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ANAYO-ILOPUTAIFE & ORS v. NASCO ESTATE CO. LTD. & ANOR (2022)

ANAYO-ILOPUTAIFE & ORS v. NASCO ESTATE CO. LTD. & ANOR

(2022)LCN/16216(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, February 17, 2022

CA/L/665/2008

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal

Between

1. REV. DR. (MRS.) NKECHI ANAYO-ILOPUTAIFE 2. REV. FIDEL ADUAYE ODIETE (For Themselves And On Behalf Of All Other Members Of Faith Revival Ministries Otherwise Known As Victory Christian Centre Or Faith Revival Ministries World Outreach) 3. THE INCORPORATED TRUSTEES OF FAITH REVIVAL MINISTRIES APPELANT(S)

And

1. NASCO ESTATE CO. LTD. 2. MOTOR TYRES SERVICES COMPANY RESPONDENT(S)

 

RATIO

THE POWER OF THE LOWER COURT TO EVALUATE DOCUMENTARY EVIDENCE

It is pertinent to place on record, upfront, that a flood of documentary evidence were furnished before the lower Court by the parties. As a matter of fact, the case was fought substantially on documentary evidence. Interestingly, the case law gives the Courts the liberty to evaluate documentary evidence. See Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Admirably, the law, in order to foreclose any injustice, donates concurrent jurisdiction to this Court and the lower Court in evaluation of documentary evidence. See Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yonrin(2011) 10 NWLR (Pt 1254) 135; Eyibo v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuruike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Emeka v. Okafor (2017) 11 NWLR (Pt. 1577); 410; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652); Olomoda v. Mustapha (2019) 6 NWLR (Pt. 1667) 36; APC v. Marafa (2020) 6 NWLR (Pt. 1721) 383. I will tap from this co-ordinate jurisdiction in the appraisal of the deluge of documents in the appeal. Having been adequately fortified by the above position of the law, I will proceed to resolve the five stubborn issues in this appeal.  PER OGBUINYA, J.C.A.

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

In an abiding loyalty to the injunction of the law, I will attend to issue four first. The plinth of the issue is submissive to easy appreciation. It queries the jurisdiction of the lower Court to entertain the first respondent’s suit which parented the appeal. The law compels the Courts to accord premier attention to issue of jurisdiction, which is numero uno in adjudication, when raised in any proceedings. See Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt.1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; PDP v. Umeh (2017) 12 NWLR (Pt. 1579); APC v. Nduul (2018) 2 NWLR (Pt. 1602) 1;

Adama v. Maigari (2019) 3 NWLR (Pt. 1658) 26; APC v. Lere (2020) 1 NWLR (Pt. 1705) 254. Hence, I will obey this legal commandment so as not to insult the law. PER OGBUINYA, J.C.A.

WHETHER OR NOT ABSENCE OR PRESENCE OF LOCUS STANDI DIVESTS OR INFUSE JURISDICTION OF A COURT TO DETERMINE A MATTER

There is no gainsaying the fact that the issue four evinces a jurisdictional question in that it quarrels with the respondent’s locus standi to institute the action. It is trite law that the absence or presence of locus standi in a party will divest or infuse jurisdiction into a Court to discountenance or entertain a matter before it. See Emezi v. Osuagwu (2005) 12 NWLR (Pt. 939) 349/(2005) 30 WRN 1; A.-G., Anambra State v. A.-G. Fed (2007)11 NWLR (Pt. 1047) 4; Admin/Exec., Estate Abacha v. Eke-Spiff (2009) 17 NWLR (Pt. 1171) 614; Ajayi v. Adebiyi (2012) 11 NWLR (Pt. 1310 1370; Uwazuruonye v. Gov., Imo State (2013) 8 NWLR (Pt. 1355) 28; Adebayo v. PDP (2013) 17 NWLR (Pt. 1382) 1; Okwu v. Umeh (2016) 4 NWLR (pt. 1501) 120; Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452; Rebold Ind. Ltd. v. Magreola (2015) 8 NWLR (Pt. 1461) 210; Centre for Oil Pollution Watch v. NNPC (2019) 5 NWLR (Pt. 1666)518; Nworika v. Ononeze-Madu(2019) 7 NELR (Pt. 1672) 422 (supra); A.-G., C.R.S. v. FRN (2019) 10 NWLR (Pt. 1681) 401. From an etymological perspective, the cliché, locus standi, traces its ancestry to Latin language which means: “place of standing”. In its expounded legal form, locus standi denotes the legal right or capacity of a person to institute an action in a Court of law when his right is trampled upon by somebody or authority. See INEC v. Ogbadibo L. G.(2016) 3 NWLR (Pt. 1498) 167; Centre for Oil Pollution Watch v. NNPC (supra)Nworika v. Ononeze-Madu (supra); A.-G., C.R.S. v. FRN (supra). Locus standi was evolved to protect the Court from being converted into a jamboree by professional litigants who have no interest in matters before it. See Taiwo v. Adegboro (2011) 11 NWLR (Pt. 1259) 562; Al – Hassan v. Ishaku (2016) 10 NWLR (Pt. 1520) 230. PER OGBUINYA, J.C.A.

FACTORS FOR A PARTY TO ESTABLISH LOCUS STANDI

For a party to establish locus standi, he must show that the matter is justiciable – capable of being disposed of judiciously in a Court of law – and the existence of dispute between parties. See Taiwo v. Adegboro (supra); Ajayi v. Adebiyi (supra). Again, that he has sufficient interest in the subject-matter of the action and that his civil rights and obligations are in the danger of being infringed on. See Jitte v. Okpulor (2016) 2 NWLR (Pt. 1497) 542; Nyesom v. Peterside (supra); Al – Hassan v. Ishaku (supra); Centre for Oil Pollution Watch v. NNPC (supra) Nworika v. Ononeze-Madu (supra); A.-G., C.R.S. v. FRN (supra).
Nota bene, it is a statement of claim, or affidavit in originating summons, that is examined by a Court in determining the locus standi of a party. See Nyesom v. Peterside (supra); Taiwo v. Adegboro (supra); Odeneye v. Efunuga (supra); Uwazuruonye v. Gov., Imo State (2013) 8 NWLR (Pt. 1355) 28; Bakare v. Ajose-Adeogun (2014) 6 NWLR (Pt. 1403) 320; INEC v. Ogbadibo L. G.(supra); Okwu v. Umeh (supra); Centre for Oil Pollution Watch v. NNPC (supra) Nworika v. Ononeze-Madu (supra); A.-G., C.R.S. v. FRN (supra). However, chances of success of an action is irrelevant in considering locus standi. See Taiwo v. Adegboro (supra); Ajayi v. Adebiyi (supra); Okwu v. Umeh (supra); Centre for Oil Pollution Watch v. NNPC (supra). PER OGBUINYA, J.C.A.

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal interrogates the correctness of the decision of the High Court of Lagos, Ikeja Division, (hereinafter addressed as “the lower Court”), coram judice: Eniola F. Longe, J., in Suit No. ID/1536/1998, delivered on 25th October, 2001. Before the lower Court, the appellants and the second respondent were the defendants whilst the first respondent was the plaintiff.

The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. Sometime in 1978, the Federal Government of Nigeria leased a large expanse of land, situate and lying along Lagos-Badagry Express Road, Lagos, to the first respondent under certain terms and conditions on its usage. In October, 1981, the first respondent subleased part of the same land to the second respondent under the same conditions in the head lease. In 1993, the second respondent assigned the residue of its interest in the same portion of land to the trustees of the third appellant under certain conditions. The first respondent alleged that in 1992, the appellants unlawfully entered the land in dispute, built buildings thereon and started using it for religious purpose contrary to the user covenant in the head lease. Sequel to that, the first respondent beseeched the lower Court, via a writ of summons filed on 1st July, 1998, and tabled against the appellants and the second respondent the following reliefs:
1. A declaration that neither the Incorporated Trustees of the Faith Revival Ministries nor any member of the Faith Revival Ministries otherwise known as “Victory Christian Centre” or “Faith Revival Ministries World Outreach” have any right title or interest in all that piece or parcel of land containing an area of approximately 4.861 Hectares (12.012 acres) situate lying and being along Lagos-Badagry Express Road and more particularly described and delineated with its dimensions and abuttals on Plan No. LAA/811/105 annexed to a deed of sub-lease dated 12th day of October, 1981 and registered as No. 34 at Page 34 in Volume 1830 in the Lands Registry in the Office at Lagos.
2. An order to recover possession of the aforementioned land from the Incorporated Trustees of Faith Revival Ministries and all other persons who are in occupation of the said 4.861 Hectares of land or any portion thereof.
3. An order of perpetual injunction to restrain all members of the aforementioned Faith Revival Ministries otherwise known as “Victory Christian Centre” or Faith Revival Ministries World Outreach” from entering or re-entering the said 4.861 Hectares of land or any portion thereof without the consent of the Plaintiff.

In reaction, the appellants joined issue with the first respondent and denied liability by filing a statement of defence. In their defence, they averred that the first respondent consented to the assignment of 1993 and that the land in dispute is not being used for religious purpose. Also, they raised the defence of laches, acquiescence, waiver and estoppel against the suit. Consequently, they counter-claimed as follows:
WHEREOF the Defendants claim for relief against the alleged forfeiture on such terms and cost as to do substantial justice to this counter-claim.

The second respondent filed a statement of defence wherein it asserted that the first respondent was aware of the sublease and that the suit disclosed no reasonable cause of action.

