LawCare Nigeria

Nigeria Legal Information & Law Reports

ALHAJI NJIDDA HAMMANJODA v. MR. IFEANYI UGWU (2019)

ALHAJI NJIDDA HAMMANJODA v. MR. IFEANYI UGWU

(2019)LCN/13806(CA)

In The Court of Appeal of Nigeria

On Friday, the 18th day of October, 2019

CA/YL/152/2018

 

JUSTICES

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria

Between

ALHAJI NJIDDA HAMMANJODA Appellant(s)

AND

MR. IFEANYI UGWU Respondent(s)

RATIO

WHETHER OR NOT PROPER PARTIES TO A MATTER MUST BE IDENTIFIED FOR A COURT TO HAVE JURISDICTION OVER THE MATTER

In COTECNA INTERNATIONAL LTD. V. CHURCHGATE NIG. LTD. & ANOR. (2011) AFWLR Part 575 Page 252 at 286 where the Supreme Court Held:-
?For a Court to be competent and have jurisdiction over a matter, proper parties must be identified. Before an action can succeed, the parties to it must be shown to be proper parties to whom rights and obligations arising from the cause of action attach. The question of proper parties is a very important issue which would affect the jurisdiction of the Court as it goes to the foundation of the suit in limine. Where the proper parties are not before the Court, then the Court lacks jurisdiction to hear the suit.? PER BAYERO, J.C.A.

WHETHER OR NOT PROPER PARTIES MUST BE BEFORE THE COURT

It is trite that the proper parties must be before the Court to whom rights and obligations arising from the cause of action attach. The question of proper parties is very crucial as it affects the jurisdiction of the Court. Where the proper parties are not before the Court, the Court lacks jurisdiction to hear the suit. In the case of EHIDIMHEN VS. AHMADU MUSA & ANOR (2000) LPELR ? 1051 (SC) P. 46, Paragraph A. (also cited in (2000) 8 NWLR (PT. 669) P. 540; (2000) 4 SC (PT. II) P. 166 and (2000) FWLR (PT. 21) P. 930) his Lordship Achike, JSC stressing on the need for proper parties to be before the court held thus:
?It is imperative that for an action to succeed the parties to it must be shown to be the proper parties to whom rights and obligations arising from the cause of action attach.?
See also VISION CENTRE LIMITED VS. U.A.C NPDC PLC (2003) 13 NWLR (PT. 838) Page 594; IKEME VS. ANAKWE (2000) 8 NWLR (PT. 669) Page 484 and PEENOK LTD VS. HOTEL PRESIDENTIAL (1983) 4 NCLR 122. PER UWA, J.C.A.

ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of Yola State High Court delivered on 31st July, 2018 in Suit No. ADSY/123/2013 by Waziri J. By a writ of summons filed on 28/10/2013, the Respondent who was the Plaintiff before the lower Court claims against the Appellant who was the Defendant before the lower Court as follows:-
1) An access road or right of way of not less than 15ft to Boys? Quarters.
2) A declaration that he is entitled to have access road or right of way to his Boys? Quarters at K 76 Karewa GRA Jimeta-Yola.
3) An order of perpetual injunction restraining the defendant, his agents, servants, privies or whomsoever from further erecting structures on the proposed access road or right of way.

The Appellant denied the claims and the Respondent called five (5) witnesses and tendered one Exhibit (A). The Appellant called one witness and tendered Exhibits B, C, D, E ? E1. The trial Court granted the claims of the Respondent in the Judgment it delivered. Dissatisfied, the Appellant filed the Notice of Appeal on 30/10/2018 with four grounds.

1

Appellant?s Brief of argument was filed on 18/02/19 but deemed filed and served on 1/04/2019. The Respondent?s Brief was filed on 16/04/2019. In the Appellant?s Brief two issues were formulated for determination: –
Whether the trial Court was right when it assumed jurisdiction over the matter having regards to the parties and subject matter before it. This relates to grounds two and three of the Appellant?s Grounds of Appeal.
Whether the trial Court was right to have held that a cause of action exists against the Defendant. This relates to grounds one and four of the Appellant?s Grounds of Appeal.

