ELDER GODFREY CHINWO & ORS V. ISAAC CHINWO & ANOR (2010)

ELDER GODFREY CHINWO & ORS V. ISAAC CHINWO & ANOR

(2010)LCN/3704(CA)

In The Court of Appeal of Nigeria

On Thursday, the 15th day of April, 2010

CA/PH/332/2007

RATIO

EVIDENCE: EFFECT OF UNCONTROVERTED FACTS

It is trite that facts not challenged or controverted by the party against whom they are averred are deemed admitted. See OKELOLA v. ADELEKE (1999) 1 NWLR [pt.585] 55; TOTAL NIG PLC v. MORKAH (2003) FWLR [pt.143] 1343 at 1358. Facts admitted need no further proof. PER EJEMBI EKO, J.C.A.

APPEAL: WHETHER LEAVE OF COURT IS REQUIRED IN FILING ADDITIONAL GROUNDS OF APPEAL

It has always been part of the Rules of this court that the applicant shall not without leave of the court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, and that the court may, in its discretion, allow the appellant to amend the grounds of appeal subsequently. See order 6 Rule 4 Court of Appeal Rules 2007, in pari materia with order 3 Rule 3 (5) of 2002 Rules. After the expiration of the time to file notice of appeal, as in this case, where an additional ground of appeal is to be filed it can only be filed upon the application of the appellant seeking leave to file such further or additional ground of appeal or an application to amend the extant notice of appeal so as to incorporate the new grounds. See INTEGRATED DATA SERVICE v. ADEWUMI (2006) ALL FWLR [pt.292) 145 at 154 E – H. Since the whole purpose of grounds of appeal is to give notice to the other side of the case they have to meet in the appellate court, if the appellant wishes to raise further errors or misdirection’s not already raised in the notice of appear he must obtain leave to file additional grounds of appeal or to amend the existing grounds. See N.I.P.C. LTD v. THOMPSON ORGANISATION LTD (1969) ALL NLR 134. PER EJEMBI EKO, J.C.A.

ACTION: MEANING OF A CAUSE OF ACTION

Every claimant or plaintiff who takes out a suit against another must show that the cause of action vests in him. Fatai-Williams JSC (as he then was) defining the cause of action in SAVAGE v. UWUECHIA (1972) 1 ALL NRL [pt. 1] 251 at 257 stated:

A cause of action is defined in STROUDS JUDICIAL DICTIONARY as the entire set of circumstance giving rise to an enforceable claim. To our mind, it is in effect a set of facts or combination of facts, which gives a right to sue and it consists of two elements – the wrongful act or the defendant which gives the plaintiff his cause of complaint and the consequent damage. As Lord Esher said in COOKE v. GILL (1873) LR B C.P. 107 and later in READ v. BROWN (1999) 2 Q.B.D- 128 (CA), it is every fact that wilt be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. PER EJEMBI EKO, J.C.A.

ACTION: MEANING OF LOCUS STANDI

JUSTICES:

