ADEKUNLE ASOLO & ORS V. TIRIMISIYU ASOLO & ORS
In The Court of Appeal of Nigeria
On Friday, the 12th day of July, 2002
MORONKEJI OMOTAYO ONALAJA Justice of The Court of Appeal of Nigeria
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
OLUFUNLOLA OYELOLA ADEKEYE Justice of The Court of Appeal of Nigeria
- ADEKUNLE ASOLO
2. MADAM MARIA ASOLO
3. ADEDEJI ASOLO Appellant(s)
- TIRIMISIYU ASOLO
2. ADENIYI ASOLO
3. ALH. AMUSA ADEGOKE ARE
4. ALH. CHIEF YINUSA LADOJA …. DEFENDANT/RESPONDENT/APPLICANT Respondent(s)
DALHATU ADAMU, J.C.A. (Delivering the Leading Judgment): This appeal was heard on 17/4/02 on the briefs of the appellants and the 4th respondent only. The 1st – 3rd respondents did not file any brief. Initially all the respondents failed to file their respective briefs of argument after service, on them of the appellants brief filed on 16/5/01. It was on the application of the appellants/applicants counsel that the appeal be set down for hearing on the failure of all the respondents to file their briefs of argument that the 4th respondents counsel was gingered to apply for extension of time to file the 4th respondents brief of argument. This was granted by this court on 30/1/02 and the application of the appellant/applicant for setting down the appeal for hearing was consequently withdrawn and struck out on the same date. Thus the 1st – 3rd respondents did not file any brief and did not show any interest in the appeal which was eventually heard on 17/4/02. It is pertinent to point out that the 3rd respondent Alhaji. K.O. Are who died before the hearing of the appeal was substituted by the executors of his will by name Alhaji Amusa Adegoke Are and Alhaji Yinusa Ladejo (i.e. the 3rd and 4th respondents herein). So the 3rd and 4th respondents have the same interest in the appeal and the brief filed by or on behalf of the 4th respondent in this appeal can cater for them or for their interest. The appellants in this appeal were the plaintiffs at the trial court – High Court of Oyo State holden at Ibadan – while the respondents were the defendants. The plaintiffs/appellants claims at the trial court were as follows:
“(a) Declaration that the Deed of Assignment dated 7th June 1972 and registered as No 12 at page 12 in Volume 1632 in the register of Deeds at Land Registry, Ibadan made between the Plaintiffs and the Defendants in respect of the property situate and lying at No. 89/91 Lebanon Street, Gbagi, Ibadan, Oyo State is null and void and of no effect whatsoever.
(b) An injunction against the 3rd defendant, his servants and/or agents or any of his privies from further acts of interfering with the said property.
(c) Any other relief the court can give.”
(See the endorsed writ of summons (at page 1 of the records) read together with paragraph 19 of the statement of claim at page 5 of the said record). Pleadings were ordered, filed and exchanged on the above claims. The plaintiffs/appellants (hereinafter simply called “the appellants”) filed their statement of claim (see pages 3-5 of the records). The defendants/respondents (also hereinafter called “respondents”) filed their statements of defence. The 1st and 2nd respondents filed their joint statement of defence (pages 20-21 of the records) while the original third respondent filed his separate statement of defence (at pages 22-25 of the records). In support of their respective pleadings the parties gave evidence and called witnesses. The appellants gave evidence and called two (2) witnesses while the 1st and 2nd respondents called one (1) witness and the 3rd respondent called two (2) witnesses. At the conclusion of hearing the parties and their witnesses as well as the addresses of their respective counsel, the learned trial judge (Sijuade J) dismissed the appellant claims in their entity. The appellants being aggrieved by the judgment of the learned trial judge appealed against it in the court.
The facts leading to the appellant’s suit against the respondents at the trial court are as follows: –
The appellants and the 1st and 2nd respondents are children of one late Pa Jacob Asolo (deceased) to whom the land in dispute was originally leased by the Ibadan Municipal Government. By a Deed of Lease dated 22/11/40, and registered as No 7 page 7 in Volume 567 in the Deeds Registry, Ibadan, Pa Asolo on his own part leased the property to one Soubie Jaffar (a Lebanese) for 50 years with the consent of the Olubadan in Council Soubie Jaffar thereafter assigned the residue of his interest in the land to his country man by name Hassan Khalili (under a deed of assignment dated 8/3/44 and registered as No 34 page 34 in volume 634 of the Deeds Registry, Ibadan). After the death of Pa Asolo, one H.M. Suberu went behind and increased the duration of the lease by 20 years and upon the discovery of the increase, the appellants and the 1st and 2nd respondents as his children went to court and challenged the action of H.M. Suberu.