According to counsel, the succinct facts of the matter before the trial Court which has found its way on Appeal before this Court is that one Mr. Willie Zalwalai had title to that property and its boys quarters lying and situate at K 76 Karewa G.R.A., Jimeta ? Yola, Adamawa State but had relinquished his interest therein to two different persons. The bungalow was sold to one Gidado Muhammad whereas the boys? quarter was sold to the Respondent herein. But that the said Gidado Muhammad was not made a party to

2

this suit by the Respondent/Plaintiff.

That the Respondent/Plaintiff had claimed that he had a gentleman?s agreement with the said Mr. Willie Zalwalai to create an access road of not less than 15ft for him to the boy?s quarters. But the Appellant/Defendant on his part contended that he was dragged to Court in error as he had no title to the said property or any interest in it but late Alhaji Gidado Muhammad as he was at best a workman of the deceased or a witness to the transaction between the deceased and Mr. Willie Zalwalai. The Appellant/Defendant stated further that the structure on the land was constructed based on the instructions of the deceased and to the specification in terms of measurement of the land sold the deceased and so could not have blocked any access road of the Respondent/Plaintiff.

That in spite of these facts and disclosure, the Respondent/Plaintiff proceeded against the Appellant/Defendant and obtained Judgment from the trial court as all his reliefs were granted. Counsel further submitted that the Appellant/Defendant had amended his statement of defence with the leave of the trial court as contained on pages 55

3

? 57 of the printed record of the trial Court and the following material facts are evident therein.
Paragraph 3:
The Defendant further states that he has not encroached onto anybody?s land nor right of way and he is not Mr. Willie Zalawai nor does he own any property in the land in dispute, rather Alhaji Gidado.
Paragraph 5:
The Defendant state further that prior to the execution of the sale agreement in respect of the property part of which is the land subject of this suit between Alhaji Gidado Muhammad and Mr. Willie Zalawai the said Mr. Willie Zalawai had written a receipt evidencing part payment of the property…
Paragraph 6:
The Defendant denies paragraphs 10 and 11 of the Plaintiff?s Statement of Claim and avers that when he was invited to the and he informed the Plaintiff that he was only carrying out developments on the land based on the measurement of the subject matter of dispute given to him by the owner of the land i.e. Alhaji Gidado Muhammad who had purchased the property from Mr. Willie Zalawai?
Paragraph 14:
The Defendant in answer to Paragraph 22 of the Plaintiff?s

4

Statement of Claim restates all his averments herein and avers that the land in dispute is that of the estate of late Alhaji Gidadoas Alhaji Gidado had applied through his solicitors for a conditional surrender of the Right of Occupancy to the Ministry of Land and Survey, Yola.

That it is very apparent that on the face of the Appellant?s pleadings as the Defendant before the trial Court, it was abundantly clear that the property subject matter of litigation was not his and he had stated who owned it; but the Respondent as Plaintiff at the trial Court did not deem it important to go after his real opponent but chose a wrong person who had no interest in the property as his adversary. That this practice has been frowned at and as presently constituted cannot be determined properly without the proper parties therein. He referred to AZUBUIKE V. P.D.P. (2014) AFWLR Part 732 Page 1651 at 1661 Paragraphs E-F Ratio 2. That the Respondent did not controvert the statement of facts as contained in the Appellant?s amended statement of defence; as such they are deemed admitted. He cited MUNIYAS (NIG.) LTD V. ASHAFA (2012) AFWLR Part 642 Page 1772 at 1786

5

Paragraphs C-D Ratio 2.