SULEIMAN GALADIMA (OFR) Justice of The Court of Appeal of Nigeria

ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria

EJEMBI EKO Justice of The Court of Appeal of Nigeria

Between

1. ELDER GODFREY CHINWO
2. ELDER MATTHEW CHINWO
3. CHIEF OBINNA CHINWO – Appellant(s)

AND

1. ISAAC CHINWO
2. ELDER JACOB CHINWO – Respondent(s)

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): Before the Rivers State High Court (Coram: B.A. Georgewill, J) was the suit of the appellants, as the claimants, against the Respondents, as defendants, brought under the originating summons. The appellants were “claiming for an order that they do recover possession of land measuring 100 x 50 feet commonly known as Ohia Azuoro at Rumuodara Obio/Akpor Local Government Area on the ground that they are entitled to the possession and that the person(s) in occupation (are) in occupation without their license or consent.”
The appellant, claimants, claimed to be suing for themselves and on behalf of Chinwo’s family. The three named appellants and the 1st Respondent are brothers.
Their father is the 2nd Respondent, Elder Jacob Chinwo. The undisputed fact on the record shows that Elder Jacob Chinwo, 2nd Respondent, is the owner “of the disputed land. It is alleged in the supporting affidavit, that is the basis of the suit, that 2nd Respondent had made his intention known to his sons to the effect that the disputed land “should be reserved as security for his funeral because of his age to assist the family economically.” That the 2nd Respondent, the 6th son of the 2nd Respondent had gone “secretly” to the 2nd Respondent and “deceived” the old man to release the land to him and that the 1st Respondent, taking possession of the land, had started moulding blocks preparatory for a concrete house on the land. It is further averred in the supporting affidavit:
1. That the Rumuodara Council of Chiefs had judged the case and warned the defendant to deliver possession peaceably to the family but the defendant refused to obey or comply with the decision of Rumuodara Council of Chiefs. The proceedings of the said Rumuodara Council of Chiefs is attached thereto as Exhibit A. Originally, the 1st Respondent was the sole defendant. The 2nd Respondent, on his own application, was subsequently joined as the 2nd defendant to the suit of the appellants.
At the trial court the 2nd Respondent had deposed to an affidavit titled: AFFIDAVIT OF FACTS IN SUPPORT OF MY ALLOCATION OF OHIA AZUORO LAND TO MR. ISAIAH CHINWO, wherein he averred inter alia”
2. That I was the Person allocated the Ohia Azuoro land to the defendant (1st Respondent).
3. That the land was my personal property before I allocated it to him (1st Respondent) after he had Performed customary rites for me.
4. That I had earlier allocated lands to every of my other children including the claimants.
5. That I am the head of Chinwo family and the only surviving son of Chinwo.
6. That the only case I had over land was when I reported the 1st claimant to Rumuodara council of Chiefs for putting juju on the said land.
7. That the (1st Respondent) is on the land with my support till today.
8. That the Chinwo Family did not authorize the claimants to bring this suit.
The claimants, now appellant, did not dispute, challenge or contradict the 2nd Respondent on the foregoing averments. They did not file any further affidavit to refute these averments. It is trite that facts not challenged or controverted by the party against whom they are averred are deemed admitted. See OKELOLA v. ADELEKE (1999) 1 NWLR [pt.585] 55; TOTAL NIG PLC v. MORKAH (2003) FWLR [pt.143] 1343 at 1358. Facts admitted need no further proof.
They are, by dint of section 75 Evidence Act, taken as established. See also DIN V. AFRICAN NEWSPAPERS OF NIGERIA LTD (1990) ANLR 489 at 498. It is this fact that apparently informed the appellants, counsel at the trial court to concede that the joinder of the 2nd Defendant had devastating effect on the right of the claimants to maintain the suit. I note upon persuing Exhibit A attached to the 8 affidivt in support of the originating summons that the Rumuodara Counsel of Chiefs (A.K.A. RUMUODARA Supreme Counsel) acknowledged and upheld “that the land in dispute should remains as the property of Eleder Jacob Chinwo.” Exhibit ‘A’ therefore does not support the contention of the appellants, as claimant, that the disputed land was the property of chinwo Family. The totality of facts before the trial Court points irresistibly to the 2nd Respondent’s sole and exclusive ownership of the land in dispute, also called Ohia Azuoro land.
At the trial court Mr. Achuonye of counsel to the Respondents submitted inter alia that these appellants, as the claimants, have no legal right to institute the action as the land belongs exclusively to the 2nd Respondent and urged that the suit be dismissed. Eze Kpaniku, Esq. who appeared for the appellants, as claimants, conceded that the presence of the 2nd Respondent, upon his joinder, had adversely affected the locus of the claimants in the suit. In his short judgment the learned trial judge held inter alia:
i. That the claimants lacked locus to institute and maintain the action against the Defendants particularly the 2nd Defendant (Respondent) “who is the legitimate owner of the land in dispute and who, it has not been shown lacks the legal capacity to deal with his own land as it please him.”
ii. That without the requisite locus standi the claimants cannot in law maintain this suit and this suit is accordingly liable to be dismissed.
iii. That upon claim consideration of the reliefs sought by the claimant alluding to their right to give consent to the 1st Defendant to be in possession, “this claim is one not based on any fact as the admitted evidence is that the land belong to the 2nd Defendant personally and not to the claimants. I therefore do not see how the 1st Defendant to go into possession of the land in dispute or for the 2nd Defendant, the admittedly rightful owner to dispose of his land as it please him”.
No ground of appeal attacks/challenges this specific finding no iii above. I will come to it. The learned trial judge holding that the suit lacks merit in its entirety, dismissed it and added by Way obiter dictum:
I put on record my appreciation to the to the claimants’ counsel in his candid appreciation of the Legal position of the claimants upon the joining of the 2nd Defendants which clearly knocks out the bottom of the claimants’ right to maintain this action. This was made a ground of complaint in the appeal.
In the Notice of Appeal filed on 2nd March 2007 against the judgment delivered on 19th February, 2007 the appellants’ claimants at the trial court, had two grounds of appeal in paragraph said Notice of Appeal. That is-
3. GROUND OF APPEAL
1. The learned trial Judge erred by holding that the Claimants/Appellants lack locus standi to maintain this suit.
Particiulars
a. The parties are all children of the 2nd Defendant joined to the suit and were all aware of the insistence of the 2nd Defendant that the land in dispute should be for a Purpose.
b. If the 2nd Defendant who is now about 100 years old passes on, right now God forbid) are the parties would be responsible for the funeral and incidental expenses and arguments.
2. The trial court erred in holding that the joinder of the 2nd Defendant to the suit without more, knocks out the bottom off the Claimants/Appellants’ high to maintain the action.
Particulars
a. The trial I acted merely on the affidavit and motion for joinder and did not find if the 2nd Defendeant actually know (sic) what was happening, especially as the 2nd Defendant never attended court.
b. The facts of joinder of the 2nd Defendant and his clear testimony at the ‘Rumuodara Council settlement are contradictory to each other.