Following the discordant claims, the lower Court had a full-blown determination of the suit. In proof of the case, the first respondent fielded a single witness: PW1. In disproof of the case, the appellants called two witnesses: DW1 and DW2. DW2 offered his evidence in an affidavit in lieu of oral evidence. In its defence of the case, the second respondent called a sole witness who offered his evidence in affidavit in lieu of oral evidence. Tons of documentary evidence were tendered before the Court. At the closure of evidence, the parties, through their respective counsel, addressed the lower Court in the manner required by law. In a considered judgment, delivered on 25th October, 2001, copied at pages 275-292 of the record, the lower Court granted the first respondent’s claim.

The appellants were dissatisfied with the decision. Hence, on 25th October, 2001, the appellants lodged a 4-ground notice of appeal which is copied at pages 422 and 423 of the record. Subsequently, the appellant, with the leave of this Court, filed a further amended notice of appeal on 10th February, 2017, hosting eight grounds, wherein they prayed this Court as follows:

1. An order setting aside the judgment of the Court below.

2. An order reversing the judgment of the trial Court and entering judgment in favour of the Appellants.

Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of argument in line with the procedure governing the hearing of civil appeals in this Court. The appeal was heard on 22nd November, 2021.

During its hearing, learned appellants’ counsel, S.N. Agweh, SAN, adopted the appellants’ amended brief of argument and the appellants’ reply brief, filed on 10th February, 2017 and 13th March, 2018 respectively, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned first respondent’s counsel, Michael Akinleye, Esq., adopted the first respondent’s amended brief of argument, filed on 19th January, 2018, as forming his reactions against the appeal. He urged the Court to dismiss it. The second respondent’s counsel, B.A. Sodipo, Esq., informed the Court that the second respondent filed no brief of argument.

First respondent’s application
By the motion notice, dated and filed on 19th January, 2008, the first respondent, as an applicant, prayed this Court for an order:
…striking out Grounds 1 and 2 of the Appellant’s Further Notice of Appeal filed on February, 15, 2017 as well as issue 4 in the Appellant’s brief of argument filed on 15th February, 2017.
ANY other order(s) as this Honourable Court may deem fit to make in the circumstances of this case.
GROUNDS FOR THE APPLICATION
i. The record of appeal is incomplete.
ii. Copies of all the Exhibits tendered by the parties at the trial Court particularly Exhibits 1, 2, 3 and 5 which feature prominently in the Appellants’ notice of appeal and upon which they made strenuous arguments in their brief of argument are not contained in the record of appeal.
iii. The issues in this appeal cannot be resolved without these Exhibits.
iv. Grounds 1 and 2 do not arise from the judgment and/or case of parties at the trial Court.

The application is supported by a 4-paragraph affidavit sworn to by Nosike Omaliko – a legal practitioner in the legal firm of the first respondent’s counsel. In opposition to it, the appellants filed a 7-paragraph affidavit sworn to by Theophilus Umoke – a legal practitioner in the law firm of the appellants’ counsel.

Submissions on the application
Learned first respondent’s counsel submitted that ground 1, in the notice of appeal, was incompetent because it did not arise from the decision of the lower Court in that it with based on Exhibit 5 which was not part of its reasons for the decision. He relied on MBN Plc v. Nwobodo (2005) 14 NWLR (Pt. 945) 379. He posited that ground 2 is incompetent for the same reason. He relied on particulars i and ii in support of the submission. He asserted that issue iv should be struck out for being incompetent because it is based on the incompetent grounds 1 and 2 of the notice of appeal. He cited FBN Plc v. ACB Ltd. (2006) 1 NWLR (Pt. 962) 438; Udoh v. Reg. Trustee B.C & Star (2011) 17 NWLR (Pt. 1276) 223.

Learned counsel further submitted that this Court has no jurisdiction to hear the appeal because of the absence of Exhibits 1, 2 and 5 which makes the record an incomplete one. He referred to Magnificat Nig. Ltd. v. UBN Plc (2017) LPELR-42527 (CA); Ekpemupolo v. Edremoda (2009) 8 NWLR (Pt. 1142) 166; Okochi v. Animkwoi (2003) 18 NWLR (Pt. 851) 1. He urged the Court to strike out the appeal on grounds of incomplete record.

On behalf of the appellants, learned counsel contended that ground 1 challenges the competence of the action and the jurisdiction of the Court. He relied on Oni v. Cadbury Nig. Plc (2016) 9 NWLR (Pt. 1516) 80. He noted that jurisdiction of Court can be raised any time and before any Court. He cited Zakari v. Nigerian Army (2015) 17 NWLR (Pt. 1487/77), SPDCN Ltd. v. Anaro (2015) 12 NWLR (Pt. 1472) 122; Sylva v. INEC (2015) 16 NWLR (Pt. 1486) 576. He observed that the first respondent has no reversionary interest in the case to give it locus standi to sue. He described it as a stranger to the contract which can sue on it. He referred to Rebold Ind. Ltd. v. Magreola (2015) 8 NWLR (Pt. 1461) 210’; A-G., Fed. v. A.I.C. Ltd. (2000) 10 NWLR (Pt. 675) 293; LSDPC v. N.I & S.F. Ltd. (1992) 5 NWLR (Pt. 244) 673.

Learned counsel further contended that the first respondent has not proved its assertion of incomplete record. He relied on Section 131 (1) and (2) of the Evidence Act, 2011; ​Philips v. E.O.C. & Imo Co. Ltd. (2013) 1 NWLR (Pt. 1336) 618. He explained that the exhibits were duly transmitted to this Court and the same in its custody.

Ruling on the application.
The nucleus of the first respondent’s agitation in the application, which is hinged on the competence of the appellants’ grounds 1 and 2 in the further amended notice, is that they have no linkage/correlation with the decision of the lower Court in the case that mothered the appeal. It implores the Court to ostracise and jettison them on account of want of jurisdiction.

It is rudimentary law, known for its antiquity, that a ground of appeal, which is the focus of every appeal, must attack and disclose nexus with a decision that is the subject of appeal. In the sight of the law, a ground of appeal must be linked to and question a ratio decidendi, not an obiter dictum, of a judgment. Any ground of appeal formulated in nubibus runs foul of this cardinal rule of law and risks being struck out on account of incompetence. See Adelekan V. Ecu – Line NV (supra); Balonwu V. Governor of Anambra State (2008) 16 NWLR (Pt. 1113) 236; Lawrence V. A.- G; Fed. ​(2008) 6 NWLR (Pt. 1084) 484; Okonobor V. D. E. & S. T. Co. Ltd. (2010) 17 NWLR (Pt. 1221) 181; Odunukwe V. Ofomata (supra); FBN Plc. V. TSA Ind. Ltd. (2010) 15 NWLR (Pt. 1216) 247; D. T. T. Ent. (Nig.) Co. Ltd. V. Busari (2011) 8 NWLR (Pt. 1249) 387; Garuba v. Omokhodion (2011) 15 NWLR (Pt. 1269) 145, Isaac v. Imasuen (2016) 7 NWLR (Pt. 1511) 250; Okafor v. Abumofuani (2016) 12 NWLR (Pt. 1525) 117; Udom v. Umana (No.1) (2016) 12 NWLR (Pt. 1526) 179.

I have, in order to pacify the law, given a thorough audit to the two grounds of appeal, alongside their army of particulars, that are in the heat of extermination. They are housed in the threshold of the appellants’ further amended notice of all. It is discernible, based on their phraseology, that the appellants’ major complaint therein queries the lower Court’s jurisdiction to entertain the first respondent’s suit when it was incompetent on the reasons of lack of locus standi and cause of action. Put simply, the meat of the two grounds circles around issue of jurisdiction. Jurisdiction is the lifeline, linchpin, fulcrum, touchstone and spinal cord of any adjudication.

It oxygenates any proceeding. In the premises of this enviable olympian status in adjudication, issue of jurisdiction can be raised at any stage of the proceedings even for the first time before any Court, trial or appellate. See Alioke v. Oye (2018) (Pt. 1651) 247; Zubair v. Kolawole (2019) 11 NWLR (Pt. 1682) 66; Sulaiman v. FRN (2020) 18 NWLR (Pt. 1755) 180. It can be raised in any manner, even viva voce (orally) and without leave of Court. See APC v. Lere (2020 1 NWLR (Pt. 1705) 254. It can be raised suo motu by any Court without any irritation to the law. See Alikor v. Ogwo (2019) 15 NWLR (Pt. 1695) 331. To this end, the appellant did not, in the least, transgress the law when it questioned the jurisdiction of the lower Court vis-à-vis the first respondent’s action in grounds 1 and 2 of its further amended notice of appeal.

By the same token, based on the validity and viability of grounds 1 and 2, the first respondent’s solicitation to this Court to weed out issue four, which germinated from them, becomes idle. This is because the prayer has become an orphan in that it has no legal parentage to perch and command any validity.

In the same vein, the heavy weather which the first respondent made of the absence of Exhibit 5 in the record is devoid of any legal force. The reason is this. A hard copy of the Exhibit 5 was transmitted to this Court contemporaneously with the record. Its non-inclusion in the record is of no moment. That does not taint the record with the dent of an incomplete record with its caustic effects on the appeal.

In the light of this brief legal exposition, the application, which the first respondent invented to snuff life out of the appellant’s grounds 1 and 2 in their embryo, flies in the face of the law. The application is bereft of any tinge of merit and deserves the reserved penalty of dismissal. Consequently, I dismiss the application. The parties shall bear the respective costs they incurred in the prosecution and defence of the doomed application. I proceed to handle the appeal.