The High Court in suit No.1/264/73 set aside the 20 years increase. However pursuant to the assignment in his favour but without the approval or consent of the Olubadan, Hassan Khalil subsequently assigned or transferred the residue of his interest in the land to the 3rd respondent under a deed of assignment dated 7/6/72 and registered as No 12 page 12 in volume 1632 of the Deeds Registry, Ibadan. It was this latest assignment by Hassan Khalil that prompted this present action by the appellants.
Before his death, Pa Jacob Asolo, the original lessee of the land and the father of the appellants and the 1st and 2nd respondents, had given an express instruction in his will dated 20/6/44, that the land should not be sold or mortgaged. Rather the will prescribed that the first floor of the house build on the land should be used for residential purpose while the ground floor was to be used as shops. However contrary to the wishes of Pa J. Asolo as he expressed in the said will, the 3rd respondent Alhaji K.O.S Are (who is now deceased but was substituted by the present 3rd and 4th respondents) maneuvered and outsmarted the 1st and 2nd respondents to sell the reversionary interest on the land to him in 1972 without any payment to other members of Asolo family (including the plaintiffs) who continued to pay the ground rent in respect of the land to the Ibadan Municipal Government from 1972 to 1989. The vendors or lessors to the 3rd respondent who transferred the reversionary interest to him by name Soubie Jaffar and…
Hassan Khalil could not be located as they have left Nigeria after the transaction. Consequently, the appellants instituted the present action against the 1st and 2nd respondents (who took part in the transaction) as well as the 3rd and 4th respondents who were substituted for the original 3rd respondent Alhaji. K.O.S. Are (deceased).
The appellants initially filed one ground of appeal with their notice of appeal in which they indicated their intention to file more grounds on receipt of the records of proceedings (see page 88 of the record). This was effected by the appellants who subsequently filed a further amended notice of appeal on 16/5/01 with the leave of this court granted on 17/5/01. In this new notice of appeal, the appellants filed five (5) grounds of appeal (including their original ground). In their brief of arguments which was deemed by this court on 17/5/01 and adopted at the hearing of the appeal, the appellants formulated the following three (3) issues that arise and call for determination in this appeal:-
(i) Whether the learned trial judge was competent and had jurisdiction to dismiss the plaintiffs (appellants) case when the necessary and proper parties were not before him (Ground 4).
(ii) Whether the learned trial judge was right to have dismissed the plaintiffs (appellants) case after finding that the plaintiffs (appellants) were not competent parties to institute the action. (Ground 3).
(iii) Whether the learned trial judge evaluated the evidence before him before concluding that the plaintiffs (appellants) case was the most bogus, frivolous and rexation case he had ever tried on the Bench and if he did, was he not prejudiced and biased before doing so. (Grounds 1, 2 and 5).
In the 4th respondents brief, there is no issue at all formulated but the submissions therein are in accord with those in or under the 1st and 2nd issues of the appellants brief with which the 4th respondent agree and conceded. I will revisit this point on concession or concurrence of the submissions in the two briefs under the relevant issues later. It only suffices to point out that the 4th respondents brief in which the submissions are not based on any issue (as none is formulated therein) is in breach of the rules and practice on brief writing which require the arguments and submissions to be based on the issues for determination rather than on the grounds of appeal or on nothing as done by the learned counsel for the 4th respondent in the present case.
It can only be inferred or deduced that since the arguments and submissions in the 4th respondents brief expressly concede to or adopt those of the appellants especially on the appellants lack of locus standi (see paragraph 8 at page 3 thereof), the said 4th respondent has thereby adopted or agreed with issues 1 and 2 as formulated by the appellants and argued together in the appellants brief. I will consequently consider, hereunder, the submissions and arguments on the two issues so formulated by the appellants and argued together in their brief as well as the relevant submissions and authorities on the two issues as canvassed in the 4th respondent’s buried.