That it is also on the printed record of the trial Court particularly on page 120 lines 11, 15, 16 and 27 the name of the actual owner as stated by the Appellant was specifically and severally mentioned; that documents that were either written on his behalf or executed in his favour were admitted, yet the trial Court entered Judgment against the Appellant despite the overwhelming evidence contained in the documents, his written deposition and oral testimony in Court. These facts were not challenged by way of cross ? examination and are deemed admitted. This found expression in the case of FATILEWA V. STATE (2007) AFWLR Part 437 Page 695 at 721-722 Paragraphs F-B Ratio 13. Learned counsel cited further IKEM V. VIDAH (2011) AFWLR Part 601 Page 1476 at 1506 Paragraph F Ratio 5 and submitted that the documents speak for themselves. Counsel referred to pages 35, 59 and 120 of the printed record of the trial Court as to who actually purchased the property, the subject matter of this Appeal. According to counsel, the Respondent has failed in his bid to link the Appellant to the property the subject matter of this Appeal. As such,

6

proper parties were not before the trial Court (the estate of late Alhaji Gidado Muhammad, his heirs or representatives); which in effect robs the trial Court of the requisite jurisdiction to entertain the suit. He placed reliance on the case of COTECNA INTERNATIONAL LTD. V CHURCHGATE NIG. LTD & 1 OR. (2011) AFWLR Part 575 Page 252 at 286 Paragraphs C-E Ratio 2. He urged the Court to resolve issue one in favor of the Appellant.

On issue two for determination, counsel adopted his submissions under issue one and added that the Appellant as Defendant at the trial court did not fail to state that he did not have any interest in or title over the property for which he was sued. That the defendant at the trial Court and herein Appellant unequivocally stated that he was not the owner of the property but the estate of the late Alhaji Gidado Muhammad. The suit at the trial court apart from failing to link interest over same to the Appellant did not also state or disclose any cause of action against the Appellant or any infraction of the Respondent?s rights by the Appellant to warrant any redress of such infractions or wrong doings in Court. He referred

7

to OLAWORE V. OJO (2006) AFWLR Part 341 Page 1382 at 1392 ? 1393 Paragraphs H-B.

That the Respondent also failed in establishing any cause of action against the Appellant to be entitled to Judgment which is the reason for this Appeal. He urged the Court to resolve the second issue in favor of the Appellant, allow the Appeal, set aside the Judgment of the lower Court and dismiss the suit of the Respondent. In his response, learned counsel to the Respondent adopted the two issues formulated by the Appellant for determination: –
1. Whether the lower Court did not have the jurisdiction to entertain the suit before it having regards to the parties before it and the subject matter? (Distilled from Ground 2 of the grounds of Appeal)
2. Whether the lower Court was not right when it held that the Respondent had a cause of action against the Appellant (Distilled from Grounds 1 and 4 of the grounds of Appeal)

On issue one, counsel submitted that the lower Court was right when it held at page 142 of the record that it had the jurisdiction to entertain the suit before it and that the proper party against whom the Respondent as Plaintiff

8

had a grievance was already before the Court. That in considering jurisdiction the Court is bound to look at the Plaintiff?s originating processes to ascertain if the jurisdiction of the Court has been properly evoked. He cited GOVERNOR OF KWARA STATE VS LAFIAGI (2005) 5 NWLR (Part 917) page 139 at 151.

That the Respondent?s reliefs in his Writ of Summons contained on page 4 of the record of Appeal and his pleadings in paragraphs 5, 8-22 of his Statement of Claim contained on pages 6-9 of the record of appeal clearly shows that the claim of the Respondent before the lower Court was for the act of the Appellant in encroaching upon the right of way or access road into the Respondent?s property. As such the lower Court had jurisdiction to entertain.

That the only basis upon which the Appellant is urging this Court to hold that the lower Court had no jurisdiction is merely on the ground that the Appellant in his Statement of Defence had attempted to set up a defence aimed at defeating the claim of the Respondent against him by directing the Respondent to go and sue another person. That at page 142 of the record of appeal the lower Court

9

found and held that the Appellant?s claim that the land belonged to one Alhaji Gidado Mohammed was only an ?aftermath thought?.