Consideration of the appeal.
In the appellants’ amended brief of argument, learned counsel, having withdrawn issue vi at the hearing, distilled five issues for determination to wit:
i. Whether the issue “whether or not the 3rd Appellant is properly incorporated in law to negotiate for and take the leasehold of the property in dispute” arises from the pleading to warrant the learned trial Judge deciding on that ground that the lease executed between the 4th and the 3rd Appellant was wrong, null and void and no lease.
ii. Whether the learned trial Judge at the Court below was justified in holding that the 3rd Appellant lacked the capacity to enter the Deed of Assignment dated 12th August, 1993.
iii. Whether the learned trial Judge was right in deciding that use to which the 3rd Appellant put the property in dispute is outside the covenant as contained in Exhibit 2 and Exhibit 3.
iv. Whether having regard to the Respondent’s Statement of Claim the Respondent had any cause of action against the 1st to the 3rd Appellants to give jurisdiction to the Court below to entertain the Respondent suit.
v. Whether the learned trial Judge was justified in failing to make any decision on the issue of standing by duly raised by the 1st to the 3rd Appellants.

In the first respondent’s amended brief of argument, learned counsel crafted four issues for determination namely:
i. Whether the learned trial judge was right when he held that Exhibit 5 having been made prior to the incorporation of the Appellant’s Trustees, the said Exhibit 5 was not capable of vesting any title on the 3rd Appellant and if so whether title correctly reverts to the 1st Respondent.
ii. Whether having regard to the pleadings and evidence adduced by parties at the trial Court particularly Exhibits 2, 3 and 5 as well as the reliefs of the 1st Respondent as contained in its statement of claim, the trial Court did not have the jurisdiction to countenance the claim of the 1st Respondent in the way and manner it did.
iii. Whether the definite finding of the trial Court that the 3rd Appellant had no legal personality at the time it purportedly acquired an interest in the disputed land is not supported by the state of the pleadings and evidence presented at the trial Court.
iv. Considering the pleadings, evidence and written addresses of parties at the trial Court vis-à-vis the pronouncements of the trial Court in its final judgment, whether the trial Court did not correctly resolve the issues raised by the Appellants including the equitable defences canvassed by the Appellants.

A close look at the two sets of issues shows that they are identical in substance. In fact, the first respondent’s issues can be, conveniently, subsumed under the appellants’. For this reason of sameness, I will decide the appeal on the issues nominated by the appellants; the undoubted owners of the appeal.

Arguments on the issues.
Issue one
Learned appellants’ counsel submitted that the issue of the third appellant being properly incorporated to take the lease did not arise from the first respondent’s pleadings. He explained that the first respondent tendered Exhibits 1 and 4 to show due incorporation of its trustees and its constitution respectively. He described the lower Court’s finding as perverse. He said the issue was raised in the address. He stated that the lower Court’s decision on it denied appellants their right to fair hearing. He relied on International Bank Plc v. Onwuka (2009) All FWLR (Pt. 491). 884. He insisted that the issue of the third appellant’s capacity, based on Exhibits 1 and 5, was not raised before the lower Court. 

He observed that Courts and parties are bound by pleadings and evidence on them. He cited Adimora v. Ajufo (1998) 3 NWLR (Pt. 80) 1; Adamu v. Ikharo (1998) 4 NWLR (Pt. 89) 474. He reasoned that Exhibit 1 cannot be used for any other purposes except for incorporation that it was pleaded. He referred to Ngwu v. Nnaji (1991) 5 NWLR (Pt. 189) 18, Ishola v. UBN Ltd. (2005) 6 NWLR (Pt. 922) 422. He added that the evidence of PW1 did not require the comparison between Exhibits 1 and 5 which the lower Court wrongly did in its chambers. He cited Wilcox v. Queen (1961) 2 CLR 296; Bornu Holding Co. Ltd. v. Bogoco (1971) 1 ALL NWLR 324.

On behalf of the first respondent, learned counsel contended that parties pleaded and tendered Exhibits 1 and 5. He asserted that issue of legal capacity is one of law, not fact, which cannot be pleaded and can be raised before any Court. He relied on Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386, Okoebor v. Police Council (2003) LPELR-2458 (SC); Oviawe v. IR.P (Nig.) Ltd. (1997) 3 NWLR (Pt. 492) 126; Abacha v. Fawehinmi (200) 6 NWLR (Pt. 660) 28. He stated that the first pleaded incorporation and put it in issue. He said the finding of the lower Court was on date of incorporation not on its propriety. He reasoned that appellants are approbating and reprobating having obtained leave to raise the issue of capacity and argued same in their brief. He referred to Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248. He maintained that the first respondent rightly raised the point of law, implication of different dates in Exhibits 1 and 5, in its final written and address. He noted that the appellants’ application to bring in its original certificate incorporation failed and the lower Court rightly relied on Exhibit 1. Since Exhibit FASE 1 could not be admitted. He noted that the ruling was not appealed and binding on the appellants.

Issue two
Learned Senior Counsel for the appellants submitted that the lower Court’s holding that the third appellant lacked the capacity to enter the deed of lease in Exhibit 5 was contrary to the law. He relied on Section 596 (1) and (2) of the Companies and Allied Matters Act (CAMA); Anyaegbunam v. Osaka (2000) 5 NWLR (Pt. 657) 386. He persisted that an unincorporated association can own property through its trustees. He relied on Anyaegbunam v. Osaka (supra).

Learned Silk further submitted that the lower Court wrongly refused to take cognizance of Exhibit FASE 1-original certificate of incorporation and the evidence of DW2 which the first respondent’s counsel admitted their truth (215-221) by declining cross-examination.

For the first respondent, learned counsel argued that the case of Anyaegbunam v. Osaka (supra) is inapplicable based on facts. He reasoned that for the trustees to claim the land in dispute, they must show evidence of incorporation at the time of acquiring interest. He said their only evidence, Exhibit 5, was made prior to the incorporation whilst Exhibit 1 showed that the incorporation came after the sublease in Exhibit 5. He took the view that Exhibit 5 showed the lease was to the unincorporated association and not its trustees. He insisted that an unincorporated association has no capacity to hold land except through its trustees or individuals. He relied on Re Bucks Constabulary ‘Widows and Orphans’ Fund Friendly Society (No.2) (1979) 1 WLR936; Anyaegbunam v. Osaka (supra). He added that it is the trustees, not the association, that apply for registration. He referred to Sections 673 (1) and (2) and 679 (1) of CAMA.

Learned counsel further argued that the Exhibit FASE 1 was attached to the affidavit of DW2 – Stanley Egbochukwu, which was struck out and it went with it. He citedUmeh v. Nigeria Renowned Trading Co. Ltd. (1997) 8 NWLR (Pt. 516) 344. He claimed that the only evidence of incorporation was Exhibit 1 which the lower Court rightly acted upon. He referred to Brossette Manufacturing Nig. Ltd. v. M/S Ola Ilemobola Ltd. (2007) 14 NWLR (Pt. 1063) 109. He concluded that the first respondent’s reliefs are clear and Courts will only grant claimed reliefs. He cited Nidoco Ltd. v. Gbajabiamila (2013) LPELR-20899 (SC).

Issue three
Learned appellants’ Senior Counsel submitted that the first respondent failed to prove that the land in dispute was put to the use outside the covenant as required by Section 135 (1) of the Evidence Act, 2011. He explained that the evidence of DW1 on the issue was uncontradicted and he was not cross-examined. He opined that none of the leases prohibited use of the land for religious purpose. He persisted that the land was being used for purposes stated in the leases – Exhibits 2, 3 and 5. He concluded that the lower Court did not evaluate the evidence properly.

On the part of the first respondent, learned counsel posited that the appellants used the land for purposes outside those mentioned in Exhibits 2, 3 and 5. He took the view that the appellants did not deny the allegation as shown in paragraph 7 of their amended statement defence. He noted that a party must deny an assertion without any ambiguity or it amounts to an evasive denial which is an implicit admission. He relied on Oguma Associated Companies (Nig.) Ltd. v. IBWA Ltd. (1988) 1 NWLR (pt. 73) 658, Fidelis Nwadialor (SAN), Civil Procedure In Nigeria, 2nd edition, page 371. He described the appellant’s denial as negative pregnant traverse. He stated that admitted facts need no proof. He cited Akpan v. Umoh (1999) 11 NWLR (Pt. 627) 349; Olagunyi v. Oyeniran (1996) 6 NWLR (Pt. 453) 127. He maintained that the land was being used purely in furtherance of the cause of Christianity which is the purpose for which the third appellant was formed.

Issue four
Learned senior Counsel for the appellants postulated that the first respondent had transferred all its interest in the land in dispute to the second respondent on Exhibit 3 and had no interest to sustain the claim for recovery of possession. He stated that the second respondent had obligation to the head lessor except as to rent. He said that evidence showed that the head lessor gave its consent to the sublease in Exhibit 3. He maintained that the first respondent had no cause of action because it was not a party to Exhibit 5 (a) privity of contract (Union Beverages Ltd. v. Pepsi Cola (1994) 3 NWLR (Pt.330) 1); (b) the headlessor had given its consent in Exhibit 6 and the covenant to use incured to it; and (c) it had divested itself of its interest in the land and could not sue for its recovery- Sanyaolu v. Coker (1983) 3 SC 124. He insisted, based on these reasons, that the suit was incompetent because the first respondent had no locus standi to institute it.