Under issues 1 and 2 of the appellants brief argued together, reference is made in the brief to pages 75 (lines 29 – 40) and 76 (lines 1 and 2) of the record of proceedings where the learned trial judge found in his judgment, that the appellants who are not parties to the deed of assignment were consequently not competent to institute the action and to seek for its annulment (by a declaration) as they did in their suit at the trial court. This is so even though they are beneficiaries under their fathers will – i.e. Late Pa Jacob Asolo. The learned trial judge gave his reasons for the above finding because the appellants who pleaded that they are parties to the deed could not substantiate that averment by adducing evidence to that effect. Apart from the fact that they are not parties to the said deed, all the necessary parties to the deed were not brought before the trial court. For the above finding the learned trial judge concluded that the appellants claim has failed and must be dismissed. He went ahead and dismissed the appellants claim at the end of his judgment (see page 87 lines 39-40 of the record). It is submitted in the brief that by his above finding the learned trial judge was, in effect, saying or holding that the appellants lacked the required locus standi to institute their action at the trial court. The brief defines the terms locus standi as per the Black Law Dictionary 6th Edition page 941 where the term is defined as:
“A place of standing, standing in court.
A right of appearance in a court of Justice… on a given question.”
It is argued in the brief that after his finding that the appellants lacked the required or necessary locus standi as they were not competent to institute the action, the learned trial judge was wrong in proceeding to hear the case on its merits because at that point the court or the judge lacked jurisdiction to adjudicate in the matter thus the appellants suit was incompetent and as such the learned trial judge lacked jurisdiction to entertain it – See EJIKEME V. AMAECHI (1998)3 NWLR (Pt.542) 456 at 471; MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 587 at 595; ROSSEK V. ACB (1993) 8 NWLR (Pt.312). 782 and AG. ANAMBRA STATE V. AG. FEDERATION & 11 ORS (1993)6 NWLR (Pt.302) 692 at 737., cited in support of the appellants submission. It is further submitted that since the appellants in the present case have no locus standi to institute the action, they have thereby not satisfied one of the fundamental requirements for the exercise of the court jurisdiction on them or to adjudicate in the matter namely that the condition precedent for the exercise of its jurisdiction has not been fulfilled, or that there is a feature (i.e. lack of the appellants locus standi) which prevented the court from exercising its jurisdiction in the matter – See FAWEHINMI V. AKILU (1987) 4 NWLR (Pt.67) 797 at 846, AKINBINU V. OSENI (1992)1 NWLR (Pt.215) 97 at 119. Cited in the brief in support the submission. The brief also emphasises that from the moment the learned trial judge found the appellants as lacking locus standi, all the examination or evaluation he embarked upon in the case or proceedings were without jurisdiction and therefore an exercise in futility and the whole proceeding amounted to a nullity. He should not consequently have dismissed the appellants claim as he did but instead he should have struck out their claims or case- See SHEN CONSULT NIG LTD. V. UKEY 1981 1 SC 6; OGBUCHI V. GOVERNOR OF IMO STATE (1995)9 NWLR (Pt.417)53 at 95; FREE ENTERPRISES NIGERIA LTD V. G.T.O.S.A (1998) 1 NWLR (Pt.532)1 at 13; RTEAN V. NURTW (1992)2 NWLR (Pt.224) 381 at 391; OLORIODE v. OYREI (1984) 5 SC1; NIGERIALA AIRWAY V. LAPITE (1990) 7 NWLR (Pt.163) 392; and OTAPO V., SUNMONU (1987)5 SC 228 at 284. Cited in support of the preposition. Finally this court is urged under issues 1 and 2 of the appellants brief (argued together) to allow the appeal and instead of making the proper order of striking out the appellants suit at the trial court which was wrongly dismissed by the learned trial judge, to order a retrial as was done by the Supreme Court in ADISA v. OYINWOLA (2000)10 NWLR (pt.674)116 (per Aroola JSC) at page 180.
