NYIANAKA v. ANYIKA (2021)

NYIANAKA v. ANYIKA

(2021)LCN/15497(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, February 03, 2021

CA/A/CV/661/2016

RAT IO

JURISDICTION: WHETHER A PRELIMINARY OBJECTION ON THE JURISDICTION OF A COURT MAY BE RAISED BEFORE FILING A STATEMENT OF DEFENCE

I am of the firm view therefore that the respondent was in order at the trial Court when she filed her preliminary objection on the jurisdiction of the Court without first fling her statement of defence.”
In the same case, Mahmud, JSC in the case of ELABANJO VS. DAWODU (SUPRA) held that:
“Objection to jurisdiction could be taken on the basis of the statement of claim as in Izenkwe v. Nnadozie (1953) 14 WACA 361 at 363; Adeyemi v. Opeyori (1976) 9 – 10 SC 31 and Kasikwu Farms Ltd V. Attorney General of Bendel State (1986) 1 NWLR (Pt. 19) 695. It could be taken on the evidence received as was the case in Barclays Bank of Nigeria Ltd v. Central Bank of Nigeria (1976) 1 All NLR 409; or by a motion on notice supported by affidavit giving the facts upon which reliance is placed as in National Bank (Nigeria) Ltd v. Shoyoye (1977) 5 SC 181 at 194. In fact, it could be taken even on the face of the writ of summons before fling statement of claim. See Attorney General, Kwara State v. Olawale (1993) 1 NWLR (Pt 272) 645 at 674 – 675 and the recent decision in Arjay Ltd v. Airline Management Support Ltd (2003) 7 NWLR (Pt. 820) 577 at 601 where Onu, JSC was confronted with the issue of raising preliminary objection on jurisdiction before a Federal High Court before filing a statement of claim as required by Order xxvii of the Federal High Court Rules, Cap: 134, Laws of the Federation of Nigeria, 1990, had this to say –
“I agree with the appellants to the effect that the preliminary objection in question challenged the jurisdiction of the trial Court to entertain the action. This is not a demurrer application in which case there should be a statement of claim in place, the facts of which the appellant would be required to admit before bringing their objection. I agree with the appellant’s submission that there is a difference between an objection to the jurisdiction and a demurrer. I also agree with them that an objection to the jurisdiction of the Court can be raised at any time, even when there are no pleadings fled and that a party raising such an objection need not bring application under any rule of Court and that it can be brought under the inherent jurisdiction of the Court. Thus, for this reason, once the objection to the jurisdiction of the Court is raised, the Court has inherent power to consider the application even if the only process of Court that has been fled is the writ of summons and affidavits in support of an interlocutory application, as in the case in hand.”
Similarly, in the case of OLUWANIYI VS. ADEWUMI (2008) 13 NWLR (PT. 1104) 387, it was held that:
“To start with, a lot of the authorities cited above are on demurrer, which has absolutely nothing to do with this case. The issue of jurisdiction is not a matter for demurrer proceedings – see NDIC V. CBN (2002) 7 NWLR (pt. 766) 272 SC & Arjay Ltd, V. A.M.S. Ltd (2003) 7 NWLR (pt. 820) 577 SC & Usman V. Baba (2005) 5 NWLR (pt. 917) 113, wherein it was held that –
“An Application or preliminary objection, as in this case, seeking an order to strike out a suit for being incompetent on the ground of absence of jurisdiction is not a demurrer and therefore can be filed and taken before the Defendant files his Statement of Defence or without the Defendant fling a Statement of Defence… It is crystal clear that jurisdiction and demurrer are different.”
In the case of AJAYI VS. ADEBIYI & ORS (2012) LPELR – 7811 (SC), the apex Court held that:

EVIDENCE: COMPETENCE OF A WITNESS TO SWEAR TO AN AFFIDAVIT

Additionally, the Appellant argued that the Respondent did not depose to an affidavit as to his legal right over the property but had the mistress of the deceased depose to it. However, the law is settled that any competent witness is qualified to swear to an affidavit as to facts within his knowledge or on information as stipulated in the Evidence Act. PER MOHAMMED BABA IDRIS, J.C.A.

