ALHAJI HASSAN SHEHU NAIGE v. ENGINEER BELLO AHAMAD & ANOR
(2019)LCN/12627(CA)
In The Court of Appeal of Nigeria
On Saturday, the 29th day of June, 2019
CA/S/110/2018
RATIO
ACTION: TO DETERMINE WHEN AN ACTION IS STATUTE- BARRED
“The relevant poser here is – how does a Court determine if an action is statute barred? To determine whether an action is statute barred or not, the Court only needs to look at the processes filed by the plaintiff, namely, the statement of claim, which will contain the date when the cause of action accrued, and the originating process, which will show the date the action was instituted in Court. From these processes the Court can easily determine whether from the date of the accrual of the cause of action, the suit was instituted outside or within the period prescribed by the limitation law. See FORESTRY RESEARCH INSTITUTE OF NIG v. ENAIFOGHE GOLD (2007) 10 SCM 32 and EGBE v. ADEFARASIN (supra).” PER AMINA AUDI WAMBAI, J.C.A.
JURISDICTION: AT WHAT STAGE CAN THE ISSUE OF JURISDICTION BE RAISED
“Though usually raised by the defendant, the Court can and often of its own motion raise the issue provided that parties are afforded opportunity of reacting to the issue before a pronouncement is taken on same. See GALADIMA v. TAMBAI (2000) 6 SC (Pt. 1) 196, as well as the case of ELUGBE v. OMOKHAFE (SUPRA) also of the Supreme Court cited by the Appellant’s counsel. What is more is that no stage in the life of the proceedings or appeal but before judgment is too late to raise the issue of want of jurisdiction of the Court. The right inures parties and the Court at any stage of the proceedings at the trial Court before judgment, and at the Appellate Court, before the delivery of judgment by the Apex or the final Court. It can be raised as a fresh issue at the Supreme Court for the first time even by either of the parties or by the Supreme Court itself. See PETROJESSICA ENTERPRISES LTD v. LEVENTIS TRADING CO. (1992) 5 NWLR (Pt. 244) 67,PAN-AFRICAN CO. LTD v. NICON (1982) 9 SC 1.” PER AMINA AUDI WAMBAI, J.C.A.
TRUST: ADMINISTRATION OF ESTATE
“Letters of administration is a formal document issued by probate Court appointing one an administrator of an estate. See Blacks Law dictionary 6th Edition, page 905.The same dictionary at page 44 defines administration of estate as: ‘The management and settlement of the estate of an intestate decedent, or of a testator who has no executor, performed under the supervision of the Court, by a person duly qualified and legally appointed, and usually involving (1) the collection of the deceased estate (2) payment of debts and claims against the estate; (3) payment of estate taxes; (4) distribution of the reminder of the estate among those entitled thereto.’ It is clear from the above, that the administration of estate of intestate deceased involves the management and settlement of the estate of an intestate person under the supervision of the Court, by a person duly qualified and appointed as an administrator of the estate. The function of the administrator is thus to manage and or settle, under the supervision of the Court, the estate of the intestate deceased person. This presupposes that where the estate of the deceased has been distributed by a Court of law the question of grant of letters of administration to another person in respect of the same estate will not arise.” PER AMINA AUDI WAMBAI, J.C.A.
JUSTICES
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
ALHAJI HASSAN SHEHU NAIGE Appellant(s)
AND
1. ENGINEER BELLO AHAMAD
2. NASIRU SHEHU
(Suing as representatives of Marwa & Shafa Abba Naige) Respondent(s)
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment):
This appeal before us arose from the decision of Bello Duwale J, of the Sokoto State High Court delivered on 25th April, 2018 which struck out the Appellant?s Motion No. SS/M/113/2018.
The said Motion SS/M/113/2018 filed on 29/03/2018 was in reaction to the substantive Suit SS/14/2018 filed on 6/03/2018 by the plaintiffs, now Respondents in this appeal, against the Appellant as 1st defendant and two other persons, namely Kasimu Yusuf Hausari (Judge of the Upper Sharia Court I, Sokoto) and Bashiru Alkali (Registrar, Upper Sharia Court I, Sokoto) as 2nd and 3rd defendants respectively, praying for sundry reliefs which in the main are a declaration that the appointment of the plaintiffs (now Respondents) as the representatives of Marwa and Shafa Abba Shehu Naige is legal, lawful, and valid; and the purported letter of administration purportedly granted to the 1st defendant (Appellant herein) was done in error and all actions taken by the Appellant pursuant to the purported letters of administration including the sale of the petroleum filing station initially leased out to Oando Plc., without the consent or authority of the plaintiffs or the High Court which granted the 1st defendant the letters of administration, are unlawful, illegal and void.
In the said Motion SS/M/113/2018, the Appellant and the 2nd and 3rd defendants as Applicants had prayed the Court to dismiss the substantive suit No. SS/14/2018 for being statute barred; not disclosing any reasonable cause of action; and for absence of locus standi.
The learned trial Judge in his considered Ruling held that: (i) the Respondents have locus standi to institute suit SS/14/2018; (ii) the suit disclosed a reasonable cause of action; (iii) the suit is not statute barred; and (iv) the suit was competently filed before the Court. He accordingly struck out the Motion SS/113/2018.
Displeased with the Ruling, the Appellant through his counsel, Ibrahim Abdullahi, Esq. (FRHD), approached this Court by a Notice of Appeal filed on the 8th May, 2018 predicated on the following six grounds, shun their particulars, namely:
GROUND ONE:
The Court below erred in law when in its decision in Motion No. SS/M.113/2018, it held that Suit No. SS/14/2018 was not statute barred under Section 2(a) of the Public Officers? Protection Law of Sokoto State and therefore not an abuse of Court process because the Appellant not being a Public Officer cannot raise same and this has occasioned a miscarriage of justice.
GROUND TWO:
The Court below erred in law when in its decision in Motion No. SS/M.113/2018, it held that Suit No. SS/14/2018 was not statute barred and therefore not an abuse of Court process as it relates to the Respondents who have a reasonable cause of action and this has occasioned a miscarriage of justice.
GROUND THREE
The Court below erred in law when in its decision in Suit No. SS/M.113/2018, it held that the Respondents had the locus standi to institute Suit No. SS/14/2018 and this has occasioned a miscarriage of justice.
GROUND FOUR:
The Court below erred in law when in its decision in Suit No. SS/M.113/2018, it descended and or made pronouncements on matters touching on the substantive case and this has occasioned a miscarriage of justice.
GROUND FIVE:
The Court below erred in law when in its decision in Suit No. SS/M.113/2018, it failed to take into due consideration all the uncontroverted facts in the supporting affidavit as well as the accompanying exhibits of the Appellant’s application before refusing the said application and this has occasioned a miscarriage of justice.
GROUND SIX:
The Court below erred in law when in its decision in Suit No. SS/M.113/2018, it validated the incompetent counter affidavit of the Respondents by holding that paragraph 3 thereof to be competent and this has occasioned a miscarriage of justice.
