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ACCESS BANK v. ONANUBI & ORS (2022)

ACCESS BANK v. ONANUBI & ORS

(2022)LCN/15976(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, January 19, 2022

CA/L/690/2013

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal

Between

ACCESS BANK PLC APPELANT(S)

And

1. MR. OLUMIDE ONANUBI 2. MR. LAYIWOLA ONANUBI 3. MISS FUNLAYO ONANUBI 4. MRS. OLAJUMOKE OYERO (NEE ONATUBI) 5. MR. OLADELE ONANUBI 6. PA S.O. ONANUBI LTD 7. MR. ROTIMI OLOWO RESPONDENT(S)

 

RATIO

THE PURPOSE OF PRELIMINARY OBJECTION

The purpose of preliminary objection is to contend that a suit or an appeal is defective or incompetent. If sustained, the result will be striking out the suit or the appeal and truncate or abort the hearing on the merits. See Itam vs. Itam (2021) LPELR-54121 (CA); Ezeofor vs. Honey King Media Ltd (2018) LPELR-44558 (CA); Okorie vs. Onuoha (2017) LPELR-42279 (CA). The procedure of preliminary objection is resorted to only where a Respondent opposes the hearing of the entire appeal on the ground of defect or incompetence. This point was emphasized by the Apex Court in the recent case of Ajuwon vs. Governor of Oyo State & Ors (2021) LPELR-55339 (SC), where Eko, JSC- reiterated thus:
“A preliminary objection is only raised to the hearing of the appeal, and not to a few grounds of appeal. The purpose of preliminary objection is the termination or truncation of the appeal in limine. A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal when there are other grounds to sustain the appeal; which purported preliminary objection is, therefore, not capable of truncating the hearing of the appeal. In such a situation, a preliminary objection is not the appropriate procedure to deploy against defective grounds of appeal when there are other grounds, not defective, which can sustain the appeal: Adejumo & Ors vs. Oludayo (2014) 12 NWLR (Pt.1421) 252 (SC); (2014) LPELR-22997 (SC).”
PER SIRAJO, J.C.A.

THE POSITION OF THE LAW ON PERSONAL REPRESENTATIVES OF A DECEASED PERSON

Section 3 of the Administration of Estates Law, CAP A3, Laws of Lagos State 2003, vests in the personal representative of a deceased person all the real properties of the deceased person irrespective of any bequest made in the Will of the deceased in respect of the said properties. The Section provides:
1. Real estate to which a deceased person was entitle for an interest not ceasing on his death shall on his death, and notwithstanding any testamentary disposition thereof, devolve from time to time on the personal representative of the deceased, in like manner as before the commencement of this Law chattels real devolved on the personal representative from time to time of a deceased person.
2. The personal representatives for the time being of a deceased person are deemed in law his heirs and assigns within the meaning of all trusts and powers.
3. The personal representatives shall be the representative of the deceased in regard to his real estate to which he was entitled for an interest not ceasing on his death as well as in regard to his personal estate.
The law defines personal representative in Section 2 to mean the Executor or Administrator of a deceased person. The implication of the provisions of Section 3 above is that it is the Executor(s) and/or Executrix(es) of a deceased testator or an Administrator(s) of a deceased intestate, in whom the legal interest in the estate of the deceased is solely vested, that are empowered by law to take the necessary legal steps for the protection of the estate of the deceased, notwithstanding that in the case of a Will, certain persons are bequeathed some property under the Will.  PER SIRAJO, J.C.A.

DEFINITION OF THE TERM “LOCUS STANDI”

Locus standi is the legal capacity to institute legal proceedings before a Court. It is the standing to sue or the competence of a party to sue. See Taiwo vs. Adegboro (2011) 11 NWLR (Pt.1159) 562. The term was also defined thus:
“Locus standi is the legal right of a party to an action to be heard in litigation before a Court or Tribunal. The term connotes the legal capacity of instituting or commencing an action in a competent Court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever.”
– Per Kekere-Ekun, JSC, in B.B. Apugo & Sons Ltd vs. OHMB (2016) LPELR-40598 (SC). Thus, for a person to approach a Court, he must be able to show that his civil rights and obligations have been or are in danger of being violated or infringed upon.
Locus standi is a condition precedent for proper initiation of any judicial proceeding and therefore goes to the competence of or jurisdiction of the Court to entertain the action. Therefore, where a claimant has no locus standi, his action will be incompetent and the Court will have no jurisdiction to hear and adjudicate on the action. See Pam vs. Mohammed (2008) LPELR-2895 (SC); Opobiyi & Anor vs. Muniru (2011) LPELR-8232 (SC); Bakare & Ors vs. Ajose-Adeogun & Ors (2014) LPELR-22013.  PER SIRAJO, J.C.A.