DUTY OF COURT: RELEVANCE OF THE RESEALING OF LETTERS OF ADMINISTRATION

I will state again that the resealing of letters of administration is done so the High Court of one State can be vested with the power to act upon the estate of the deceased which was granted in another State. It has the effect as if it is a fresh grant in respect of the estate and administrators or executors as such they become entitled to exercise authority on properties in the new jurisdiction.
The law above was upheld in FEDERAL ADMINISTRATOR -GENERAL VS. ARIGBABU (1964) NMLR 135. Similarly, in LIJADU VS. FRANKLIN (1965) LPELR – 25214 (SC), the Supreme Court was faced with the question of whether probate admitted in the High Court of Western Nigeria must be resealed in the High Court of Lagos it held that:
“…A grant of administration or other authority to represent a deceased person under the law of a foreign country” (i.e. any country which is not England) has no operation in England. Its effect was explained by Scrutton, J., in Haas v. Atlas Assurance Company Limited (19131 2 K.B. 209, in these terms: – An executor could not assert or rely on his right in any Court without showing that he had previously established it in the Probate Division either by suit, by probate in solemn form, or in the ordinary form. The usual way in which he proved it was by the production of a copy of the will certified under the seal of the Court. That state of the law was described by Jervis in Johnson v. Warwick 17 C.B. 516, as being that the Court had not the legal optics through which to look at the will until the will was proved in the form provided by English law… The passage cited from Haas v. Atlas Assurance Company Limited refers to some of the methods by which an executor may establish his right. In addition, probate granted in Northern Ireland, Scotland, or specified parts of the Commonwealth will be recognized by the English Coutts if the grant has been resealed in England;

See Halsbury’s Laws of England, 3rd edition Volume 16 pages 256 – 263. In Nigeria the Probates (Resealing) Act, Cap, 161, makes similar provision, and enables probate granted in any part of the Commonwealth to be resealed in the High Court of Lagos.”
See also OGBUEHI VS. NNAJI & ORS (2015) LPELR – 25992 (CA).
From the cases above, it is indeed the law as rightly stated by the trial judge that resealing of the letters of administration is a requirement in order for the Court to have jurisdiction to hear the matter. This essentially means that when letters of administration granted in one State is sought to be used in another state it must be resealed in order to give jurisdiction to the High Court of the State where the property is situate. PER MOHAMMED BABA IDRIS, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

JACOB JEIYOL NYIANAKA (Suing Under The Administrator Of The Estate Of Mr. Issac Akpena Nyianaka) APPELANT(S)

And

MICHAEL ANYIKA RESPONDENT(S)

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Appellant herein, appealed against the ruling of the High Court of the Federal Capital Territory, Abuja in Suit Nov FCT/HC/CV/25/2015 delivered on the 9th of day of November, 2016 by Honorable Justice O. A. Musa wherein the Court upheld the preliminary objection of the Respondent as Defendant and consequentially dismissed the suit of the Appellant as plaintiff on the ground that the Letters of Administration obtained from the High Court of Benue State ought to be sealed in the FCT High Court before the commencement of the action.

The facts of the case leading to this appeal as adduced from the pleadings at the trial Court are to the effect that the Appellant commenced this suit vide a writ of summons on the 28th day of October, 2015 seeking declarative, injunctive reliefs, damages and possession and control over the property known as No. 138, 3rd Avenue, Gwarinpa II Estate Abuja. The reliefs sought by the Appellant were:
i. A DECLARATION that the purported sale of house 138 3rd Avenue, Gwarinpa II Estate, Abuja to the Defendant without lawful consent and authority of the administrator is nullity.
ii. A DECLARATION that the property, house No, 138 Avenue Gwarinpa, II Estate Abuja forms part of the estate of the late Issac Nyianaka.
iii. AN ORDER of this Honourable Court setting aside the purported sale, lease or transfer of house No, 138, 3rd Avenue, Gwarinpa II Estate, Abuja to the Defendant same having been dealt with without the consent and authority of the administrator who holds the estate in trust for the children of late Isaac Nyianaka.
iv. A PERPETUAL INJUNCTION restraining the Defendants either through his agents, privies, servants or howsoever called from further encroaching or trespassing on the property in issue.
v. GENERAL DAMAGES of N20,000,000 (Twenty Million Naira) for trespass, destruction/vandalization of the property described as four-bedroom apartment situate at No, 138, 3rd Avenue Gwarinpa Estate Abuja.
vi. Cost of N5,000,000 (Five Million Naira) for this suit.

The Respondent who was the Defendant in the lower Court filed a notice of preliminary objection dated the 27th day of January, 2016 without filing a statement of defence challenging the competence of the suit on the grounds that:

i. The plaintiff/respondent herein lacks the locus standi to institute and maintain this action in respect of the deceased person’s property located in FCT Abuja when no letters of administration has been issued to him by the FCT High Court or re-sealed by the FCT High Court in Abuja over the property, the subject matter of this action.
ii. The letters of administration issued to the plaintiff/respondent by the Benue State High Court in respect of the deceased person’s landed property in Abuja cannot, of itself, confer legal authority on the plaintiff/respondent to administer the deceased person’s property in Abuja, unless the letters of administration has been re-sealed by the High Court of the FCT, Abuja. The letters of administration, not having been resealed by the FCT High Court/Abuja, this honourable Court is therefore robbed of jurisdiction to entertain this suit.

