ADEDIBU & ORS v. LAWAL & ORS
(2022)LCN/15998(CA)
In the Court of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, April 08, 2022
CA/IB/218/2020
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
1. PROF. ABASS ADEREMI ADEDIBU 2. ALHAJI AKEEM ADEMOLA ADEDIBU 3. ALHAJA MODINAT ABOSEDE ADEDIBU (FOR THEMSELVES AND ON BEHALF OF THE CHILDREN OF LATE HIGH CHIEF LAMIDI ADEDIBU) APPELANT(S)
And
1. MR. RASAK LAWAL 2. COMMISSIONER FOR LANDS, HOUSING & SURVEY 3. ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, OYO STATE RESPONDENT(S)
RATIO
THE POSITION OF LAW ON LOCUS STANDI
Locus standi is the legal capacity to institute an action in a Court of Law. The legal concept of standing or locus standi is predicated on the assumption that no Court is obliged to provide a remedy for a claim in which the Applicant has a remote, hypothetical, or no interest.
The apex Court defined the term locus standi in the case of INEC V. OGBADIBO LOCAL GOVERNMENT & ORS (2015) LPELR-24839 (SC) thus:
“Locus standi is a Latin term or expression. It denotes the plaintiff’s capacity to sue in a Court of law to enforce a legal right. Once the plaintiff has the right or vested interest to protect and enforce legally. See Taiwo v. Adegboro (2011) 11 NWLR (Pt.1159) 562.” Per GALADIMA, J.S.C. PER NIMPAR, J.C.A.
WHETHER OR NOT THE COURT CAN RAISE AN ISSUE SUO MOTU WITHOUT GIVING PARTIES AN OPPOURTUNITY TO BE HEARD
I believe it is well settled that a Court ought not to suo motu raise an issue without giving the parties an opportunity to be heard thereon before a decision on the issue. The reason for this was given in STIRLING CIVIL ENGINEERING (NIG) LTD V. YAHAYA (2005) LPELR-3118(SC) Per Tobi, JSC,
“In our adversarial system of adjudication, Courts should be reluctant or loath to raise issues suo motu. This does not mean that a Court of law is totally inhibited from raising issues suo motu. It can and in relevant circumstances. For instance, a Court of law can raise issue suo motu, if it is in the interest of justice to do so. Where the issue raised will determine the fortunes of the case one way or the other, a Court of law is entitled to raise it. There could be a situation where the case cannot be determined one way or the other without resolving the issue. In such a situation, a Court is competent to raise it to enable it determine the case.”
See the cases of JIME & ANOR V. INEC & ORS (2019) LPELR-48399(CA), LEADERS OF COMPANY LTD & ANOR V. BAMAIYI (2010) LPELR-1771(SC), STATE V. OLADIMEJI (2003) LPELR-3225(SC) and MOJEKWU V. IWUCHUKWU (2004) LPELR-1903(SC).
However, the settled position espoused above is not cast in stone as the law also recognizes exceptions to the general rule, the apex Court in the case of EFFIOM & ORS V. CROSIEC & ANOR (2010) LPELR-1027(SC) held thusly:In some special circumstances, the Court can raise an issue of law or jurisdiction suo motu and without hearing the parties decide upon it. TUKUR vs GOVERNMENT of GONGOLA STATE (1989) 4 N.W.L.R (Part 117) 517 is instructive on this point. …While the Court has a duty to give the parties the opportunity to be heard on any issue it raises suo motu a failure to do so does not necessarily lead to a reversal of its decision. To warrant an appellate Court’s reversal of the decision, the Appellant must go further to show that the failure to hear him on the point occasioned some miscarriage of justice. See IMAH vs OKOGBE (1993) 9 N.W.L.R (Part 316) 159 at 178; OLUBODE vs SALAMI (1985) 2 N.W.L.R (Part 7) 282. In that case although the issue of venue was not raised and argued by the parties in their briefs, it being an issue of jurisdiction was taken by the Court.” Per TABAI, J.S.C. PER NIMPAR, J.C.A.
WHETHER OR NOT THE ISSUE OF LOCUS STANDI IS A JURISIDICTIONAL ISSUE
Undoubtedly, locus standi is a jurisdictional issue and jurisdiction is a threshold question that overshadows all other issues and it subjects even the Court to its domineering influence, see AJAYI V. ADEBIYI & ORS (2012) LPELR-7811(SC) wherein the apex Court held thusly:
“Locus standi and jurisdiction are interwoven in the sense that locus standi goes to affect the jurisdiction of the Court before which an action is brought. Thus where there is no locus standi to file an action, the Court cannot properly assume jurisdiction to entertain the action. Locus standi being an issue of jurisdiction can be raised at any stage or level of the proceedings in a suit even on appeal at the Court of Appeal by any of the parties without leave of Court or by the Court itself suo motu. Locus standi to institute proceedings in a Court is not dependent on the success or merits of a case; it is a condition precedent to the determination of a case on the merits. Owodunni v. Registered Trustees of C.C.C (2000) 6 SC (pt.111) Pg.60, Madukolu v. Nkemdilim (1962) 2 SCNLR pg.314. Klifco v. Holfmann (1996) 3 NWLR (pt.435) pg.276.” Per ADEKEYE, J.S.C. And also the case of ESABUNOR & ANOR V. FAWEYA & ORS (2019) LPELR-4696(SC) wherein the apex Court held thusly:
“Jurisdiction is a threshold matter. It is fundamental to adjudication and it is usually conferred on the Court by the Constitution or Statute. It is the foundation on which the Court exercises judicial powers. See Egunjobi v FRN (2012) 12 SC (Pt.iv) p.148. National Union of Road Transport Workers & Anor v Road Transport Employers Asociation of Nigeria & 5 Ors (2012) 1SC (Pt.ii) p.119. Jurisdiction is so important in that it can be raised at any stage of proceedings, even on appeal and in the Supreme Court for the first time. Bronik Motors Ltd & Anor v WEMA Bank Ltd (1983) 1SCNLR p.296. In determining jurisdiction it is only the plaintiffs’ claim that is considered. Tukur v Govt of Gongola State (1989) 4NWLR (Pt.117) p.17 Obiuweubi v CBN (2011) ALL FWLR (Pt.321 p.208. Absence of jurisdiction renders the entire proceedings a nullity no matter how well it was conducted and decided.” Per RHODES-VIVOUR ,J.S.C
It is also now settled that jurisdiction can be raised at any time, in any form by all parties including the Court, see GALADIMA V. TAMBAI (2000) 6 SC (PT. 1) 196 where the Court held:
“Issue on the Court’s jurisdiction is very pivotal and fundamental. Because of its fundamental nature, on the authorities, it can be raised at any stage of the trial or even on appeal, and even before the apex Court. The reason for this attitude to jurisdiction issue is obvious. A Court that lacked jurisdiction to entertain a suit, either as a trial or appellate Court, is incompetent to pronounce a judgment in respect of any aspect of the matter in controversy before it. Time never runs against a Court to decide on the issue of jurisdiction. The consequence of a Court continuing a case where it lacks jurisdiction is, as it were, like the Court embarking on a frolic which would indisputably result in a nullity for which an appellate Court, so invited, would have no compunction whatsoever to declare null and void. Jurisdictional question, be it in criminal or civil matter, has this same devastating consequence. An attack or question as to jurisdiction cannot be properly glossed over by any Court. Once it is raised by the defendant or the respondent. The procedure by which such a fundamental issue is raised may not be in consonance with the stipulated rules of Court for questioning a decision of the Court, nevertheless, that will never be allowed to defeat the right to question the jurisdictional defect. To do so is unwittingly to postpone the doom’s day. See Owoniboys Technical Services Ltd. v. John Holt Ltd. (1991) 6 NWLR (Pt.199) 550, Ezomo v. Oyakhire (1985) 1 NWLR (pt.2) 195, State v. Onagoruwa (1992) 2 NWLR (Pt.221) 33, Madukolu v. Nkemdilim (1962) 1 All NLR (Pt.4) 57 and Okafor v. A.G., Anambra State (1991) 6 NWLR (Pt.200) 659.” Per ACHIKE, J.S.C. PER NIMPAR, J.C.A.