Before I go to the issues formulated from the grounds of appeal I will touch on the observation contained in the brief settled by their counsel, Martins Achuonye, Esq. that the Appellants, Issue 3 is purportedly hinged on a further ground of appeal filed on 29th June, 2007 without leave of court first a sought and obtained, and that the further ground of appeal and Issue 3 formulated therefrom are both incompetent. In the Appellants Reply Brief Chimezie Otuonye, Esq. posited that since in paragraph 4 of the Notice of Appeal they had given notice that further grounds shall be filed upon receipt of the record of appeal they had no further need to seek and obtain leave to file the further ground of appeal filed on 29th June, 2007. It has always been part of the Rules of this court that the applicant shall not without leave of the court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, and that the court may, in its discretion, allow the appellant to amend the grounds of appeal subsequently. See order 6 Rule 4 Court of Appeal Rules 2007, in pari materia with order 3 Rule 3 (5) of 2002 Rules. After the expiration of the time to file notice of appeal, as in this case, where an additional ground of appeal is to be filed it can only be filed upon the application of the appellant seeking leave to file such further or additional ground of appeal or an application to amend the extant notice of appeal so as to incorporate the new grounds. See INTEGRATED DATA SERVICE v. ADEWUMI (2006) ALL FWLR [pt.292) 145 at 154 E – H. Since the whole purpose of grounds of appeal is to give notice to the other side of the case they have to meet in the appellate court, if the appellant wishes to raise further errors or misdirection’s not already raised in the notice of appear he must obtain leave to file additional grounds of appeal or to amend the existing grounds. See N.I.P.C. LTD v. THOMPSON ORGANISATION LTD (1969) ALL NLR 134.
The further ground of appeal, being incompetent, is hereby struck out.
Issue 3 formulated from the incompetent ground of appeal is also incompetent. Consequently, it is hereby struck out. See OGUNDIPE v. ADENUGA (2006) ALL FWLR [pt.336)766 at 285 C – D.
The 1 ground of appeal, earlier reproduced above complains in the main that the learned trial judge erred in that the Claimants/Appellants lacked locus standi to maintain the suit. The particulars of error are supposed to isolate and highlight in what manner the learned trial judge erred in no holding that the appellants have no standing in law to maintain the suit and are not intended to be used for introducing sentimental and extraneous matters. In my humble and candid view particulars (a) and (b) under the first ground of appeal are not valid particulars of error in support of the main complaint therein. The law is settled that particulars of error that do not arise from or which are not related to the ground of appeal are incompetent. See GWANDU V. GWANDU (2004) ALL FWLR [pt.229] 841. Particulars of error should not be an independent complaint different from the ground of appeal itself but ancillary to it. See GLOBE FISHING IND. LTD v. COKER (1990) 7 NWLR [pt.162] 265 at 300; HONIKA SAWMILL (NIG) LTD v. HOFF (1994) 2 NWLR [pt.326) 252; ALI v. ALBISHIR (2008) 31 WRN 49 at 88.
The second ground of appeal complain is against the obiter dictum of the learned trial judge at page 60 of the record of appeal where he showed his Appreciation to the Claimants’ counsel (who) in his candid appreciation of the legal position of the Claimants (that) upon the joining of the 2nd Defendant which clearly knocks out the bottom of the Claimants’ right to maintain this action.
In the sentence immediately preceding this obiter His Lordship had held “that the suit lacks merit in its entirety and is liable to be dismissed.” This is coming against the backdrop of three earlier major findings, including the finding that the Claimants lack the requisite locus standi to maintain the suit. That earlier finding on locus standi was not attacked. Rather, this is the obiter dictum on the admirable conduct of claimants, counsel in conceding that his clients have no locus standi to maintain the suit with the presence of their father, the 2nd Defendant, who is the owner of the land in dispute that the ground of appeal attacks. It is clear from NDDC v. OKEM ENTERPRISES LTD (2004) 10 NWLR [pt.880] 107 that obiter dictum is usually not the subject of appeal and that appeal lies only against the ratio decidendi of the decision appealed. It is now appropriate at this juncture to draw the distinction between ratio decidendi and obiter dictum. While ratio decidendi represents the reasoning, the principle or ground upon which the case is decided, obiter dictum simply means a comment made in passing or which is merely cursory or incidental Such expressions do not actually embody the resolution of the court See A.I.C. LTD v. NNPC (2005) 1 NWLR [pt. 937] 563; UTC (NIG) LTD v. PAMOTEI (1989) 2 NWLR [pt. 103] 244.
I have taken liberty to examine in extenso the two grounds of appeal in view of order 6 Rule 3 of the Court of Appeal Rules that empowers this Court to, suo motu or upon application, strike out a – ground of appeal or part thereof which is not permitted under the Rules of court. see also C.C.B. v. EKPERI (2007) 3 NWLR [pt.1022) 493 at 509 – 510; AFRIBANK (NIG) LTD v. EDDY MOTORS (2002) 13 NWLR [pt.785] 639 at 641. The two grounds of appeal are not competent.
However, in view of the nature of the appeal I shall consider the appeal on its merit, only on issues formulated from the two grounds of appeal. I have seriously considered the short judgment of the trial court at page 60 of the record. It is my humble view that the most fundamental question that swayed the mind of the court is the issue of the undisputed ownership of the 2nd Defendant/Respondent of the disputed land. The issue of locus standi of the Claimants/Appellants to maintain the suit was incidental to the finding of the fact that the 2nd Defendant/Respondent being –
The legitimate owner of the land in dispute and that it has not been shown that he lacks the legal capacity to deal with his own land as it pleases him.
This finding, corroborated by other evidence on the printed record, has not been attacked. No ground of appeal challenges it. The law, from a number of authorities notably SPDC (NIG) LTD v. EDAMUKE (2009) ALL FWLR [pt. 489] 407 at 434; CALABAR CENTRAL COOP. THRIFT & CREDIT SOCIETY LTD v. EKPO (2008) 6 NWLR [pt. 1083] 362 at 388, is settled that any specific finding not appealed is deemed accepted or admitted by the appellant or the Party against whom its made. It is not only deemed admitted or accepted, it subsists against him. And so this specific finding that the 2nd Defendant/Respondent is the legitimate owner of the disputed land, ohia Azuoro, who has not been shown to lack the legal capacity to deal with it in his own way as it pleases him subsists against the appellants herein. That is the Core issue that transcends all other issues in the appeal.
Every claimant or plaintiff who takes out a suit against another must show that the cause of action vests in him. Fatai-Williams JSC (as he then was) defining the cause of action in SAVAGE v. UWUECHIA (1972) 1 ALL NRL [pt. 1] 251 at 257 stated:
A cause of action is defined in STROUDS JUDICIAL DICTIONARY as the entire set of circumstance giving rise to an enforceable claim. To our mind, it is in effect a set of facts or combination of facts, which gives a right to sue and it consists of two elements – the wrongful act or the defendant which gives the plaintiff his cause of complaint and the consequent damage. As Lord Esher said in COOKE v. GILL (1873) LR B C.P. 107 and later in READ v. BROWN (1999) 2 Q.B.D- 128 (CA), it is every fact that wilt be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court.