MUHAMMAD IBRAHIM SIRAJO, J.C.A. (Delivering the Leading Judgment): The 1st-4th Respondents, as Claimants, commenced an action before the High Court of Lagos State by way of Writ of Summons dated and sealed on 1st June, 2007, against the Appellant and the 7th Respondent as Defendants. The 5th and 6th Claimants/Respondents were joined on the application of the 1st Defendant, now Appellant by an order of the lower Court made on 06/03/2009. By their Amended Statement of Claim dated 14/01/2010, the 1st – 4th Respondents claimed the following reliefs:
i. A Declaration that the claimants are the true and rightful owners of the property at No. 9, Adejonwo Street, Mende, Maryland, Lagos by virtue of the last will of their deceased father dated 14th December, 1991 and the probate letter dated 8th of December, 1994.
ii. An Order setting aside purported sale of the property at No. 9, Adejonwo Street, Mende, Maryland to the 2nd Defendant by the 1st Defendant.
iii. A Declaration that the exercise of power of sale vested in the 1st Defendant by and under any Deed of Tripartite Mortgage with anyone is illegal, null and void as same cannot be exercised due to the fraud in the collateral used for the Deed of Mortgage and non-compliance with the provision of the Land Use Act.
iv. A Declaration that the purported sale of the claimant’s property at No. 9, Adejonwo Street, Mende, Maryland, Lagos is irregular, illegal, wrongful, null and void by virtue of the non-compliance with the mandatory provision of the Sale by Auction Laws of Lagos State.
v. An Order directing the Defendants to release forthwith the title documents of the claimant’s property at No. 9, Adejonwo Street, Mende, Maryland, Lagos to the claimants.
vi. The sum of N20,000,000.00 (Twenty Million Naira) only being General damages, jointly and severally against the Defendants for the unlawful trespass to the Claimants’ property, harassment to the various families and tenants, fraud and negligently accepting the claimant’s property as a collateral for mortgage without adequate search, necessary investigation and diligence.
vii. An Order of perpetual injunction restraining the Defendants, their servants, agents, privies or any other person purported to have bought the property from the Defendants from entering or otherwise doing anything whatsoever in respect of the property at No. 9, Adejonwo Street, Mende, Maryland, Lagos.
viii. An Order of perpetual injunction restraining the Defendants, their servants, agents, privies or any other person from interfering with the claimants’ occupation, possession and use of same, either by themselves or by others (tenants) claiming, lawful (sic) through the claimants.
ix. The sum of N750,000.00 (Seven Hundred and Fifty Thousand Naira) only being the cost of this suit.
x. The interest of 18% on judgment sum jointly and severally against the Defendants until judgment sum is liquidated.”

In its judgment delivered on 30/11/2012, the lower Court, Coram: Y.A. Adesanya, J., entered judgment for the Respondents by granting the reliefs claimed by the 1st–4th Respondents and the counter-claim of the 7th Respondent against the Appellant.

​The facts leading to this appeal can be summarized as follows: Late Samuel Oladipo Onanubi has before his death on 23/02/1992 devised his property No. 9 (formerly No. 10), Adejonwo Street, Mende, Maryland, Lagos, and another property at 2A Bale Street, Agege, Lagos, to his children in equal shares, in his last Will dated 14/12/1991, admitted to probate on 08/12/1994. Sometimes in 2005, the Appellant sold property No. 9 Adejonwo Street, Mende, Maryland, to the 7th Respondent on the ground that the property was mortgaged to it on 29/11/2001 by Samuel Oladipo Onanubi as security for N1,000,000.00 (One Million Naira) Contract Finance Facility advanced to him and his Company, Pa S.O. Onanubi Limited, which they failed to repay when the facility became due. The 1st-4th Respondents contended that their father couldn’t have mortgaged the property in 2001 when he has since died in February, 1992. Upon realizing this fact, the 2nd Defendant, now 7th Respondent, counter-claimed against the Appellant, the purchase price paid for the house and other expenses incurred by him. It turned out that the 5th Respondent was the one who mortgaged the property to the Appellant through a Deed of Third-Party Legal Mortgage executed on 29/11/2001 in his capacity as Director and Chief Executive Officer of Pa S.O. Onanubi Limited. This fact necessitated the joinder of the 5th and 6th Respondents to the suit on the application of the Appellant.

Naturally aggrieved by the judgment, the Appellant filed a Notice of Appeal predicated on three grounds of appeal, dated 04/12/2012 contained at pages 510–512 of the Record, seeking to have the judgment of the lower Court set aside in its entirety, including the judgment on the counter-claim of the 7th Respondent.

Parties filed and exchanged Briefs of Argument. The Appellants’ Amended Brief of Argument was filed on 15/10/2020 but deemed properly filed on 10/11/2020. On 10/12/2020, both the 1st–4th Respondents and the 7th Respondent filed their respective Briefs of Argument and Notices of preliminary objection. The Appellant’s Reply Amended Brief to the 1st–4th and 7th Respondents’ Notices of Preliminary Objection was filed on 23/12/2020. The Appellant did not file Reply Brief to the Briefs of the two set of Respondents on the main appeal. The 5th and 6th Respondents did not file any process in this appeal.