It was further postulated that any breach of the use covenant, in Exhibits 2, 3 and 5, gave a right of action for forfeiture to the head lessor, not the first respondent whose action was not forfeiture for which it should have issued statutory notice. Learned Silk reasoned that the lower Court committed two wrongs: holding that Exhibit 5 did not vest interest in the appellants and that title should have revert to the first respondent. He asserted, in the alternative, that if Exhibit 4 were void, the reversion of the property would go to the second respondent and not the first respondent that was not a party to it. He cited Union Beverages v. Pepsi Cola (supra). He added that if it were void, then the second respondent’s title by virtue of Exhibit 3 would be unaffected. He insisted that a void act cannot confer any title to anybody. He referred to Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265. He concluded that since Exhibit 3 was not void, title could not revert to the first respondent.

On the side of the first respondent, learned counsel narrated the nature of the first respondent’s case based on its first relief – breach of covenant of use which was binding on the second respondent. He claimed that the first respondent’s case was not based on Exhibit 5 nor to enforce its content. He said that it was the appellants that relied on Exhibit 5 and had the duty to prove that it conferred right on them. He relied on Maihaja v. Gaida (2017) LPELR-42474 (SC). He opined that the first respondent had the right to challenge Exhibit 5 even though not a party to it because the lower Court had the power to raise it suo motu –whether it conferred title on the third appellant. He stated that the first respondent had the right to give evidence to impugn Exhibit 5 on which the appellants based their case. He cited Romaine v. Romaine (1992) 4 NWLR (Pt. 238) 650. He noted that since Exhibit 5 could not confer interest, the issue of consent was removed as something cannot be put on nothing. He took the view that the appellants failed to prove a valid lease. He explained that the first respondent’s claim was that the appellants had no interest in the land and using it for purpose not in the lease to it. He concluded that the first respondent was entitled to protect its interest in line with the covenant in Exhibit 3 by filing the action.

Issue five.
Learned appellants’ senior Counsel submitted that the lower Court failed in its duty to make findings on their defences. He relied on Irolo v. Uka (2002) 14 NWLR (Pt. 596) 195. He asserted that the first respondent knew about their presence and development on the land thereby waived its right to complain. He relied on the evidence of DW1 who was not cross-examined. See Fasade v. Babalola (2003) 11 NWLR (Pt. 830). He took the view that the first respondent stood by and watched the appellants develop the land and could renege from its acts. He cited Ikuomola v. Oniwaya (1990) 21 NSCC (Pt.4) 395. He urged the Court to hold that the first respondent’s case was caught by waiver, standing by and estoppel under Section 15 of the Court of Appeal Act. He further urged the Court to enter judgment in their favour in the counter-claim since the first respondent filed no reply nor gave evidence against it.

For the first respondent, learned counsel argued that the evidence of DW1 on the point was ambiguous. He noted that the appellants did not plead particulars of laches and acquiescence. He added that from the time the appellants entered into the land, 1992, or 1993, to 1998, when the action was commenced (a period of 5 or 6 years) was insufficient for defence of laches and acquiescence to avail the appellants. He cited Salako v. Dosunmu (1997) 8 NWLR (Pt. 517) 371.

Resolution of the issues
It is pertinent to place on record, upfront, that a flood of documentary evidence were furnished before the lower Court by the parties. As a matter of fact, the case was fought substantially on documentary evidence. Interestingly, the case law gives the Courts the liberty to evaluate documentary evidence. See Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Admirably, the law, in order to foreclose any injustice, donates concurrent jurisdiction to this Court and the lower Court in evaluation of documentary evidence. See Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yonrin(2011) 10 NWLR (Pt 1254) 135; Eyibo v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuruike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Emeka v. Okafor (2017) 11 NWLR (Pt. 1577); 410; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652); Olomoda v. Mustapha (2019) 6 NWLR (Pt. 1667) 36; APC v. Marafa (2020) 6 NWLR (Pt. 1721) 383. I will tap from this co-ordinate jurisdiction in the appraisal of the deluge of documents in the appeal. Having been adequately fortified by the above position of the law, I will proceed to resolve the five stubborn issues in this appeal.

In an abiding loyalty to the injunction of the law, I will attend to issue four first. The plinth of the issue is submissive to easy appreciation. It queries the jurisdiction of the lower Court to entertain the first respondent’s suit which parented the appeal. The law compels the Courts to accord premier attention to issue of jurisdiction, which is numero uno in adjudication, when raised in any proceedings. See Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt.1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; PDP v. Umeh (2017) 12 NWLR (Pt. 1579); APC v. Nduul (2018) 2 NWLR (Pt. 1602) 1;

Adama v. Maigari (2019) 3 NWLR (Pt. 1658) 26; APC v. Lere (2020) 1 NWLR (Pt. 1705) 254. Hence, I will obey this legal commandment so as not to insult the law.

There is no gainsaying the fact that the issue four evinces a jurisdictional question in that it quarrels with the respondent’s locus standi to institute the action. It is trite law that the absence or presence of locus standi in a party will divest or infuse jurisdiction into a Court to discountenance or entertain a matter before it. See Emezi v. Osuagwu (2005) 12 NWLR (Pt. 939) 349/(2005) 30 WRN 1; A.-G., Anambra State v. A.-G. Fed (2007)11 NWLR (Pt. 1047) 4; Admin/Exec., Estate Abacha v. Eke-Spiff (2009) 17 NWLR (Pt. 1171) 614; Ajayi v. Adebiyi (2012) 11 NWLR (Pt. 1310 1370; Uwazuruonye v. Gov., Imo State (2013) 8 NWLR (Pt. 1355) 28; Adebayo v. PDP (2013) 17 NWLR (Pt. 1382) 1; Okwu v. Umeh (2016) 4 NWLR (pt. 1501) 120; Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452; Rebold Ind. Ltd. v. Magreola (2015) 8 NWLR (Pt. 1461) 210; Centre for Oil Pollution Watch v. NNPC (2019) 5 NWLR (Pt. 1666)518; Nworika v. Ononeze-Madu(2019) 7 NELR (Pt. 1672) 422 (supra); A.-G., C.R.S. v. FRN (2019) 10 NWLR (Pt. 1681) 401. From an etymological perspective, the cliché, locus standi, traces its ancestry to Latin language which means: “place of standing”. In its expounded legal form, locus standi denotes the legal right or capacity of a person to institute an action in a Court of law when his right is trampled upon by somebody or authority. See INEC v. Ogbadibo L. G.(2016) 3 NWLR (Pt. 1498) 167; Centre for Oil Pollution Watch v. NNPC (supra)Nworika v. Ononeze-Madu (supra); A.-G., C.R.S. v. FRN (supra). Locus standi was evolved to protect the Court from being converted into a jamboree by professional litigants who have no interest in matters before it. See Taiwo v. Adegboro (2011) 11 NWLR (Pt. 1259) 562; Al – Hassan v. Ishaku (2016) 10 NWLR (Pt. 1520) 230. 

For a party to establish locus standi, he must show that the matter is justiciable – capable of being disposed of judiciously in a Court of law – and the existence of dispute between parties. See Taiwo v. Adegboro (supra); Ajayi v. Adebiyi (supra). Again, that he has sufficient interest in the subject-matter of the action and that his civil rights and obligations are in the danger of being infringed on. See Jitte v. Okpulor (2016) 2 NWLR (Pt. 1497) 542; Nyesom v. Peterside (supra); Al – Hassan v. Ishaku (supra); Centre for Oil Pollution Watch v. NNPC (supra) Nworika v. Ononeze-Madu (supra); A.-G., C.R.S. v. FRN (supra).

Nota bene, it is a statement of claim, or affidavit in originating summons, that is examined by a Court in determining the locus standi of a party. See Nyesom v. Peterside (supra); Taiwo v. Adegboro (supra); Odeneye v. Efunuga (supra); Uwazuruonye v. Gov., Imo State (2013) 8 NWLR (Pt. 1355) 28; Bakare v. Ajose-Adeogun (2014) 6 NWLR (Pt. 1403) 320; INEC v. Ogbadibo L. G.(supra); Okwu v. Umeh (supra); Centre for Oil Pollution Watch v. NNPC (supra) Nworika v. Ononeze-Madu (supra); A.-G., C.R.S. v. FRN (supra). However, chances of success of an action is irrelevant in considering locus standi. See Taiwo v. Adegboro (supra); Ajayi v. Adebiyi (supra); Okwu v. Umeh (supra); Centre for Oil Pollution Watch v. NNPC (supra).

Now, the main anchor of the appellants’ chief grievance, indeed their trump card on the terminal issue, is staked on the lower Court’s assumption of jurisdiction over the first respondent’s suit when it (first respondent) was not a party to the transaction (deed of assignment) of 12th August, 1993 comprised in Exhibit 5. In a spirited bid to castrate the issue, the first respondent weaved the defence that Exhibit 5 was not part of its statement of claim, but that it was pleaded (in the statement of defence) and tendered in evidence by the appellant. In other words, the first respondent’s contention is: having not pleaded and premised its case on Exhibit 5, it cannot be used as the index to determine its locus standi to institute the action.