From these grounds of appeal, the learned Appellant?s counsel in the brief of argument filed on 18/01/2019 and deemed on 21/02/2019, submitted five (5) issues for determination, namely: –
1. Was the Court below right in law when it held that Suit No. SS/M.113/2018 was not statute barred and therefore not an abuse of Court process? (Decoded from the grounds 1 & 2 of the grounds of Appeal).
2. Was the Court below correct in law when it held that the Respondents had the requite locus standi to institute Suit No. SS/M.113/2018? (Decoded from the ground 3 of the grounds of Appeal).
3. Did the Court below descend and or made pronouncements in Suit No. SS/M.113/2018 that touched on the substantive suit pending before it? (Decoded from the ground 4 of the grounds of Appeal).
4. Did the Court not abdicate its duty when it failed to take into consideration the uncontroverted facts in the supporting affidavit as well as the accompanying Exhibits of the Appellant’s application before refusing same? (Decoded from the ground 5 of the grounds of Appeal).
5. Was paragraph 3 of the Counter affidavit of the Respondent competent? (Decoded from the ground 6 of the grounds of Appeal).
Learned S. S. Auta, Esq., who settled the Respondent?s brief of argument filed on 19/03/2019, identified a lone issue for determination in the event that the Respondent?s Preliminary Objection to the hearing of the appeal fails. The lone issue is:
Whether the ruling in motion No SS/M.113/2018 can be supported having regards to its unassailable findings and conclusion of the trial High Court of justice Sokoto State? (Distilled from all grounds of appeal)
I should start with the preliminary objection, for if successful, may render the consideration of the appeal unnecessary. See F.B.N. v. TSA INDUSTRY LTD (2010) 15 NWLR (Pt. 1216) 247, KATTO v. CBN (1991) 9 NWLR (Pt. 920) 140.
The ground for the Preliminary Objection is that the Notice of Appeal filed on 8/05/2018 copied at page 125 of the Record of Appeal, is incompetent, some necessary parties to the suit at the lower Court having been deliberately removed from the said Notice of Appeal.
The Respondents’ contention is that a comparism of the Names of the Respondents on the Notice of Appeal with the Respondents names on Motion SS/113/2018 shows that the names of the 2nd and 3rd defendants, the Judge and Registrar of the Upper Sharia Court I, Sokoto, respectively whose legal representation the Appellant?s counsel was rejected but were not disjoined by the lower Court and who are necessary parties in this appeal had been deliberately and without leave of either the Court removed from the Notice of Appeal. The omission of their names on the Notice of Appeal, it was submitted, renders the Notice of Appeal defective, incompetent and deprives this Court of jurisdiction to entertain the appeal, the Notice of Appeal, like a Writ of Summons in ordinary civil action, being the initiating process, and thus, liable to be struck out. He cited in support the case of MICHAEL & 6 ORS v. NWOLU NWOSU & 4 ORS (2007) 31 NSCQR P. 5.
In opposition to the Preliminary Objection, it was submitted for the Appellant that the Respondents? argument missed the point in that glaringly, there are 3 applicants to Suit/Motion SS/113/2018 which is the subject of this appeal, the Appellant being the 1st applicant and the 2nd and 3rd applicants not being struck out, remain as parties in that nomenclature to the said motion as argued.
Counsel contended that though the Appellant has the statutory and the constitutional right to appeal the decision by virtue of Sections 6, 233 (sic, it should be 241) and 242 of the Constitution which right he can exercise as a party to the suit, it will be missing the position of the law to argue that the 2nd and 3rd defendants/Respondents who are not dissatisfied with the decision of the lower Court and who have not been shown to be necessary parties to this appeal, should be dragged to the Court of Appeal either as Appellants or Respondents, since the Appellant can maintain the appeal without the necessity of joining the 2nd and 3rd defendants. The case of ANIKE v. NSUDE & ORS (2017) LPELR-42798 (CA), EKUNOLA v. C.B.N (2005) LPELR-CA/L/55/04, among others were cited in support.
The Appellate Court, he submitted, is bound by the Record of Appeal and cannot, except the contrary is proved, go outside the record in search of evidence, citing in support the cases of SOMMER v. F.H.A. (1992) 1 N.W.L.R (Pt. 219) 548, TEXACO PANAMA ING. OF NIG. LTD v. S.P.D.C. (NIG). LTD. (2002) 5 NWLR (Pt. 759) 209, among others. Thus it was contended that the Respondents’ argument at paragraph 3.7 (c) – (g) on rejection of his legal representation on behalf of the 2nd and 3rd defendants is only an attempt to raise fresh issues outside the subject matter of the instant appeal without filing a cross-appeal on the propriety or otherwise of retaining the names of the 2nd and 3rd defendants as applicants in SS/M/113/2018. The cases of ONYEAMAIZU v. OJIAKO (2010) 4 NWLR (Pt. 1185) 504 at CA/S/110/2018 Page 9 of 51 at 526, U.B.A v. AGBOOLA (2011) 11 NWLR (Pt. 1258) 375, 400 F ? G were cited to buttress his argument that parties are not permitted to raise fresh issues on appeal without leave of Court. Similarly, even if they contend that errors are committed, this Court, must remain aloof and refuse to be drawn into a correction of such errors not appealed against as decided in the cases of BHOJSONS PLC v. DANIEL KALIO (2006) 5 NWLR (Pt. 973) 330 S.C., EJOWHOMU v. EDOK-ETER MADILLAS LTD (1986) 5 NWLR (Pt. 39) 30 – 31.
Learned Appellant’s Counsel maintained that the Notice of Appeal is competent and ought to be given its full weight and effect.
The simple question in this Preliminary Objection is whether the omission from the Notice of Appeal of the names of the 2nd and 3rd defendants/Applicants in Motion SS/M/113/2018 who were the 2nd and 3rd defendants in Suit SS/14/2018, renders the Appeal incompetent; or conversely, whether the 2nd and 3rd defendants/Applicants in said Motion SS/M/113/2018 must of necessity appeal the decision to make the Appellant?s Notice of Appeal competent.
Let me begin by stating the obvious that the right of appeal to this Court from the decision of the lower Court or a Federal High Court is a constitutional right donated by Section 243(1) of the Constitution which is exercisable at the instance of a party to any civil proceedings thereto or with the leave of the Federal or State High Court or the Court of Appeal, by or at the instance of any other person having an interest in the matter. This constitutional and statutory right a party may choose to activate and exercise provided that the relevant statutory and procedural Rules are complied with. It is however important to drive home the point that while such a party is at liberty to exercise his right of appeal, the choice is absolutely his, whether to appeal a decision or to be contended with it.
A party who chooses not to exercise his right of appeal is under no duty to do so: He can only appeal a decision with which he is dissatisfied. He is not expected and indeed cannot in law be permitted to appeal a decision against which he has no complaint or grudge. I know of no law which permits, compels or mandates a party to appeal a decision of Court in respect of which he is not aggrieved. It will be rather ridiculous, highly preposterous and legally absurd to expect or compel a party to file an appeal against the decision or order of Court in respect of which he has no complaint, merely to support the decision appealed against. That will clearly be outside the scope and purpose of an appeal, an appeal essentially being a complaint to a higher Court against the decision of a lower Court inviting the higher Court to find out whether on the pleadings and the applicable law, the lower Court had come to the right decision on the matter or issue complained against in respect of which the Appellate Court’s intervention is sought. See OBASI v. ONWUKA (1987) 3 NWLR (Pt. 61) 364, ODOM & ORS v. PDP & ORS (2015) LPELR-24351(SC).
