal. They are:
a) Whether the Respondents – who are suing for the “entire people of Ikot Akpan Ndua as it then was” – have the locus standi to maintain this suit when they have not shown by their Statement of Claim (at pages 3 – 7 of the Record) that their personal interest will immediately be affected by the Appellant’s alleged omission, over and above the interest of other members of their village? Put otherwise: Whether, upon a calm and quiet perusal of the Respondents’ Statement of Claim, they have shown how the alleged non-payment of compensation for “shrines/deities, sacred groove and community interest” of “the entire village” breaches their civil rights and/or threatens or injures their personal interest(s)?, and
b) Whether the Appellant, who had acted bona fide on behalf of a known and disclosed principal can

be sued alone (without joining his said principal as co-defendant)?

Learned counsel for the Respondent adopted the issue raised by the Appellant.

On issue (a), Appellant submitted that, it is evident from case law that to have the right to sue, the Plaintiff must disclose sufficient interest by his pleading. He must show that “his personal interest will immediately be affected by the action or that he had sustained injury to himself and which interest is over and above the interest of the general public”. He added that, to determine whether a Claimant has a standi, regard must be had to his statement of claim. He referred to the cases of THOMAS VS. OLUFOSOYE (1986) 1 NWLR (pt. 18) 669 at 685; FAWEHINMI VS. AKILU (1987) 4 NWLR (pt. 67) 797; OLAGUNJU VS. YAHAYA (1998) 3 NWLR (pt. 642) 501; OKAFOR VS. ASOH (1999) 3 NWLR (pt. 593) 35 at 52 – 57; AYOOLA VS. BARUWA (1999) 11 NWLR (pt. 628) 595; ELENDU VS. EKWOABA (1995) 3 NWLR (pt. 306) 704.

Appellant submitted that throughout their pleading, the Respondents have not shown how the alleged non-payment of compensation for ‘shrines/deities, sacred groove and community interest

to their village, breaches their civil rights and/or threaten or injure their community. That, it is not in dispute that neither their persons nor their personal properties – land, crops or abode – were acquired or, otherwise affected by the acquisition.

Appellant submitted further that the Akwa Ibom State Law governing revocation of rights of occupancy and compensation contained in part V of the Land Use Act Cap. 202 Laws of Akwa Ibom State – S. 29 (4) (a) (b) and (c ) gives compensation only for land, buildings and crops. That the Respondents’ head of claim are not justiciable interests and are not recognized compensable entities.

Appellant submitted that the Respondents must go further to show that they had a compensable right in the parcels acquired and state how such a compensable right arise.

He submitted that, in the instant case, the acquired parcels of land were not communal land and that compensation in respect of land held or occupied by individuals is paid to the holder or occupier directly.

He submitted that there is no village known as Ikot Ndua village as the Traditional Rulers (List of Recognized Villages and

Clans) Order, 2006 has created Ikot Akpan Ndua 1 and Ikot Akpan Ndua 11 and that all the parcels acquired situate at Ikot Akpan Ndua 11 outside the Respondents village.

Curiously, Appellant further submitted that, in determining whether a Plaintiff has locus standi, no concern is, had about the merit or demerit of his complaint, at this stage, it is only his statement of claim that is both the barometer and the compass in this regard. He referred to the cases of ADEFULU VS. OYESILE (1989) 5 NWLR (pt. 122) 377; ODENEYE VS. EFUNUGA (1990) 7 NWLR (pt. 164) 618 urged us to hold that the Plaintiffs/Respondents are busy bodies and meddlesome interlopers and resolve issue ‘a’ in favour of the Appellant.

It is the contention of the Respondents that they have the locus standi to institute and/or maintain suit No. HU/479/2009, the subject matter of this interlocutory appeal. The Respondents contend further that the lower Court was right in dismissing the application of the Appellant.

The Respondents, said counsel instituted Suit No. HU/479/2009 in a representative capacity thus:

“For themselves and on behalf of the then village

council of Ikot Akpan Ndua village now recognized as Ikot Akpan Ndua village 1 and Ikot Akpan Ndua 11, Ibesikpo Asutan Local Government Area.”

That it is the case of the Respondents in Suit No. HU/479/2009 that the Government of Akwa Ibom State, through the Ministry of Lands commenced the process of acquiring vast expanse of land belonging to individuals in the village as well as the shrines and sacred grooves belonging to the Respondents.

He submitted that, in paragraph 4 of the statement of claim of the Respondents at page 5 of the record of appeal, the Respondents averred thus:
“The Plaintiffs state that, following the development as per paragraph 13 above, a meeting was held at the instance of the Government of Akwa Ibom State by the then Honourable Commissioner for Lands and Housing. In the said meeting, it was resolved that the Defendant be allowed to collect cheque and pay compensation to land owners within the acquired area in the village. The acquired land also included interest of the community comprising of shrines/deities, sacred grooves and community interest which were clearly spelt out in the schedule of payment and

which amounted to the total sum of N1,845,465.00 (One million, eight hundred and forty-five thousand, four hundred and sixty-five naira).”