​At the hearing of the appeal on 28/10/2021, Segun Ololade, Esq., of counsel for the Appellant adopted the Appellants Amended Brief of Argument and the Amended Reply Brief to the Notice of preliminary objection of the 1st–4th Respondents and that of the 7th Respondent settled by him. He urged the Court to allow the appeal. On behalf of the 1st–4th Respondents, Grace Jogoh, Esq., adopted their Amended Brief and urged the Court to uphold the preliminary objection and dismiss the appeal. Oluwatoyin Abidoye, Esq., also adopted the Brief of the 7th Respondent and urged the Court to uphold the preliminary objection and proceed to dismiss the appeal.

The Appellant crafted two issues for determination by the Court, thus:
1. “Whether the 1st-4th Claimants/Respondents as beneficiaries under the Will of late Pa Samuel Oladipo Onanubi can sue the 1st Defendant/Appellant and the 2nd Defendant/Counter-Claimant/7th Respondent at the lower Court in respect of the property situate at No.9, Adejonwo Street, Mende, Maryland, Lagos, without the vesting assent of the Executors of the Will.
2. Whether the 1st–4th Claimants/Respondents had the locus standi to institute the action at the lower Court.

The 1st-4th Respondents also formulated two issues for determination –<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

1. Whether the 1st–4th Respondents have locus standi to institute the suit (Ground 1 of the Appellant’s grounds of appeal).

2. Whether the 1st-4th Respondents are the true beneficial owners of the property known as No. 9, Adejonwo Street, Mende, Maryland, Lagos State, the subject matter of this suit (Ground 2 of the Appellants grounds of appeal).

The 7th Appellant’s issues for determination are word for word the same with the issues of the 1st–4th Respondents, therefore, there is no need reproducing same here.

Preliminary objection.
Before delving into the main appeal, I shall resolve the two preliminary objections first. The 1st-4th Respondents objected to grounds (ii) and (iii) of the Appellant’s grounds of appeal and issue (1) for determination as formulated in the Appellant’s Amended Brief of Argument. The grounds for the objection are – (i) No issue for determination was formulated from grounds (ii) and (iii) of the Appellant’s grounds of appeal. (ii) Issue 1 formulated in the Appellant’s Brief of Argument does not relate to or arise from any of the Appellant’s grounds of appeal and amounts to proliferation of issue 2. The objection of the 7th Respondent and the grounds upon which it was predicated are in pari materia with that of the 1st–4th Respondents, consequently, resolution of the preliminary objection of the 1st–4th Respondents, one way or the other, will suffice for the objection of the 7th Respondent.

Learned counsel for the 1st–4th Respondents, Akin Elegbede Esq., argued that in the Appellant’s Amended Brief of Argument, the Appellant did not formulate any issue for determination from grounds 2 and 3 of the Notice of Appeal dated 4th December, 2012, the implication of which is that, the said grounds are deemed abandoned and liable to be struck out. We are urged to do so. On the two issues formulated by the Appellant in its Brief of Argument, it was the submission of the 1st–4th Respondents that the law is trite that issues for determination shall not be more than the ground of appeal so as to avoid proliferation of issues. Relying on Bepco Ltd vs. Nasco Management Service Ltd (1993) 7 NWLR (Pt.305) 369 at 379; Iroagbara vs. Ufomadu (2001) 11 NWLR (Pt.724) 465 at 469; Agu vs. Ikewibe (1991) 3 NWLR (Pt.180) 385 at 401, learned counsel submitted that since grounds 2 and 3 of the Appellant’s grounds of appeal are deemed abandoned, issues 1 and 2 formulated in the Appellant’s Brief relates only to ground 1, which amount to proliferation of issues. It is further argued that while the Appellant’s issue 2 relates to ground 1, issue 1 does not relate to any of the Appellant’s grounds of appeal and should therefore be struck out.

In his response to the two notices of preliminary objection by the two set of Respondents, learned counsel for the Appellant submitted that notice of preliminary objection is not the appropriate mode of challenging issues for determination. He argued that preliminary objection is only resorted to when the competence of the appeal is being challenged, not when the challenge is on issues for determination. The Court was urged to dismiss the two notices of preliminary objection by the 1st-4th Respondents and the 7th Respondent, relying on the case of Unity Bank Plc vs. Olatunji. (2013) 15 NWLR (P.1378) 503.