The Appellant who was the Plaintiff filed a counter affidavit and a written address in opposition while the Respondent filed a further and better affidavit and a reply on points of law. The trial Court delivered a ruling on the 9th of October, 2016 upheld the preliminary objection and dismissed the Appellant’s suit. The Appellant being dissatisfied with the ruling of the trial Court filed this appeal.

The parties to the appeal before this Court filed and exchanged their respective briefs of argument. In the Appellant’s brief of argument as settled by his counsel Terkaa J. Aondo Esq., dated 13th November, 2017 the following issues for determination were distilled from the grounds of appeal thus:
i. Whether having regard to the settled position of law in ADMINISTRATOR/EXE. ESTATE ABACHA V EKE-SPIFF (2009) 7 NWLR (Pt. 1139) 76 SC PG. 146 PARA-G-H and weighty evidence before the trial Court, the plaintiff have locus standi to institute this action. (Distilled from ground 1 and 2 of the Notice of Appeal).
ii. Whether having regards to the settled position in SALUBI V NWARIAKU (2003) 7 NWLR (PT. 819) PP. 448, Paras G – H; 456 paras G – H) weighty evidence before the trial Court that the trial Court was wrong to have dismissed the suit.

In arguing issue one, Counsel for the Appellant submitted that there was no dispute as to the following facts:
a) The Appellant sued as the administrator to the Estate Mr. Isaac Akpena Nyianaka having obtained the letters of administration from the High Court Benus State Makurdi. See pages 13 – 15 of the Record of Appeal.
b) The Respondent admitted to the claim before the trial wherein he failed to file a defence to the statement of claim. We refer your Lordships to the proceedings of the trial Court at the resumed sitting on the 2nd June, 2016 contained at page 203 – 205 of the Record of Appeal.
c) On the basis that the Respondent’s Notice of Preliminary Objection challenging the suit, the Respondent on no occasion deposed in person to the affidavit filed before the Court, rather a mistress to the plaintiff who died intestate deposed therein.

Counsel then submitted that the law is trite that a party without the grant of a Letter of Administration lacks the locus standi to sue or be sued in the name of a deceased person. Counsel then urged the Court to look at ADMINISTRATOR/EXE. ESTATE ABACHA VS. EKE-SPIFF (2009) 7 NWLR (PP. 126, PARA B – C, 127, PARA G, 146 PARA G – H). It was then submitted that the Respondent have neglected to file a statement of defense to show that letters of administration was granted to him to give him legal life and right to acquire the property from the mistress of the deceased who died intestate. Additionally, counsel submitted that the Respondent did not make cause to depose to an affidavit as to his legal right over the property in question before the Court.

Counsel for the Appellant also submitted that the law is trite that where the defendant rests his case on that of the plaintiff, the evidence of the plaintiff’s case will remain uncontroverted. Counsel relied on ADMIN./EXE. ESTATE ABACHA VS. EKE-SPIFF (supra). The Respondent’s Counsel submitted that the lower Court erred in determining the issue of jurisdiction at the interlocutory stage and that the Court has a duty to examine and determine each of the issues raised by the parties and making pronouncements thereon accordingly, and that failure to determine all the issues raised before the Court would give room for doubt on the side of the party involved. Counsel then relied on Order 22 Rule 1 and 2 of the High Court of Federal Capital Territory (Civil Procedure Rules) 2004 and ABUBAKAR VS. YAR’ADUA (2008) 19 NWLR (PT. 1120) SC to submit that a Court must react to all relevant issues before it. In conclusion, counsel while relying on AZIE VS. AZIE (2016) 5 NWLR (PT. 1506) submitted that the Appellant has the locus standi to institute the action in the first place as the administrator and hence the Court has jurisdiction to entertain the suit.

As it relates to issue two, counsel submitted that the High Court of the Federal Capital Territory, Abuja has and can exercise jurisdiction over such matters covered by the Letters of Administration in respect of the deceased who died intestate leaving properties within and outside the jurisdiction of the Court. Counsel then submitted that the trial Court erred in law when it went further to grant the reliefs not sought for by the Respondent in their Notice of Preliminary Objection by dismissing the suit for failure to reseal the Letters of Administration at the High Court of the Federal Capital Territory, Abuja.

Counsel while citing SALUBI VS. NWARIAKU (Sraup), called on the Court to note that the Respondent in their objection to the jurisdiction of the lower Court did not aver to the fact that the suit should be dismissed and that the provision of the Rules relied upon by the trial Court in its ruling was misinterpreted in arriving at a wrong decision to dismiss the suit on matters beyond and outside the reliefs claimed.