In the introductory part of 4th respondents brief, it is stated that the original third respondent Alhaji K.O.S. was dead before the appeal proceedings which were commenced by the executors of his will – namely the late Alhaji Amusa Adegoke Are and Alhaji Chief Yinusa Ladoja (the present 4th respondent). It is however pointed out in the brief that at the time when the appeal proceedings were commenced the 3rd and 4th respondents (i.e. the executors of the original 3rd defendant) were not granted probate as a caveat had been entered against their application. The caveat was only removed and probate granted sometime November – December 2001. It is submitted in the brief that the 1st and 2nd respondents were vendors to the late 3rd respondent who purchased the reversionary interest of Pa Asolo (the original owner of the property). It is pointed out, in the brief that the appellants in the present case commenced the action as plaintiffs at the lower court in their personal capacity and not as representatives of Asolo family whereas the reversionary interest sold by the 1st and 2nd respondents to late Alhaji K.O.S. Are belonged to Asolo family. The appellants are also not parties to the Deed of Assignment No.12/12/1632 which they sought to be declared invalid. It is submitted that under the above circumstances, the appellants were not proper persons or parties to bring the action at the lower court as they lacked the necessary locus standi to do so. This is an agreement or concession to the submissions of the appellants brief to the same effect where the appellants’ action is said to be incompetent as they had no locus standi to bring it at the lower court. Reference is made in the brief to paragraph 25 of the 3rd respondents statement of defence where he pleaded the incompetence of the plaintiffs action and their lack of locus standi – See page 25 of the record., Consequently it is submitted that the holding of the learned trial judge at page 75 of the record that the appellants are not competent to institute the action and ask for the declaration sought was right and proper under or on the basis of the above observation. The 4th respondent on that ground expressly (in his brief) – See paragraph 8 at page 3 thereof – agrees with and adopt the submissions of the appellants counsel (in their brief). Thus it is submitted in the 4th respondents brief that since the appellants action at the lower court was not properly constituted and they also lacked the required locus standi to institute the said action, the trial court also lacked jurisdiction to hear the case – See MADUKOLU V. NKEMDILIM (1962) ALL NLR 587 at 595; and ALHAJI ABUBAKAR V. SMITH (1973) 6 SC 31 at 36. Cited in the brief in support of the submission. Finally, this court is urged in the 4th respondents brief under the issues to set aside the trial courts order of dismissal of the plaintiff’s action and instead order the striking out of the action which is the proper order to be made or which should have been made in the circumstances of the case. The brief also urges this court not to make any order on costs against the respondent since the problem in the present case was caused by the appellants. If any order on costs is to be made the 4th respondents brief further urges this court to award it against the appellants for initiating an incompetent action against the respondents.
From the above submissions in the two briefs under the issues 1 and 2 of the appellants, it appears that my task has been made easy by the consensus of the learned counsel representing the parties respectively (in their brief) especially on their common agreement or concession that the appellants action before the lower court was not competent as they lacked the locus standi to institute the suit. It only suffices for me to affirm and sanction the principles of law arising from the submissions in the two briefs on the issue of locus standi. I will start by adopting the words used by the learned trial judge (at page 75-76 of the record where he described the plaintiffs who were not parties to the deed they sought to set aside as not competent to institute the action. In other words and as rightly stated in the appellants brief, what the learned trial judge meant by that finding is that as the appellants were not the proper plaintiffs to bring the action (as they are strangers to the deed) their action before the trial court has this been rendered incompetent. I also agree with the 4th respondent’s submission in this regard to the effect that the said appellants took the present action in their personal capacity whereas the deed they sought to be declared invalid was executed by the 1st and 2nd respondent in a representative capacity and on behalf of the Asolo family. The law is clear in this regard that an action which was not brought by the proper plaintiffs, as in the present case is regarded in law and under the rule on locus standi as incompetent and as not properly constituted – See SOFOLAHAN V. FOWLER (2002)13 WRN 1 AT PAGE 13, ADEWUMI V. A.G. EKITI STATE (2002) NWLR (PT. 751) 474 AT PAGE 520-521; AND MOMOH V. OLOTU (1970)1 ALL NLR 117. The term locus standi which denotes a legal capacity, standing or right of a plaintiff to institute proceedings in a court of law is a threshold concept which has been defined and expounded in a plethora of case law and judicial authorities. Notable among these authorities are the locus classicus on the topic or concept of locus standi namely SENATOR ABRAHAM ADESANYA V. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA (1981)2 SCNLR 358, 12 NSCC 146; 1981 ANLRI, (1981)1 ALL NLR 32; GANIOBA V. ESEZI II & ORS (1961) ALL NLR 584; (1961) 2 SCNLR 237; AND THOMAS V. OLUFOSOYE (1986)1 NSCC (VOL.17) 323.