Resolution of preliminary objection.
The objection of the 1st-4th Respondents and that of the 7th Respondent attacked the competence of grounds 2 and 3 as contained in the Appellant’s Notice of Appeal. The objection also challenges issue 1 formulated in the Appellant’s Brief of Argument. Assuming the preliminary objection succeeds, the result will be striking out grounds 2 and 3 together with issue 1. Ground 1 of the Notice of Appeal and issue 2 formulated thereunder in the Appellant’s Brief of Argument will still survive and give life to the appeal. The implication will be that even if the two preliminary objections succeed, the appeal will still be heard and determined on the merits on the surviving ground 1 and issue 2 formulated therefrom. The purpose of preliminary objection is to contend that a suit or an appeal is defective or incompetent. If sustained, the result will be striking out the suit or the appeal and truncate or abort the hearing on the merits. See Itam vs. Itam (2021) LPELR-54121 (CA); Ezeofor vs. Honey King Media Ltd (2018) LPELR-44558 (CA); Okorie vs. Onuoha (2017) LPELR-42279 (CA). The procedure of preliminary objection is resorted to only where a Respondent opposes the hearing of the entire appeal on the ground of defect or incompetence. This point was emphasized by the Apex Court in the recent case of Ajuwon vs. Governor of Oyo State & Ors (2021) LPELR-55339 (SC), where Eko, JSC- reiterated thus:
“A preliminary objection is only raised to the hearing of the appeal, and not to a few grounds of appeal. The purpose of preliminary objection is the termination or truncation of the appeal in limine. A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal when there are other grounds to sustain the appeal; which purported preliminary objection is, therefore, not capable of truncating the hearing of the appeal. In such a situation, a preliminary objection is not the appropriate procedure to deploy against defective grounds of appeal when there are other grounds, not defective, which can sustain the appeal: Adejumo & Ors vs. Oludayo (2014) 12 NWLR (Pt.1421) 252 (SC); (2014) LPELR-22997 (SC).”
​Where a Respondent’s complaint is about the competence of a ground of appeal, the appropriate thing for him to do is to file a notice of motion to strike out the incompetent grounds and not a preliminary objection. The complaint of the 1st–4th Respondents and the 7th Respondent in their respective preliminary objections is against some grounds of appeal and an issue for determination. Their complaints cannot be ventilated through the preliminary objection procedure since another ground and issue for determination will still survive and sustain the appeal. The appropriate thing for them to do was to seek to strike out the incompetent grounds and issue for determination through the instrumentality of a notice of motion as provided for in the Rules of this Court. The two preliminary objections filed by the 1st–4th Respondents and the 7th Respondent are incompetent and are accordingly struck out.

Now, to the merits of the appeal.
The issues formulated by the two set of Respondents are identical with the issues in the Appellant’s Brief, which I will adopt in the resolution of the appeal.
1. Whether the 1st-4th Claimants/Respondents as beneficiaries under the Will of late Pa Samuel Oladipo Onanubi can sue the 1st Defendant/Appellant and the 2nd Defendant/Counter Claimant/7th Respondent at the lower Court in respect of the property situate at N. 9, Adejonwo Street, Mende, Maryland, Lagos, without the vesting assent of the Executors of the Will.
2. Whether the 1st–4th Claimants/Respondents had the locus standi to institute the action at the lower Court.

These two issues are not only interrelated but they dovetail into one another as both of them deal with competence of a party to institute an action in Court. I therefore deem it expedient to consider the two issues together.

ARGUMENT
Learned counsel for the Appellant submitted that the 1st–4th Respondents as beneficiaries to the property No. 9, Adejonwo Street, Mende, Maryland, Lagos, under the Will of late Pa Samuel Oladipo Onanubi do not have the power to commence this proceeding as they are not the Executors of the said Will. That the 1st–4th Respondents did not give any reason why the suit was not commenced by the Executors appointed under the Will nor have they shown that they filed the action with the consent and authority of the Executors. It is submitted that the beneficiaries to properties under a Will cannot lay claim to the properties without the vesting assent of the Executors of the Will and a beneficiary cannot sue for any property devised to him under the Will when the said property is still vested in the Executors of the Will, relying on Unoka vs. Agili (2007) 11 NWLR (Pt.1044) 122 at 141. While conceding that the 1st–5th Respondents as beneficiaries of the Will have sufficient interest in the preservation of the property and can even bring an action against the Executors over the administration of the estate, counsel argued that the legal interest in the property still vests in the Executors and no beneficiary can lay claim to his share of the estate until the Executors have given their assent to the vesting of the property in the beneficiary. Admin./Exec., Estate of Abacha vs. Eke-Spiff (2009) 7 NWLR (Pt.1139) 97 at 146, cited and relied on. Counsel submitted that the 1st–4th Respondents lacked the legal capacity to institute the action at the lower Court, as none of the Executors in whom the proprietary right in the property vests by virtue of Section 3 (2) of the Administration of Estates Law, CAP A3, Laws of Lagos State of Nigeria, 2003, has been shown to be either incapacitated or dead. He argued that merely being beneficiaries of their father’s Will is not sufficient to confer locus standi on the 1st–4th Respondents to sue, as vesting assent, which must be in writing, must be proved to have been made by the Executors to the beneficiaries of the Will. Learned counsel submitted that the lower Court ought not to have entered judgment in favour of the 2nd Defendant/Counter Claimant/7th Respondent when the 1st–4th Respondents had no locus standi to commence the suit. Reliance was placed on E.T & E.C. (Nig) Ltd vs. Nevico Ltd (2004) 3 NWLR (Pt.860) 327 at 365; Emezi vs. Osuagwu (2005) 12 NWLR (Pt.939) 340 at 361. He concluded that lack of capacity by the 1st–4th Respondents to institute the suit renders both the entire case and the counter-claim empty as one cannot put something on nothing and expect it to stand. He prayed the Court to allow the appeal.