WHETHER OR NOT AN APPELLANT CAN SHIFT THE BURDEN OF PROOD WHEN THEIR RELIEFS ARE DECLARATORY IN NATURE
The Appellant cannot shift the burden of proof when their reliefs are declaratory in nature, a party who seeks a declaration is required to satisfy the Court with cogent and convincing evidence believed by the Judge, see ANYANRU V. MANDILAS LTD (2007) LPELR-670(SC) wherein the apex Court held thusly:
“The requirement of the law regarding the onus placed on a party claiming a declaratory relief as claimed by the appellant in the present case is trite. A claim for relief of declaration, whether of title to land or not, is not established by an admission by the defendant, because the plaintiff must satisfy the Court by cogent and credible evidence called by him to prove that as a claimant, he is entitled to the declaratory relief. It is the law that a Court does not grant declaration on admission of parties because the Court must be satisfied that the plaintiff on his own evidence, is entitled to the relief claimed. See David Fabunmi v. Abigail Ade Agbe (1985) 1 NWLR (Pt. 2) 299 at 318; Kodilinye v. Odu (1935) 2 WACA 336; and Woluchem v. Gudi (1981) 5 SC 291; Ogundairo & Ors. v. Okanlawon & Ors. (1963) 1 All NLR 358; Bello v. Eweka (1981) 1 SC 101; Motunwase v. Sorungbe (1988) 5 NWLR (Pt. 92) 90; Ogunjumo v. Ademolu (1995) 4 NWLR (Pt. 387) 254; Kwajaffa v. Bank of the North Ltd (2004) 13 NWLR (Pt. 889) 146 at 172; and Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187 at 214.” Per MOHAMMED, J.S.C
Such a party must succeed on the strength of his case and not on the weakness of the defence, this has been reiterated in a number of cases, see ORIANZI V. A.G. RIVERS STATE & ORS (2017) LPELR-41737(SC), EBOADE & ANOR V. ATOMESIN & ANOR (1997) LPELR-989(SC), CIVIL DESIGN CONT. (NIG) LTD V. SCOA (NIG) LIMITED (2007) LPELR-870(SC) and LAWSON V. AJIBULU (1997) LPELR-1766(SC). PER NIMPAR, J.C.A.
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the decision of the Oyo State High Court sitting in Ibadan and delivered by HON. JUSTICE E.O. AJAYI on the 8th June, 2020 wherein the lower Court entered judgment in favour of the Respondents and dismissed all the claims of the Appellants. The Appellants dissatisfied with the decision, filed a Notice of Appeal dated the 23rd June, 2020 setting out 9 grounds of Appeal.
Facts leading to this appeal are straight forward and amenable to brief summary. The Appellants in the suit are children and wife of late Chief Lamidi Adedibu who was granted a Statutory Right of Occupancy dated 21st February, 2008 and registered as 59/59/3529 over a parcel of land situate, lying and being at Iyaganku G.R.A. in Ibadan South West Local Government Area of Oyo State. It was established on record that there was a previous Statutory Right of Occupancy issued over the same land in favour of the 1st Respondent dated 14/10/87 registered as No. 5 at Page 5 in Vol. 2781 which was erroneously revoked vide gazette No. 3 Volume 30 dated 3/2/2005. After the death of Chief Adedibu, the Appellants noticed an encroachment on the land by the 1st Respondent who contended that he had obtained a judgment of the Court in respect of the land.
The Appellants’ Counsel thereupon conducted a search at the High Court of Justice, Ibadan whereof Suit I/388/2008 was discovered. The suit was instituted during the life time of Late Chief Lamidi Adedibu but the parties in the suit did not include Chief Lamidi Adedibu’s name but added the name “AN UNKNOWN PERSON” as the fourth Defendant whereof a consent judgment was entered in the suit. Consequently, the Appellants directed their Counsel to institute Suit: I/632/2016 which was dismissed thus this appeal. During trial, the Appellants called a sole witness and tendered A1-A10 and B while the 1st Respondent called a sole witness and tendered Exhibits L1, L2, L3, TC1, R1-R16 and the 2nd – 4th Respondents also called a sole witness. After due consideration, the trial Court entered judgment for the Respondents and dismissed all the claims of the Appellants. The Appellant aggrieved with the said judgment brought the instant appeal.
Pursuant to the Rules of the Court, the parties filed and exchange their briefs which were adopted at the hearing of the Appeal. The Appellants’ brief settled by A. T. ADEBAYO, ESQ., is dated 1st day of September, 2020 and filed on 2nd September, 2020. The Appellants distilled 6 issues for determination as follows:
1. Whether the lower Court was not wrong when he suo motu raised the issue of locus standi of the Appellants after holding that the claimants were Beneficiaries of the Estate of Late Lamidi Adedibu.
2. Whether the lower Court was not wrong when he held that the Appellants did not deny that they were served with the Originating Processes in Suit I/388/08.
3. Whether the lower Court was not wrong when he held that the Claimants did not controvert or deny the 1st Defendant’s paragraphs 23 and 24 of the Statement of Defence because the Claimants’ Reply thereto was struck out.
4. Whether the lower Court was not wrong when he failed to uphold the Claimants’ claim in its entirety.
5. Whether the lower Court was not wrong when he held that the Appellants’ first leg was refused because the title of the Claimants on the land could not overrule that of the 1st Defendant which he said was valid and subsisting.
6. The learned trial Judge erred in law when he failed to discountenance the witness Statement of the 1st Defendant having admitted that he signed same in the office of his counsel.
The 1st Respondent’s Brief settled by BIODUN AZEEZ, ESQ., dated 16th July, 2021 filed on the 23rd July, 2021 but deemed on 3rd of November, 2021. The Respondent formulated a sole issue for determination as follows:
1. Whether the Appellants have discharged the evidential burden of proof cast upon them to warrant the granting of their claims before the Court below. (Distilled from ground 1, 2, 5 and 9)
The 2nd, 3rd and 4th Respondents’ Brief settled by WALE BALOGUN ESQ., dated 16th day of June, 2021, filed on the 29th June, 2021 but deemed on the 3rd day of November, 2021. The 2nd – 4th Respondents formulated 3 issues for determination as follows:
1. Whether the Court below is forbidden from raising an issue bordering on its jurisdiction suo motu. (Distilled from grounds 1 and 2).
2. Whether the Court below was right to have held that the Appellants failed to prove their case and therefore not entitled to judgment. (Distilled from grounds 3, 4, 5, 6, 7 and 8)
3. Whether the learned trial Judge erred in law when the Court below did not discountenance the witness statement of the 1st Respondent. (Distilled from ground 9)
Thereafter, the Appellants filed a reply brief dated 28th day of July, 2021 and 12th of July, 2021 for the 1st and 2nd, 3rd and 4th Respondent respectively.
APPELLANTS’ SUBMISSION
ISSUE ONE
Arguing this issue, the Appellants reproduced the holding of the trial Court at page 258 of the records to submit that it was wrong for the trial Judge to raise the issue of the locus standi of the Appellants suo motu and decided on it without calling on the parties to address it. The Appellants relied on OFUANI V. NIGERIAN NAVY & ANOR (2006) LPELR-5813 (CA), OKERE V. AMADI & ORS (2005) LPELR-2444 (SC), JEV & ANOR V. IYORTYOM & ORS (2014) LPELR-23000(SC) and CHIDI V. CONSOLIDATED HALLMARK INS. PLC (2018) LPELR-4484 (CA) to argue that the trial Court erred. Continuing, the Appellants argued that the trial Court ought to carefully consider the pleadings of parties because the Appellants pleaded that they are representatives of the children of Late Chief Adedidu and none of the parties raised the issue of Letters of Administration. The Appellants cited STANBIC IBTC BANK V. GLOBAL CAPITAL LTD & ORS (2018) LPELR-44053 (CA) and urged the Court to resolve this issue in favour of the Appellants.
ISSUE TWO
Arguing this issue, the Appellants Counsel submits that the 1st Respondent alleged that he instituted Suit No.: I/388/08 between MR. RASAK LAWAL and GOVERNOR OF OYO STATE & 3 ORS and through a motion exparte, he obtained an order that the processes in the said suit be pasted on Plot 30, Iyaganku GRA Ibadan. The Appellants further argued that the 1st Respondent knew that the Late Chief Adedibu was alive at that time, knew his identity and where he lived because the 1st Respondent frontloaded a copy of the Certificate of Occupancy issued to the said Late Adedibu as evidence before the Court but he fraudulently did not join Late Chief Adedibu as a party.
Predicated on the above, the Appellants pleaded that Late Chief Lamidi Adedibu was not aware of Suit No.: I/388/2008 and explained how the 1st Respondent fraudulently concealed facts of the real owner of the land in dispute to the Court to obtain a fraudulent consent judgment over the said land upon which late Chief Lamidi Adedibu had a Certificate of Occupancy.