The constitutional right of appeal avails only a party who has a grudge and is aggrieved by the decision, order or judgment of the Federal or State High Court. It is not for a party who is satisfied with or chooses not to appeal a decision. Such a party is under no duty or vested with any right to appeal.
It must however be pointed out that the choice of one or more of the parties to a suit not to appeal the decision does not and should not subjugate the right of any other party adversely affected by the decision and who can maintain an appeal from appealing the decision. Therefore, while it is the choice of the 2nd and 3rd defendants/Applicants not to be aggrieved by the decision or to elect not to ventilate their grievance, if any, the right of the Appellant as the 1st defendant/Applicant who was adversely affected by the decision cannot be taken away or be subjugated to the 2nd and 3rd defendants’/Applicants’ choice.
Counsel has failed to support with legal argument, his contention that the 2nd and 3rd defendants/Respondents, are necessary parties to this appeal and that their omission in the Notice of Appeal renders the appeal incompetent. Having so failed, the preliminary objection is devoid of any merit and it is accordingly dismissed.
For the determination of the main appeal, the following issues culled from the issues submitted by the learned Appellant’s counsel shall be our guide. These are: –
(1) Whether the Court below evaluated the evidence before it and was right when it held that Suit SS/M/14/2018 was not statute barred and thus not an abuse of Court process.
(2) Whether the Court below was right when it held that the Respondents had the requite locus standi to institute Suit SS/14/2018 and in the process descended to the arena and made pronouncements on the substantive suit.
ISSUE NO. 1:
Whether the Court below evaluated the evidence before it and was right when it held that Suit SS/M/14/2018 was not statute barred and thus not an abuse of Court process.
In arguing the issue, it was submitted for the Appellant that the issue of suit SS/14/2018 being statute barred was a joint issue raised by the defendants/applicants in Motion SS/M/113/2018, in which the Appellant herein was the 1st defendant/Applicant and the 2nd and 3rd defendants whom the trial Court held the Appellant’s counsel could not represent were the 2nd and 3rd Applicants respectively. He contended that the issue of suit SS/14/2018 being statute barred, is a jurisdictional issue which any party to the proceedings or even the Court can suo motu raise and the Appellant can take advantage of as decided in the cases of KURANGA & ORS v. GEORGE & ANR (2015) LPELR-25977 (CA), ELUGBE v. OMOKHAFE (2004) 18 NWLR (Pt. 905) 319, and PETROJESICA ENTERPRISES LTD v. LEVENTIS TRADING COMPANY (1992) 5 NWLR (Pt. 244)
675. Premised on the foregoing, counsel argued that the learned trial Judge was wrong to have held that only the 2nd and 3rd defendants and not the Appellant could raise the issue of suit SS/14/2018 being statute barred or take advantage of the benefits of Section 2(a) of the Public Officers Protection Law, Cap 119 Laws of Sokoto State, the Appellant not being a public officer or even if a public officer, not being sued in his official capacity.
As to who is a public officer, the cases of MOMOH v. OKEWALE (1977) NSCC 365, ALAPIKI v. GOV OF RIVERS STATE (1991) 8 NWLR (Pt. 211) 575, IBRAHIM v. JSC, KADUNA STATE & ANR. (1998) 12 SCNJ 255 and the English case of BEMBRIDGE (1783) 3 DOUCI KB 32; WHITAKER (1914) KB 1283 relied upon by the Supreme Court were cited. Attention was also drawn to the Interpretation Act, Cap 149 Laws of the Federation of Nigeria, 1990 which defines a Public Officer as an holder of office who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public.
In the light of this definition, it was contended that by paragraphs 4 & 5 of the Statement of Claim, the 2nd and 3rd defendants are such public officers thereby bringing them under the operation of Section 2(a) of the said Public Officers Protection Law.
His further contention is that the cause of action in the matter, arose in 2005 when the estate of the late Abba Shehu Na’ige was distributed and by the Respondents? own showing, the Appellant had since then been acting without their involvement, 13 years ago.
Similarly, another cause of action, it was submitted, accrued to the Respondents on 22/02/2007 when a 21 days’ Notice of Prohibition from the public was published in the New Nigerian Newspapers and the whole world including the Respondents and Marwa and Shafa whom the Respondents represent, became aware or ought to have been aware of the Appellant’s application for letters of administration but without objecting to the grant of the letters until 11 years after. Reference was made to paragraphs 3 (s), t, u, v, w, x, y, z of the supporting affidavit and the attached exhibits.
According to learned Dr. Ibrahim Abdullahi, these periods when the causes of action accrued to the Respondents and when the Respondents instituted suit SS/14/2018, was well over the 3 months period prescribed by Section 2(a) of the Public Officers’ Protection Law contending that what the lower Court ought to have considered at that stage is whether the suit was maintainable and not whether the case would succeed. EGBE v. ALHAJI (1989) 1 NWLR (Pt. 126) 512 at 546.
On the effect of instituting an action outside the ‘period prescribed by the limitation law, the case of IBRAHIM v. J.S.C. KADUNA STATE (SUPRA) and the recent case ofSULGRAVE HOLDINGS INC. & ORS v. FGN & ORS (2012) 17 NWLR (Pt. 1329) 309 at 334 were cited, contending that the suit having been filed outside the limitation period, the Respondents’ right of action, right of enforcement and the right to judicial relief have been removed.
On the contention that the suit discloses no reasonable cause of action, counsel submitted that since the Respondents, by virtue of Exhibits A and B had knowledge of the grant of the letters of administration to the Appellant but choice not to utilize Orders 48 and 49 Rule 6(1) of the Rules of the lower Court to challenge the Appellant, the Respondents have no prospect of succeeding in the case, and thus, have no reasonable cause of action.
Stressing this further, learned counsel also opined that the institution of the suit amounts to an improper use of legal process, constituting an abuse of Court process as the seeking of the revocation of the Appellants’ letters of administration many decades after its grant, is vexatious and frivolous which deserves to be struck out. The cases of CARRENA v. AKINLASE (2008) 14 NWLR (Pt. 1107) 262, 290, LASACO ASS PLC v. DESERVE SAVINGS & LOAN LTD (2012) 2 NWLR (Pt. 1283) 95 at 117 G ? U, WILLS v. EARL BEAUCHAMP (1886) 11 P.D. 59, MORGAN & ORS v. WEST AFRICAN AUTOMOBILE AND ENGINEERING CO. LTD (1971) 1 NWLR page 219, were cited in support.
In addition, the learned trial Judge was accused of abdicating his duty for failing to consider the Appellant?s uncontroverted affidavit and evaluate documents accompanying the application before refusing same, but rather relied on his personal knowledge contrary to the law. The lower Court having failed to evaluate the evidence, we were invited to re-evaluate same, the doing of which would lead us to arrive at a different decision, citing in support the case of REV KING v. STATE (2016) LPELR-40046 (SC) 49, A – D.