Learned counsel for the 1st–4th Respondents and the counsel to the 7th Respondent, whose Briefs are word for word the same, submitted that in view of Exhibit C3, the last Will of late Pa Samuel Oladipo Onanubi and exhibit C1, the probate granted by the High Court of Lagos State, there is unchallenged and uncontroverted evidence that the 1st–4th Respondents were in possession of the aforesaid property at the material time and also had tenants in the property. Relying on Alli vs. Ikusebiala (1985) 5 SC 93 at 124, counsel submitted that as beneficial owners of the property under the Will of their father, the 1st–4th Respondents can exercise and enjoy all the rights and priviledges of an owner of property, and that the grant of probate over the Estate does not make the Executors owners of the property in question. It was argued that since the 1st-4th Respondents have proprietary and possessory rights over the property in question, they have the locus standi to institute an action in Court to protect those rights, in view of the violation of the said rights by the Appellant and the 7th Respondent. Several judicial authorities were cited on locus standi, among which are: Okafor vs. Asoh (1999) 3 NWLR (Pt.593) 55; Gudu vs. Kitta (1999) 12 NWLR (Pt.629) 21; Owodunni vs. C.C.C. (2000) 10 NWLR (Pt.7) 315; Odeneye vs. Efunaga (1990) 7 NWLR (Pt.164) 618. Learned counsel drew the Court’s attention to the trite position of the law that parties are bound by their pleadings, and proceeded to submit that the issue of whether the property was vested in the 1st–4th Respondents by the Executors named in the Will did not arise from the pleadings filed by the parties at the lower Court and no issue was joined on that point, consequently, there was no burden on the 1st–4th Respondents to adduce evidence of the vesting assent of the property in them by the Executors of the Will. The Court was urged to affirm the decision of the lower Court by holding that the Respondents are the beneficial owners of the property known as No. 9, Adejonwo Street, Mende, Maryland, Lagos.

In reply to the arguments in the Appellant’s Brief, learned counsel for the 1st–4th Respondents and learned counsel for the 7th Respondent both submitted on the authorities of Eyesan vs. Sanusi (1984) 15 SCC 271 at 283; Gosling vs. Gosling (1859) Johns 265; Re: Browne’s Wills (1859) 27 Beav. 324; Ademola vs. Sodipo (1992) 7 NWLR (Pt.253) 251; (1992) SC N.M.L. 465, that beneficiaries of an Estate can sue to protect their proprietary and possessory rights and can also be sued with regards to the Estate. It was submitted that the case of Unoka vs Agili (supra) cited and relied upon by the Appellant is distinguishable with the case in the instant appeal, in that the application of the Executors to join the suit in the Unoka’s case was pending at the time the issue of locus standi of the beneficiaries was raised before the trial Court, while in this case, the Executors did not apply to join the suit at the lower Court. With reference to the cases of Agbai vs. Okogbue (1991) 7 NWLR (Pt.204) 391; Aigbadion vs. State (1999) 1 NWLR (Pt.586) 284 at 297; Alake vs. State (1991) 7 NWLR (Pt.205) 567 at 588, it was submitted that the argument canvassed in paragraph 3.14–3.18 of the Appellant’s Amended Brief is not predicated on either of the two issues for determination formulated by the Appellant nor covered by any of the three grounds of appeal, as there was no appeal against the judgment on the 7th Respondent’s counter-claim. Learned counsel contended, relying on the cases of Total Nigeria Plc vs. Morkah (2002) 9 NWLR (Pt.773) 492; P.M.B. vs. M.I.B. (2000) 6 NWLR (Pt.661) 524, that a counter-claim is a distinct and separate action from the main claim and its success or failure does not depend on the success or failure of the main claim, therefore, even if the appeal against the judgment in the main claim succeeds, it will not affect the decision on the 7th Respondent’s counter-claim. The Court was urged to resolve this appeal in favour of the Respondents by affirming the judgment of the lower Court.

RESOLUTION
Section 3 of the Administration of Estates Law, CAP A3, Laws of Lagos State 2003, vests in the personal representative of a deceased person all the real properties of the deceased person irrespective of any bequest made in the Will of the deceased in respect of the said properties. The Section provides:
1. Real estate to which a deceased person was entitle for an interest not ceasing on his death shall on his death, and notwithstanding any testamentary disposition thereof, devolve from time to time on the personal representative of the deceased, in like manner as before the commencement of this Law chattels real devolved on the personal representative from time to time of a deceased person.
2. The personal representatives for the time being of a deceased person are deemed in law his heirs and assigns within the meaning of all trusts and powers.
3. The personal representatives shall be the representative of the deceased in regard to his real estate to which he was entitled for an interest not ceasing on his death as well as in regard to his personal estate.
The law defines personal representative in Section 2 to mean the Executor or Administrator of a deceased person. The implication of the provisions of Section 3 above is that it is the Executor(s) and/or Executrix(es) of a deceased testator or an Administrator(s) of a deceased intestate, in whom the legal interest in the estate of the deceased is solely vested, that are empowered by law to take the necessary legal steps for the protection of the estate of the deceased, notwithstanding that in the case of a Will, certain persons are bequeathed some property under the Will.