It was the submission of the Appellants that Chief Adedibu was not named as a party to suit No.: I/388/2008 up till judgment sought to be set aside, even though the name of Chief Adedibu was on the Certificate of Occupancy expressly written on it and over the same land. That it is trite law that a Court has no jurisdiction to decide the fate of a person or a matter when he is not made a party to the action as held in BABATOLA V. ALADEJANA (2001) 12 NWLR (PT. 728) 597 and UKPO V. NGAJI (2010) ALL FWLR (PT. 514) 144, therefore, the decision in suit No.: I/388/2008 cannot affect the land of Late Chief Adedidu.
Continuing, the Appellants submitted that the non-joinder of Late Chief Lamidi Adedidu to Suit No.: I/388/2008 is a breach of fair hearing which renders the consent judgment null and void. The Appellants relied on BELLO V. INEC & ORS (2010) LPELR-767 SC. According to the Appellants, the 1st Respondents claimed that he obtained an order of Court to serve the unknown person by substituted means, however, the name contained in the process was UNKNOWN PERSON and an UNKNOWN PERSON is not a juristic personality that could be served and failure to establish service rendered the whole proceedings a nullity. The Appellants cited C.M. & E.S. LTD V. PAZAN SERVICES (NIG) LTD (2020) 1 NWLR (PT. 1704) 70 and ABU V. ALELE WILLIAMS (1992) 5 NWLR (PT. 241) 340.
In the light of the foregoing, the Appellant challenged all the averments in the 1st Respondent’s Statement of Defence and Witness Statement on oath thereto to submit that by the evidence before the Court below, it is clear that neither Late Chief Adedibu nor his children were served with the Court processes. Therefore, it is safe to conclude that the Appellants were not aware of the existence of the suit. The Appellant then urged the Court to resolve this issue in favour of the Appellants.
ISSUE THREE
On this issue, the Appellants submits that the trial Judge quoted paragraphs 23 and 24 of the 1st Respondent’s statement of defence, they observed that the Appellants’ reply to the statement of defence was struck out by the trial Judge and went to find that the grounds that the Appellants did not deny nor controvert the said paragraph 23 and 24 of the Statement of Defence. The Appellants reproduced paragraphs 11, 12, 13, 14, 15 and 18(i)-(iii) of the statement of claim and paragraph 20(c) –(e) of the Statement of Defence to submit that it is trite law that failure to serve a process where service is necessary renders the whole exercise including any judgment obtained null and void as held in UBA PLC V. AJILEYE (1999) 13 NWLR (PT. 633) 116, OBOT V. CBN (1993) LPELR-2192 (SC) and SALAWU OKE V. MUSLIM AIYEDUN (1986) 2 NWLR (PT. 23) 548.
It was also the submission of the Appellants that paragraphs 23 and 24 of the statement of defence relied upon by the Court below were adequately denied and the trial Court did not evaluate the evidence on record otherwise he would have realized that there was no evidence of service of the originating processes on the Appellants. The Appellants cited ATUYEYE & ORS V. ASHAMU (1987) LPELR-638 (SC).
Furthermore, the Appellants argued that paragraph 18 of the Statement of Claim averred copiously that Late Chief Adedibu was not aware of Suit No.: I/388/08 and this is the crux of the matter. They contended that the Respondents never denied this assertion other than saying the 1st Respondent applied for an Exparte Order for substitute service. The Appellants argued that substituted service can only be proved by a Bailiff’s Affidavit of service and no such document was tendered. The Appellants urge the Court to resolve this issue in favour of the Appellants.
ISSUE FOUR
Arguing this issue, the Appellants reproduced the holding of the trial Court at pages 268 of the Records to submit that the lower Court ought to have granted all the Appellants’ claims because the Appellants were able to prove that the consent judgment in Suit I/388/08 was obtained by fraud and the particulars of the fraud provided in the statement of claim. According to the Appellants, one of the grounds of fraud is that the Respondent refused to include the name of Chief Adedidu rather he used the term UNKNOWN PERSON while the name of the Late Chief Adedidu was on the Certificate of Occupancy they are contesting and there was nowhere in the pleadings of the Respondents before the trial Court where the above was denied and the Court failed to take it into account. The Appellants relied on ABUBAKAR & ORS V. YAR’ADUA & ORS (2008) LPELR-51 (SC).
Predicated on the above, the Appellant submits that Suit I/388/08 was instituted on the 17th April, 2008 and the Certificate of Occupancy was granted on the 21st February, 2008 which shows that the suit was instituted after the grant of the Certificate of Occupancy to Chief Adedidu and the land had no structures that a notice could be pasted on. Furthermore, the Appellants argued that UNKNOWN PERSONS could be anyone apart from Chief Adedidu and the Respondents also failed to call the Bailiff that served the process by pasting. Finally, the Appellants submits that paragraph 24 and 25 of the statement of claim was never denied in any way and therefore fraud was established and should deemed admitted as held in VULCAN GASES LTD V. GESELLSCHAFT (2001) LPELR-3465 SC. The Appellants urged the Court resolve the issue in their favour.
ISSUE FIVE
The Appellants argued that the trial Judge did not take into consideration the issue of fraud as raised by the Appellant and proved by CW1 at pages 7-10 and 190-191 of the Records otherwise, the Court below would have agreed with the Appellants. Continuing, the Appellants argued that the trial Court failed to appreciate that Late Chief Adedibu had his Certificate of Occupancy issued 2008 after the erstwhile title of the 1st Respondent had been revoked which was admitted by the 1st Respondent at pages 91 of the Records and the title of Late Chief Adedidu had not been set aside by any Court of competent jurisdiction till date even by the consent judgment, therefore the 1st Respondent till date has no valid and subsisting title on the land same having been revoked and a new one issued thereon to another party.
It was the argument of the Appellants that the 2nd Respondent cannot validly issue another Certificate of Occupancy without revoking that of Chief Adedidu and there was no encumbrance at the time that land was allocated to the Appellant’s father, therefore, they urged the Court to so hold and resolve this issue in favour of the Appellants.
ISSUE SIX
On this issue, the Appellants reproduced the 1st Respondent’s evidence under cross examination to submit that it is trite law that for an affidavit or a witness Statement on Oath to be competent such oath must have been signed in the presence of the person authorized to administer the oath. The Appellant relied on Section 117(4) of the Evidence Act, 2011, AKANMODE & ANOR V. DINO & ORS (2008) LPELR-8405 (CA), CHIDUBEM V. EKENNA & ORS (2008) LPELR-3913 (CA) and ABIA STATE TRANSPORT CORPORATION V. QUORUM CONSORTIUM LTD (2004) 1 NWLR (PT. 855) 661, therefore, the witness statement on oath of the 1st Respondent is incompetent and ought to be struck out.
According to the Appellant, based on the evidence, there was nothing to show that Late Alhaji Adedidu was served with any process in Suit No.: I/388/2008 which was the main defence put forward by the 1st Respondent, and also the 1st Respondent admitted (i) that the 1st Respondent’s Certificate of Occupancy was revoked; (ii) that a new Certificate of Occupancy was issued to Late Chief Lamidi Adedidu, hence, these established facts entitled the Appellants to their reliefs since it is trite law that where there is no evidence in rebuttal, the Appellant only requires a minimal proof as held in LARMIE V. D.P.M & SERVICES LTD (2006) ALL FWLR (PT. 296) 775. The Appellants urged the Court to resolve this issue in favour of the Appellants, set aside the judgment of the lower Court, allow this appeal and grant all the reliefs sought for before the trial Court.
1st RESPONDENTS’ SUBMISSION
SOLE ISSUE
Arguing issue one, the 1st Respondent submits that the Appellants instituted this action for themselves and on behalf of the children of Late High Chief Lamidi Adedibu which in essence meant that the purported ownership of the land in dispute had passed on, however, the Appellants failed to provide a letter of administration in accordance with the Administration of Estate Law of Oyo State, 2000 and Order 55(3) (2) of the High Court (Civil Procedure) Rules, 2010 to establish their locus standi because without the letters of administration, the Appellants would be regarded as meddlesome interlopers interfering with the property of the said Chief Adedibu irrespective of the fact that they are his children, the 1st Respondent relied on OLORA V. ADEGBITE (2013) 1 NWLR (PT. 1334) 40. Continuing, the 1st Respondent argued that where a plaintiff lacks locus standi as in this case, the Court lacks the jurisdiction to entertain it, referred us to WAZIRI V. DANBOYI (1999) 4 NWLR (PT. 598) 239, EJIKEME V. AMAECHI (1998) 3 NWLR (PT. 542), AYOOLA V. BARUWA (1999) 11 NWLR (PT. 628) 595, CONTRACT RESOURCES (NIG) LTD V. WENDE (1998) 5 NWLR (PT. 549) 243 and EZECHIGO V. GOV. ANAMBRA STATE (1999) 9 NWLR (PT. 619) 386.