As already noted shortly, it is the statement of claim or affidavit, depending on the originating process employed in the commencement of an action, that is the yardstick with which to gauge the presence or absence of jurisdiction of Court. Even though, it is the major determinant of jurisdiction of Court, but it is not an exclusive one. There are others. One other determinant, which is relevant here, orbits around evidence received in the course of proceedings. See Barclays Bank of Nigeria Ltd. v. CBN (1976) 1 AII NLR 409 at 424; NDIC v. CBN (2002) 7 NWLR (Pt. 766) 272; Nnonye v. Anyichie ​(2005) 2 NWLR (Pt. 910) 623; Julius Berger (Nig.) Plc v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219; Zubair v. Kolawole (2019) 11 NWLR (Pt. 1682) 66; Titilayo Plastic Ind. Ltd. v. Fagbola (2019) 14 NWLR (Pt. 1691) 88; B.B. Apugo & Sons Ltd. v. OHMB (2016) 13 NWLR (Pt. 1529) 206;Ekweozor v. Reg. Trustees, S.A.C.N. (2020) 11 NWLR (Pt. 1734) 51. Thus, the case law grants an unbridled licence to the Court to use evidence, whether parol or documentary, as the barometer to gauge the presence or absence of its jurisdiction. In effect, the defence of want of source of determinant of jurisdiction, erected, brandished and paraded by the first respondent is disabled from its birth. It vaporizes in the presence of the existential evidence, Exhibit 5, furnished before the lower Court.

It admits of no argument that Exhibit 5, the deed of assignment of 12th August, 1993, and the other exhibits fall within the wide four walls of documents in that their contents are “expressed or described upon any substance by means of letters, figures or marks”. See Section 258 of the Evidence Act, 2011. Remarkably, the law grants to the Courts the unfettered nod to read a document holistically so as to reach and garner harmonious results of its content. See Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377/(1987) SCNJ 98; Unilife Dev. Co. Ltd. v. Adeshigbin (2001) 4 NWLR (Pt. 707) 482; ACB v. Apugo (2001) 5 NWLR (Pt. 707) 482; Mbani v. Bosi (2006) 11 NWLR (Pt. 991) 400; Bunge v. Gov. Rivers State (2006) 12 NWLR (Pt. 995) 573; Agbareh v. Minra (2008)2 NWLR (Pt. 1071) 378; Nigerian Army v. Aminu-Kano (2010) 5 NWLR (Pt, 1188) 429; BFI Group v. BPE (2012) 18 NWLR (Pt. 1332) 209; Julius Berger Nig. PLC. v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219. 

In addition, in construing a document, the Court is enjoined by law to apply the literal rule as a canon of interpretation, id est, to accord the words deployed therein their ordinary grammatical meaning without any embellishments. See UBN v. Ozigi (1994) 3 NWLR (Pt. 333) 385, UBN Ltd. v. Sax (Nig.) Ltd. (1994) 8 NWLR (Pt. 361) 150; Enilolobo v. N.P.D.C. Ltd. (2019) 18 NWLR (Pt. 1703) 168. I will pay due obeisance to these legal commandments, on canons of interpretation of document, in order not to hurt the law.

In due allegiance to the expectation of the law, I have perused the entire content of Exhibit 5 with the finery of a toothcomb. Admirably, it is succinct and rebellious to woolliness in its content and connotation. Incidentally, I am unable to find, even with prying eagle eye of an appellate Court, where the first respondent was made a party thereto. It is an assignment between the second respondent and Mr. Chris Nnoli, Rev. Jessie Iloputaife, Rev. (Dr.) Harford Iloputaife, Mr. Obioma Nwabeke and Mrs. Cecilia Toikumo as trustees of the third appellant. These parties are located at the cradle of the Exhibit 5. It stems from the content of Exhibit 5, as catalogued above, that the first respondent was not a party nor a particeps in the contractual transaction warehoused in it.

The fact that the first respondent was/is a non-party to Exhibit 5 propels me to invite, perforce, the concept of privity of contract. The ancient doctrine of privity of contract has been defined as “that connection or relationship which exists between two or more contracting parties”. See Rebold Ind. Ltd. v. Magreola (2015) 8 NWLR (Pt. 1461) 201 at 231, per Fabiyi, JSC. The doctrine, which is part of our corpus juris, postulates, generally, that a contract cannot confer/bestow rights, or impose obligations arising under it, on any person except parties to it. Put simply, a stranger to a contract cannot gain or be bound by it even if made for his benefit. See T. E. Oshevire Ltd v. Tripoli Motors (1997) 5 NWLR (Pt. 503) 1/(1997) 4 SCNJ 246; Owodunni v. Registered Trustees, CCC Worldwide (2000) 10 NWLR (Pt. 675) 315; Makwe v. Nwukor (2001) FWLR (Pt. 63)/(2001) 14 NWLR (Pt. 733) 356; Union Beverages Ltd v. Pepsi Cola Int. Ltd (1994) 3 NWLR (Pt. 330) 1; UBA v. Jargaba (2007) NWLR (Pt. 1045); Nwuba v. Ogbuchi (2007) NWLR (Pt. 1072); Osoh v. Unity Bank Plc (2013) 9 NWLR (Pt. 1358) 1; Idufueko v. Pfizer Products Ltd. (2014) 12 NWLR (Pt. 1420) 96; Rebold Ind. Ltd. v. Magreola (supra); Reichie v. N.B.C.I (2016) 8 NWLR (Pt. 1514) 274.

The corollary of this is not moot. The first respondent is alien to Exhibit 5. In this wise, the Exhibit 5 was/is impotent to donate any rights to, nor foist obligations on, the first respondent. The import, a caustic one at that, is that the first respondent was not armed with any right or obligation to ventilate in the temple of justice of the lower Court under the shelter of Exhibit 5. In sum, the first respondent, qua party, was drained of the necessary/requisite locus standi to institute the action that transfigured into the appeal. Not being a party to Exhibit 5 dispossesses it of any morsel of right to harness therefrom and prosecute against the appellants and the second respondent.

It is now settled, beyond any peradventure of doubt, that an issue of proper/improper parties touches and impinges on the jurisdiction of a Court to entertain a matter before it. Indeed, “a person who asserts the right claimed or against whom the right claimed is exercisable must be present to give the Court the necessary jurisdiction”. See Olariede v. Oyebi (1984) 1 SCNLR 390 at 406, per Eso, JSC; Ekpere v. Aforije (1972) 1 All NLR (Pt. 1) 220; Onwunalu v. Osademe (1971) 1 All NLR 14; Awoniyi v. Reg. Trustees of AMORC (2000) 10 NWLR (Pt. 676) 522; Mozie v. Mbamalu (2006) 15 NWLR (Pt. 1003) 466; Plateau State v. A.-G., Fed. (2006) 3 NWLR (Pt. 967) 346; Faleke v. INEC (2016) 18 NWLR (Pt. 1543) 61; G. & T. Investment Ltd. v. Witts & Bush Ltd. (2011) 8 NWLR (Pt. 1250) 500; Ogbebor v. INEC (2018) 6 NWLR (Pt. 1614) 1; CBN v. Interstella Comm. Ltd. (2018) 7 NWLR (Pt. 1618) 294; Moses v. NBA (2019) 8 NWLR (Pt. 1673) 59; Adeniran v. Olusokun II (2019) 8 NWLR (Pt. 1673) 98; Nworika v. Ononeze-Madu (supra).

As already noted, at the dawn of this judgment, locus standi comes within the purview of jurisdiction of Court. Jurisdiction, a mantra in adjudication, connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding. See Ajomale v. Yaduat (No. 1)(1991) 5 SCNJ 172; Mobil Pro. Co. Untltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Ndaeyo v. Ogunaya (1977) 1 IM SLR 300; Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.-G., Kwara State v. Adeyemo (2017)1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641) 1; Nduul v. Wayo (2018) 16 NWLR (Pt. 1646) 548.
A Court of law is invested with jurisdiction to hear a matter when: “1. it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and 2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction, and 3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”. See Madukolu v. Nkemdilim (2006) 2 LC 2081961) NSCC (vol. 2) 374 at 379, per Bairamian F. J.,Tukur v. Taraba State (1997) 6 SCNJ 81; Dairo v. UBN (2007) 16 NWLR (Pt. 1059) 164;Okereke v. Yar’Adua (2008) 12 NWLR (Pt. 1100); Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193;Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455;Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387; Nworika v. Ononeze-Madu (2019) 7 NWLR (Pt. 1672) 422; Adeleke v. Oyetola (2020) 6 NWLR (Pt. 1721) 440. The three ingredients must co-exist in order to invest jurisdiction in a Court.

I have married the respondent’s defective suit with the inflexible ingredients of jurisdiction chronicled above. The rationale behind the juxtaposition is not far-fetched. It is to discover whether the suit flouted or obeyed these inviolate ingredients of jurisdiction. The fact that the respondent, which instituted the suit, was/is not a party constitutes a serious feature in the case which robbed the lower of the jurisdiction to entertain it. By the same token, it is an ample demonstration that the action, which gave birth to appeal, was not initiated by due process of law and upon the fulfillment of a condition precedent for the lower Court’s exercise of jurisdiction over it. In the mind of the law, a condition precedent is: “the one that delays the vesting of a right until the happening of an event”. See Atolagbe v. Awuni (1997) 9 NWLR (Pt. 525) 537 at 562, per Uwais, CJN; Niger Care Dev. Co. Ltd. v. ASWB (2008) 9 NWLR (Pt. 1093) 493; A. –G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Jombo United Co. Ltd. v. Leadway Ass. Co. Ltd.(2016) 15 NWLR (Pt. 1536) 439. The only way the first respondent would have properly ignited the jurisdiction of the lower Court was contingent upon its satisfaction of the twin conditions-precedent. Their compliance is sine qua non for the activation of the lower Court’s jurisdiction. Alas, it did not act in due fidelity to the letter and spirit of the law. In sum, the respondent’s suit, which birthed the appeal, defiled the second and third inviolable ingredients of jurisdiction. The dismal effects of these infractions are dire. It taints the suit with competence.