According to counsel by his paragraphs 8-21 of his statement of claim, the Respondent had specifically pleaded facts which clearly raised a cause of action against the Appellant as the party against whom the Respondent had a grievance against. That the attempt by the Appellant in trying to direct the Respondent to one Alhaji Gidado Muhammad is merely a case of being clever by half. As rightly found and held by the lower Court at page 142 of the record ?Exhibit C speaks volume of the? intention of the Appellant. Exhibit C shows that the Appellant bought his property from one Mr. Willie Zalwalai from whom the Respondent also bought his own property and which same Mr. Willie Zalwalai the Respondent by his pleadings had shown gave the Respondent 15 feet space as access or right of way to his property. Exhibit C was made in the handwriting of the said Mr. Willie Zalwalai it shows that the said Mr. Willie Zalwalai sold his house to the Appellant and collected the sum of N2, 000, 000 from the Appellant as

10

part payment. The said Mr. Willie Zalwalai also testified in Court as PW1. Exhibit C confirms the pleadings of the Respondent in paragraphs 10, 11, 12, 14, 15, 16 and 19 of the statement of claim showing that the Appellant was the owner of the property and the person who built the fence that obstructed the Respondent?s right of way.

That, contrary to the position and arguments of the Appellant, a proper party is the party against whom the Plaintiff has grievances and against whom the plaintiff seeks some injunctive or declarative reliefs. The proper party is the person against whom by the pleadings of the Plaintiff the Court may make final orders against if the evidence led supports the pleadings. That in civil case, a defendant cannot set up a case different from what the claims of the Plaintiff are. It is the claims of the plaintiff that determines the parties to the suit. He relies on REPTICO S.A. GENEVA VS AFRIBANK NIG. PLC (2013) LPELR-SC. 72/2001 Page 35. That the Respondent in his case before the lower Court pleaded facts that show that the action for which he came to Court were all done by or on the instructions of the Appellant.

11

The Appellant was therefore the proper party to be sued having regards to the pleadings and the claims of the Respondent.

That the Respondent having through his witnesses (Pw1, Pw2, Pw3, Pw4 and Pw5) established his claim against the Appellant as rightly found by the lower Court at page 144 of the record, the Respondent did prove his case on the balance of probabilities as required by law. The position of the law which is quite settled is that civil cases are proved by the balance of probabilities. He relied on the case of OSUJI VS EKEOCHA (2009) ALL FWLR (Part 490) 614 S.C. That at pages 143-144 of the record of appeal, the lower Court found and held that ?both the plaintiff and the defendant are in agreement that they obtained their title from a common grantor i.e. PW1 Willie Zalawai who sold the main building as well as the Boy?s Quarters as revealed by evidence. All the plaintiff?s witnesses are in agreement with one another that the vendor of the Boy?s Quarters who sold same to the Plaintiff gave an access road or a right of way measuring 15feet and all the above assertion was supported by the testimonies of the other

12

plaintiff?s witnesses. When the Court embarked on visit to the locus in quo this position was further reaffirmed by the witnesses?. Counsel submitted that the above finding of the lower Court is a key finding against which there is no appeal.

That the testimony of PW1 in his deposition contained at pages 22-24 of the record was never discredited under cross examination as reflected at page 112 of the record. The testimony of PW2 in his depositions contained at pages 25-26 of the record were direct and positive to the claims of the Respondent against the Appellant and was never discredited under cross examination as shown at page 112 of the record. That the Respondent himself testified as PW5 with his deposition contained at pages 14-18 of the record. According to counsel, the cross-examination of the Respondent at pages 115-116 of the record did not do any damage to his testimony.
?
That in his testimony in chief in his deposition at page 57 of the record the Appellant denied being the owner of the house he bought, but his cross-examination at pages 120-121 reveals that he was the owner who bought from PW1. That this conforms with the

13

testimonies of the PW1, PW2, PW3, PW4 and PW5 that it was the Appellant that bought and blocked the right of way of the Respondent?s property. The lower Court therefore was right to disbelieve the Appellant and his defence. He urged the Court to resolve issue one in favour of the Respondent and dismiss the Appeal in its entirety.