Similarly, he faulted the lower Court’s decision that paragraph 3 of the counter affidavit which does not contain the date and time the deponent received the information relied upon, is competent, and does not offend Section 115(4) of the Evidence Act, despite the fact that the Respondents do not contest its violation of the said provision. For this, the case of SA?IDU H. AHMED & ANR v. C.B.N (2013) LPELR-20744 (SC) was relied upon. Finally, we were urged, to dismiss the suit SS/14/2018 for being statute barred.
In his response to this issue, the learned Respondent?s counsel in arguing his lone issue, conceded to the correctness of the authorities cited by the Appellant?s counsel as representing the established principles of law for which they were cited, but argued at paragraphs 5.1 ? 5.18 of his brief of argument that those authorities do not add value to the Appellant’s case as they do not apply to the facts of this case. He submitted that the Respondents are satisfied with and have no complaint against the distribution of the estate of the deceased as done by the Upper Sharia Court I, Sokoto in 2005 in suit CV/F1/06/2005. Their complaint is only against the Appellant’s sale of a filing station jointly owned by the 3 heirs whom the Appellant and the Respondents each separately represent, the information of which they received through a phone call by the 3rd defendant on the 28/02/2018 in reaction to which on the 6/3/2018 they promptly instituted suit SS/14/2018. Since the suit was instituted less than one month from the accrual of the cause of action, counsel submitted that their action cannot be statute barred and Section 2(a) of the Public Officers Law cannot apply to their case.
Premised on the foregoing, it was submitted that the Appellant’s argument that the cause of action arose 13 years ago, in 2005, is only intended to mislead the Court as the judgment in suit CV/F1/06/2005 which has not been appealed against, has never been and is still not in contention.
On the letters of administration purportedly obtained from the Registry of the lower Court by the Appellant in 2007, counsel argued that same was unknown to the Respondents and cannot operate as caveat to prohibit them from instituting the suit or to make it statute barred. His reason for this preposition is that the distribution of the estate of the deceased Muslim which undoubtedly falls under Islamic Personal Law by virtue of Section 277(1) ? (6) of the Constitution (as amended) and rightly distributed by the Upper Sharia Court, is exempted from the application of the western concept of letters of Administration of estate by virtue of Section 3(1)(b) of the Administration of Estate of Deceased Persons Cap 2, Laws of Sokoto State of Nigeria, vol. 1, 1996 (as amended) as decided in the case of ADUWA – HASSAN & 1 OR v. PROBATE REGISTRAR & 1 OR (2016) 4 SQLR (Pt. 2) 350 at 358 which construed a similar provision in the Kwara State Administration of Estate Law Cap A1, Laws of Kwara State, 2006. It was thus contended that the said letters of administration obtained by the Appellant amounts to nothing and is devoid of any legal flavor as something cannot be placed on nothing as held in UAC v. MACFOY (1962) AC 152.
On the Appellant’s contention that the depositions in the supporting affidavit were uncontroverted but the learned trial Judge failed to consider same, our attention was drawn to the Respondents’ counter-affidavit at pages 53 – 58 of the record wherein the depositions in the Appellant’s affidavit were denied. Similarly, counsel belied the Appellant?s submission that Respondents did not contest paragraph 3 of the counter-affidavit being in violation of Section 115(4) of the Evidence Act. Again, we were referred to the said counter-affidavit at pages 53 – 58 and urged to carefully study same and resolve the issue in favour of the Respondents.
In his reply to the foregoing submission, the learned Appellant?s counsel at paragraphs 1.15 to 1.17 of his reply brief submitted that the requirement of the relatives or beneficiaries of a deceased Muslim who died intestate to apply, upon payment of the relevant fees and production of necessary documents, for the letters of administration, is essentially for the purpose of the management of the properties or estate of the said deceased which function the Appellant had been carrying out on behalf of Marwa and Shafa since 2007 when he obtained the letters of administration, and also to enable the administrator initiate or defend legal proceedings pertaining to the estate, thus it is now too late for the Respondents to argue to the contrary.UGWU & ORS V. EZEANOWAI & ORS (2017) LPELR-42754 (CA).
The main issue in contention here is whether by virtue of Section 2(a) of the Public Officers? Protection Law of Sokoto State, Cap 199 Laws of Sokoto State, suit SS/14/2018 instituted by the Respondents on the 6/3/2018 is statute barred. The contention of the learned Appellant?s counsel, contrary to the view held by the lower Court, is that the said suit SS/14/2018 was statute barred as at the 6/3/2018 when it was instituted by the Respondents as plaintiffs.
In his ruling striking out motion SS/M/113/2018, the learned trial Judge held the view that the Appellant?s counsel was not competent to file the application or canvass argument of the suit being statute barred on behalf of the 2nd and 3rd defendants.
It is apt to first consider and determine the correctness or otherwise of that position with which the Appellant’s counsel has picked hole. When a party pleads or claims that an action is statute barred, he is simply saying that the action has not been initiated by due process of law and is incompetent. See MADUKOLU & ORS v. NKEMDILIM (1962) 1 ALL NLR 587 at 595. Also established and a well settled principle of law is that when the competence of a suit is challenged, the jurisdiction of the Court to entertain the suit is put to question as it is only a competent action that can vest jurisdiction in the Court to entertain its merits. Invariably therefore, a pleading in a statement of defence or in a preliminary objection or a motion that an action is statute barred, is a challenge to the competence of the action and the jurisdiction of the Court to adjudicate over the matter. This, the Court, ought and must at the earliest opportunity, first determine before proceeding with the substantive matter. See KALU v. ODILI (1992) 6 SCNJ (Pt. 1) 76, ADEKOYE & ORS v. NIG. SECURITY PRINTING & MINTING CO. & ORS (2009) 5 NWLR (Pt. 1134) 322 and LAGOS STATE v. DOSUNMU (1989) 3 NWLR (Pt. 111) 552.
It cannot be otherwise jurisdiction being the power from which Courts derive their authority to entertain matters placed before them. It is the bedrock and the foundation of every adjudication. It is the blood that gives life to the survival of an action in Court, without which the action will be drained of its blood and any subsequent action taken will be nothing but a nullity. See CHIEF U. UTIU & ORS v. JACOB UNOYIUWE & ORS (1991) 1 SCNJ 25 at 49, AFRO CONTINENTAL (NIG) LTD & ANOR v. NDAEYO v. OLUNAYA (1977) 1 SC 11 at 24 ? 26.
It is for this fundamental and threshold nature of jurisdiction that the law imposes no restrictions on when, or by whom the issue can be raised. Parties to an action or even the Court can raise the issue suo motu. No particular party or defendant has been fixedly saddled with the duty of raising the issue of absence or want of jurisdiction of Court to entertain an action before it. In other words, the duty to raise the question of the absence of jurisdiction of Court to hear and determine any particular case or matter has not been placed upon any particular party or defendant to a suit.