Where a Court is disrobed of the jurisdiction to entertain a matter, the proceeding germinating from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be trapped in the intractable web of nullity. see Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; Isah v. INEC (2016)18 NWLR (Pt. 1544) 175.

In the light of this expansive tour d’horizon on the locus standi, done in due obeisance to the law, the lower Court’s decision was/is enmeshed in the intractable nest of nullity. In the view of the law, nullity denotes: “Nothing; no proceeding; an act or proceeding in a case which the opposite party may treat as though it had not taken place; or which has absolutely no legal force or effect”. see Lasisi v. State (2013) 12 NWLR (Pt. 1367) 133 at 146, per Ngwuta JSC; Ezenwaji v. U.N.N. (supra); Mamman v. Hajo (2016) 8 NWLR (Pt. 1575) 411. The consequence of a nullity is far-reaching. If a decision or proceeding is soiled by nullity, it is void and taken as it was never given or made. See Okoye v. Nigeria Const. & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501; Bello v. INEC (2010) 8 NWLR (Pt. 1196) 342. Moreover, such a decision or proceeding, in the view of the law, bestows no enforceable right on its beneficiary party, who possesses it, nor does it impose any obligations on its victim party. See Ajiboye v. Ishola(2006) 13 NWLR (Pt. 998) 628; Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265. The bounden duty of a Court is to set aside a null order/decision ex debito justitiae in that it does not exist in law. See Mamman v. Hajo (supra); N.A.C.B. Ltd. v. Ozoemelam (2016) 9 NWLR (Pt. 1517) 376;Oyeyemi v. Owoeye (2017) 12 NWLR (Pt. 1580) 364.

In effect, the lower Court’s decision, delivered on 25th October, 2001, and all other proceedings anterior and posterior to it, were/are marooned in the murky ocean of nullity. On this score, the law commands me to mow them down with the unbiased judicial sword of this Court. In essence, I dishonour the first respondent’s learned senior counsel’s salivating invitation to endorse the lower Court’s injudicious exercise that was contemptuous of the law. Such will amount to a serious afront to the law. In the end, I have no choice than to resolve the issue four in favour of the appellants and against the first respondent.

Having dispensed with issue four, I reverse to treat issues one and two. An indepth study of the duo issues shows that they are interwined and share a common mission: to puncture the lower Court’s finding on the contractual capacity of the third appellant. In view of this interwoven judicial relationship, I will, in order to conserve the scarce judicial time and for spatial constraint, amalgamate them and fuse their considerations without each issue compromising its identity. The marrow of the two issues is plain. It is a subtle summon on this Court to explore the undulating forensic contours of contractual capacity of unincorporated association within the ambit of the law.

Generally, there exists, in law, incorporated and unincorporated bodies/organisations. The former is an association of persons with distinct legal personality such as companies. The latter pertains mostly to partnerships: relationships between persons carrying on business in common fetching them profits or rewards. There are bodies which encompass cooperative and friendly societies which are formed by individuals such as farmers, traders, artisans and producers of various goods for commercial purposes. Once such a society is registered, it earns the advantage of becoming a body corporate with perpetual succession with the concomitant power to hold property and enter into contracts. Such body corporate bears appellation of a corporation aggregate.
Thus, unincorporated associations, much unlike incorporated body that is a person a ficta with juristic personality, lack the capacity to directly enter into contracts save through its members or trustees. See Anyaegbunam v. Osaka (2000) 5 NWLR (Pt. 657) 386; Onuekwusi v. R.T.C.M.Z.C (2011) 6 NWLR (Pt. 1243) 341. In Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (Pt. 105) 558 at 595, Agbaje, JSC, adopted the definition of a corporation aggregate in these illuminating words:
“A corporation aggregate is a collection of individuals united into one body under a special denomination, having perpetual succession under an artificial form, and vested by the policy of the law with the capacity of acting in several aspects as a individual, particularly of taking and granting property, of contracting obligations and of suing and being sued, of enjoying privileges and immunities in common, and of exercising a variety of political rights more or less extensive, according to the design of its institution, or the powers conferred upon it either at the time of its creation or at any subsequent period of its existence.”

In the first place, the appellants chastised the lower Court’s failure to take cognisance of the third appellant’s original certificate of incorporation dated 18th July, 1989 which is wrapped at page 212 of the record. The record, amply, demonstrates that the certificate was an appendage to a motion filed on 1st June, 2001. It was marked as Exhibit FASE 1. Curiously, the appellants’ counsel, S.N. Agweh, Esq., (now SAN), in his infinite wisdom, applied to withdraw the motion. The same was struck out as reflected at page 234 of the record. It is axiomatic that the document/certificate, which was an annexure to the application, sank with the disposal of the application. The reason is obvious. Its life was parasitic on the existence of the application. The net effect is that the touted original certificate of incorporation of the third appellant, Exhibit FASE 1, was never furnished as an exhibit before the lower Court. An exhibit denotes a document, record or other tangible objects, formally introduced as evidence in Court. See Lucky v. State (2016) 13 NWLR (Pt. 1528) 128. 

A Court of law can only rely on a document tendered as an exhibit before it and vice versa. See Nigerian Ports Plc. v. B.P.P.T.E. Ltd (2012) 18 NWLR (Pt. 1333) 454; The People of Lagos State v. Umaru (2014) 7 NWLR (Pt. 1407) 584; Wassah v. Kara (2015) 4 NWLR (Pt. 1449) 374. In the wide realm of adjectival law, a rejected document cannot be relied on by the Court. See Nigerian Ports Plc. v. B.P.P.T.E Ltd (2012) 18 NWLR (Pt. 1333) 454; Agboola v. State (2013) 11 NWLR (Pt. 1366) 619, Wassah v. Kara (supra); State v. Ajayi (2016) 14 NWLR (Pt. 1532) 196; Kekong v. State (2017) 18 NWLR (Pt. 1596) 108.

It stems from this inelastic position of the law that the lower Court acted ex debito justitiae when it ignored the presence of the certificate in its judgment because it was document ex facie curaie. The lower Court’s judicial exercise, in discountenancing the certificate, was not, in the least, offensive to the law, as to fetch the reprobation of this Court. Its finding/holding and recognition of Exhibit 1, the certificate of incorporation of the third appellant, was in total alignment with the law. Even its comparison of Exhibits 1 and 5 has the blessing of the law as it falls within the perimeter of evaluation of documentary evidence. I endorse the finding in toto.

Be that as it may, the first respondent has merely scored a barren victory as shall unveil anon. Exhibit 1, the certificate of registration of the third appellant, came into being on 16th April, 1996. The Exhibit 5, the deed of assignment, which gave birth to the appellants’ interest and rights in the disputed property, was executed on 12th August, 1993. Unarguably, a comparison of the chronological ages of the Exhibits 1 and 5, clearly, shows that Exhibits 5 antedated Exhibit 1. The purport of this is obvious. It indicates/assumes that the third appellant entered into the contract of assignment of the disputed property with the second respondent months before it became an incorporated entity by dint of Exhibit 1. In the eyes of the law, it was not equipped with the contractual capacity to enter into such a contract as same will be totally unenforceable. Given the kingly position of Exhibit 5, as the cynosure of this issue, it is imperative to pluck out its habendum, which is domiciled in its cradle, ipsissima verba, as follows:
“THIS ASSIGNMENT made the 12th day of August, 1993 BETWEEN MOTOR TYRE SERVICES PLC of Plot 2, Ijora Causeway, Ijora Lagos, (hereinafter called, “the Assignor”, which expression shall, where the contest so admits, include its successors-in-title, and assigns”) of the one part, AND Mr. Chris Nnoli, Rev. Jesses Iloputaife, Rev. (Dr.) Hardford Iloputaife, Mr. Obioma Nwabeke and Mrs. Cecilia Toikumo, trustees for FAITH REVIVAL MINISTRIES WORLD OUTREACH (also known as VICTORY CHRISTIAN CENTRE) of Plot 1, Mission Street, Satelite Town, Lagos (hereinafter called “the Assignee”, which expression shall, where the contest so admits, include its successors-in-title and assigns) of the other part.”

Indisputably, this excerpt, mined from Exhibit 5, is comprehension-friendly. In this wise, the law mandates the Court to accord it its literal meaning without any interpolations. It is deducible, from the tenor of the party clause of Exhibit 5, displayed above, that the assignees were, videlicet: Mr. Chris Nnoli, Rev. Jesse Iloputaife, Rev. (Dr.) Hardford Iloputaife, Mr. Obioma Nwabeke and Mrs. Cecilia Toikumo as trustees of the third appellant. The law grants ample latitude to an unincorporated association to enter into pre-incorporation contract through the medium of its members, as its trustees, pending its incorporation. The property, whether real or otherwise, acquired by the trustees will vest in the unincorporation association upon its registration. See Onuekwusi v. R.T.C.M.Z.C (supra). In Anyaegbunam v. Osaka (supra), at 597, Katsina-Alu, JSC, (later CJN), incisively, proclaimed:
“I must strees (sic) here that the Act permits pre-incorporation ownership of Land-see Section 3 [of Land Perpetual Succession] Act Cap 98 LFN, 1958]. An unincorporated association can own property for its members. But for such property to vest, it must be made through persons who have been appointed trustees.”
This ex-cathedra authority was grounded on Section 3 of the defunct Land (Perpetual Succession) Act which provision is in pari materia with the provision of Section 596 (1) and (2) of the CAMA.  