The 1st Respondent agreed that the lower Court raised the issue of locus standi suo motu without calling the parties to address the Court which is frowned at and as held in CHARLES ODEDO V. PDP (2015) 63 NSCQR 388 and OLUSANYA V. OLUSANYA, however, there are exceptions as decided in the case of GBAGBARIGHA V. TORUEMI (2013) 6 NWLR (pt. 1350) 289, where the Court held that there would be no need to call on Counsel to address the Court on an issue raised suo motu by Court, when it relates to (1) the jurisdiction of the Court; (2) parties ignoring statute which have bearing on the case; and (3) the question of fairness of the proceedings. Further on this issue, the 1st Respondent argued that the Appellant must go further to show that the failure to hear him on the point occasioned some miscarriage of justice, the 1st Respondent cited USMAN V. OGBEMBE (2012) ALL FWLR (PT. 613) 1844, ODUTOLA V. MABOGUNJE (2013) 53 (PT. 1) NSCQR 31 and CONTRACT RESOURCES (NIG) LTD V. WENDE (SUPRA) in support.
It was the contention of the 1st Respondent that it is trite that in a claim for declaratory reliefs, Appellants must rely on the strength of their own case and not on the weakness of the defence as held in EMENIKE V. PDP (2012) 12 NWLR (PT. 1315) 556. And furthermore, the Appellants raised the issue of fraud regarding the consent judgment mentioned in the Written Statement on Oath of the 1st Respondent.
On the same score, the 1st Respondent argued that allegations of fraud must be pleaded with particulars which must be proved beyond reasonable doubt and not just inferred from facts as held in OBI & ORS V. BOSAH & ORS (2019) LPELR-47243, ENTERPRISE BANK LTD V. AROSO (2015) (PT. 1) and IBRAHIM V. GWANDU (2015) (PT. 1451) 1.
Continuing, the 1st Respondent argued that instead of the Appellants to appeal the consent judgment as provided in Section 243 (1)(a) Constitution of the Federal Republic of Nigeria, 1999 (as amended) and HARIET JOHNSON V. BABAFUNKE ADEREMI (1955) 13 WACA 297 PRIVY COUNCIL, but the Appellants are arguing that they were not served with the processes, therefore no Court will accept the Appellants’ argument on this score.
It was the submission of the 1st Respondent that the Appellants argument that the 1st Respondent signed his Written Statement on oath in the office of his counsel, conversely, the law is that if a party in the course of cross examination extracts evidence on a matter not pleaded, but which if accepted could decide the issue between the parties, then if he wishes to use it, he should amend his pleading as held in GAGARAU V. PASHIRI (2006) 1 NWLR (PT. 962) 521. According to the 1st Respondent, there is abundant evidence to show that he swore on oath before the lower Court and thereafter adopted the said sworn statement because the law is that where a witness is in Court to say that he is adopting an irregular written deposition, the implication is that the witness is re-asserting on oath what is contained in the irregular deposition and such adoption on oath makes all the evidence in the written deposition admissible. The 1st Respondent relied on UDEAGHA V. OMEGARA (2011) 11 NWLR (PT. 1204) 16 (SC).
Furthermore, the 1st Respondent submitted that the Appellants have not been able to discharge the evidential burden of proof cast upon them by law to warrant the granting of their claims before the Court below. The 1st Respondent urged the Court to resolve the lone issue in favour of the 1st Respondent and dismiss the appeal.
2nd, 3rd and 4th RESPONDENTS’ SUBMISSION
ISSUE ONE
Arguing this issue, the 2nd, 3rd and 4th Respondents submitted that the Appellants’ argument that the trial Court raised the issue of locus standi and letters of administration suo motu without calling on parties to address is untenable because by the combined effect of Sections 10 and 11 of the Oyo State Administration of Estates Law, 2000 as well as Order 55(3),(2) of the Oyo State High Court of Justice (Civil Procedure) Rules, 2010, it takes more than being a beneficiary or representative of the beneficiaries of an estate of a deceased person to institute an action in order to administer the estate of the deceased person, there must be a formal document such as production of a letter of administration to confer legal authority, right or entitle a person to sue or be sued. Relying on UWAZURUIKE V. IWE & ANOR (2014) LPELR-23774, MALLAM V. MAIRIGA (1991) 5 NWLR (PT. 189) 114, ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA V. SAMUEL DAVID EKE-SPIFF & 3 ORS (2009) 7 NWLR (PT. 1139) 97 and EWARAWON V. FIRST BANK & ANOR (2019) LPELR-48224, the 2nd, 3rd and 4th Respondents argued that the trial Court was right to hold that the Appellants lacked the requisite locus standi to institute the action, being beneficiaries they ought to obtain a written authorization such as letter of administration in accordance with the relevant laws, which only allow the appointed administrators the power and right to deal with, relate with, administer and manage the estate of a deceased person that died intestate because without it they cannot institute an action therein. Again, the 2nd, 3rd and 4th Respondents submitted that to commence a matter in a representative capacity, there must be an express mandate from other members authorizing same as held in AJOMAGBERIN & ORS V. SALAU & ORS (2018) LPELR-45321 and AKAPO V. HAKEEM-HABEEB (1992) 6 NWLR (PT. 247) 266.
It was the argument of the 2nd, 3rd and 4th Respondents that the trial Court was right to raise the issue of locus standi suo motu because it is trite law that a challenge to the locus standi of a party to institute an action in Court affects the jurisdiction of the Court which can be raised at any stage of the proceedings as held in ADEWUNMI V. ATT-GEN ONDO (1996) 8 NWLR (PT. 464) 73, ATT-GEN ANAMBRA V. ATT-GEN FEDERATION (1993) 6 NWLR (PT. 302) 692 and UNION BANK V. ESTATE OF LATE CLEMENT OGEH (2018) LPELR-46701.
According to the 2nd, 3rd and 4th Respondents, the general principle of law is that whenever a Judge raises an issue suo motu, parties must be heard on such issue before a Court will decide one way or other except when the issue relates to the Court’s own jurisdiction, when both parties are not aware or ignore the statutes or when on the face of the record, serious questions of the fairness of the proceedings is evident as held in GBAGBARIGHA V. TORUEMI (2013) 6 NWLR (PT. 1350) 289, USMAN V. OGEMBE (2012) ALL FWLR (PT. 613) 1844 and ISIYAKU & ANOR V. MUSA & ORS (2019) LPELR-49201.
The 2nd, 3rd and 4th Respondents urge the Court to resolve this issue against the Appellants.
ISSUE TWO
In arguing this issue, the 2nd, 3rd and 4th Respondents restated the principles of standard and burden of proof extensively and that the Appellants must succeed on the strength of their case and not on the weakness of the other party’s defence as held in OKOYE & ORS V. NWANKWO (2014) LPELR-23172(SC), ODOFIN V. MOGAJI (1978) 4 SC 91 and EDOSA & ANOR V. OGIEMWANRE CITATION (2018) LPELR-46341. According to the 2nd, 3rd and 4th Respondents, the crux of the Appellants’ case was built on the false ground that the consent judgment in suit I/388/2008 between RASAK LAWAL V. GOVERNOR OF OYO STATE & 3 ORS was obtained by fraud or misrepresentation, however, the 1st Respondent made it clear that an order of the Court below was obtained to serve all the Court processes including the Writ of Summon on the 4th Defendant in Suit NO.: I/388/2008 by pasting the processes on the property in dispute, Plot A30 (Plot 1 and 2) Iyanganku G.R.A. Ibadan being the only contact known of the 4th Defendant. Therefore, the unsubstantiated allegation of fraud and misrepresentation cannot stand because the Appellants’ sole witness gave no evidence to support their allegation of fraud and misrepresentation, hence the allegation of non-service failed and has been discredited, therefore it cannot stand. Predicated on the above, the 2nd, 3rd and 4th Respondents submit that they agree with the Appellants that one of the grounds to establish fraud is the evidence of non-disclosure of material facts as held in FHOMO (NIG) LTD V. ZENITH BANK (2016) LPELR-42233 (CA) and OBI & ORS V. BOSAH & ORS (2019) LPELR-47243 (CA), however, the Appellant failed woefully to prove by evidence that the consent judgment was obtained by fraud not even by preponderance of evidence, talk more of proving beyond reasonable doubt.