Also, that in paragraph 17 of the statement of claim of the Respondents and particularly on page 6 of the record of proceedings, the Respondents averred that upon receipt of the compensation money from the Ministry of Lands, the Appellant failed to remit the portion due to them. The Respondents stated in the said paragraph 17 of their statement of claim thus:
“…the Defendant completely departed from the schedule given to him by the Ministry and failed/refused to pay compensation due to the community to the 1st Plaintiff… The Plaintiffs shall show that out of the total compensation sum of N11,389,785.00 (Eleven million, three hundred and eighty-nine thousand, seven hundred and eighty-five naira) drawn in the name of the Defendant for payment of compensation due from the acquired land, the sum of N1,845,465.00 (One million, eight hundred and forty-five thousand, four hundred and sixty-five naira) was due to the Plaintiffs.”

Learned counsel for the Respondents reiterated the

trite position of the law that the Court only considers the writ of summons and statement of claim in determining issue of locus standi of the Plaintiff. He referred to the cases of ADETONO VS. ZENITH INT’L BANK PLC (2011) 18 NWLR (pt. 1279) 627 at 643 – 644; SEISMOGRAPH SERVICES (NIG.) LTD. VS. OSHIE (2009) 16 NWLR (pt. 1168) 158; ADESANOYE VS. ADEWOLE (2006) 14 NWLR (pt. 1000) 242 at 274; DISU VS. AJILOWURA (2006) 14 NWLR (pt. 1000) 783 at 814. He referred particularly to paragraphs 1-3, 7, 14-17 and 19 of the statement of claim and submitted that it is clear that the case of the Respondents in Suit No. HU/479/2009, is that the Appellant having received the compensation money due to them from the Ministry of Lands had a duty to have remitted same to them.

On the contention by the Appellant that the Respondents have never been his clients and that neither “themselves” nor their personal land or crops have been affected by the acquisition; Respondents’ counsel referred again to paragraph 14 of the statement of claim where they pleaded:
“… In the said meeting, it was resolved that the Defendant be allowed to collect the

cheque and pay compensation to land owners within the acquired area in the village. The acquired area also included interest of the community…”

Again, on the submission by the Appellant that the Respondents by their pleading have not “shown how the alleged non-payment of compensation for shrines/deities sacred groove and community interests breaches their civil rights”… Respondents reminded us that Suit No. HU/479/2009 was instituted in a representative capacity, and therefore the Respondents need not show by their statement of claim how the non-payment breaches their “personal interests”

Learned counsel for the Respondents urged us to hold that from the pleadings, the Respondents’ case is justiciable, and that shrines, deities, sacred grooves and community interest are part of the acquired land. He referred to the case W.C.C. LTD. VS. BATALHA (2006) 9 NWLR (Pt. 986) 595 @ 619.

concern itself only with the Plaintiff’s writ of summons and statement of claim. See BOLAJI VS. BAMGBOSE (1986) 4 NWLR (Pt. 37) 632; AIWA RAMGBO VS. UBN; MOMOH VS. OLOTU (1970) 1 ALL NLR 121.

The Respondents sued in a representative capacity and alleged that they were present in a meeting with the Appellant and officials of the Ministry of Lands of the State to collect their compensation money on acquired land. That the said compensation money being withheld by the Appellant includes compensation for their shrines, deities and community interest on the land. Clearly, the Respondents as Plaintiffs have established sufficient interest to maintain the action against the Appellant.

The various issues being raised by the Appellant as for example whether compensation is payable on shrines and deities are matters not only for the defence, but matters to be thrashed out at trial. The issue of locus standi is not concerned with the success or failure of the plaintiff’s statement of claim but whether the plaintiffs have shown sufficient interest to sue.

Also, the suit was brought in a representative capacity, the Appellant was thus,

misguided to imagine that they needed to show any form of personal interest over and above the common interest of their community to be entitled to sue the Appellant.

Also, in the instant case, the Appellant should be reminded that it is a well-established principle of law that a defendant who challenges in limine the locus standi of a plaintiff is deemed to accept as correct all the averments contained in the plaintiff’s statement of claim. See ADESOKAN VS. ADEGOROLU (1997) 3 NWLR (Pt. 493) 261 SC. Put in another way, the Appellant in this case cannot be heard to challenge averments in the statement of claim of the Plaintiffs Respondents having raised the issue of locus standi in limine.

I agree with the learned trial Judge of

the Court below and the learned counsel for the Respondents in this appeal that the Plaintiffs/Respondents have demonstrated sufficient interest to maintain the action against the Appellant.
Issue “a” is accordingly resolved against the Appellant.

On issue “b’, the Appellant submitted that, a person who acted in good faith as agent of a disclosed principal cannot be sued alone without his principal as co-defendant, for he himself incurs no liability in the circumstance. On this, he referred to the cases of OKAFOR VS. EZENWA (2002) 13 NWLR (Pt.784) 319; UBA VS. EDET (1993) 4 NWLR (Pt. 287) 288 among other cases.