On issue two counsel submitted that at page 143 of the record of appeal the lower Court correctly stated the position of the law when it held as follows ?a cause of action is a fact which when proved would entitle a plaintiff to a remedy against the defendant. See the cases of Bello Vs A. G Oyo State (1986) 5 NWLR (PT 45) 828; EGBE V. ADEFARASIN (1987) 1 NWLR (Part 102) 122 and OSHOBOJA V. AMUDA (1992) 6 NWLR (Part 250) 690.” That the Appellant agrees with the lower Court on this as there is no appeal against the holding.

That in considering whether there exists a cause of action against a defendant/party in a suit, what the Court considers are the plaintiff?s processes only i.e. in this case, the Respondent?s writ of summons and statement of claim filed before the lower Court. This principle of

14

law was also correctly reflected in the judgment of the lower Court when at page 143 of the record the Court held that ?in order to determine whether or not there is a reasonable cause of action the law is settled that it is the statement of claim that has to be examined?. The lower Court has gone ahead on the same page 143 of the record to further find and hold ?I have equally considered the Plaintiff?s statement of claim and I am satisfied that there is a cause of action disclosed against the Defendant.”

That the Appellant is completely mistaken in his belief (as he has consistently argued in his Brief of Argument) that the lower Court ought to have considered his statement of defence and his documents before coming to the decision of whether or not there was a cause of action. The position of the Appellant we submit respectfully is wrong. The lower Court was right when it held that what the Court ought to consider is solely the statement of claim. That from paragraphs 8- 21 of his statement of claim, the Respondent did plead facts that raised reasonable and genuine complaints against the Appellant. Furthermore, in

15

paragraph 22 of the statement of claim the reliefs sought by the Respondent are solely made against the Appellant. The arguments of the Appellant in his Brief of Argument are arguments on quality and evaluation of evidence which is not the concern of the Court at the time of determining the question of the existence or not of a reasonable cause of action. He urged the Court to resolve issue two against the Appellant and dismiss this appeal. I will determine this Appeal based on the two issues formulated by the Appellant which the Respondent also adopted. The first issue which I reproduced at the beginning of this Judgment is:-
?Whether the trial Court was right when it assumed jurisdiction over the matter having regards to the parties and subject matter before it.? (Grounds 2 and 3).

DETERMINATION OF THE APPEAL
It was the contention of the Appellant that on the face of the Appellant?s pleadings as the defendant before the trial Court that the property subject matter of litigation was not his and that he stated Alhaji Gidado Muhammad as the one who owns it. In other words, the lower Court tried and determined the case without

16

proper and necessary parties before it. On the side of the Respondent, he argued that going by the writ of summons and the statement of claim before the lower Court the claim of the Respondent before the lower Court was against the act of the Appellant in encroaching upon the right of way or access road into the Respondent?s property. PW1 (Willie Zalwalai) stated in his written statement on oath which is at page 22 of the Record of Appeal that sometimes in May- June 2012 sold his three (3) Bedroom Bungalow to Mr. Njidda (the Appellant); that before the transaction he told the Appellant that the Boys Quarter is not for sale and there will be access road to the place. However, throughout the length and breadth of PWI?s testimony in chief and cross examination as contained in the Record of Appeal, the witness did not tender any sales agreement of the three bedroom Bungalow he sold to the Appellant. Exhibit 1C cannot be relied upon by PW1 and the lower Court was in error when it relied on it in its judgment. A careful look at the exhibit will reveal that it is a handwritten note signed by PW1 alone acknowledging the receipt of two million naira from the

17

Appellant in respect of the property the subject matter of the suit before the lower Court. It is important to state that the exhibit was tendered through the Appellant when he stated at paragraphs 9 and 10 of his written statement on oath which can be found at page 60 of the Record of Appeal thus: –
?9) That before the late Alhaji Gidado Muhammad had completely acquired the property which forms part of the subject matter of this suit from one Mr. Willie Zalwalai, the late Gidado Muhammad sent N2,000 (Two Thousand Naira only) which was part of the transaction sum of the property part of which forms the subject matter of this suit.?
10) ?That I paid the said N2,000 (Two Thousand Naira only) to Mr. Willie who acknowledged receipt of the said sum in his own handwritten on the 9/04/2013 stating the exact measurement of the plot of land..? However, a careful look at the exhibit will show while in his testimony on oath he said he paid two thousand naira only (N2,000) to PW1 on behalf of late Alhaji Gidado for the purchase of the property to Mr. Willie, the exhibit shows that the money paid is Two Million Naira.