Locus standi, meaning the legal standing of the plaintiff to sue or maintain the action, is simply that the person or the plaintiff must have some personal interest that has been, or is most likely certain to be, affected by the action of the defendant. Let me agree with the Appellant that locus standi, on the authority of OWODUNNI v. C.C.C. (2006) 6 SC 111, is based on the fact that a person’s civil right and obligations have been infringed upon. But the question is still nagging — Have the Claimants/Appellants shown that the 2nd Defendant/Respondent’s exercise of his proprietary right over OHIA AZUORO, the land in dispute, has in any way affected their civil rights or obligation? It is not a moral, but a legal question. What legal right of the Appellants has been violated by the 2nd Respondent alienating his proprietary interest in the disputed land to the 1st Respondent? They must show this in order to convince the court that they have locus standi to sue the Respondents challenging the alienation by 2nd Respondent of his interest in the land to 1st Respondent. The right to own this land, as vested in the 2nd, Respondent is guaranteed by section 43 of the 1999 Constitution. Appellants have not shown that the Respondents violated any legal light they have vested in them over the land in dispute. I agree with the learned trial Judge that the appellants have no legal right to maintain the suit. They are at best mere busy bodies with a frivolous and vexatious suit against the defendants/respondents.
The Appellants however made a point that the proper order to make where the plaintiff has no locus sandi to maintain the suit is not an order dismissing the suit, but an order striking it out. See OLORIODE v. OYEBI (1984) 5 SC 1 30-32 & 34 – 36; ORAPO v SUNMONU (1987) 5 SC 228 at 284- 285, The rationale for this is that the want of locus standi goes to the jurisdiction of the court. [OLORIODE v. OYEBI (supra)]
From the judgment appealed locus standi is not the core issue decided. The learned trial judge, on the merits, found that the 2nd Defendant is the legitimate owner of the land in dispute and that it has not been shown that he lacks legal capacity to deal with his own land as it pleases him. And that he, his Lordship, does not see how the consent of the Appellants would be needed either for the 1st Respondent to go into possession of the land in dispute or for the 2nd Respondent, its rightful owner, to dispose of his land as it pleases him. There are abundant evidence to justify these findings and conclusions. As submitted by Respondent’s counsel; when a claimant is unable to make out a meritorious case or failed woefully to prove his case or the relief he is praying the court to grant him the trial court has the right to hold that the case of such claimant lacks merit. See CAPPA & ALBERTO LTD v. AKINTILO (2003) FWLR [pt.160] 1565 at 1585. The defendant is entitled to an order dismissing the claimant’s, suit if on the merits it is found to be frivolous, as the instant. This, I hold, is the true situation in this appeal.
On the whole there is no substance in this appeal and it is hereby dismissed. I make no order as to costs.