He referred to the following facts in his affidavit evidence:
(i) That by a power of attorney at pages 71-73 of the record, the beneficial owners of the acquired parcels appointed the Appellant to collect and pay their compensation to them. (See paragraph 14 of the Appellant’s affidavit at page 68 thereof);
(ii) That by a unanimous decision and resolution at a meeting attended by Government’s officials led by the Hon. Commissioner for Lands, the Respondents, the holders of the parcels acquired

and Government named and appointed the Appellant “the Authorized Agent” for the purpose of the disbursement of the compensation aforesaid. (See the Appellant’s affidavit, paragraph 15 at page 69);
(iii) That relying and acting on the power of attorney and resolution aforesaid, Government gave the Appellant its cheque of N11,389,785.00 to disburse as compensation in its behalf to the bona fide holders or occupiers of the acquired parcels; and
(iv) That, in accordance with Government’s instruction as evinced on the resolution aforesaid, the Appellant paid compensation directly to the benefitting Claimants thereof who acknowledged the receipt thereof as shown on pages 109-122 of the record.

He reasoned that, none of the above facts had been specifically denied. He submitted that the lower Court was in error to assume jurisdiction without the Appellant’s principal(s) as co-defendants.
He urged us to resolve issue “b” in the Appellant’s favour.

Learned counsel for the Respondents submitted that issue “b” which is based on ground “b” of the grounds of appeal does not

flow from the decision of the lower Court. That there is nowhere in the ruling of the lower Court, where the Court held as contended by the Appellant that “the Defendant/Appellant who had acted bona fide on behalf of a known and disclosed principal can be sued alone”.

He submitted that, ground 2 of appeal is incompetent. He referred to the case of C.P.C. VS. I.N.E.C. (2011) 18 NWLR (Pt. 1279) 493 @ 532-533 to say that any ground of appeal which does not arise from the ratio of the judgment appealed against is incompetent.

In any event, said counsel, the issue as formulated by the Appellant that a person who acted in good faith as agent of a disclosed principal cannot be sued alone without joining his principal, is not applicable in this case and particularly as the Appellant did not act in good faith on behalf of the Ministry of Lands and the Respondents.
He urged us to dismiss the appeal.

In deciding issue “b” I noticed that the learned trial Judge in the context of his consideration of the jurisdiction to hear the case said inter alia that:
“Further, the principle that a person who acts on behalf of a

disclosed principal incurs no liability is not absolute where it is shown that the agent acted outside the scope of his authority, he will be liable. The law is now settled that an action cannot be rendered incompetent for failure to join all necessary parties and that the Court may determine the issues in dispute so far regards the right and interest of the parties actually before it…”

As I said earlier, the above holding by the learned trial Judge was in the context of “jurisdiction”. That, to my mind, was a very sound way from the learned trial Judge to say to the Appellant that whether or not you acted bona fide can only be determined at trial and that the non-joinder, if any, of a party cannot affect the assumption of jurisdiction of the Court.

Clearly, the Appellant formulated ground “b” and issue “b” out of the context of the ratio decidendi pronounced by the Court below. For this reason, I adopt my resolution of issue “a” to the determination of issue “b”. This is to the extent of the confirmation of my earlier view that, only the statement of claim will be considered in the

determination of locus standi and that when as in this case, the issue of jurisdiction was raised in limine by the Appellant, his own defence to the action cannot be considered at that stage.

Relatedly, a party to a suit does not have the locus standi to raise the issue of non-joinder of other parties, since the issue of non-joinder of parties can only be raised by the parties themselves who were left out of the action if indeed they have interest in the matter. See MIL. GOV. ONDO STATE VS. AJAYI (1998) 3 NWLR (Pt. 540) 27.

In the instant case, even if Ground “b” of the

Appellant’s ground of appeal is well constituted, it at best raises an issue of non-joinder which does not rob the Court of jurisdiction.
Issue “b” is also resolved against the Appellant.

Having resolved the two issues in this appeal against the Appellant, the appeal lacks merit and ought to be dismissed. However, as I had stated earlier in the determination of the Respondents’ preliminary objection that the Appellant’s two grounds of appeal are grounds of mixed law and fact for which no leave was sought and/or obtained, the Appellant’s Notice and grounds of appeal are incompetent and accordingly struck out.

This appeal is incompetent and it is struck out.
N50,000.00 costs is awarded to the Respondents.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance, in draft, the judgment just delivered by my learned brother, Mojeed Adekunle Owoade, J.C.A. and I agree that this appeal should be struck out. For the more elaborate reasons contained in the judgment of my learned brother, I too strike out the appeal.

I abide by all the other orders in the lead judgment including the order as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I read a draft of the leading judgment delivered by my learned brother, Mojeed A. Owoade, J.C.A., I agree with his reasoning and conclusion that, since the appellant’s two grounds of appeal are grounds of mixed law and fact for which no leave was sought and obtained, same are incompetent and liable to be struck out. The appeal being incompetent, it is hereby struck out.
I abide by the consequential order as to costs.

Appearances:

Emms Ekongson, Esq. For Appellant(s)

Edidiong Akpanuwa, Esq. For Respondent(s)