18

There is therefore discrepancy as to the true actual amount paid to Mr. Willie (PW1) by the Appellant on behalf of late Alhaj iGidado. The lower Court as I stated earlier in this Judgment ought not to have attached any weight to it.
?
On the side of the Appellant, in his written statement on oath at paragraphs 6, 7, 8 and 9 thereto as contained at page 35 of the Record of Appeal, it was deposed to thus: –
?6) That late Alhaji Gidado Muhammad had bought the residential house lying and situate at Karewa GRA Jimeta ? Yola, Yola North Local Government Area of Adamawa State and described as number K76 which is covered by a Right of occupancy number ADS/25944 dated 19/04/2013 which I intend to tender in evidence.
7) That I know as a fact that late Alhaji Gidado Muhammad bought the property stated herein from Mr. Willie Zalwalai and I appended my signature as a witness to the sale transaction. The said Alhaji Gidado had through the counsel applied for a conditional surrender of the grant in his favour per a letter sent to the Ministry of Land and Survey.
8) That the property described as number K76 lying and situate at Karewa GRA Jimeta Yola

19

North Local Government Area of Adamawa State with a measurement of 171ft * 181ft and 160ft * 169ft respectively and covered by a grant of Right of Occupancy dated 19/4/2013.
9) That I have a copy of the sale agreement in my double capacity as a caretaker to the deceased Alhaji Gidado Muhammad and also as a witness to the Sale Agreement dated 10/05/2013. I humbly apply to tender the sale agreement dated 10/05/2013 in evidence.?

The above sales agreement which is at pages 63 to 66 of the Record of Appeal was admitted into evidence by the lower Court as Exhibit D (See page 119 of the Record of Appeal). Furthermore in the re-sworn statement on oath of the Respondent which is at pages 59-60 of the record at paragraphs 9-11 thereto the Respondent stated that the late Gidado Muhammad made part payment of two thousand naira only through the Respondent to PW1 in respect of the property the subject matter of litigation to PW1; that PW1 acknowledged the part payment in a handwritten note dated 9/04/2013. It was admitted into evidence by the lower Court and marked as Exhibit C as shown at page 119 of the Record. From the above, this Court is of the

20

opinion that the Respondent does not hold any interest or title in the property the three-room bungalow in dispute. The Appellant has unequivocally stated that he was not the owner of the property but the estate of late Alhaji Gidado Muhammad. In other words, the proper party Alhaji Gidado Muhammad or his Estate was not sued by the Respondent before the lower Court. In COTECNA INTERNATIONAL LTD. V. CHURCHGATE NIG. LTD. & ANOR. (2011) AFWLR Part 575 Page 252 at 286 where the Supreme Court Held:-
?For a Court to be competent and have jurisdiction over a matter, proper parties must be identified. Before an action can succeed, the parties to it must be shown to be proper parties to whom rights and obligations arising from the cause of action attach. The question of proper parties is a very important issue which would affect the jurisdiction of the Court as it goes to the foundation of the suit in limine. Where the proper parties are not before the Court, then the Court lacks jurisdiction to hear the suit.?

The trial Court was therefore in error when it held at page 142 of the Record of Appeal that it had jurisdiction to entertain the suit

21

before it and that the proper party against whom the Respondent as plaintiff had a grievance was already before the Court. This Court therefore believes the submissions of the Appellant?s counsel that the suit at the trial Court apart from failing to link the interest over the property to the Appellant did not disclose any cause of action against the Appellant; or any infraction of the Respondent?s right by the Appellant to warrant any redress of such infraction in Court.