There is no doubt that beneficiaries under a Will have interest in the property devised to them under the Will, however, the legal interest in the devised property will only pass to the beneficiaries when a vesting assent is made or executed by the Executor(s)/Executrix(es) appointed under the Will. The law requires the vesting assent to be in writing, not verbal. This is the import of Section 40 (1), (2) & (4) of the Administration of Estate Law of Lagos State, which I quote below:
1. A personal representative may assent to the vesting in any person who (whether by devise, bequest, devolution, appropriation or otherwise) may be entitled thereto, either beneficially or as a trustee or personal representative, of any estate or interest in real estate to which the testator or intestate was entitle or over which he exercised a general power of appointment by his will, and which devolved upon the personal representative.
2. The assent shall operate to vest in that person the estate or interest to which the assent relates, and unless a contrary intention appears, the assent shall relate back to the death of the deceased.
4. An assent to the vesting of a legal estate shall be in writing, signed by the personal representative, and shall name the person in whose favour it is given and shall operate to vest in that person the legal estate to which it relates; and an assent not in writing or not in favour of a named person shall not be effectual to pass a legal estate.
It was argued for the two set of Respondents that were represented in this appeal that the 1st–4th Respondents have proprietary right over No. 9, Adejonwo Street, Mende, Maryland, Lagos, same having been devised to them in the Will of their late father, Samuel Oladipo Onanubi, and that makes them beneficial owners of the said property. Proprietary right has been defined as a right over or in respect of property that can be asserted against others. See Farlex Online Dictionary. Proprietary interest on the other hand is defined by Black’s Law Dictionary 9th Edition as “the interest held by a property owner together with all appurtenant rights.” A beneficial owner of property is a person who enjoys the benefits of ownership though the property’s title is in another name. Conversely, a legal owner is a person who holds the legal title under his name, whereas a beneficial owner is a person who enjoys the benefits of ownership even though the title is in another name. As heirs and beneficiaries of the Will of their father, the 1st–4th Respondents have equitable right over the property devised to them in the Will while the legal right resides in the Executors named in the Will, namely, Daniel Olarubu Onanubi and Mr. Afolabi Aina. Until the Executors assent in writing to the vesting of the property in question to the 1st–4th Respondents, the 1st–4th Respondents cannot be said to have legal right in the property which they can assert against anybody.
Learned counsel for the 1st-4th Respondents and that of the 7th Respondent argued that as beneficial owners of the property, the 1st–4th Respondents can exercise and enjoy all the rights and priviledges of an owner of property. I am in agreement with counsel that the 1st–4th Respondents, as beneficiaries of the Will of Late Samuel Oladipo Onanubi, who devised the property in issue to them, have interest in the preservation of the property and are also entitled to ownership of same. However, where I disagree with counsel is that, being beneficiaries under a Will simpliciter does not confer on the 1st-4th Respondents’ legal title in the property that will enable them exercise and enjoy all the incidents of ownership. The legal title will only pass to the beneficiaries after the Executors assented to the vesting of the property in them in writing. Pending the vesting assent, the legal title to the property remains with the Executors. See Sections 3 and 40 of the Administration of Estates Law, CAP A3, Laws of Lagos State, 2003; Unoka & Ors vs. Agili & Ors (2007) LPELR-8554 (CA); Carew vs. Oguntokun (2011) LPELR-9355 (SC). In the case of Unoka vs. Agili (supra), Abba Aji, JCA (as he then was) reiterated the law thus:
“The position of the law is settled that it is only when a vesting assent is made by an Executor or Executrix to a beneficiary that the estate or interest to which the assent relates can vest on such beneficiary. A beneficiary therefore cannot claim his share in the estate of the deceased testator until the Executors have given their assent to the vesting of the property on him.”

It was argued for the Appellant that because the legal estate in the property situate at No. 9, Adejonwo Street, Mende, Maryland, Lagos, does not reside in the 1st–4th Respondents to whom it was devised by their father, and in the absence of any reason given as to why the Executors did not file the action to protect the property, the 1st–4th Respondents lacked the legal capacity i.e., the locus standi to institute the action leading to this appeal. To this argument, counsel for the two set of Respondents represented in this appeal submitted that the issue of locus standi and vesting assent was not pleaded in the Appellant’s Statement of Defence to enable the Respondents prepare for it during trial at the lower Court.

