APOSTLE EKANEM R. EKANEM & ORS. V. BISHOP ROWLAND O. OBU
(2010)LCN/4180(CA)
In The Court of Appeal of Nigeria
On Thursday, the 4th day of March, 2010
CA/C/110/09
RATIO
ULTRA VIRES: MEANING OF “ULTRA VIRES”
” Ultra vires” means beyond or above the power conferred. “It is an act which is invalid since it has been done in excess of authority conferred by law, in excess of powers.” See page 36 of Academic’s legal Dictionary. PER NWALI SYLVESTER NGWUTA J.C.A.
EFFECT OF AN ACT THAT IS NULL AND VOID
…an act that is null and void is incapable of binding any one or giving rise to any rights or obligation under any circumstances. See Ishola V. Ajiboye (1998) 1 NWLR (Pt 532) 71 at 74. PER NWALI SYLVESTER NGWUTA J.C.A.
WHETHER THE NEED FOR SUBSTANTIAL JUSTICE PREVAILING OVER TECHNICALITIES WILL NOT ARISE IN ABSENCE OF THE SUBSTANCE OF THE CASE BEFORE THE COURT
The need for substantial justice prevailing over technicalities will not arise in absence of the Substance of the case before the Court. A distinction must be drawn between substance and procedure. It is only in procedural matters that the Courts have moved far away from strict adherence to technicalities in favour of substantial or real justice. See A.G. Bendel V. Aideyan (1989)4 NWLR (Pt. 117). In the matter at hand the Appellants who could not establish the standing to sue over the property of a third person cannot be heard to raise the issue of substantial justice. See Pacers Multi-Dyrcemic Ltd V. M.V “Dancing Sister” & Anor (2000) 3 NWLR (Pt 648) 241 CA where the Court held that locus standi is a threshold issue in the absence of which no issue can be gone into, not even the question whether or not the statement of claim discloses a cause of action. The only proper order to make is that of striking out the suit. See also Nigeria Airways Ltd V. Lapite (1990)7 NWLR (Pt. 163) P. 392 at 406. PER NWALI SYLVESTER NGWUTA J.C.A.
Before Their Lordships
KUMAI BAYANG AKAAHSJustice of The Court of Appeal of Nigeria
NWALI SYLVESTER NGWUTAJustice of The Court of Appeal of Nigeria
JEAN OMOKRIJustice of The Court of Appeal of Nigeria
Between
1. APOSTLE EKANEM R. EKANEM
2. BISHOP QBU O. OBU
3. QUEEN IBUM OLUMBAAppellant(s)
AND
BISHOP ROWLAND O. OBU
(AKA HIS HOLINESS OLUMBA OLUMBA OBURespondent(s)
NWALI SYLVESTER NGWUTA J.C.A. (Delivering the Leading Judgment): Endorsed on the writ of summons issued at the Registry of the High Court of Justice Cross River State, Calabar Judicial Division dated 3/4/08 is the Plaintiffs’ (now Appellants) claims against the Respondent (then defendant) as follows:
“(a) An order declaring every trespass threat and attempt by the defendant to forcefully eject tenants from the subject matter, and to demolish the property without the consent and the Authority of the Holy Father and the Plaintiff’s as illegal, unlawful and ultres vires.
(b) An order of perpetual injunction restraining the defendants from further trespass, encroachment threat, and, or embarrassment of the tenants of No 18/22 Efio-Okoho Street Calabar, and of the Plaintiffs and the Brotherhood of the Cross and Star, Worldwide.
(c) General damages of N12m (Twelve Million Naira) for the embarrassment and apprehension inflicted on the tenants, the Plaintiffs members and owners of the subject matter by the ultra vires act of the defendant”.
In paragraph 12, of the statement of claim filed with the writ of summons on 3/4/2008 the plaintiffs claimed reliefs slightly different from the claims endorsed on the writ reproduced above.
They are:
(1) “A declaration that every trespass threats and invasion into the 18/20
(ii) Efio- okoho Street Calabar, with the motive to forcefully eject tenants from the subject matter and demolish the subject matter, without the consent, knowledge and approval of the Plaintiff and the Spiritual Head of the Brotherhood of the Cross and Star, unlawful, ultra vires null and void.
(2) An order of perpetual injunction restraining the defendant, his allies Agents and cohorts from further trespass encroachment of the subject matter howsoever to the embarrassment of consternation of the Plaintiffs, the leader and the Brotherhood family worldwide.
(3) General damages of N12m (Twelve Million Naira) only.”
Upon service on him of the writ and statement of claim the defendant (Respondent) moved the trial Court orally by way of preliminary objection to strike out the case on the ground that the action as constituted is incompetent. Both Counsels addressed the Court on the preliminary Objection.
In the ruling delivered on 5/5/08 the learned trial Judge held that
“This action as presently constituted, not in the name of the alleged owner of the property in issue/dispute is incompetent and is in consequence struck out. See page 44 of the records.”
The Plaintiffs (now Appellants) not being satisfied with the ruling appealed on a lone ground hereunder reproduced with its particulars:
“The learned Judge of the High Court erred in law when he held that the power of Attorney granted by Leader Olumba Olumba Obu to Queen Ibum Olumba Obu to manage, supervise and collect rents from his property; power to sue or defends (Sic) in relation to the said property is not incidental thereto:”
PARTICULARS OF ERROR
(1) “That the learned Judge should have averted his mind to the fact that the property in dispute is among the properties covered by the power of Attorney wherein the donee has been given power to oversee.”
(2) “That the learned Judge should have averted his mind to the fact that instituting an action if it enhances power to manage and supervise is not out of place”
(3) “The learned Judge erred when he held that every aspect or thing required to be done by the donee for the supervision and collection of rent from the property must expressly be stated in the power of Attorney else void.”