The issue of locus standi has been a recurring and important one leading to its entrenchment under section 6(6) (b) of the Constitution of the Federal Republic of Nigeria 1979 (as re-enacted in the 1999 constitution). Under the principles or rules of locus standi before any person whether as a plaintiff or an applicant can call in aid the judicial process of the courts of law, the matters on which he wants a decision must relate to his civil rights and obligations. Where he is unable to show in his pleadings and evidence that he has either civil rights or obligations to protect in the suit or action, he will be held to have no locus standi. It follows therefore that where a plaintiff has no locus standi or standing to sue (which is usually not dependent on the success or merits of his case) it is not necessary to consider whether there is a genuine case on the merits; the case must be struck out as being incompetent. – See OWODUNNI V. C.C.C. (2000)1 WRN (VOL.11) 29 AT PAGE 44. Under the above rule on locus standi, I agree with the submissions in the two briefs filed in this appeal that the proper order to be made by the learned trial judge after holding or finding that the plaintiffs/appellants had no locus standi in the case or were not competent to institute the action should have been to strike out their said action on the ground that the said action was not competent or not properly constituted and the condition precedent for the courts exercise of jurisdiction in the case was not satisfied. This is moreso because the lack of locus standi of the plaintiffs/appellants in the present case has raised the issue of competence or jurisdiction of the trial court and it should be treated in all its ramifications as such an issue of jurisdiction by the trial court. Thus, the question of the appellant’s lack of locus standi in the case should have been treated first in priority to all other issues and if found successful it would at that stage deprive the trial court of exercise of its jurisdiction in the case or adjudicating in it at all, as the subsequent proceedings would be rendered a nullity no matter how well conducted they might have been. In normal circumstances or instances where it is clear from the plaintiff’s statement of claim that he has no locus standi, the issue being related to the jurisdiction of the trial court should have been raised and resolved in limine in one way or the other by the trial court either on the application of the adverse party or even suo motu by the trial court – See MODUKOLU V. NKEMDILIM (1962) 2 SCNLR 341; ELENDU VS EKWOABA (1998)12 NWLR (PT.578)320; LAWAL V. SALAMI (2002)2 NWLR (PT.752)687 AT PAGE 710. It follows – that since the subsequent proceedings will be a nullity, there is a need to avoid embarking on an exercise in futility. The result would then be to strike out the suit rather than dismissing it as was wrongly done by the learned trial judge in the present case – See ADEFULU VS. OYESILE (1989)5 NWLR (PT.122)377 AT 409; OLORIODE V. OYEBI (1984)5 SC 1; OTAPO V. SUNMONU (1987)2 NWLR (PT.58) 587 AT 591; AND ADESOKAN V. ADETUNJI (1994)5 NWLR (PT.346) 540.
For my above considerations, I will resolve issues 1 and 2 of the appellants brief (which are aceded to in the 4th respondents brief) in favour of the said appellants. I will proceed with issue No.3 of the appellants for which there is no reply in the 4th respondent’s brief of arguments.