Though usually raised by the defendant, the Court can and often of its own motion raise the issue provided that parties are afforded opportunity of reacting to the issue before a pronouncement is taken on same. See GALADIMA v. TAMBAI (2000) 6 SC (Pt. 1) 196, as well as the case of ELUGBE v. OMOKHAFE (SUPRA) also of the Supreme Court cited by the Appellant’s counsel.
What is more is that no stage in the life of the proceedings or appeal but before judgment is too late to raise the issue of want of jurisdiction of the Court. The right inures parties and the Court at any stage of the proceedings at the trial Court before judgment, and at the Appellate Court, before the delivery of judgment by the Apex or the final Court. It can be raised as a fresh issue at the Supreme Court for the first time even by either of the parties or by the Supreme Court itself. See PETROJESSICA ENTERPRISES LTD v. LEVENTIS TRADING CO. (1992) 5 NWLR (Pt. 244) 67,PAN-AFRICAN CO. LTD v. NICON (1982) 9 SC 1.
It is therefore, erroneous for the learned trial Judge to have held that the Appellant’s counsel was not competent to have raised on behalf of the 2nd and 3rd defendants, the issue of suit SS/14/2018 being statute barred or that the Appellant being the 1st defendant/Appellant in the application cannot take benefit of the that issue. See ELUGBE v. OMOKHAFE (Supra) where the Supreme Court dealing with a similar issue stated inter alia: –
‘Therefore, it is erroneous to think or argue as the respondent has done by his preliminary objection that the 4th defendant could not contest before this Court, the correctness of the decision of the Court below on jurisdiction just because it was the 1st to 3rd defendants alone that had raised the issue before the Court below. If the Court below had struck out the suit on the ground that the Court has no jurisdiction to hear it by virtue of Decrees 1 and 13 of 1984, the order would have ensured to the benefit or advantage of the 4th defendant notwithstanding that the issue was raised by the 1st to 3rd defendants. It seems to me that the 4th defendant by the same parity of reason is clearly entitled to contest on appeal before this Court the correctness of the decision of the Court below on the point.’
The summary of this exposition is that the Appellant’s counsel is competent to argue, at the trial Court and on appeal, the issue of the Respondents action been statute barred and take benefit of the provision of Section 2(a) of the Public Officers’ Protection Law, if same inures the Appellant.
Now, an action or cause of action is said to be statute barred when as stated per Oputa, JSC in FRED EGBE v. JUSTICE ADEFARASIN (1987) 1 NWLR (Pt. 47) 1, proceedings cannot be brought because the period laid down by the limitation law or Act had elapsed. Simply stated, a cause of action is said to be statute barred if it is brought at a time beyond the period of time laid down or prescribed by the law within which such action must be filed or instituted in Court.
What this means is that where a statute of limitation prescribes a period within which an action must be commenced, legal proceedings cannot properly or validly be instituted after the expiration of the prescribed period, and a claimant who would otherwise have had a cause of action loses the right to enforce the cause of action by judicial process because the time for the institution of the action has elapsed. See SULGRAIVE HOLDING INC v. FGN (2012) 17 NWLR (Pt. 1329) 309, IBRAHIM v. JSC KADUNA STATE & ANOR (1998) 12 SCNJ, 225. Therefore, the effect of the limitation law where an action is filed outside the prescribed period, is that it takes away or removes the right of action, the right of enforcement and the right to seek judicial relief leaving the person with a bare empty cause of action which he cannot enforce. SeeFADARE v. A.G. OYO STATE (1982) NSCC 643, OBIEFUNA v. OKOYE (1961) ALL NLR 357.
The relevant limitation law here is Section 2(a) of the Public Officers’ Protection Law Cap 119, laws of Sokoto State 1996 which reads thus: –
“Where any action, prosecution, at other proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any act or law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such act, law, duty or authority, the following provisions shall have effect:
a. The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in the case of a continuance of damage or injury, within three months next after.”
By the said provision, an action complaining against the act, neglect or default of any person done in the execution or intended execution of his public duty or law shall be maintainable if and only, if it is instituted within a period of three months after the commission of the act, neglect or default complained of or in the case of a continuance of damage or injury, three months next after the ceasing of thereof.
The relevant poser here is – how does a Court determine if an action is statute barred? To determine whether an action is statute barred or not, the Court only needs to look at the processes filed by the plaintiff, namely, the statement of claim, which will contain the date when the cause of action accrued, and the originating process, which will show the date the action was instituted in Court. From these processes the Court can easily determine whether from the date of the accrual of the cause of action, the suit was instituted outside or within the period prescribed by the limitation law. See FORESTRY RESEARCH INSTITUTE OF NIG v. ENAIFOGHE GOLD (2007) 10 SCM 32 and EGBE v. ADEFARASIN (supra).
Looking at the writ of summons at pages 74 – 76, suit SS/14/2018 was instituted on the 6/3/2018. The statement of claim at pages 77 – 81 more particularly paragraphs 7 and 8 reveals that the cause of action is the appointment of the Respondents by the Upper Sharia Court I, Sokoto in Suit No. CV/F1/06/2005, as representatives of Shafa Abba Na’ige and Marwa Abba Na?ige respectively. This appointment from the pleadings, took place in 2005. By a simple arithmetical calculation, the year 2005 to 6/3/2018 when suit SS/14/2005 was instituted before the lower Court is a period of 13 years. The 2nd and 3rd defendants, the Judge and Registrar, respectively of the Upper Sharia Court, undoubtedly are Public Officers.
Having said this, the paramount question trickling from the established stated facts, in spite of the volumes of argument on this point and which needs to be answered, is whether the said provision is applicable here to bar the Respondents suit. In other words, whether suit SS/14/2018 is a challenge or complaint against the action of the 2nd and 3rd defendants to bring the suit within the ambit of the Section. This is important because to bring the suit within the provisions of Section 2(a) of Public Officers? Protection Law, the suit must be a complaint against a Public Officer for an act done or omitted to be done by him in pursuance or execution or intended execution of any public duty or authority, bearing in mind the purpose of the law is to provide protection to Public Officers from litigation over acts done by them in execution of their public duties.
Being a law primarily promulgated to protect public officers in the execution of public duties or authority, it only stands to reason that the action to which the law can be called in aid must be an action instituted not only against a public officer but one that complains against the action, neglect or default of such a public officer, in respect of which the party suing claims a remedy against the public officer. Hence, the purport of Section 2(a) is to protect a Public Officer against any action, prosecution, or other proceedings or for any act done in pursuance or execution or intended execution of any law, public duty or authority or for any alleged neglect or default in the execution of any law, duty or authority. This protection comes into play after the expiration of 3 months from the date of the commission of the act which gives raise to the cause of action. See EGBE v. ALHAJI (1990) 1 NWLR (Pt. 126), IBRAHIM V. JSC, KADUNA STATE (supra).