Counsel also relied on the case of AZIE VS. AZIE (2016) 5 NWLR (PT. 1506) PG PARA G – H to argue that the High Court of the Federal Capital Territory has jurisdiction over properties stated in the Letters of Administration of the Appellant the subject matter which are properties located in Abuja and even those outside the FCT. While citing the case of ACHUKWU VS. NGIGE (2004) 8 NWLR (PT. 875) CA 366 and ERONINI VS. IHUEKO (1989) 2 NWLR (PT. 101), counsel then submitted that a Court does not exercise its discretion in vacuo as discretion of a Court is based on the facts and circumstances of each case. It was submitted that the trial Court hastily moved to dismiss the Appellant’s claim for want of jurisdiction without looking at the pleadings of the parties. It was also argued that where parties have joined issues and pleadings exchanged the Court cannot make an order for a dismissal but an order striking out the case as held in ERONINI VS. IHUEKO (supra). Counsel then urged the Court to set aside the decision of the lower Court.

The Respondent in its own brief of argument settled by his counsel Patience M. Okoh and dated 12th July, 2018 raised two issues for the determination of the appeal thus:
i. Whether the learned trial judge was right when he held that the FCT High Court lacks jurisdiction to entertain the suit in respect of the estate of the deceased person located at No, 138, 3rd Avenue, Gwarinpa II, Estate Abuja because the condition precedent to the exercise of the Court’s jurisdiction (i.e the resealing of the letter of administration issued by the High Court of Benue State in the FCT High Court) has not been fulfilled. (distilled from ground 2).
ii. Whether the filing of the notice of preliminary objection by the Defendant/Respondent challenging the jurisdiction of the Court without filing a statement of defence amounts to a demurrer. (distilled from ground 4).

Counsel for the Respondent as it relates to issue one argued that the law is trite that a landed property is regulated by the law of the place where it is located. As such counsel submitted that the letter of administration issued by the High Court of Benue State does not confer jurisdiction on the FCT High Court to entertain an action over a landed property located in the FCT, Abuja. It was then argued that it is because of the above mentioned law that there is a provision in Section 2 of the Probate (Re-sealing) Act, Cap P. 32 LPN, 2004 for the re-sealing of letters of administration.

Counsel then argued that by Section 2 of the Probate (Re- sealing) Act where Letters of Administration issued by one state is not re-sealed in another state, it is ineffective in conferring jurisdiction on a Court in that other state. Counsel also explained the steps to be taken in resealing of probate or letters of administration in the FCT which she alleged includes:
i. An application made to the FCT High Court by the person to upon the grant was made by in the other state.
ii. Probate duties must be paid.
iii. Inland Revenue Affidavit must be lodged.
iv. Application must be advertised in a manner directed by the Registrar.
v. An oath by the person making the application.
vi. Sureties and guarantors may be required.
vii. The Notice of re-sealing must be sent to the Court which issued the original letter of administration.

Counsel for the Respondent cited Order 49 Rule 55 of the FCT High Court (Civil Procedure) Rule, 2004 and stated that none of the steps mentioned above where taken by the Appellant. Counsel then relied on MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341 and NWAIGWE VS. OKERE (2008) 13 NWLR (PT. 1105) 445 to state the conditions that must be satisfied for a Court of law to assume jurisdiction to entertain a matter. It was argued that the condition precedent in the instant case is that the person suing in a representative capacity for the administration of the estate must obtain a letter of administration from the appropriate High Court in respect of the estate over which he is suing.

The Respondent’s Counsel submitted that the case of AZIE VS. AZIE (supra) does not apply to this case and distinguished the case thus:
i. The letter of administration was issued by the Enugu State High Court and the action was also filed in the same Enugu State High Court.
ii. The letter of administration comprised landed properties located in Enugu State and Anambra State.
iii. The issue of re-sealing of the letter of administration did not arise in the case because the suit was filed in the same State High Court where the letter of administration was issued and where most of the landed properties were located.
iv. The main contention was the issue of the letter of administration listing landed properties located outside the state where the letter of administration was issued and in which the action was filed too.

Counsel then submitted that by the decision in AZIE VS. AZIE (supra), the mere fact that the letter of administration comprises of properties located outside the state of issue of the letter of administration does not deprive the High Court of the State of issue of the letter of administration of the jurisdiction to entertain the action. It was submitted that AZIE VS. AZIE (supra) followed an earlier Supreme Court judgment in SALUBI VS. NWARIAKU (2003) 7 NWLR (PT. 819) 426 and that what the Supreme Court was saying is that where the High Court of a state issues a letter of administration in respect of the estate of a deceased person, and the letter of administration comprises of landed properties located within the state of issue and outside, and that the mere fact that some of the listed properties are outside the state of issue does not deprive the host state of jurisdiction.

Counsel for the Respondent submitted that the Appellant’s argument that the law requiring re-sealing does not create a penalty or sanction and as such should be overlooked is of no moment. It was argued that the trial Court in the instant case did not impose a penalty but declined jurisdiction on the ground that a condition precedent had not been fulfilled.