Under issue No.3, the appellants are complaining in their brief against the finding and evaluation of evidence by the learned trial judge before reaching his final decision and his remark in the judgment (at page 73 of the record) where his lordship Sijuade J (as he then was) remarked as follows:-
“The case of the plaintiffs as pleaded and testified upon is the most bogus, frivolous and vexations case that I have ever tried between parties on this Bench, besides, it borders on collusion and an abuse of the process of the court. And I will endeavour to point in several ways why I had to come to this conclusion even before reviewing the evidence because there is no issue at all worthy of consideration placed before this court. ”
It is the appellant’s argument that the above adversary remark by the learned trial judge against them should have come after the review of the evidence adduced in the case but not before then as indicated in the remark. By making the remark at the initial stage before weighing the evidence adduced by both parties, the appellants accuse the learned trial judge for acting contrary to the principle in MOGAJI V. ODOFIN (1978) NSCC 275 AT 277. Cited in support. Furthermore it is stated in the brief that the method adopted by the learned trial judge is contrary to the, rules on the format to be followed by a judge in writing judgments – See ABASI V. OKIDO (1995)5 NWLR (PT.548)89 AT 102, MIGHIKA L.G. V. I.P.G. (1998)11 NWLR (PT.573) 201 AT 213 and OHENE VS. ORIANWO (1998)9 NWLR (PT.566) 408 AT 442. Cited and relied upon by the appellants on the point. Finally this court is urged in the appellants brief under issue NO.3 to allow the appeal and order a retrial. The brief also cites the cases of ALHAJI V. EGBE (1986) 1 NWLR (PT.16) 361 AT 362; ADESOKAN V. ADEJOTOLU (1991)3 NWLR (PT.179)293 AT 293; SAUDA V. KUKAWA L.G. (1991)2 NWLR (PT.174)379 AT 390-291; AND A.G. KWARA STATE V. OLAWALE (1993)1 NWLR (PT.272)645 AT 663 on the definition of the term “cause of action.” The learned trial judge is also accused of having bias or likelihood of bias against the appellants in his above reproduced remark as it also shows that he was prejudiced against them and that they would not be given a fair hearing in the con recommended in the cases of MOHAMMED V. THE NIGERIAN ARMY (1998)7 NWLR (PT 557) 232 AT 247; AND OKAFOR V. A.G. ANAMBRA STATE (1991)6 NWLR (PT. 200) 659 AT PAGE 678. The appellants brief finally prayed to this court to allow the appeal under the issue in consideration (i.e. issue 3).
As I have stated earlier, the 4th respondent has not responded or replied on the above submission of the appellants brief under issue No 3. Despite that failure however I will still consider the appellants submission, on their merit before upholding or rejecting them. From the submission in the appellants brief, their main complain is against the adversary remarks made by the learned trial judge against the said appellants in his judgment (at page 73 of the record and as reproduced – the brief). It is certainly wrong for the said learned trial judge to condemn the appellant’s case at the initial stage and before he considered or evaluated the respective cases of the parties. The learned trial judge is required under the law to act as an impartial arbiter or an umpire between or towards the parties before him without unnecessarily using vituperative remarks against one of the said parties at a stage when he has not even considered the merits of the respective issues or cases as presented by both parties. In my humble view, the learned trial judge in the present case has, was in error when he made the bullying remarks against the appellants. However the offending remarks made by the learned trial judge for which he is accused by the appellants are only contained in his judgment. This in my view is different from a situation where the judge is prohibited from making unneccessary interferences in the course of proceeding against one of the parties or preventing such a party from the opportunity of presenting his case before the court in which case the allegation of bias or likelihood of bias or denial of the parties right to a fair hearing can be properly made or established under or in accordance with the recommended objective test of the hypothetical right thinking or reasonable man who was present and who witnessed the conduct of the whole proceedings. -See METROPOLITAN PROPERTIES CO. LTD. V. LANON (1969) 1 QB 577 AT 599, MOHAMMED V. KANO NA (1968)1 ALL NLR 424. Thus in considering whether a judge or an adjudicator was bias or whether a party was denied the right of fair hearing, it is the whole proceedings that would be looked into or considered rather than only a sentence or even a passage in or from the judgment of the said judge or adjudicator. In the present case, there is no complain by the appellants that they were prevented or denied the opportunity of presenting their case before the trial court, it is therefore my humble view that although the learned trial judge in the present case was in error by making the unfavourable remarks he is accused of making at the initial stage of his judgment such an error per se will not necessarily lead to the reversal of the judgment on appeal except where such an error has led to a miscarriage of justice or where it is shown to be the basis of his final decision.- See FADLALLAH V. AREWA ILE LTD. (1997) 8 NWLR (PT.518)546; ADAM V. YAKOU (1997)10 NWLR (PT.514)535. Moreover, the main plank of the appellant’s submissions under their issue No.3 is directed against the improper evaluation or non-evaluation of evidence by the learned trial judge or against his findings of facts. On this point I will re-state the trite law that evaluation of evidence and ascribing probative value to the said evidence are primarily the functions of the trial court which has the singular opportunity of seeing the witnesses. It is only where it fails to evaluate such evidence properly or at all that the appellate court can interfere or intervene and re-evaluate such evidence. Otherwise where the trial court has satisfactorily performed its primary function of evaluating evidence and correctly ascribing probative value to it an appellate court has no business in interfering with its findings on such evidence. In the present case the appellants have not shown or proved that apart from the offending remark, of the learned trial judge he did not satisfactorily performed his primary function of evaluating the evidence adduced by both parties. Consequently this court will not interfere with his evaluation and findings. – See EBBA V. OGODO (1984)1 SCNLR 372; NWOKORO V. NWOSU (1994) 4 NWLR (PT. 337) 172; POPOOLA V. ADEYEMO (1992)8 NWLR (PT.257)1; and KALGO V. KALGO (1999)6 NWLR (pt.344) 348.