It was the argument of the 2nd, 3rd and 4th Respondents that the Appellants who filed a defective Reply to the statement of Defence can turn round to rely on OBOT V. CBN (1993) LPELR-2192 to the effect that a Reply is unnecessary, the Appellants are not allowed to reprobate and approbate and the trial Court was right when it struck out the said reply. Continuing, the 2nd, 3rd and 4th Respondents submit that Appellants argued strangely that the Respondents did not deny their assertion that the 1st Respondent knew the trespassers to his land was Chief Adedibu and supported their argument with the fact that the Certificate of Right of Occupancy which was issued to the said Chief Adedibu was tendered in Court. However, the 2nd, 3rd and 4th Respondents reproduced paragraphs 20(c), (d) and (e) of the 1st Respondent’s Statement of Defence and submits that those averments were not contradicted by the Appellants. The 2nd, 3rd and 4th Respondents referred the Court to ABUBAKAR & ORS V. YAR’ ADUA & ORS (2008) LPELR-51.
The 2nd, 3rd and 4th Respondents further argued that the trial Court was right to have held that the title of the 1st Respondent is valid and subsisting because credible and cogent evidence was led without dispute that the 1st Respondent’s Certificate of Right of Occupancy was issued in October, 1987 which was inadvertently revoked and by the consent judgment dated 6th June 2012, the Statutory right of Occupancy of the 1st Respondent was restored and the revocation order was reversed. The 2nd, 3rd and 4th Respondents relied on MAJIYAGBE V. A.G. & ORS (1957) NRNLR 158, DALA V. AYODELE & ORS (2014) LPELR-24621 (CA), OKOYE V. DUMEBI (2014) LPELR-24155 and OWIE V. IGHIWI (2005) LPELR-2846. Finally, the 2nd, 3rd and 4th Respondents urge the Court to resolve this issue in favour of 2nd, 3rd and 4th Respondents and against the Appellants.
ISSUE THREE
The 2nd, 3rd and 4th Respondents submit that it is settled that Written Deposition on Oath are ordinarily made before the Commissioner for Oath and not in a lawyers’ office, however, the 1st Respondent who was the Deponent, his signature was very clear, the statement on oath was sworn to before the Commissioner for oath and the Registry stamp is indicated on it. The 2nd, 3rd and 4th Respondents further submit that the law has been settled that oral evidence cannot be used to vary and or alter document evidence because it is clearly written on the document that it was sworn to at the High Court Registry, Ibadan, this 14th day of March, 2017 before me Commissioner for oaths. The 2nd, 3rd and 4th Respondents referred the Court to ARIJE V. ARIJE & ORS (2018) LPELR-44193 (SC), UDEAGHA V. OMEGARA (2010) 11 NWLR (PT. 1204) 16 and NWOGU V. SCOA (NIG) LTD (2018) LPELR-49785.
The 2nd, 3rd and 4th Respondents argued that Section 117 (4) of the Evidence Act, 2011 and CHIDUBEM V. EKENNA & ORS (2008) LPELR-3913 and ABIA STATE TRANSPORT CORPORATION V. QUORUM CONSORTIUM LTD (2004) 1 NWLR (PT. 855) 661 are inapplicable because they dealt with ordinary affidavits in contrast to witness statement on oath. The 2nd, 3rd and 4th Respondents relied on Section 168 of the Evidence Act, 2011 and the cases of YEROKUN V. ADELEKE (1960) SCNLR 267 and ONDO STATE UNIVERSITY V. FOLAYAN (1994) 7 NWLR (PT. 354) 128 to urge the Court to disregard the argument to the Appellants as same not in agreement with the law.
The 2nd, 3rd and 4th Respondents submit that in light of the above submission, they urge the Court to resolve all the three issues raised against the Appellants, dismiss this appeal and uphold the decision of the Court below.
APPELLANTS’ REPLY TO 1st, 2nd and 3rd RESPONDENTS
The Appellants’ submit that if the trial Court had called the attention of the parties to the issue of locus standi, the Appellants would have shown or tendered their Letter of Administration with No.: POY/533/2013 dated 19th November, 2013 issued by the Oyo State High Court and failure of the Court to do so amounts to breach of fair hearing as held in AKERE V. GOVERNOR, OYO STATE (2012) 12 NWLR (PT. 1314) 240. And the case cited by the Respondents, USMAN V. OGEMBE (2012) ALL FWLR (PT. 613) 1844 supports the Appellants’ argument.
Continuing, the Appellant argued that the issue of non-service of Court processes and lack of fair hearing are so fundamental in the suit that the Court ought to have taken arguments from the parties. The Appellants further submit that the law is well settled that any member of a family has the capacity to sue to protect family interest and based on this ground, Mr. Lamidi Adedibu instituted the action on behalf of the family. The Appellants relied on UGWU V. AGBO (1977) 10 S.C. 27 40 and DADI V. GARBA (1995) LPELR-910 S.C. The case of GBAGBARIGHA V. TORUEMI (2013) 6 NWLR (PT. 1350) relied upon by the Respondents is inapplicable to this instant case.
According to the Appellants, the argument of the Respondents on the issue is evasive and misleading because the position of the Appellants is that there was no record of service of the processes of the Court in Suit: I/388/2008 on Chief Lamidi Adedibu while the Respondents throughout the hearing of the present suit at the trial Court did not produce any affidavit of service of same on the Claimants at the trial Court. The Appellants relied on NDULUE V. IBEH (2015) LPELR-24919 (CA) and SOCIETE GENERALE BANK (NIG) LTD V. ADEWUMI (2003) 4 SCNJ 146.
The Appellants further reproduced the evidence of CW1, DW1 and DW2 at pages 191, 198 and 217 of the record respectively to submit that the Respondents issue 2 as argued in their brief of argument cannot hold since Late Chief Adedibu was not served with the processes of the Court in suit I/388/2008.
It was the argument of the Appellants that in ALIYU V. BULAKI (2019) LPELR 46513 CA, the Court followed the case of BUHARI V. INEC (2008) SCNJ 1 at 91 to strike out the witness statements on oath that were signed in the lawyer’s office and the 1st Respondent in this case having admitted that he signed his witness statement in his lawyer’s office, this Court is urged to strike out the said witness statement.
Furthermore, the Appellants argued that the Respondents have no defence to the Appellants’ case and the contention of the 1st Respondent that the Appellants did not amend their pleadings to reflect the place where the 1st Respondent signed his witness statement is of no moment because the issue is the place of signing which is a matter of law and cannot be overlook. The Appellants reproduced the holding of the Court in ABACHA & ORS V. FAWEHINMI (2002) LPLER-14 and OKOEBOR V. POLICE COUNCIL & ORS (2003) LPELR-2458(SC) to submit that it is a principal rule of pleadings that a party must plead material facts only and not law. The Appellant urged the Court to allow the Appeal and discountenance the Respondents’ argument.
RESOLUTION
I have carefully considered the Notice of Appeal, the Record of Appeal and the respective Briefs of parties in the Appeal and note that the Appellant donated 6 issues as reproduced earlier, the 1st Respondent distilled a sole issue while the 2nd-4th Respondents formulated 3 issues for determination, bringing the total number of issues to 10 and that is unwieldy, therefore the Court shall adopt the issues donated by the Appellant because they initiated the appeal and in doing so to enable the Court resolve all complaints against the judgment of the lower Court, the issues shall be determined seamlessly to avoid repetition and for expediency.
Issue one contends that the lower Court raised an issue suo motu and resolved it without calling on parties to address the Court before resolving the issue. The alleged issue raised is locus standi of the Appellants which the lower Court raised and found that the Appellants lacked the locus standi to initiate the suit. By the processes before the Court below, the Appellant did not aver that they have a letter of administration to entitle them to initiate the suit. They merely stated that they are children and wife of Late Lamidi Adedibu.
The Appellant argued that the lower Court had earlier stated that the Appellants are children of the Late Chief Lamidi Adedibu and wondered how it could summersault to find that they lack locus standi. Locus standi is the legal capacity to institute an action in a Court of Law. The legal concept of standing or locus standi is predicated on the assumption that no Court is obliged to provide a remedy for a claim in which the Applicant has a remote, hypothetical, or no interest.
The apex Court defined the term locus standi in the case of INEC V. OGBADIBO LOCAL GOVERNMENT & ORS (2015) LPELR-24839 (SC) thus:
“Locus standi is a Latin term or expression. It denotes the plaintiff’s capacity to sue in a Court of law to enforce a legal right. Once the plaintiff has the right or vested interest to protect and enforce legally. See Taiwo v. Adegboro (2011) 11 NWLR (Pt.1159) 562.” Per GALADIMA, J.S.C.