It is a recognised canon of interpretation of statute that where a provision in a legislation is on all fours with a provision of another enactment that had already been interpreted by the Courts, the Court has the liberty to utilise the latter as the template for interpreting the former especially if they are coterminous and kindred legislations. See A.G., Abia State v. A.G., Fed. (2005) 12 NWLR (Pt. 940); Bakare v. NRC (2007) 17 NWLR (Pt. 1064) 606; Fasakin Foods (Nig.) Ltd. v. Shosanya (2006) 10 NWLR (Pt. 987) 126; CCB v. A.G., Anambra State (1992) 10 SCNJ/137. It flows that the third appellant had the imprimatur of the law, statutory and case-law, to engage itself in the pre-incorporation contract through its member trustees. By virtue of Section 696 (2) of CAMA, the property, or proprietary interest acquired in the pre-incorporation contract, will automatically vest in the association upon incorporation. In essence, the third appellant’s trustees, who entered into the contract of assignment of the demised premises, held the disputed land in trust for the third appellant pending its registration. Thus, the third appellant’s right over the disputed property was in incubation during the gestation period of its incorporation. In the mind of the law, the third appellant’s interest in the disputed property was in escrow as it was contingent upon the happening/occurrence of an event- its incorporation. See B. Manfag (Nig.) Ltd. v. M/S.O.I Ltd. (2007) 14 NWLR (Pt. 1053) 109. The appellants acted in due consonance with the law.

This brief legal anatomy on pre-incorporation contract by association, done in due consultation with the law, with due reverence, makes mincemeat of the lower Court’s nullification of Exhibit 5 on the footing of want of contractual capacity of the third appellant. At once the dissection, with due respect, exposes the poverty of the scintillating argument of first respondent in support of it. The lower Court, with due respect, was in grave error as well as fractured the law when it reached that finding. It will smell of judicial sacrilege to affirm a finding that has disclosed a serious hostility to the law. I will not hesitate to resolve the conflated issues one and two in favour of the appellants and against the first respondent.

That brings me to the settlement of issue three. The hub of the issue is plain and canalised within a narrow compass. It castigates the lower Court’s finding that the third appellant used the land in dispute outside the covenants in Exhibits 2 and 3. Exhibit 2 is the lease, (the headlease) between the Federal Government and the first respondent made on 5th June, 1978. Exhibit 3 is the sublease between the first respondent and the second respondent made on 13th October, 1981.

I have, in order to appease the law, given a clinical examination to the Exhibits 2 and 3-the pivot upon which this issue rotates. I am at a great difficulty to locate, despite the bird’s eye view of an appellate Court, where the two instruments specifically prohibited the use of the land in dispute for religious purpose. Such a covenant is not enshrined in either of them. In the glaring absence of such a decree, the third appellant cannot, in law and justice, be guilty of the charge of subjecting the premises to religious purpose forbidden in the leases. In law, contracting parties are bound within the province of the terms of their contract. Even the Court is not allowed to read into or subtract from the terms of contract upon which the parties are consensus ad idem. A Court is enjoined to construe terms of a contract in its exact content. The lower Court, with due regard, by its finding, imported the non-existent covenant of non-user for religious purpose into the contracts of the parties in Exhibit 2 and 3 and unjustifiably planted it therein. That was not in keeping with the law. It does not deserve the approbation of this Court.

That is not all. I have consulted the record, the bedrock of the appeal. My port of visit is at the residence of evidence of DW1 which colonise pages 112-115 of the record. Exultantly, the pieces of evidence do not harbour any ambiguity. At foot of page 113 and dawn of page 114 of the record, the DW1, the appellants’ prime witness, in his examination-in-chief, enumerated, in extenso, the diverse structures the appellants constructed on the disputed land, videlicet: school, publication unit, medical centre, reception hall, auditorium, water plant, multipurpose administrative complex. The witness was not subjected to any cross-examination.

It cannot be gainsaid that in our adversarial system of adjudication, the object of cross-examination is to test the credibility of an opponent’s case. It is meant to deflate and discredit the evidence-in-chief of a witness. It has the potential to perforate an opponent’s case and enhance that of the cross-examiner. It is used to test the veracity of a witness. It is the yardstick with which to measure the truth of evidence-in-chief of a witness. It affords the Judex the sufficient opportunity to watch and assess the credibility and reliability of a witness by watching his demeanour in the witness box. See Ayorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 466; Okuleye v. Adesanya (2014) 12 NWLR (Pt. 1422) 521; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205; Udom v. Umana (No. 1) (2016) 12 NWLR (Pt. 1526) 179; Alfa v. Attai (2018) 5 NWLR (Pt. 1611) 59; MTN (Nig.) Comm. Ltd. v. Corporate Comm. Inv. Ltd. (2019) 9 NWLR (Pt. 1678) 427; Adama v. K.S.H.A. (2019) 16 NWLR (Pt. 1699) 501; Tyonex (Nig.) Ltd. v. Pfizer Ltd (2020) 1 NWLR (Pt. 1704) 125; Adeleke v. Oyetola (2020) 6 NWLR (Pt. 1721) 440. It has been described as a “noble art” which “constitutes a lethal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party”. See Oforlete v. State (2000) 3 NSCQR 243 at 268 per Achike, JSC. Hence, any evidence elicited from the cross-fire of cross-examination, are, in the eyes of law, potent and run pari passu with the ones from evidence-in-chief. See Gaji v. Paye (2003) NWLR (Pt. 823) 583; Akomolafe v. Guardian Press Ltd. (2010) 3 NWLR (Pt. 1181) 338. They belong to the cross-examiner. See Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205. As a matter of fact, the law views evidence procured from the heat of cross-examination as more reliable and compelling than the ones proffered in examination-in-chief. See Adeosun v. Gov., Ekiti State (2012) 9 NWLR (Pt. 1291) 581; Okuleye v. Adesanya (2014) 12 NWLR (Pt. 1422) 321. Indubitably, cross-examination occupies an Olympian position in our corpus juris especially in the adjectival law.

It is startling that the first respondent’s counsel, in his infinite wisdom, failed/neglected to cross-examine the witness on the critical and decisive issue: the propriety or, otherwise of the appellants’ developments on the disputed land. It is settled law that where a party fails to cross-examine a party on a point, he is deemed to have admitted it. See Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583; Akomolafe v. Guardian Press Ltd (2010) 3 NWLR (Pt. 181) 338; Nwokocha v. A.-G, Imo State (2016) 8 NWLR (Pt. 1513) 141; Olowu v. Building Stock Ltd (2018)1 NWLR (Pt.1601)343. Thus, the dire consequence of the first respondent’s neglect to cross-examine DW1, on the crucial piece of evidence, id est, the propriety or otherwise of the appellants’ development on the disputed land, is an undiluted admission of it. It flows that the appellant’s failure to cross-examine the witness on the pungent evidence, which snowballed into admission, displaces the learned first respondent’s counsel’s seemingly alluring submission on the point.

To start with, in the sight of the law, admission connotes a statement, oral or documentary, made by a party which suggests an inference as to any fact in issue or relevant fact, see Section 20 of the Evidence Act, 2011;UBA Plc v. Jargaba (2007) 11 NWLR (Pt. 1045) 237; Oguanuhu v. Chiegboka (2013) 6 NWLR (Pt. 1351) 588. It “is a concession or voluntary acknowledgement made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgement made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action”. See Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534 at 558 per Fabiyi, JSC; UBA v. Jaraaba (2007) 31 NSCQR 144; N.B.C.I. v. Integrated Gas (Nig.) Ltd. (2005) 4 NWLR (Pt. 916) 617; Omisore v. Aregbesola(2015) 15 NWLR (Pt. 1482) 205; N.A.S. Ltd. v. UBA Plc. (2005) 14 NWLR (Pt. 945) 421. It is classified, in the stratification of evidence, as the best evidence against the party making it. See Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 133. It constitutes a concession against the interest of a party making it. See Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391. Hence, in the view of the law, an admitted fact does not need any proof. SeeOur Line v. S.C.C. Nig. Ltd. (2009) 7 SCNJ 358; Jolasun v. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; Jitte v. Okpulor (2016) 2 NWLR (Pt. 1497 542; Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499; Orianzi v. A.-G., Rivers State(2017) 6 NWLR (Pt. 1561) 224; Mba v. Mba (2018) 15 NWLR (Pt. 1641) 177; Adeokin Records v. M.C.S.N (Ltd/GTE) (2018) 15 NWLR (Pt. 1643) 550; N.R.M.A & FC v. Johnson (2019) 2 NWLR (1656) 247.