In my final consideration of the third issue of the appellants, the said issue must be resolved against the said appellants. In the result of my resolution of issues 1 and 2 in favour of the appellants, which are based on the important and fundamental concept or issue of locus standi and a fortiori jurisdiction, the appeal has succeeded and must be allowed. Accordingly I hereby allow the appeal and set aside the judgment of the trial court. In its place I hold that the appellants had no locus standi to bring or institute the present action at the trial court. Consequently their said action or suit which was not properly constituted and which the trial court had no jurisdiction to entertain is hereby struck out rather than been dismissed. I will not make an order of retrial since the suit having been merely struck, out and not considered on its merits or dismissed, the appellants are at liberty, if they so wish to institute a fresh action at the trial court. In the circumstances of the case having resolved one of the issues against the appellants and bearing in mind that the case involves members of the same Asolo family, I make no order as to costs.
OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.: I had the opportunity of reading in draft the judgment just delivered by my learned brother Dalhatu Adamu JCA. I agree with his well-considered reasoning and conclusion as regards the issue of locus standi of the parties, which on the other hand confers jurisdiction on the court to consider any cause of action. It is apparent and a settled conclusion based on catalogue of judgments delivered by our courts of record that to be able to approach the court one must have legal interest, which confers a right of appearance in a court of justice. The statement of claim of the plaintiff thereafter will disclose whether there is a reasonable cause of action against the defendant. Where a party has no locus standi any proceeding in the action based on it will be a nullity. Competency of the party to institute a case is a threshold matter which by itself determines the jurisdiction of court. When a party’s standing to sue is in issue in a case, the question is whether the person whose standing is in issue is a proper person to request an adjudication of an issue and not whether the issue itself is justiciable.
ADEFULU V. OYESILE 1969 NWLR Pt 122 pg 377; GREEN V. GREEN 1987 3 NWLR Pt 61 pg 480 at 500 SC; BOLAJI V. GBAMGBOSE 1986 4 NWLR Pt 37 pg 632; GANI FAWEHINMI V. GENERAL SANNI ABACHA 1996 9 NWLR Pt 475 pg 710; CHIEF MIKE OZEKHOME V. GENERAL IBRAHIM BABANGIDA & 1 OR LD/103M/93 A-G. BENDEL STATE V. A-G OF THE FEDERATION OF NIGERIA & 18 ORS 1981 SC 1 at pgs 190-191; OKOYE & ANOR V. LAGOS STATE GOVERNMENT & 2 ORS 1990 3 NWLR Pt 136 pg 115.
The question of whether or not a claimant has sufficient justiciable interest depends on the facts and circumstances of each case, which have been adequately considered in the leading judgment before resolving the issue that the appellant had no locus standi to institute the present action. The appeal is allowed – while the judgment of the trial court is set aside. No order is made on costs.
MORONKEJI OMOTAYO ONALAJA, J.C.A.: It is delightful to read in advance before now the lead judgment just delivered and handed down by my learned brother ADAMU JCA who in his character carefully considered all the issues raised and germane in this appeal, for the reasons given in the lead judgment which I have adopted as my own I also find no substance or merit in the issue raised in this appeal. As the appeal succeeded in part, the order for striking out the action instead of an order for retrial has my blessings and agreement. As the parties are members of the same family and not to widen the gulf further within the same family the judicial discretion not to award costs is supported by me in the circumstances of this appeal, so I also abide with the consequential orders and also the order of costs.
- OGUNLESI ESQ.For Appellant
- O. MAKANJUOLA ESQ. for 1ST & 2ND RESPONDENTS
ALHAJI A. ISHOLA GBENLA FOR 4TH RESPONDENTFor Respondent