In the case at hand, the case for the respondents as disclosed at paragraphs 7 & 8 of the statement of claim is that they were appointed by the 2nd defendant in suit CV/F1/06/2005 as the representatives of Shafa and Marwa Abba Na?ige who were minors at the time of the distribution of the estate/properties of their deceased father. By their depositions in the counter-affidavit to motion SS/M/113/2018 and their reliefs sought in suit SS/M/14/2018, they have no problem with their appointment and the distribution of the estate of the deceased, Abba Shehu Na?ige in 2005. They seek no relief against the 2nd & 3rd defendants with respect to the appointment and distribution which took place in 2005. Indeed, what they seek among other reliefs is an order validating the action of the 2nd & 3rd defendants by a declaration that their appointment was valid, lawful and legally done by the 2nd & 3rd defendants. They have not complained against the action of the 2nd and 3rd defendants with respect to the distribution of the estates of the deceased which was done in 2005 nor do they seek any relief respecting same against the Public Officers. Merely suing a public officer as a defendant in a suit is not enough.
The action, neglect or default of the public officer must be made the subject of complaint in the action and a relief sought against him, before Section 2(a) can come into play. A public officer sued as a defendant in a suit whose action is not challenged, is not a public officer contemplated for the purpose of Section 2(a). For Section 2(a) to be relevant to an action, the public officer must not only have been sued as a defendant, the suit must complain against the act, neglect or default by such public officer in respect of which a relief is sought against him. In other words, there must be a complaint, a cause of action against the public officer giving the plaintiff a right of action the enforcement of which right, Section 2(a) would seek to remove or take away. It follows as is the case here, that where there is no complaint or claim against a public officer who is made a defendant in a suit for any act done by him, the section would have no role to play. I therefore hold the view that the respondents action, suit SS/14/2018, cannot be statute barred on account of Section 2 (a) of the Public Officer Protection Law, Cap 119, Law of Sokoto State, 1996.
Learned counsel also contended that another cause of action accrued to the respondents, 11 years ago, in 2007 when to the knowledge of the respondents, the Appellant obtained the letters of administration of the estate of late Abba Shehu Na`ige and has been acting to the knowledge of the respondents in that capacity, after the publication of a Notice on 22/2/2007 inviting prohibitions from the public within 21 days against the issuance of letters of administration to the Appellant but without any objection from the respondents, thus according to him the respondents cannot turn around to contend that they are not aware of the grant of Letters of Administration to the Appellant, clearly more than 3 months before the institution of the action. That respondents having not entered a caveat or filed any petition to the probate registrar as required by Order 49 Rule 6(1) of the Rules of the Lower Court, the respondents have no reasonable cause of action, the institution of the suit seeking the revocation of the Letters of Administration granted many years ago, amount to an abuse of Court process and an academic exercise.
The gist of the Respondents case is that being the appointed representatives of Marwa & Shafa for the purpose of distribution of the estate of their deceased father, which estate was distributed in 2005, the Appellant could not have legally obtained the letters of administration of the estate of the deceased and proceeded to lease out and subsequently sale a petrol filling station without their knowledge and authority. That they only became aware of the lease of the petrol filling station to Oando, through the Appellant’s letter dated 16/4/2012 and of the unilateral sale of the filing station, through another letter by the Appellant, Exhibit A to the counter affidavit, dated 19/2/2018 and they filed their suit on 6/3/2018. These facts were not controverted.
The Appellant’s argument justifying his action is hinged on the grant of the letters of administration to him by the probate Registrar of the Court below which as contended on his behalf, is his authority to administer the estate without being accountable of the Respondents whose appointment as the representations of Marwa and Shafa counsel vehemently denies.
To appreciate the dis-concordant positions of both counsel and the issue at stake, it needs to be pointed out that the estate of the deceased was undeniably distributed by the Upper Sharia Court I, Sokoto in 2005, in suit CV/F1/06/2005. Appellant is not contesting this fact. As a matter of fact, annexed to the Appellant’s affidavit and marked Exhibit C in support of their motion SS/M/113/2018 is part of the record (just the judgment) of the Upper Sharia Court running from pages 15 – 23 of the record of Appeal, showing the distribution of the estate of the deceased to his hairs, Marwa and Shafa inclusive. What is in contest is the respondent’s appointment in the suit as the representatives of Marwa and Shafa. It is true as argued by the learned Appellant’s counsel that the Appellant exhibited no document of that appointment by the Upper Sharia Court as the representatives of Marwa and Shafa nor does the record of the Court annexed to the Appellant’s affidavit as Exhibits NA?IGE D & D1 disclose that fact. It is also noted that the full or comprehensive certified true copy of the Upper Sharia Court in suit CV/F1/06/2005 was not produced by the Respondents. The Respondents’ application to the trial Court for the said judgment on the ground that the copy presented by the Appellant is not complete, is annexed to the counter-affidavit as Exhibit C. (See page 63 of the record).
It is settled law, generally that, a fact admitted needs no further proof. This is elementary as captured in Section 123 of the Evidence Act. Except where specific proof is required or as may otherwise be ordered by the Court, facts admitted require no further proof. Now, the heading of the Appellant’s letter written on 14/12/2017, copied at page 62 of the record reads thus: –
BASE (sic) ON THE DEMAND LETTER RECEIVED FROM THE REPRESENTATIVE OF ABBA SHEHU FEMALE CHILDREN
1. Marwa Abba representative Nasiru Shehu. (1st Respondent herein)
2. Shafa Abba representative Engr. Bello Ahmad (2nd Respondent herein) …
This letter both in its heading and contents is a clear recognition and acceptance of the status of the 1st and 2nd Respondents as the representatives of Marwa and Shafa who are the female children of the deceased Abba Shehu. Of equal force of law is the effect of the none rebuttal of paragraph 12 of the statement of claim which avers that certain amount of money was paid into the 2nd Respondent’s First Bank account as Marwa’s share of the leased petrol filing station.
With this clear admission, the failure of the Respondents to produce any document in proof of their appointment as the representative of Marwa and Shafa is not fatal to their claim.
The relevant question then thrown up for determination is the validity of the letters of administration issued to the Appellant two years after the distribution of the estate of the deceased for the purpose of which the respondents were appointed as representatives of two of the minors, Marwa and Shafa.
Letters of administration is a formal document issued by probate Court appointing one an administrator of an estate. See Blacks Law dictionary 6th Edition, page 905.The same dictionary at page 44 defines administration of estate as:
‘The management and settlement of the estate of an intestate decedent, or of a testator who has no executor, performed under the supervision of the Court, by a person duly qualified and legally appointed, and usually involving (1) the collection of the deceased estate (2) payment of debts and claims against the estate; (3) payment of estate taxes; (4) distribution of the reminder of the estate among those entitled thereto.”
It is clear from the above, that the administration of estate of intestate deceased involves the management and settlement of the estate of an intestate person under the supervision of the Court, by a person duly qualified and appointed as an administrator of the estate. The function of the administrator is thus to manage and or settle, under the supervision of the Court, the estate of the intestate deceased person. This presupposes that where the estate of the deceased has been distributed by a Court of law the question of grant of letters of administration to another person in respect of the same estate will not arise.