The Court below at page 258 of the record of appeal held thus:
“The question that arose is who can maintain an action in respect of the estate of a deceased person (Like Alhaji Lamidi Adedibu) in the instant case? In the context of this case, no letter of administration was tendered and admitted as Exhibit before this Court that gave the claimants the standi to commence this action, failure of which automatically robs the Court of jurisdiction.”
I believe it is well settled that a Court ought not to suo motu raise an issue without giving the parties an opportunity to be heard thereon before a decision on the issue. The reason for this was given in STIRLING CIVIL ENGINEERING (NIG) LTD V. YAHAYA (2005) LPELR-3118(SC) Per Tobi, JSC,
“In our adversarial system of adjudication, Courts should be reluctant or loath to raise issues suo motu. This does not mean that a Court of law is totally inhibited from raising issues suo motu. It can and in relevant circumstances. For instance, a Court of law can raise issue suo motu, if it is in the interest of justice to do so. Where the issue raised will determine the fortunes of the case one way or the other, a Court of law is entitled to raise it. There could be a situation where the case cannot be determined one way or the other without resolving the issue. In such a situation, a Court is competent to raise it to enable it determine the case.”
See the cases of JIME & ANOR V. INEC & ORS (2019) LPELR-48399(CA), LEADERS OF COMPANY LTD & ANOR V. BAMAIYI (2010) LPELR-1771(SC), STATE V. OLADIMEJI (2003) LPELR-3225(SC) and MOJEKWU V. IWUCHUKWU (2004) LPELR-1903(SC).
However, the settled position espoused above is not cast in stone as the law also recognizes exceptions to the general rule, the apex Court in the case of EFFIOM & ORS V. CROSIEC & ANOR (2010) LPELR-1027(SC) held thusly:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<> “… In some special circumstances, the Court can raise an issue of law or jurisdiction suo motu and without hearing the parties decide upon it. TUKUR vs GOVERNMENT of GONGOLA STATE (1989) 4 N.W.L.R (Part 117) 517 is instructive on this point. …While the Court has a duty to give the parties the opportunity to be heard on any issue it raises suo motu a failure to do so does not necessarily lead to a reversal of its decision. To warrant an appellate Court’s reversal of the decision, the Appellant must go further to show that the failure to hear him on the point occasioned some miscarriage of justice. See IMAH vs OKOGBE (1993) 9 N.W.L.R (Part 316) 159 at 178; OLUBODE vs SALAMI (1985) 2 N.W.L.R (Part 7) 282. In that case although the issue of venue was not raised and argued by the parties in their briefs, it being an issue of jurisdiction was taken by the Court.” Per TABAI, J.S.C
As argued by the Appellants that the lower Court raised the issues suo motu and without inviting Counsel to address on it, the law is that there are exceptions and the instances which a Court may raise a matter or an issue suo motu, without the necessity of calling Counsel to address it, thereby are:
1. Where the issue raised relates to the jurisdiction of the Court.
2. Where the parties ignored or were not aware of a statute or the provision of the Constitution that has a bearing on the case; and
3. Where looking at the face of the record, serious issue of unfairness of the proceeding is disclosed.
See GBAGBARIGHA V. TORUEMI (2013) 6 NWLR (Pt 1350) 289; OMOKUWAJO V. FRN (2013) 9 NWLR (Pt 1359) at 332, ADETULA V. AKINYOSOYE (2017) 6 NWLR (Pt 1592) 492 and ISIYAKU & ANOR V. MUSA & ORS (2019) LPELR-4920(CA).
It is settled that where the issue revolves on the question of jurisdiction, the Court can raise the issue suo motu and resolve same without calling on parties to address it.
Indeed, the lower Court asked the question whether it has jurisdiction to determine the claim as constituted and in the process of resolving the issue it raised, the competence of the Appellants to institute the claim without a letter of administration became relevant because the subject matter is the estate of a deceased person (ALHAJI LAMIDI ADEDIBU). Undoubtedly, locus standi is a jurisdictional issue and jurisdiction is a threshold question that overshadows all other issues and it subjects even the Court to its domineering influence, see AJAYI V. ADEBIYI & ORS (2012) LPELR-7811(SC) wherein the apex Court held thusly:
“Locus standi and jurisdiction are interwoven in the sense that locus standi goes to affect the jurisdiction of the Court before which an action is brought. Thus where there is no locus standi to file an action, the Court cannot properly assume jurisdiction to entertain the action. Locus standi being an issue of jurisdiction can be raised at any stage or level of the proceedings in a suit even on appeal at the Court of Appeal by any of the parties without leave of Court or by the Court itself suo motu. Locus standi to institute proceedings in a Court is not dependent on the success or merits of a case; it is a condition precedent to the determination of a case on the merits. Owodunni v. Registered Trustees of C.C.C (2000) 6 SC (pt.111) Pg.60, Madukolu v. Nkemdilim (1962) 2 SCNLR pg.314. Klifco v. Holfmann (1996) 3 NWLR (pt.435) pg.276.” Per ADEKEYE, J.S.C. And also the case of ESABUNOR & ANOR V. FAWEYA & ORS (2019) LPELR-4696(SC) wherein the apex Court held thusly:
“Jurisdiction is a threshold matter. It is fundamental to adjudication and it is usually conferred on the Court by the Constitution or Statute. It is the foundation on which the Court exercises judicial powers. See Egunjobi v FRN (2012) 12 SC (Pt.iv) p.148. National Union of Road Transport Workers & Anor v Road Transport Employers Association of Nigeria & 5 Ors (2012) 1SC (Pt.ii) p.119. Jurisdiction is so important in that it can be raised at any stage of proceedings, even on appeal and in the Supreme Court for the first time. Bronik Motors Ltd & Anor v WEMA Bank Ltd (1983) 1SCNLR p.296. In determining jurisdiction it is only the plaintiffs’ claim that is considered. Tukur v Govt of Gongola State (1989) 4NWLR (Pt.117) p.17 Obiuweubi v CBN (2011) ALL FWLR (Pt.321 p.208. Absence of jurisdiction renders the entire proceedings a nullity no matter how well it was conducted and decided.” Per RHODES-VIVOUR ,J.S.C
It is also now settled that jurisdiction can be raised at any time, in any form by all parties including the Court, see GALADIMA V. TAMBAI (2000) 6 SC (PT. 1) 196 where the Court held:
“Issue on the Court’s jurisdiction is very pivotal and fundamental. Because of its fundamental nature, on the authorities, it can be raised at any stage of the trial or even on appeal, and even before the apex Court. The reason for this attitude to jurisdiction issue is obvious. A Court that lacked jurisdiction to entertain a suit, either as a trial or appellate Court, is incompetent to pronounce a judgment in respect of any aspect of the matter in controversy before it. Time never runs against a Court to decide on the issue of jurisdiction. The consequence of a Court continuing a case where it lacks jurisdiction is, as it were, like the Court embarking on a frolic which would indisputably result in a nullity for which an appellate Court, so invited, would have no compunction whatsoever to declare null and void. Jurisdictional question, be it in criminal or civil matter, has this same devastating consequence. An attack or question as to jurisdiction cannot be properly glossed over by any Court. Once it is raised by the defendant or the respondent. The procedure by which such a fundamental issue is raised may not be in consonance with the stipulated rules of Court for questioning a decision of the Court, nevertheless, that will never be allowed to defeat the right to question the jurisdictional defect. To do so is unwittingly to postpone the doom’s day. See Owoniboys Technical Services Ltd. v. John Holt Ltd. (1991) 6 NWLR (Pt.199) 550, Ezomo v. Oyakhire (1985) 1 NWLR (pt.2) 195, State v. Onagoruwa (1992) 2 NWLR (Pt.221) 33, Madukolu v. Nkemdilim (1962) 1 All NLR (Pt.4) 57 and Okafor v. A.G., Anambra State (1991) 6 NWLR (Pt.200) 659.” Per ACHIKE, J.S.C
The question of whether the Appellants have locus standi is a question of jurisdiction because if they lack locus standi, it affects their competence to sue and ultimately divest the Court of jurisdiction, therefore, locus standi and competence are interwoven. Therefore, the lower Court is allowed to raise a question of jurisdiction and resolve same without calling on parties to address it.