As it relates to the Appellant’s argument regarding dismissal of the case, the Respondent’s counsel submitted that it is not a ground for reversing the decision of the trial Court as the position of law is that where the Court uses the word “dismissal” instead of “striking out” the dismissal will be deemed to be a mere striking out by virtue of O. B. M. C. LTD VS. M. B. A. S. LTD (2005) ALL FWLR (PT. 261). Finally, as it relates to issue one, counsel submitted that the Appellant’s argument relating to the affidavit deposed to by the widow of the deceased is misconceived as the law is that any person siesed of the facts of the case can testify or depose to an affidavit as was held in SARAZ VS. SCHEEP (1996) 5 NWLR (PT. 446) 205.

As it relates to issue two, counsel for the Respondent submitted that a challenge to jurisdiction of the Court without filing a statement of defence does not amount to a demurrer as the issue of jurisdiction is a fundamental issue that goes to the root of the case and can be raised at any time. Additionally, it was argued that the issue of jurisdiction is not a matter of demurrer proceedings as this position of law has been established by a plethora of cases including OLUWANIYI VS. ADEWUMI (2008) 13 NWLR (PT. 1104) 387 and ELABANJO VS. DAWODU (2006) 15 NWLR (PT. 1001) 76 where the Supreme Court interpreted Order 23 Rules 2 and 3 of the High Court of Lagos State (Civil Procedure) Rules which is similar to provisions of Order 22 Rules 2 and 3 of the FCT High Court Rules. Counsel then urged the Court to resolve both issues in their favour.

RESOLUTION OF THE ISSUES
Upon my review of the facts of this case and all issues formulated, I have adopted three issues for the determination of this appeal thus:
i. Whether the Appellant lack locus standi and the learned trial judge was right when he held that the FCT High Court lacks jurisdiction to entertain the suit in respect of the estate of the deceased person located at No. 138, 3rd Avenue, Gwarinpa II, Estate Abuja because the condition precedent to the exercise of the Court’s jurisdiction (i.e the resealing of the letter of administration issued by the High Court of Benue State in the FCT High Court) has not been fulfilled. (distilled from ground 2).
ii. Whether the filing of the notice of preliminary objection by the Defendant/Respondent challenging the jurisdiction of the Court without filing a statement of defence amounts to a demurrer. (distilled from ground 4).
iii. Whether having regards to the settled position in SALUBI V NWARIAKU (2003) 7 NWLR (PT. 819) PP. 448, Paras G – H; 456 paras G – H) weighty evidence before the trial Court that the trial Court was wrong to have dismissed the suit.

ISSUE ONE
This issue relates to the Appellant’s Locus Standi and whether the learned trial judge was right when he held that the FCT High Court lacks jurisdiction to entertain the suit in respect of the estate of the deceased person located at No. 138, 3rd Avenue, Gwarinpa II, Estate Abuja because the condition precedent to the exercise of the Court’s jurisdiction has not been fulfilled.

The Appellant argued that by the case of AZIE VS. AZIE (SUPRA), it has the locus standi to institute this action given that he is the Administrator and that the High Court of the FCT has jurisdiction and can exercise jurisdiction over matters covered by letters of Administration in respect of deceased who died intestate leaving properties within or outside the jurisdiction relying on SALUBI VS. NWARIAKU (SUPRA). While the Respondent maintained that the letter of administration issued by the High Court in Benue State does not confer jurisdiction on the FCT High Court to entertain an action over landed property located in the FCT, Abuja as any such letter has to be re-sealed by the FCT High Court.

By Section 2 of the Probate (Re-sealing) Act Cap. P31, Laws of the Federation of Nigeria, 2004, the law provides that:
“Where the High Court of a State has either before or after the commencement of this Act, granted probate or letters of administration in respect of the estate of a deceased person, the probate or letters so granted may, subject to the provisions of this Act, on being produced to, and a copy thereof deposited with the High Court of any other State, be resealed with the seal of that Court.”
While Section 3 provides for conditions to be fulfilled before resealing thus:
“The High Court of a State shall, before re-sealing a probate or letters of administration under this Act, be satisfied –
(a) that probate duty has been paid in respect of so much, if any, of the estate as is liable to probate duty in that State; and
(b) in the case of letters of administration, that security has been given in a sum sufficient in amount to cover the property, if any, in that State to which the letters of administration relate, and may require such evidence, if any, as it thinks fit as to the domicile of the deceased person.”
The provision for resealing is regulated by the various High Court Laws and Rules. In the FCT, it is regulated by Order 49, Rule 55 of the FCT High Court (Civil Procedure) Rules 2004 now Order 64 Rule 45 of the FCT High Court (Civil Procedure) Rules 2018. The Order provides that:

“55
1. An application for the resealing of probate or administration with the Will attached granted by the Court of a place not within the Federal Capital Territory, Abuja, shall be made by the person to whom the grant was made or by any person authorized in writing to apply on his behalf.
2. On any such application –
(a) an Inland Revenue affidavit shall be lodged as if the application were one for a grant in the Federal Capital Territory, Abuja;
(b) the application shall be advertised in such manner as a Registrar may direct and shall be supported by an oath sworn by the person making the application.
3. On an application for the resealing of such a grant –
(a) a Registrar shall not require sureties except where it appears to him that the grant is made to a person or for a purpose mentioned in Rule 54(1) (a) to (f), or except where he considers that there are special circumstances making it desirable to require sureties…
The effect of re-sealing a letter of administration in a State High Court granted by another State High Court is to make it seem as if the seal of Court is granted by the High Court of that State. That is, re-sealing enables a grant made in one State to be effective within another State.
The trial judge in his judgment on page 240 of the record of appeal held that:
“I have carefully perused the processes filed in this case by the Plaintiff as well as the counter affidavit by the Plaintiff to the Preliminary Objection and I have failed to see any paragraph wherein the Plaintiff states that he has resealed the letter of administration aforesaid. To my mind therefore, the said letter of administration is valid to the extent only that it can be used to administer any property forming part of the estate of the deceased in Benue State until it is resealed by the FCT before such power can be exercise on property within the FCT which forms part of the said estate… the Plaintiff has evoke the jurisdictional power of this Court based on the said letter of administration issued by the Benue State High Court without first resealing in the FCT High Court as required by law.”
I agree with the trial judge that the omission of the Appellant to reseal the letters of administration in the FCT High Court resulted in their lack of locus standi to institute the action in the FCT High Court. Indeed, from the statement of claim, the Appellant lacks the locus to institute an action given that he has not resealed the letters of Administration. To have the locus to institute an action in relation to properties in the FCT High Court, the letters of Administration must be resealed.
The Appellant’s counsel also submitted that by ADMINISTRATOR/EXE. ESTATE ABACHA VS. EKE-SPIFF (SUPRA), a party without grant of letters of administration lacks the locus standi to sue or be sued in the name of the deceased and that the Respondent did not file a defence to show that letters of administration was granted to him to give a right to him to acquire the property from the mistress of the deceased and by resting his case on that of the plaintiff’s case the Respondent left the evidence uncontroverted. By invoking the issue of jurisdiction, the Court need not look into the statement of defence of the Respondent. All the Court must do is to look at the originating processes and the affidavits filed. The Appellant’s arguments on these two points are therefore of no moment.
Additionally, the Appellant argued that the Respondent did not depose to an affidavit as to his legal right over the property but had the mistress of the deceased depose to it. However, the law is settled that any competent witness is qualified to swear to an affidavit as to facts within his knowledge or on information as stipulated in the Evidence Act.
Having found that the Appellant has no locus standi, it delimits the jurisdiction of the Court to entertain his compliant. I will state again that the resealing of letters of administration is done so the High Court of one State can be vested with the power to act upon the estate of the deceased which was granted in another State. It has the effect as if it is a fresh grant in respect of the estate and administrators or executors as such they become entitled to exercise authority on properties in the new jurisdiction.
The law above was upheld in FEDERAL ADMINISTRATOR -GENERAL VS. ARIGBABU (1964) NMLR 135. Similarly, in LIJADU VS. FRANKLIN (1965) LPELR – 25214 (SC), the Supreme Court was faced with the question of whether probate admitted in the High Court of Western Nigeria must be resealed in the High Court of Lagos it held that:
“…A grant of administration or other authority to represent a deceased person under the law of a foreign country” (i.e. any country which is not England) has no operation in England. Its effect was explained by Scrutton, J., in Haas v. Atlas Assurance Company Limited (19131 2 K.B. 209, in these terms: – An executor could not assert or rely on his right in any Court without showing that he had previously established it in the Probate Division either by suit, by probate in solemn form, or in the ordinary form. The usual way in which he proved it was by the production of a copy of the will certified under the seal of the Court. That state of the law was described by Jervis in Johnson v. Warwick 17 C.B. 516, as being that the Court had not the legal optics through which to look at the will until the will was proved in the form provided by English law… The passage cited from Haas v. Atlas Assurance Company Limited refers to some of the methods by which an executor may establish his right. In addition, probate granted in Northern Ireland, Scotland, or specified parts of the Commonwealth will be recognized by the English Coutts if the grant has been resealed in England;