In this case, the upper sharia Court which distributed the estates of the deceased to the legal heirs and appointed the respondents to represent Marwa & Shafa, became seized of the matter and as shown on Exhibits NA`IGE D1 at pages 25-35 of the record, he accordingly identified all the eligible heirs, ascertained the extent of the estate, counted them & placed value on the properties required. SeeASHALUL-MADAARIK VOL 3 PAGE 342. He accordingly distributed the estate in accordance with Islamic law giving each heir Marwa and Shafa inclusive, his or her share as ordained in the Holy Qur`an.
The performance of that function by the Upper Sharia Court admits of no further appointment of another administrator in respect of the same estate of the deceased either forming part of what was distributed or left undistributed. The right cause of action, by an aggrieved party after the distribution of the estates by the Upper Sharia Court, is to appeal the decision or in the case of an undistributed property forming part of the estate of the deceased, to approach the same Court. It is not for a party or person to apply for letters of administration of the estate after the estate of the deceased had been fully or substantially distributed by a competent Court of law. Any such application for letters of administration after the whole or substantial part of the estate in respect of which the letters of administration is being sought had been duly distributed by a competent Court of law, is wrong to say the least.
By the same parity of reason and force of law, any letter of administration issued or granted pursuant to the erroneous application, long after the estate of the deceased to which the letter relates has been duly distributed by a competent Court of law, must have been issued or granted in error and cannot be anything but invalid and void. The probate Registrar, ought not to and if it had the full disclosure, would not have issued letters of administrative for the administration of the estate which had already been administered and distributed to the heirs. Therefore, I cannot but find considerable strength in the argument of the respondents’ counsel that the letter of administration to say the least was issued in error, if not fraudulently, by the probate Registrar of the Court below.
Furthermore, I also subscribe to the submission of the respondent’s counsel that the concept of letters of administration (in contradistinction to ‘wakala’ known as the manager of any endowment or estate), is a western concept and is inadmissible for the [purpose of distribution of the estate of a deceased Muslim.
I say so for two reasons. Firstly, under Islamic law, when a Muslim dies, there are four duties which need to be performed, to wit:
1. Payment of funeral and burial expenses;
2. Investigation of the debt left behind by the deceased and payment of same;
3. Determining the value/will of the deceased (not more than 1/3 of the property);
4. Distribution of the remainder of the estate and property to the heirs of the deceased in accordance with the Sharia.
In the distribution of the estate, the person so appointed by the heirs or the Court, shall among other things as earlier stated in this judgment: –
(1) Identify all the eligible heirs.
(2) Ascertain the extent of the estate.
(3) If the properties of the estate can be counted, weighted or measured, to distribute the estate in accordance with the weight or measure.
See ASHALUL-MADAARIK VOL. 3 PAGE 342 (Supra).
These outlined duties of the person or the Court administrating the estate of a deceased Muslim, covers the principal function performed by an administrator issued with letter of administration by a probate Registrar, the other functions being the ability to sue and be sued in respect of the estate. There is however no Sharia requirement for the issuance of letters of administration by the probate Registrar to any person as an administrator of the estate of a deceased Muslim.
As reasoned by the learned author and Islamic scholar Muhammad Ali Khan in his book: a Islamic law of inheritance (a new approach) published by kitab Bho. New Delhi 110002, 2000 at page 2233, whose reason I adopt as mine;
‘Administration as understood in modern Law was unknown to Islamic jurisprudence. In Islamic law, there is mere distribution of property of the deceased by the state if not by the heirs themselves. Unlike other modern system, to dispose of the estate of the deceased Muslim, neither there is need of executor or/ and administrator nor probate or letter of administration. In the absence of an executor appointed by the will of the deceased, heirs of a Muslim have the right and capacity to dispose of the estate of the a praepositus according to law. Nothing like probate or letter of administration are required to dispose of the estate under sharia.’
I find the decision of Kwara State Sharia Court of Appeal in HAJIA BILKISU TINOLA SULU GAMBARI V. ALHAJI SA`ADU OLAOFE & 2 ORS (2016) 4 SQLR [PT.11] 385 relied upon by the Kwara State High Court in the case of ADUWA HASSAN & 1 ORS V. PROBATE REGISTRAR & 1 ORS (SUPRA), cited by the respondent?s counsel though of persuasive authority, relevant and apt on this point.
Secondly, what is more, the ADMINISTRATION OF ESTATE OF DECEASED PERSONS LAW CAP 2, LAWS OF SOKOTO TO STATE OF NIGERIA VOL. 1, which makes provision for grant of probates or (letters) of administration does not apply to the estate of a deceased Muslim which is governed by Islamic Law. Section 3(1) (b) of the said Law provides: –
3(1) a. This edict shall not apply-
b. To the estate of deceased persons, the administration of which is governed by Islamic law.
In the final analysis, the letters of administration, Exhibit B issued on the 19th of March 2007 to the Appellant two years after the distribution of estate of the deceased in respect of which the letters was issued in error and is hereby declared, invalid, null and void. It is accordingly set aside.
With the setting aside of the letter of administration which is the spinal code of the Appellants submission that the respondents had no reasonable cause of action to institute suit SS/14/2018; that the said suit constitutes an abuse of Court process and an academic exercise, all such argument now go to no issue. Having earlier resolved that the suit is not statute barred by virtue of Section 2(a) of the Public Officer Protection Law and the letters of administration erroneously issued to the Appellant being set aside, the conclusion is that this issue is resolved against the Appellant and in favour of the Respondent.
I now proceed to consider the second issue which is:
Whether the Court below was right when it held that the Respondents had the requite locus standi to institute Suit SS/14/2018 and in the process descended to the arena and made pronouncements on the substantive suit.
The argument for the Appellant is that a challenge to locus standi of a party to institute an action in Court, is a challenge to the competence of the action and the jurisdiction of the Court to entertain the matter. It is condition precedent and sine qua non to the assumption of jurisdiction by the Court which is why according to him, it can be raised in limine to ask the Court to strike out the suit.
He contended that the Respondents who claim to have instituted the suit in representative capacity did not only fail to show that they have the same interest with the persons they represent but also failed to exhibit any document of their appointment as the legal representatives of Marwa and Shafa and even if exhibited cannot withstand the overriding superiority and sanctity of the letters of administration issued to the Appellant. That the record of Upper Sharia Court, Exhibit D and D1 do not show such appointment, thus, the Respondents, he argued are mere busy bodies as the heirs they purport to represent have even attained the age of majority, they are now 22 years of age. It was his aggregate submission that the Respondents? suit does not pass the acid test as set out in the case of ADESANYA V. PRESIDENT FRN (2002) 44 WRN 80 among others, to cloth them with the requisite locus standi to institute the action.
Responding to the foregoing submission, the Respondents’ counsel argued that the Respondents have the locus standi to institute the action, because they have sufficient interest in the matter as decided by the cases cited by the learned Appellant’s counsel, their cause of action being the unilateral sale of the petroleum filing station without the Respondents’ knowledge or consent. That Respondents also have the same common interest and grievance with the persons they represent and the relief sought will benefit the persons they represent, thus entitled to institute the suit in representative capacity.
On the Appellant’s submission that the Respondents did not exhibit any document to show their appointment as the legal representatives of Marwa and Shafa, again, our attention was drawn to the heading of the letter at pages 101 and 102 of the record (Hausa and English version respectively), written by the Appellant to the Respondents recognizing and admitting the fact that the Respondents are the legal representatives/guardians of Marwa and Shafa.