The second exception evident in this appeal is where both parties are not aware of the provisions of a statute or have ignored it when it has a bearing on the case. Thirdly, there is also the question of fairness of the proceedings, the subject matter here had been litigated upon and instead of filing an appeal, the Appellants initiated a fresh suit, that makes it unfair because their contention is that their father was not served with the processes of the Court in the earlier suit.
As observed by the 1st Respondent, the Appellants have not shown how it occasioned a miscarriage of justice because the Court below went ahead to determine the claim in the alternate and dismissed the claim. So even if the issue of locus standi was not raised, the suit would still have been dismissed, so ultimately, raising the issue of locus standi and jurisdiction did not occasion any miscarriage of justice. The Court has the right to determine its jurisdiction first before going on.
I resolve issue one against the Appellant.
The next question is that of non-service of originating processes on the late Alhaji Adedibu in Suit No.: I/388/08 between MR. RASAK LAWAL v. GOVERNOR OF OYO STATE & 3 ORS. It is obvious that the name of Alhaji Lamidi Adedibu was not named on the writ of summons in Suit No.: I/388/08, however, there is a party named UNKNOWN PERSON. The Appellants contended that the 1st Respondent in his defence to the present suit, averred that he sought and obtained an order of Court to serve the Unknown Person by pasting on the property and it was pasted. Now, the Appellants challenge the fact of service by pasting and that the suit was instituted when the said Alhaji Adedibu was alive and a Certificate of Occupancy had been issued to him and the certificate was also front loaded by the 1st Respondent, so they contended that the 1st Respondent knew that the unknown person was Alhaji Adedibu and he was not aware of the suit wherein a consent judgment was entered between the parties in that Suit, thus there was a misrepresentation or fraud. I will address the allegation of fraud in due course.
It was made out by the 2nd – 4th Respondents that there was a trespass earlier as stated in the statement of defence of the 1st Respondent at page 84 of the record of appeal, the 1st Respondent averred that the ex-parte order was obtained and processes were served by pasting on the plot being the contact address of the Unknown Person as 4th Respondent. This was not challenged as the Appellants did not react to dispute same, it therefore means that the averment was accepted, the lower Court also found that the averment was accepted since it was not denied, the lower Court held thus:
“The Claimants did not deny, controvert this by way of reply. The law is trite that a defendant who does not admit any fact in claimant’s pleadings must specifically deny same. A denial must be opt(sic), precise, succinct, complete and evasive, rigmarole, vague and bogus… it implies that the case of the defendants as to Claimants having ample opportunity to defend the case, i.e., Suit No. I/388/08 even after their father passed sometime 2008 until judgment was delivered in 2012 but sat back and did nothing, is not denied by the claimants…” Page 267 of the Record of Appeal.
See also the following cases on failure to traverse an averment: A.G OF ANAMBRA STATE V. C.N. ONUSELOGU ENTERPRISES LTD (1987) LPELR-614(SC), DANLADI V. DANGIRI & ORS (2014) LPELR-24020(SC) and ADESANYA V. ADERONMU & ORS (2000) LPELR-145(SC).
If the averment was not denied or challenged, it was then accepted. The need to prove same is lessened or removed.
The Appellants admitted that they had no reply to the statement of defence and therefore did not traverse the averment on service by substituted means. This is one of the situations that a Reply was necessary but the Appellant argued that it was not and that the 1st Respondent was duty bound to prove all averments in his statement of defence. Why would he prove what was not traversed?
The Appellant cannot shift the burden of proof when their reliefs are declaratory in nature, a party who seeks a declaration is required to satisfy the Court with cogent and convincing evidence believed by the Judge, see ANYANRU V. MANDILAS LTD (2007) LPELR-670(SC) wherein the apex Court held thusly:
“The requirement of the law regarding the onus placed on a party claiming a declaratory relief as claimed by the appellant in the present case is trite. A claim for relief of declaration, whether of title to land or not, is not established by an admission by the defendant, because the plaintiff must satisfy the Court by cogent and credible evidence called by him to prove that as a claimant, he is entitled to the declaratory relief. It is the law that a Court does not grant declaration on admission of parties because the Court must be satisfied that the plaintiff on his own evidence, is entitled to the relief claimed. See David Fabunmi v. Abigail Ade Agbe (1985) 1 NWLR (Pt. 2) 299 at 318; Kodilinye v. Odu (1935) 2 WACA 336; and Woluchem v. Gudi (1981) 5 SC 291; Ogundairo & Ors. v. Okanlawon & Ors. (1963) 1 All NLR 358; Bello v. Eweka (1981) 1 SC 101; Motunwase v. Sorungbe (1988) 5 NWLR (Pt. 92) 90; Ogunjumo v. Ademolu (1995) 4 NWLR (Pt. 387) 254; Kwajaffa v. Bank of the North Ltd (2004) 13 NWLR (Pt. 889) 146 at 172; and Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187 at 214.” Per MOHAMMED, J.S.C
Such a party must succeed on the strength of his case and not on the weakness of the defence, this has been reiterated in a number of cases, see ORIANZI V. A.G. RIVERS STATE & ORS (2017) LPELR-41737(SC), EBOADE & ANOR V. ATOMESIN & ANOR (1997) LPELR-989(SC), CIVIL DESIGN CONT. (NIG) LTD V. SCOA (NIG) LIMITED (2007) LPELR-870(SC) and LAWSON V. AJIBULU (1997) LPELR-1766(SC).
Furthermore, if the case of the Appellants is that their father was not served with the processes in the suit initiated by the 1st Respondent, then it becomes a jurisdictional issue which the lower Court could have been moved to set it aside. That was not done, probably because they are aware of the challenge it could pose since their father was not a named party. How can a non-party to a suit complain of non-service with Court processes? And if their claim is that their father owns the land, was he in possession? If he was, he would have seen the processes pasted on the land because they were directed to an unknown person and technically directed to the alleged trespasser.
On the non-joinder of late Alhaji Lamidi Adedibu to Suit No.: I/388/2008, the question to ask is: Whether a cause or matter can be defeated by reason of non-joinder or misjoinder of parties? The issue of non- joinder of parties does not touch on the jurisdiction of the Court and the law is trite that non joinder of a party cannot defeat an action, see SAPO & ANOR V SUNMONU(2010) LPELR-3015(SC) held thusly:
“It need to be borne in mind always and this is also settled that no cause or matter, shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every cause or matter, deal with the matter in controversy so far as regards the rights and interest of the parties actually before it. See the cases of Chief Onwuka Kalu v. Chief Odili -… In Re: Chief Nwoja & 2 Ors. (1992) SCNJ (Pt.1) 76 at 115; Osunrinde & 7 Ors. v. AJamogun & 5 Ors. (1992) 6 NWLR (Pt.246) 156 at 183 – 184; (1992) 7 SCNJ (Pt.1) 79 (supra); Sheehan v. Great Eastern Railway Co. (1880) 16 Ch. 55 at 64. It is the undisputed right of a plaintiff, to choose the person or persons against whom he wishes to proceed against.
It is a correct proposition of law that when an action is properly constituted by a Plaintiff with legal capacity to bring the action, a Defendant with capacity to defend, and a claim with cause of action against the Defendant, the party has satisfied all preconditions for instituting the action. The fact that a necessary party to the action has not been joined, is not fatal to the action and will not render the action a nullity. See also OLADEHINDE & AWO V. ODUWOLE 1962 WNLR 41.
However, where a party contends that an action can be defeated on the grounds of non-joinder or misjoinder, Karibi-Whyte, JSC said the objection should be taken at the earliest opportunity, see his pronouncement as referred to thus:
“It is well settled law and practice in all our Courts that where an action has not been properly constituted, whether as regards joinder of the causes of action or as to parties, it has always been procedurally beneficial and prudent to raise objection to the defect in the action before or at the hearing of the action.”
In any case, the root of title of the late Alhaji Lamidi being the 2nd – 4th Respondents were parties and there is no how the Appellants can establish a title without establishing the root of title, can a valid title stand without foundation? The act of allocating to Chief Adedibu was unlawful and the issued certificate is a worthless paper, more so the 2nd – 4th Respondents conceded to their error.
The Appellants alleged fraud on the part of the 1st Respondent in his failure to name and join the late Alhaji Adedibu. It is settled that where an allegation of fraud is made in a civil proceedings, the burden of proof is on the criminal standard, beyond reasonable doubt, see Section 135(1)-(3) of the Evidence Act, 2011 and the following cases of BABATUNDE & ANOR V. BANK OF THE NORTH LTD & ORS (2011) LPELR-8249(SC) and MTN V. CHINEDU (2018) LPELR-44621(CA).