ISSUE TWO
This issue relates to whether the filing of the notice of preliminary objection by the Defendant/Respondent challenging the jurisdiction of the Court without filing a statement of defence amounts to a demurrer.
The law is trite that demurrer has been abolished and this can be found in Order 22 Rules 1 and 2 of the FCT High Court (Civil Procedure) Rules, 2004 which provides that:
“1. No demurrer shall be allowed.
2. (1) A party may raise any point of law by his pleading, which point shall be disposed of by the trial judge at or after the trial.
(2) On an application of a party, a Judge may set the point of law down for hearing and disposed of at any time before trial where the parties consent or the Court so Order.”
The law has been established by a plethora of Supreme Court cases that an issue of jurisdiction raised by the Defendant before filing a statement of defence is not the same as demurrer. In the case of ELABANJO VS. DAWODU (2006) 15 NWLR (PT. 1001) 76, the Supreme Court held that:
“The essence of the administration of justice, it must be emphasised, is to make access to justice as quickly and as cheap as possible. Hence, the fling of an objection alone as in the case in hand which disposes of the entire case will definitely make the preparation and fling of a statement of defence unnecessary and therefore eliminate the additional time, effort, money and cost in the preparation and filing of a statement of defence. This Court in the case of Egbe v. Alhaji (supra) paras. E – F held that:
“Under Order 22 Rule 3 of the High Court of Lagos State (Civil Procedure) Rules, 1972 a defendant who knows that there is a point of law which can determine the action in his favour in limine can apply to the Court by way of motion or as a point of his pleading to dismiss the action without evidence having been taken.”
This Court also in the case of Alhaji, I. Onibudo & Ors v. Akibu (supra) at 200 held that:
“The preliminary point of law can be taken after the receipt of the statement of claim and before any defence is filed. The party in such a case relies on point of law even if the issues of fact in the statement of claim are conceded. If he fails, an order would be made by the Court ordering the fling of a statement of defence and the suit would proceed to trial.
Similarly, in the case of Odive v. Obor & Anor (1974) NSCC 103 at 107 Elias, CJN stated thus:
“The learned trial judge should have pointed out to Counsel for the defendant that the preliminary objection should have been made after the delivery to him of the statement of claim and before filing his statement of defence.”

“Limitation Law and Locus Standi are both threshold issues which can be raised anytime or for the first time in the Court of Appeal or Supreme Court. It is not limited to being raised as a special defence and pleading them specifically as required by the Rules of Court under Order 22 Rule 2 of the Lagos State High Court Civil Procedure Rules. It transcends any High Court Rules. It can be raised by preliminary objection at any stage of the proceedings before any Court by any of the parties or even suo motu by the Court. It is therefore noteworthy that an application or preliminary objection seeking an order to strike out a suit for being incompetent on the ground of absence of jurisdiction is not a demurrer and therefore can be filed and taken even before the defendant files his statement of defence or without the defendant filing a statement of defence. The reason being that the issue of jurisdiction can be raised at any time. In addition, the relevant things to be considered by the Court in determining the issue of jurisdiction are the facts as deposed to in affidavits, the writ of summons and the statement of claim where one had to be filed and served. The statement of defence is not one of the relevant materials for that purpose.”
The same principle was affirmed in A. G. FEDERATION VS. A. G. ANAMBRA STATE (2017) LPELR – 43491 (SC) where the Supreme Court as it relates to whether a defendant can raise an issue of jurisdiction without filing a statement of defence held:
“In a plethora of authorities, this Court has held that jurisdiction is a threshold issue and live-wire that determines the authority of a Court of law or Tribunal to entertain a case before it. It is only when a Court is imbued or conferred with the necessary jurisdiction by the Constitution and/or law that it will have the judicial power and authority to entertain or adjudicate upon any cause or matter brought before it. The absence of such requisite jurisdiction would render any proceedings conducted by such a Court an exercise in futility, null, void and of no effect whatsoever, no matter how well conducted. See Musaconi Ltd v Mr. Aspinall (2013) LPELR – 20745 (SC), NDIC v CBN (2002) LPELR – 2000(SC), 2002 7 NWLR (Pt. 766) 273, B.A. Shitta – Bey v A.G. of Federation & Anor (1998) LPELR – 3055 (SC), (1998) 10 NWLR (pt 570) 392, Salisu & Anor v Mobolaji & Ors (2013) LPELR – 22019 (SC). The importance of jurisdiction is the very reason why it can be raised at any stage of the proceedings, be it at the trial, on appeal to the Court of Appeal or even in this Court. It must be noted that the Court can suo motu raise issue of jurisdiction. Once it is apparent to any party that the Court may not have jurisdiction, it can be raised even viva voce. It is in the interest of justice to do so. See Petrojessica Enterprises Ltd v Leventis Technical Co. Ltd (supra), Popoola Elabanjo & Anor v Chief (Mrs.) Ganiat Dawodu (2006) 15 NWLR (pt 1001) 76, Kotoye v Saraki (1994) 7 NWLR (pt 357) 414 at 466. There is therefore no need to file statement of defence before issue of jurisdiction can be raised as argued by the learned senior counsel for the Plaintiff/Respondent.”
It is pertinent to reproduce and examine the grounds of the preliminary objection upon which the Respondent was challenging the jurisdiction of the lower Court namely:
i. The plaintiff/respondent herein lacks the locus standi to institute and maintain this action in respect of the deceased person’s property located in FCT Abuja when no letters of administration has been issued to him by the FCT High Court or re-sealed by the FCT High Court in Abuja over the property, the subject matter of this action.
ii. The letters of administration issued to the plaintiff/respondent by the Benue State High Court in respect of the deceased person’s landed property in Abuja cannot, of itself, confer legal authority on the plaintiff/respondent to administer the deceased person’s property in Abuja, unless the letters of administration have been re-sealed by the High Court of the FCT, Abuja. The letters of administration, not having been resealed by the FCT High Court, Abuja, this honourable Court is therefore robbed of jurisdiction to entertain this suit.
From the grounds of the preliminary objection, it is clear that this case is one of jurisdiction which the Respondent can raise at any time. The Court by looking at the originating processes can ascertain if the Appellant actually has the locus standi to institute the action in the FCT High Court without the defendant having to file a statement of defence. It therefore means that an objection to jurisdiction of the Court allows the Court to deal with the issue at an interlocutory stage and give a ruling on it.
This issue is resolved in favour of the Respondent.