Upon perusing through the pleadings of the parties, I discovered that issues were not joined by them on the capacity of the 1st–4th Respondents to commence this action as well as on the issue of whether or not the Executors of the Will of late Samuel Oladipo Onanubi have assented to the vesting of the property, subject of this dispute, to the 1st–4th Respondents. These two issues are intertwined, in that they both go to the root of the legal capacity of the 1st–4th Respondents to file this action. The Executors were neither parties to the suit at the lower Court nor were they called to testify by any of the parties. It was in his final address before the lower Court that the Appellant challenged, for the first time, the locus standi of the 1st–4th Respondents. The lower Court considered that issue and held at page 495 of the Record of Appeal that as beneficiaries of the property in dispute under the Will of their late father, the 1st–4th Respondents have locus standi to institute the action.

Locus standi is the legal capacity to institute legal proceedings before a Court. It is the standing to sue or the competence of a party to sue. See Taiwo vs. Adegboro (2011) 11 NWLR (Pt.1159) 562. The term was also defined thus:
“Locus standi is the legal right of a party to an action to be heard in litigation before a Court or Tribunal. The term connotes the legal capacity of instituting or commencing an action in a competent Court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever.”
– Per Kekere-Ekun, JSC, in B.B. Apugo & Sons Ltd vs. OHMB (2016) LPELR-40598 (SC). Thus, for a person to approach a Court, he must be able to show that his civil rights and obligations have been or are in danger of being violated or infringed upon.
Locus standi is a condition precedent for proper initiation of any judicial proceeding and therefore goes to the competence of or jurisdiction of the Court to entertain the action. Therefore, where a claimant has no locus standi, his action will be incompetent and the Court will have no jurisdiction to hear and adjudicate on the action. See Pam vs. Mohammed (2008) LPELR-2895 (SC); Opobiyi & Anor vs. Muniru (2011) LPELR-8232 (SC); Bakare & Ors vs. Ajose-Adeogun & Ors (2014) LPELR-22013. I need to also stress that an objection to the locus standi of a claimant in an action is automatically an objection to the jurisdiction of the Court before which the action is pending. As an unquestionable threshold issue which goes to the capacity of a party to institute legal proceedings and a fortiori, the jurisdiction of the Court, the challenge to a party’s locus standi can be taken at any time during the proceedings or even for the first time on appeal to this Court, without leave. The contention of learned counsel for the Respondents on the non-joinder of the issue of legal capacity of the 1st–4th Respondents in the pleadings of the parties at the lower Court, is therefore of no moment. Whether raised in the pleadings or not, the fundamental issue of capacity of a party to file legal proceedings in Court can be raised at any point during the pendency of an action or appeal. The fact that the Appellant did not raise the issue of locus standi in its pleading does not preclude it from raising it at the final address stage before the lower Court and in its Brief of Argument before this Court.

The existence or absence of locus standi on the part of the 1st–4th Respondents to institute the action, now on appeal, is tied to their status in relation to the property over which they sued the Appellant. As stated hereinbefore, the property No. 9, Adejonwo Street, Mende, Maryland, Lagos belongs to Pa Samuel Oladipo Onanubi, the father of the 1st–5th Respondents. Before his death in 1992, he devised the property in his Will made in 1991 to the 1st–5th Respondents. In the said Will, he appointed Messrs Daniel Olarubu Onanubi and Afolabi Aina as Executors. Upon the death of the testator, the legal title to the property vests in the Executors by virtue of the provisions of Section 3 of the Administration of Estates Law of Lagos State. It is therefore the Executors that have the locus standi to sue with respect to any matter concerning that property. The legal right of the 1st–5th Respondents over the property, which will confer on them the locus standi to maintain an action, will only crystallize after the Executors have assented to the vesting of the property in them. There was nothing before the lower Court and this Court to show that the vesting assent has been made in writing by the Executors in favour of the 1st–4th Respondents. The law is trite that once an objection is taken as to the legal capacity of a claimant to institute an action, the claimant had the duty to demonstrate that he possesses the requisite capacity and standing to sue and maintain the action. In the instant appeal, the 1st–4th Respondents, having been confronted with a challenge to their legal capacity to sue, have failed to demonstrate that they have the vesting assent of the Executors over the property, subject of this dispute, or that they have the consent of the Executors to institute the action. In the absence of the vesting assent, the 1st–5th Respondents, though named as beneficiaries of No. 9 Adejonwo Street, Mende, Maryland, Lagos, in their father’s Will, lacked the legal capacity to institute an action over the property, as that capacity vests in the Executors of the Will. The lower Court was therefore in error when it held that the 1st–4th Respondents had locus standi to institute the action leading to this appeal. The absence of the locus standi of the 1st–4th Respondents to institute the action has rendered the action incompetent and robbed the lower Court of the requisite jurisdiction to adjudicate on the matter. In the result, I allow the appeal and set aside the judgment of the lower Court over the claim of the 1st–4th Respondents, which is hereby struck out.