This Appeal is therefore meritorious and is allowed. The Judgment of the lower Court is set aside. Accordingly, the claims of the Respondent as Plaintiff before the lower Court are dismissed. Parties to bear their respective costs.

CHIDI NWAOMA UWA, J.C.A.: I read in advance the draft copy of the judgment of my learned brother, ABDULLAHI MAHMUD BAYERO, JCA. I agree with the decision that the appeal is meritorious and the order allowing same.

By way of emphasis, I would add that from the pleadings of the Respondent as Plaintiff at the lower Court, particularly paragraphs 4 ? 7 of the statement of claim, the Respondent purchased a two room

22

boys? quarters from one Mr. Willie Zalwalai at K76 Karewa GRA Jimeta, there is no dispute about the purchase. The said Zalwalai as vendor promised to create an access road for the Appellant but, failed to do so. The Appellant (Defendant at the trial) had no hand in the promise, therefore when and if the vendor failed to create the access road subsequently sought by the Respondent, the Appellant should not be answerable for it.

The Appellant was not part of the agreement or promise. For ease of reference, I will reproduce paragraphs 4 ? 7 of the Respondent?s (as Plaintiff) statement of claim hereunder:
4. ?That Mr. Willie had offered to the Plaintiff the two room Boy?s Quarters to buy but plaintiff complained of lack of access road which Mr. Willie agreed to create if he buys it.
5.That before he purchased the Boy?s Quarter Mr. Willie showed him where he will give him the access road which plaintiff later measured up to 15ft from the beacon to a tree in the compound.
6. The Plaintiff contends that after he purchased the boy?s Quarter, he asked for the access road to be created for him, but Mr. Willie

23

said he has not finished paying off the government fees of owners occupier basis to Adamawa State Government.
7. That once an access road is created, the Adamawa State Government will revoke his ownership of the property and both of them will be at a loss, and he then pleaded with the plaintiff to enable him finish paying off Government fees before an access road can be given to the plaintiff which he agreed.?
(Underlined mine for emphasis)

From the above pleadings, it is clear that it is not the Appellant that the action should have been taken out against. The action was taken out against the wrong person.
It is trite that the proper parties must be before the Court to whom rights and obligations arising from the cause of action attach. The question of proper parties is very crucial as it affects the jurisdiction of the Court. Where the proper parties are not before the Court, the Court lacks jurisdiction to hear the suit. In the case of EHIDIMHEN VS. AHMADU MUSA & ANOR (2000) LPELR ? 1051 (SC) P. 46, Paragraph A. (also cited in (2000) 8 NWLR (PT. 669) P. 540; (2000) 4 SC (PT. II) P. 166 and (2000) FWLR (PT. 21) P. 930)

24

his Lordship Achike, JSC stressing on the need for proper parties to be before the court held thus:
?It is imperative that for an action to succeed the parties to it must be shown to be the proper parties to whom rights and obligations arising from the cause of action attach.?
See also VISION CENTRE LIMITED VS. U.A.C NPDC PLC (2003) 13 NWLR (PT. 838) Page 594; IKEME VS. ANAKWE (2000) 8 NWLR (PT. 669) Page 484 and PEENOK LTD VS. HOTEL PRESIDENTIAL (1983) 4 NCLR 122.

I also allow the appeal and abide by the order made as to costs in the leading judgment.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment just delivered by my learned brother Bayero JCA.

I am in agreement with my learned brother that the Appellant was not the proper party to the suit. I too allow the appeal and set aside the judgment of the Court below.
?
The claim of the Respondent against the Appellant is dismissed. I abide by all other orders including the order as to costs.

 

 

25

Appearances:

M. P. Atsev, Esq. with him, W. N. Bello, Esq.For Appellant(s)

M. J. Ifegwu, Esq.For Respondent(s)

 

Appearances

M. P. Atsev, Esq. with him, W. N. Bello, Esq.For Appellant

 

AND

M. J. Ifegwu, Esq.For Respondent