It admits of no argument that the failure of the first respondent, through qua counsel, to cross-examine the DW1 on the telling evidence of the purpose the land was being put occasioned a corrosive effect on its already limping case. The first respondent neglected, to the peril of its case, the imperatives of cross-examination which were chronicled above. In essence, the first respondent disarmed itself of the necessary “lethal weapon”, in the form of cross-examination, which it would have harnessed, through the advocative prowess and dexterity of counsel, to counter the damaging and damning evidential effects of DW1’s evidence. In the face of the wholesale admission of the evidence on the user of the disputed property, the first respondent’s allegation of erosion/infraction of the covenant of use levelled against the appellants was uncharitable and unsustainable. The unchallenged concrete/sterling vive voce evidence, proferred by the appellants’ DW1, their star witness, amply, demonstrate that the land in dispute is being used for activities outside the firmament of religious purpose.

In the twilight of the judgment, at pages 291and 292 of the record, the lower Court declared:
“However because the defendants have labored so much on the use of the land-in-dispute, I like to say that there is abundant evidence on record to say that the land in dispute has been used for religious purpose and therefore outside the covenant as contained in Exhibits 2 and Exhibit 3.”

Having regard to the above legal dissection, done in due tune with law, the lower Court’s finding, with due respect, is contemptuous of the available unrefuted pungent evidence on the record – the keystone of the appeal. The finding is a desecration of the hallowed principles of adjectival law. It is liable to impeachment and vacation by this Court. In the result, I resolve the issue three in favour of the appellants and against the first respondent.

It remains to thrash out issue five. The kernel of the issue is simple and falls within a slim scope. It decries the lower Court’s failure to make a finding on the appellants’ defence of laches, acquiescence, waiver and estoppel.

The issue impels this Court to examine the doctrine of laches and acquiescence. In Nsiegbe v. Mgbemena (2007) 10 NWLR (Pt. 1042) 364 at z374-375, Kalgo, JSC, adopted the definition of acquiescence thus:
“Acquiescence means assent to an infringement of rights either expressed or implied from conduct by which the right to an equitable relief is lost. It takes place when a person with full knowledge of his own rights and of any acts which infringe them, has either at the time of infringement or after infringement by his conduct led the persons responsible for the infringement to believe that he waived or abandoned his rights.”
The doctrine connotes that where a land owner stands by and knowingly, by his inaction, allows a stranger to develop his land in good faith, then he will be estopped from harvesting the benefit of the stranger’s labour. It is employed where it will be practically unjust to give a remedy to a party who has waived it or by his conduct, though not waiving it, yet puts the opponent in a situation in which it will be unreasonable to place him if it were afterwards to be asserted. See Oniwaya v. Ikuomola (1990) 7 SCNJ 147/(1990) 4 NWLR (Pt. 146) 617; Dadi v. Garba (1995) 8 NWLR (Pt. 411) 12; Kayode v. Odutola (2001) 11 NWLR (Pt. 725) 659/(2001) 5 SCNJ 391; Owie v. Ighiwi (2005) 5 NWLR (Pt. 917) 184; Adedeji v. Oloso (2007) 5 NWLR (Pt. 1026) 133; Chukwuma v. Ifeloye (2008) 18 NWLR (Pt. 1118) 204; Isaac v. Imasuen (2016) NWLR (Pt. 1511) 250. The law makes it incumbent on a party, who implores it as a shield, to plead it explicitly or in such a manner as to show that he relies on it as a defence. See Ilona v. Idakwo (2003) 11 NWLR (Pt. 830) 53; Isaac v. Imasuen (supra).

Again, I have taken an excursion to the record, the bible of the appeal, especially at the abode of the appellants’ amended statement of defence which monopolises pages 230-233 of the record. I have given a global examination to it as enjoined by law. The appellants expressly pleaded the equitable principles of laches, acquiescence, waiver and estoppel and averred facts to consolidate them. The DW1, the appellants’ witness, offered, during his examination-in-chief, classic evidence indicating that the first respondent’s management visited the disputed land three times between 1993-1997. During those visits, he testified, the management saw/witnessed the level of structural developments thereon and lavished commendations/praises and encouragements on the appellants. Surprisingly, the first respondent did not cross-examine the witness on those critical evidence thereby starving the lower Court of any contrary evidence. Besides, this neglect resurrects the far-reaching consequence of a party’s failure to cross-examine a witness on crucial evidence which I had anatomized under issue three supra. The dismal aftermath of failure to cross-examine DW1 still haunts the first respondent’s already jaundiced case. It is pointless to replicate/duplicate my efforts on the point. To this end, I adopt my reasoning and analysis on the corrosive effect of failure to cross-examine a witness as adumbrated under issue three. In effect, the defence of laches and acquiescence, which the appellants mounted to emasculate the first respondent’s case, was established, as ordained by law, to the triumph of their case over that of the first respondent. The equitable doctrine of laches and acquiescence does not allow a party to sit on the defence over the development on his property and to reap from the fruits of his adversary thereon. Equity, in its sanctuary, does not aid the indolent but the vigilant. The first respondent was estopped from denying the presence of the appellants on the disputed land. In the same vein, it waived its right to complain about the structures thereon. The lower Court, with due deference, deeply erred in law when it failed to making a finding on the indefeasible defence set up by the appellants against the first respondent’s case.

​The appellants stigmatized the lower Court’s decision as a miscarriage of justice. Miscarriage of justice, in law, denotes such a departure from the rules which pervade all judicial process as to make what happened not, in the proper sense of the word, judicial procedure. See Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76. It signifies a decision or outcome of legal proceedings which is prejudicial or inconsistent with the substantial rights of a party. It implies a failure of justice and a reasonable probability of more favourable result of the case for a party alleging it. See Larmie v. DPM & Services (2006) All FWLR (Pt. 296) 775; Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282; Aigbobahi v. Aifuwa (2006) 6 NWLR (Pt. 976) 270; Akpan v. Bob (supra); Afolabi v. W.S.W. Ltd (2012) 7 NWLR (Pt. 1329) 286; Abubakar v. Nasamu (No. 2) (2012) 17 NWLR (Pt. 1332) 523; Oke v. Mimiko (No.2) (2014) 1 NWLR (Pt. 1338) 332; Fredrick v. Ibekwe (2019) 17 NWLR (Pt. 1702) 467.

The neglect of the lower Court to consider the appellants’ defence, with due respect, inflicted a miscarriage of justice on the appellants. The raisons d’etre are obvious. It aborted the appellants’ substantial rights to have their defence considered. A holistic consideration of the case, inclusive of the facts and evidence made available to the lower Court, amply, demonstrates that the appellants would have earned a more favourable result, but for the errors complained about. It was an unwarranted sacrificial of justice. In effect, the decision is mired in the quicksand of miscarriage of justice. Where a decision of a trial Court visits miscarriage of justice on a party’s case, it carries the liability of vacation by an appellate Court. This is the bane of the decision of the lower Court. I have no option than to resolve the issue five in favour of the appellants and against the first respondent.

My noble Lords, for completeness and to forestall any ambiguity, it is important to assemble and harmonise the resolutions on the issues. Although, all the five issues were resolved in favour of the appellants, but the issue four, which is anchored on jurisdiction, overshadows/drowns the results of the other issues. In this wise, the issue four will define the destiny of the appeal and the shape of the final order to be made. Where the jurisdiction of a Court to hear a matter is divested by law, the order it makes is plain. It is one of striking it out. SeeOkolo v. UBN Ltd. (2004) 3 NWLR (Pt. 859) 87; Gombe v. P.W. (Nig.) Ltd. (1995) 6 NWLR (Pt. 402); CGG v. Ogu (2005) 8 NWLR (Pt. 927) 366; Uwazuruike v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035) 1; WAEC v. Adeyanju (2008) NWLR (Pt.1092) 270; Dairo v. UBN Plc (2007) 16 NWLR (Pt. 1071) 347; Ikechukwu v. FRN (supra); Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1052) 423; Onyero v. Nwadike (2011) 18 NWLR (Pt. 1279) 954; Odom v. PDP (2015) 6 NWLR (Pt. 1456) 527.

On the whole, having resolved all the issues, especially issue four, in favour of the appellants, the fortune of the appeal is obvious. It is imbued with merit. Consequently, I allow the appeal. Accordingly, I strike out suit no. ID/1536/1998, filed by the first respondent, for being incompetent. The parties shall bear the respective costs they incurred in the prosecution and defence of the fruitful appeal.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in advance the draft copy of the judgment just delivered by my learned brother, OBANDE FESTUS OGBUINYA JCA. I also allow the appeal and accordingly strike out suit no: ID/1538/1998. I abide by the consequential orders.

ADEBUKOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: I had earlier carefully gone through the draft copy of the judgment just delivered by my learned brother, OBANDE FESTUS OGBUINYA, JCA, and confirmed that he has carefully resolved the issues involved in this instant appeal.

Locus standi denotes the capacity the Plaintiff has to institute proceedings in a Court of Law to seek a determination of his civil rights against the defendant. The locus standi the Plaintiff has to institute and maintain the suit does not depend on the success or merits of the case. All the plaintiff needs to show either in his writ of summons or the statement of claim to demonstrate his locus standi to prosecute the case is merely to establish that he has a justiciable dispute or a reasonable cause of action against the defendant. See AYORINDE v. KUFORIJI (2022) LPELR-56600(SC); JITTE & ANOR v. OKPULOR (2015) LPELR 25983(SC).

Based on the foregoing careful analysis done by my learned brother, I agree with the reasoning and conclusion reached by him and adopt same as mine.

I also allow this appeal and abide by the order made as to cost.

Appearances:

S. N. Agweh, SAN with him, O. Kutemi, Esq. For Appellant(s)

Michael Akinleye, Esq. for the first respondent.

B. A. Sodipo, Esq. for the second Respondent. For Respondent(s)