SULEIMAN GALADIMA, J.C.A.: I have been privileged to read in draft the Judgment just delivered by my learned Brother EKO J.C.A. The salient facts and circumstances of this case have been meticulously articulated in the said judgment.
I am completely with him in his findings that there is no merit in the appeal. The evidence is overwhelming to justify these findings arid conclusions. I find no merit whatsoever in this appeal which must therefore be dismissed. I dismiss it and I make no order as to costs.

ISTFANUS THOMAS, J.C.A.: I have had the advantage of reading before now, the lead judgment of my learned brother EKO, JCA, just delivered by him and I entirely agree with him that there is no merit in the appeal.
However, by way of emphasis, I wish to make a few contributions. The appellants, who were the plaintiffs at the trial court, claimed by originating Summons at page of the record that they were suing for themselves and on behalf of the Chinwo’s family. But it is on record that, the other side, namely 1st respondent is their own blood brother while the 2nd respondent is the father of the three appellants and the 1st respondent respectively. The question then is, how could the appellants institute the matter on behalf of the Chinwo family and against the same other member of the same Chinwo family? The simple answer is that, the appellant as the plaintiff at the lower court of the Chinwo family. In other words, the appellant as claimant had no locus standi to institute the suit. See Ayowe v. Obasanjo (2006) ALL FWLR (Pt.334) and that would have been the end of the matter. This facts is supported by the averments of the 2nd respondent in his paragraph 8 of his affidavit in support of his allocation of the land to one of his sons, Mr. Isaiah Chinwo. The paragraph 8 affidavit of the 2nd respondent averred inter alia is at page 44 of the record thus:
“8. That the Chinwo family did not authorize the claimants to bring this suit.” (italized is mine).
Now since the appellants as plaintiffs could not dispute nor challenged or contradict their own father’s averment in paragraph 1 quoted above they are deemed to have admitted that they had no locus standi to institute the suit. See the Honda Place Ltd V. Globe Motors Ltd (2005) 14 NWLR (Pt. 945) 273. S.C; Att-Gen. Plateau State v. Att-Gen Nasarawa State (2005) 9 NWLR (Pt. 930) 421 S.C.
It is from the foregoing and the fuller reasoning and conclusion reached in the lead judgment of my learned brother Eko, JCA, that I too, dismissed the appeal. I also make no order on costs.

Appearances

E.N. Dike, Esq. For Appellant

AND

Martins Achuonye, Esq. For Respondent