The 1st-4th Respondents and the 7th Respondent argued in their respective Briefs that even if the appeal against the judgment of the lower Court on the main claim of the 1st–4th Respondents succeeds, it will not affect the decision of the lower Court on the counter-claim of the 7th Respondent. A counter-claim is considered as a distinct and independent action and not part of the original action, though for convenience the two are tried together. See Gowon vs. Ike-Okongwu & Ors (2003) LPELR-1336 (SC). On the nature of a counter-claim, the Supreme Court has held in the case of Effiom vs. Iron Bar (2000) I NWLR (Pt.678) 341, that:
“A counter-claim is an independent action and it needs not relate to or be in any way connected with the plaintiff’s claim or raised out of the same transaction. It is not even analogous to the plaintiff’s claim. It need not be an action of the same nature as the original claim. A counter-claim is to be treated for all purposes for which justice requires it to be treated as an independent action.”
Again, in Okonkwo vs. C.C.B. (2003) FWLR (Pt.154) 457 at 508, it was held as follows:
“Counter-claim though related to the principal action is a separate and independent action and our adjectival law requires that it must be filed separately. The separate and independent nature of a counter-claim is borne out from the fact that it allows the defendant to maintain an action against the plaintiff as profitably as in a separate suit. It is a weapon of defence which enables the defendant to enforce a claim against the plaintiff as effectually as an independent action. As a matter of law, a counter-claim is a cross action with its separate pleadings, judgments and costs.”
The success or failure of a counter-claim is not dependent on the success or failure of the main claim. If the Claimant’s claim is either dismissed, stayed or discontinued, the counter-claim, as a separate action, may nevertheless be proceeded with. In the instant appeal, the 2nd Defendant/7th Respondent who bought property No. 9, Adejonwo Street, Mende, Maryland, from the Appellant as Mortgagee, counter-claimed against the Appellant for the refund of the purchase price and other sundry expenses incurred by him. The lower Court entered judgment for the 7th Respondent on his counter-claim. It is clear from the position of the law on counter-claim that the 7th Respondent claim is distinct and independent of the main claim. However, the success of that counter-claim was predicated mainly on the finding of the lower Court that the Appellant has no title to the property to pass to the purchaser, the 7th Appellant, in that the purported Deed of Tripartite Mortgage wherein the property was used as a collateral to secure a loan of N1,000,000.00 was discovered and proved to be a fraud. Now, the proceedings leading to that discovery and the evidence in proof thereof, as found by this Court, was conducted without jurisdiction due to the lack of legal capacity on the part of those who initiated the proceedings. In law, the entire proceedings amount to a nullity. It is impossible to bifurcate and separate the evidence led by the 7th Respondent from the evidence adduced by the 1st–4th Respondents, who lacked the standing to sue. But for the pleading and evidence led by the 1st–4th Respondents on the last Will of their father executed on 14/12/1991 and his subsequent death on 23/02/1992, which made it practically impossible for him to have executed the Deed of Mortgage on 29/11/2001, the 7th Respondent would have no basis upon which to found his counter-claim. In awarding the counter-claim of the 7th Respondent, the learned trial Judge relied heavily on the doctrine of nemo dat quod non habet to hold that the Appellant’s Bank has no title to pass to the 7th Respondent as the Deed of Mortgage purportedly executed by Samuel Oladipo Onanubi was actually not executed by him since he passed away nearly ten years before the date of the execution of the Deed of Mortgage. The lower Court only became seised of these facts from the evidence of the 1st–4th Respondents and the last Will of their father together with the letter of probate tendered by them. Having declared the entire evidence led by the 1st–4th Respondents a nullity, there is no material left upon which to sustain the counter-claim of the 7th Respondent. Therefore, even though the counter-claim of the 7th Respondent is a distinct claim, it is afflicted by the fundamental vice of nullity which rendered all the efforts of the Respondents and the lower Court a futile venture. The judgment of the lower Court on the 7th Respondent’s counter-claim cannot stand for the reasons adumbrated supra.

On the whole, this appeal succeeds and is hereby allowed. Judgment of the lower Court on the claim of the 1st-4th Respondents and the counter-claim of the 7th Respondent is hereby set aside. In its place, I make an order striking out the claim and the counter-claim for being incompetent and founded on incompetent evidence. I further order that parties shall bear their costs of the appeal.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in draft, the erudite leading judgment delivered by my learned brother: Muhammad Ibrahim Sirajo, JCA. I endorse in toto the legal reasoning and conclusion in it,

Indisputably, the absence of assent to vesting the disputed property in the first-fourth respondents, even though they are the beneficiaries of the estate, disrobed them of the necessary locus standi which is sine qua non for the institution of the suit that transfigured into appeal. In the glaring absence of locus standi, the action, which parented the appeal, was marooned in the murky ocean of incompetence. The lower Court was in grave error when it heard the incompetent suit. The appeal is imbued with merit. l too, allow it in the manner decreed in the elegant judgment. I abide by the consequential orders made therein.

ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: I had read in advance, the draft copy of the judgment just read by my Learned Brother, MUHAMMAD IBRAHIM SIRAJO, JCA.

​Based on the comprehensive analysis contained therein, I entirely agree with the reasoning and abide by the order made.

Appearances:

Segun Ololade For Appellant(s)

Grace Jogoh – for 1st- 6th Respondents.
Oluwatoyin Abidoye – for 7th Respondent. For Respondent(s)