The burden and standard of proof is beyond reasonable doubt and the allegation, the evidence proffered and submissions of the Appellants cannot meet the standard of proof required by law. The mere failure to name the Appellants’ father as a party cannot amount to fraud when there were necessary parties before the Court. The failure to mention the name of the late Chief alone cannot amount to fraud. There were proper parties before the Court and fraud was not proved. The Appellants’ claim is founded on the allocation made by the State Government which admitted that it was done in error. Can the Appellants succeed in a right to that allocation without the State Government? Possession of a Certificate of Occupancy alone cannot inure any right to the land, the Appellants must go beyond the document to trace its root of title, see AYANWALE V. ODUSAMI (2011) LPELR-8143(SC) wherein the apex Court held thus:
“Reference was made to the judgment of this Court in: Lawson & Anor v Ajibulu & Ors (1997) 6 NWLR (Pt.507) p.14 where Ogundare J.S.C. said that; “production of documents of title alone is not sufficient to discharge the onus on a plaintiff to prove the title he claims; he must go further to trace the root of his title to one whose ownership of the land has been established”. One of the ways to succeed in a claim for title to land is for the plaintiff to plead a continuous chain of devolution. That in effect amounts to tracing his root of title. Thereafter he must lead evidence to sustain the pleadings. Productions of documents of title are necessary as they make oral evidence more credible.” Per RHODES-VIVOUR, J.S.C.
They do not have a root of title in this case, so even if the lower Court found that it had jurisdiction, the end result would still have been a dismissal of the claim. The 2nd to 4th Respondents herein had no legal right to revoke and re-allocate the land to an individual when the 1st Respondent was not in default. Revocation must be justified in law and cannot be arbitrarily done. See also the following: C.S.S BOOKSHOPS LTD V. THE REG’D TRUSTEE OF MUSLIM COMMUNITY IN RIVERS STATE & ORS (2006) LPELR-824(SC), OSHO & ANOR V. FOREIGN FINANCE CORPORATION & ANOR (1991) LPELR-2801(SC) and AFOLABI V. GOV. OF OYO STATE & ORS (2016) LPELR-41945(CA).
In continuation, even if a witness told the Court that the Late Alhaji Adedibu cleared the land, he did so as a trespasser and not one with a legal title. He never had a legal title, because the title of the 1st Respondent was first in time and wrongly interfered with by the 2nd-4th Respondents who retraced their steps by restoring the allocation. There is nothing that could have been legitimately built on that faulty foundation.
The other contention that the late Chief Lamidi Adedibu bought the land, would still amount to the same conclusion because he had no root of title. The need to get a formal order to set aside the certificate issued to late Chief Adedibu is a non starter, it is the law that there is no need for a formal order to set aside an illegality, it is null and void abinitio, see SHELIM & ANOR V. GOBANG (2009) LPELR-3043(SC), the apex Court held thusly:
“…Every step taken thereafter remains null and void. Lord Denning pronounced in Macfoy v. U.B.A Ltd. (1962) AC 152 at 160 as follow:- “If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” Per FABIYI, J.S.C.
Under issue three, the Appellant dwelt on the pleadings of the 1st Respondent which were not controverted because the Reply meant to traverse them was struck out, the findings of the lower Court cannot be faulted. The over flogged issue of the Appellants not being aware of the 1st Respondents claim should have made the Appellants to appeal the said judgment as interested parties but they did not do that. They were not parties before the lower Court and the right to be served with all processes cannot inure to them.
The argument of the Appellants at paragraph 9.1 of the Appellants’ brief justifies the addition of the unknown person as a party because they contended that their father’s title was issued in 2008 and therefore he could not have been the trespasser who went into the land in 2007. That now establishes the presence of another person, a trespasser who was unknown.
I resolve issue two, three and four against the Appellants.
The focus under issue five is that the lower Court refused to discountenance the statement of the 1st Defendant who signed same in the office of his Counsel. The Appellant submitted that the statement should have been sworn before the Commissioner for Oath. It is trite that an affidavit is different from a witness Statement on Oath. A witness Statement on Oath on its own is worthless unless adopted while an affidavit is evidence without the involvement of any person. That was the holding in the case of NWOGU V SCOA (NIG) LTD (2018) LPELR- 49785(CA) where the Court held as follows:
“A mere affidavit ends as affidavit evidence but a written statement deposition ending as an affidavit amounts to nothing as it needs to be adopted in Court on Oath. This later Oath cures any defect in the previous Oath and therefore it will be too technical to reject an oath on grounds of defect even when the maker is in Court having taken an Oath before the Court.”
One may curiously ask the need for the witness to still be sworn before the Court when he appears to give evidence by adopting his witness statement on Oath? Is it not to validate what is in the statement on Oath? Would validation only refer to only statements made therein and not the other parts of the sworn statement?
The authorities of CHIDUBEM V. EKENNA & ORS (SUPRA) and ABIA STATE TRANSPORT CORPORATION V. QUORUM CONSORTIUM (SUPRA) both dealt with an affidavit and not witness statement on Oath, so they are not relevant.
In this case, issues were not joined on where and before whom the statement on Oath of the 1st Respondent was sworn to. So the answer given under cross-examination goes to no issue because it cannot support any paragraph of the Appellants’ pleadings and therefore it is worthless.
Furthermore, there is a presumption of regularity of the Witness statement on Oath on the face of it, see Section 168(1) of the Evidence Act, 2011. If the Appellants wanted to make it an issue, it should have challenged it by way of pleading.
I also resolve issues 5 and 6 against the Appellant.
In the light of the resolution of all the issues against the Appellants, the appeal is unmeritorious and is hereby dismissed. The judgment of the lower Court delivered on the 8th June, 2020 by HON. JUSTICE E.O. AJAYI is hereby affirmed.
Cost of N100,000.00 (One Hundred Naira) against the Appellants and in favour of the 1st Respondent.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Yargata Byenchit Nimpar, JCA.
My learned brother has comprehensively considered all the issues in this appeal and has advanced very elaborate reasons for dismissing the appeal.
I agree with the reasoning and conclusions of my learned brother. It is for the reasons given by my learned that I also dismiss this appeal.
I abide by all the orders made by my learned brother.
FOLASADE AYODEJI OJO, J.C.A.: I read in draft the judgment just delivered by my learned brother, YARGATA BYENCHIT NIMPAR, JCA. I agree with his Lordship’s reasoning and conclusion that the need to give parties hearing when a Judge raises an issue on his own motion or suo motu would not be necessary if the issue relates to the Court’s own jurisdiction. I wish to say few words on when a grant or right of occupancy may be extinguished.
The law is settled that once a Certificate of Occupancy is granted, it automatically extinguishes all existing rights in respect of the land over which it is granted. It is further the law that an existing right over a parcel of land prior to the issuance of a Certificate of Occupancy can only be extinguished by a lawful revocation of such right. See NNADIKE VS. NWACHUKWU (2019) 16 NWLR (PT. 1696) 239: GENERAL COTTON MILL LIMITED VS. TRAVELLERS PALACE HOTEL (2019) 6 NWLR (PT. 1669) 507: DANTSOHO VS. MOHAMMED (2003) 6 NWLR (PT. 817) 457.
In the instant appeal, the 1st Respondent was issued with a Certificate of Occupancy over the disputed land in 1987. There is evidence that the 3rd Respondent subsequently issued a Certificate of Occupancy in respect of the same parcel of land to the Appellants’ father in the year 2008. In the course of proceedings at the lower Court, DW2 testified under cross-examination as follows:
“The subject matter of this suit was initially allocated to the 1st Defendant subsequently same was revoked but notice was not served. After the allocation, the land was allocated to lands(sic) Chief Lamidi Adedibu, we have the address of late chief Adedibu in our records in the ministry. There is a notice revoking the interest of late Lamidi Adedibu.”
(See page 217 of the printed Record)
It is clear from the evidence led by the Ministry of Lands, Housing and Survey that notice of revocation was not served on the 1st Respondent prior to the purported revocation and subsequent reallocation to Appellants’ father. There was therefore no lawful revocation of the 1st Respondent’s interest in the disputed land. His proprietary interest in the land subsists. The subsequent allocation of the disputed land and issuance of Certificate of Occupancy to the Appellants’ father is void.
It is for this and the more detailed reasons in the lead judgment that I too find no merit in this appeal and also dismiss it. I endorse all the consequential orders made in the lead judgment including the order as to cost.
Appearances:
A. T. Adebayo For Appellant(s)
Biodun Azeez – for 1st Respondent
K. O. Balogun – for 2nd, 3rd and 4th Respondents For Respondent(s)