ISSUE THREE
Whether having regards to the settled position in SALUBI VS. NWARIAKU (2003) 7 NWLR (PT. 819) PP. 448, paras G – H; 456 paras G – H) and the weighty evidence before the trial Court, whether the trial Court was wrong to have dismissed the suit.

From issue one above, I have already decided that the Appellant has no locus standi to sue in the FCT High Court as such the lower Court also has no jurisdiction to hear the matter. See the case of AZIE V AZIE (Supra).
In this case, the trial judge after evaluating the originating processes and the preliminary objection which called to question the jurisdiction of the case dismissed the case. The Respondent however in their preliminary objection in the lower Court prayed for the following:
1. AN ORDER of this Court striking out the Plaintiff/Respondent’s Suit No. CV/25/2015 dated 28 day of October, 2015, filed on the same day in limine on the grounds set below.
2. AND FOR SUCH FURTHER ORDER(S) as the Honourable Court may deem fit to make in the circumstance.
The Appellant therefore argued relying on SALUBI VS. NWARIAKU (SUPRA) that the Respondent in their objection to the jurisdiction of the lower Court did not aver to the fact that the suit should be dismissed. In essence, the argument was that the lower Court extended further to grant the reliefs not sought for by the Respondent in their notice of preliminary objection by dismissing the suit. In SALUBI VS. NWARIAKU (SUPRA), the apex Court in answering whether a Court can grant a relief not sought held:
“It is trite law that the Court normally should not grant a relief not sought by the parties.”
As it relates to the trial Court dismissing the case instead of striking it out, it is trite law that where the Court has no jurisdiction to hear and determine a case it has no jurisdiction to dismiss it. What the Court must do in such a case is to strike it out. This is because dismissal entails the adjudication on the merits which cannot be done where the Court has no jurisdiction to adjudicate. See OKOLO VS. U.B.N. LTD (2004) 3 NWLR (PT. 859) 87 and OKOYE NIGERIAN CONS. & FURNITURE CO. LTD.

In the case of INAKOJU VS. ADELEKE (2007) 4 NWLR (PT. 1025) 427, it was held that:
“The law is that when a Court comes to the conclusion that it has no jurisdiction to entertain a suit, it will be struck out and not dismissed. In Din V Attorney-General of the Federation (1986) 1 NWLR (Pt. 17) 471, this Court held that where a Court holds that it has no jurisdiction to entertain an action, it does not dismiss the action but merely strikes it out. A dismissal of action is adjudication on the merits and there can be no adjudication on the merits where there is no jurisdiction or competence to adjudicate. There is a plethora of case law on the issue, so much so that the issue is very well settled in law and should no longer give rise to any other position…”
The cases above essentially hold that where an action is filed in a Court which has no jurisdiction, it should be struck out and not dismissed in order to give the plaintiff another opportunity to re-file the action, if possible, in a Court of competent jurisdiction or by way of amending the action to fall in line with the jurisdiction of the Court it was initially filed.

I am of the firm opinion that the learned trial judge, with the greatest respect, was in serious error when he dismissed the action for lack of jurisdiction, instead of striking it out. Hence, in the event that I have come to the same conclusion that the High Court has no jurisdiction to entertain the action, I hold that the case ought to be struck out. This issue is resolved in favour of the Appellant.

In the circumstances, Suit No. FCT/HC/CV/25/2015 filed on the 9th of November, 2016 is hereby struck out. No orders as to cost.

PETER OLABISI IGE, J.C.A.: I agree.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the Judgment just delivered by my learned brother, MOHAMMED BABA IDRIS, JCA and I am in agreement with his reasoning and conclusion arrived at therein.

Appearances:

B. BASHIR, ESQ. For Appellant(s)

R. EBIE, ESQ. For Respondent(s)