He pointed out that the Appellant did not file any statement of defence and failed to produce any document relating to the sale of the filing station to show the details of the so called sale transaction even in support of the failed attempted settlement when Respondents became suspicious of same and asked for details.
To accede to Appellant’s submission that the Respondents have no locus standi to institute the action, he argued, is like saying ‘do not allow the Respondents to pursue their legal right to own property granted by the Constitution’ or ‘do not allow Respondents to find out what went on regarding the purported sale of their property.’
The term locus standi supply means ‘a place of standing; standing in Court; a right of appearance in a Court of justice or before a legislative body on a given question. See BLACKS LAW DICTIONARY 5TH EDITION PAGE 848. In the celebrated case of ADESANYA v. PRESIDENT OF THE FRN (1981) 5 SC 117, when the Supreme Court had occasion to define the term locus standi, Fatai Williams CJN (as he then was) stated as follows: –
‘The term ‘locus standi’ denotes legal capacity to institute proceedings in a Court of law. It is used interchangeably with terms like ‘standing’ or title to sue.”
The Apex Court has however had occasion to review its earlier decisions in the case of PACERS MULTI DYNAMICS LTD v. M. V. DANCING SISTERS (2012) 4 NWLR (Pt. 1289) 169 at 189 when it stated thus: –
‘To have locus standi the plaintiff’s statement of claim must disclose sufficient interest, and show how such interest arose in the subject matter of the action.’
In determining whether a claimant has the locus standi, a cause of action to institute the action, the Court is enjoined to examine the statement of claim or the deposition in the affidavit in support of an originating summons to see if the claimant has disclosed his locus standi or standing to institute the action. SeeTHOMAS v. OLUFOSOYE (1986) 1 NWLR (PT. 18) 669, see also A.G.F. v. A.G. ABIA STATE (2001) 11 NWLR (PT. 725) 689 at 742, cited by the learned Appellant’s counsel.
‘A party can only have locus standi if the pleadings vests in him a cause of action, and shows that his civil rights and obligations have been, or are in danger of being violated or adversely affected by defendant’s act complained of, see OLARIODE v. OYEBI (1984) 1 SC 390 AT 401 – 406 AND 407 or where the reliefs sought would confer some benefit on such a person, see OLOYINDE v. OYEBI (1984) 5 SC 1 AT 16.
The Respondents’ case as averred on the statement of claim, is that they were appointed by the Upper Sharia Court I Sokoto representatives of Marwa and Shafa, who were minors for the purpose of the distribution of the estate of their deceased father. This representative of status of the Respondents is no longer an issue in this appeal same having been so resolved under issue No. 1.
What is left for determination is whether the Respondents met the requirements for suing in representative capacity. In other words, whether the statement of claim discloses that the Respondents and Marwa and Shafa whom they represent, have a common interest and grievance which have been threatened or adversely affected by the Appellant’s action against which action the Respondents seek a relief that is beneficial to Marwa and Shafa whom they represent. See BARALEAT ALAFIA & ORS v. GBODE VENTURES NIG. LTD & ORS (2016) LPELR-26065 cited by the Appellant’s counsel. The Respondents’ statement of claim particularly paragraphs 10, 11, 14, 15, 18 and 19 reveals that the Respondents? cause of action is the Appellant’s act of leasing out and the subsequent outright sale of the petrol filing station belonging to the heirs of late Abba Shehu Na’ige among whom are Marwa and Shafa whom the Respondents represent.
Respondents have also asked the Appellant to render accounts of the sale. These pleaded facts have in any view, sufficiently disclosed the Respondents locus standi to institute the suit in representative capacity as the representatives of Marwa and Shafa and have dislodged the Appellant?s argument that the Respondents are only busy bodies.
It was also contended for the Appellant that paragraph 3 of the Respondents counter-affidavit violates Section 115(4) of the Evidence Act. That argument is of no moment in that the application as held by the learned trial Judge, was not determined on the affidavits but on the writ of summons and the statement of claim (see page 114 ? 115 of the record).
Similarly, the contention that the Appellant?s affidavit in support of the motion was uncontroverted cannot be correct in view of the various paragraphs of the counter-affidavit particularly paragraphs 3(i), (k), (r), (u), (v), (aa), and (bb) among others.
On the whole, this issue is also resolved in favour of the Respondents, against the Appellant. The two issues having been resolved against the Appellant; the result is that there is no merit in this appeal. However, before pronouncing on the consequence of the absence of any merit in this appeal, it is now apt to comment on what the learned Appellant?s counsel referred to as the unnecessary, and unsubstantiated uncomplimentary and uncharitable words and phrases used by the Respondent?s counsel against this person throughout the length and breadth of the Respondent?s brief of argument. He drew our attention in paragraph 1.21 (a) to (d) to some of those words and phrases to include: –
(i) ‘The action has exposed the appellant as untruthful?; appellant is trying to mislead this Court’, ‘his brief is not only falsehood but badly misleading.’ etc.
Let me use this forum to remind counsel generally that the legal profession is one of nobility, respect and decorum. It is one profession that pays high premium to eloquence and elegance in the use of the English Language even when it comes to saying the most unpleasant thing. It is uncompromising in respect for its rules of decorum and compliance with its professional ethics. It will be professionally unethical for counsel to use outlandish expression, uncomplimentary or uncharitable words and phrases on the person of the other counsel especially where such are uncalled for and cannot be substantiated.
Legal argument canvassed in support of or against a legal issue or point, or facts deposed in affidavits should address the legal issue/point or the facts deposed. The denial should be a denial of the legal issue or deposition in the affidavit, and should not extent to making uncharitable comments or attacks on the character of the other counsel provided that in denying a fact in an affidavit or countering a legal argument it shall be proper, depending on the available facts at the disposal of the counsel, to use words and expressions like:
‘it is untrue’, ‘it is not correct’, ‘it is misleading’ and such similar phrases.
What the law frowns at and is unacceptable to the Court is a deliberate use of outlandish language to make uncharitable, and unpleasant remarks against the other counsel, more so if unsupported and unsupportable. Where a counsel launches personal attack on the other counsel or the Court, that will be unacceptable to the Court.
This is a general word for all counsel and a word, it is said, is enough for the wise.
Returning now to the conclusion of the judgment, on the consequential order to be made having found that the appeal is devoid of any merit, the appeal is hereby dismissed. Consequently, Suit No. SS/14/2018 is hereby remitted to the Chief Judge of Sokoto State for re-assignment to another judge for hearing on merits, upon pleadings.
Respondents are entitled to cost assessed at of #50,000 against the Appellant.
AHMAD OLAREWAJU BELGORE, J.C.A.: I agree
FREDERICK OZIAKPONO OHO, J.C.A.: I agree
Appearances:
Ibrahim Abdullahi, Esq.For Appellant(s)
S. S. Auta, Esq.For Respondent(s)
Appearances
Ibrahim Abdullahi, Esq.For Appellant
AND
S. S. Auta, Esq.For Respondent