From the lone ground of appeal learned counsel for the Appellants formulated the following issue for determination:
“Whether a power of Attorney to manage, supervise and collect rents from property is not wide enough to include authority to commence and prosecute in defence of the said property”
In his brief of argument learned Counsel for the Respondent formulated his issue as follows:
“Whether the power of Attorney vested Appellants with power to institute legal proceeding and if it did (which is not conceded)
Whether:
(a) It vested Appellant power to commence proceedings of the kind, subject matter of the suit in the High Court?
(b) Appellants could take out the action in the High Court in their names”
In his brief of argument learned Counsel for the Appellant argued that the Appellant actually sued by virtue of their office /Appointment and as heirs apparent in the case of 2nd and 3rd Appellants, even though the power of Attorney was exhibited in both the statement of claim and the motions filed by the Appellants. He argued that the Appellants could not have taken out the action in the name of the donor of the power of Attorney when they made it clear in the statement of claim that they were suing as heir apparent and /or by virtue of office/appointment. He submitted further that even if the Appellants sued in triple status or capacities (which he did conceed) the Respondent who had not even entered appearance cannot show what prejudice he has suffered. He pointed out that the 1st appellant was appointed an official of Brotherhood of the Cross and Star Worldwide and said that the Court erred by declaring the 1st Appellant a stranger to the proceedings in absence of a statement of defence or a hearing. Counsel impugned the decision of the trial Court that the power of Attorney did not include power to sue or defend the subject matter of the power donated. He reproduced the power of Attorney and submitted that the power to “Supervise all landed properties” of the donor includes protecting, defending, and preserving the interest of the donor in the subject matter of the power donated.
Learned Counsel argued further:
“Nevertheless, we reiterate that the Plaintiffs/Appellants did not intend to sue under the power Attorney, that is why they sued with their names as officers of the Brotherhood of the Cross and Star. The mere exhibition of the power of Attorney to their processes in addition to their appointment letters(See page 19-20) of the Records of appeal was to show that the Plaintiffs/Appellants had dual or triple status or locus standi, in any case, which cannot be dismissed with the wave of the hand.”
He argued that even where the donee of power sues in his name and not in the name of the donor it is the donor who will denounce or repudiate it. He relied on Melwani V Five Star (2002) 3 in 3 S C 117 at 121, Gulinger V. Gibbs (1897) ICH 479 Counsel argued, inter alia that the Courts have shifted from the narrow technical approach to Justice between the parties. He relied on Ojah V. Ogboni (1996)6 NWLR (Pt. 454) 279, Megwalu V. Magwalu (2002) 2 Q R R 282 H.I.C, Jeric Nig Ltd V. U.B.A Plc (2001) FWLR (Pt 31) 2915. In paragraph 5.26 of his brief Learned Counsel for the Appellants lamented that:
“The case of the Plaintiffs/ Appellants was strangulated at the trial stage because of the Court’s impatience to excavate the substratum of the case. The Court of Appeal Enugu Division held in Obasi Bros (Nig) Ltd Vs Wile Brass (Nig) Ltd (2002) 2 Q R R 176 H.D that to day: The Court has laid down as guiding principle that it is more interested in the substance than in mere form. Justice can only be done if the substance of a matter is examined. Reliance on technicalities leads to injustice.”
In summary learned Counsel said the premature striking out of the Plaintiffs/ Appellants’ case was a denial of the Appellants’ right to defend property trusted to their care resulting to grave miscarriage of justice. He added:
“There are lots of burning issues in the case which could have been elicited in evidence but nibbing it in the bud is to strangle and sophocate the justices contained therein.”
He urged the Court to set aside the Judgment of the trial Court and order a trial de novo before another Judge.
Learned Counsel for the Respondent filed a notice of preliminary objection on 27/7/09. The preliminary objection was argued in the brief. Counsel referred to paragraphs 5.1, to 5.7 and 5.20 to 5.26 in which the Appellant argued that they did not sue by virtue of power of Attorney, that there was a breach of the rules of fair hearing and that the failure to sue in the name of the donor of power of Attorney was a mere irregularity.
Learned Counsel submitted that the Appellants’ argument did not arise from the lone ground of appeal and ought to be struck out as incompetent. The notice of preliminary object was filed on 27/7/09, pursuant to order 10 Rule 1 of the Court of Appeal Rules 2007. Learned Counsel for the Appellants apparently did not consider it necessary to file a reply brief or react to the notice of preliminary objection and the argument advanced thereon.
“The learned Judge of the High Court erred in law when he held that the Power of Attorney granted by Leader Olumba Olumba Obu to manage/Supervise and collect rents from his Property, power to sue or defend in relation to the said property is not incidental thereto.”
From the above ground of appeal Learned Counsel for the Appellant frame the following issue for determinations.
“Whether a power of Attorney to manage, supervise and collect rents from a property is not wide enough to included authority to commence and prosecute in defence of the said property.”
I am satisfied that the issue reproduced above flows from or relates to the lone ground of appeal. See Ugo V. Obiekwe (1989) 2 Sc (Pt 11) 41. The resolution of the issue in this appeal will affect the result of the appeal one way or the other. See Chief Imonikhe & Anor V. A-G. Bendel State & Ors (1992) 6 NWLR (Pt.248) 396 at 407. The issue can only be resolved on the argument that relates to it. Argument that does not relate to the issue goes to no issue in the appeal and will be struck out as irrelevant to the issue. I have carefully considered the arguments in the paragraphs of the Appellants’ brief of argument listed in the notice of, and argument on the, preliminary objection. The argument contained in the said paragraphs do not relate to and cannot be applied in the resolution of the lone issue in the appeal. I therefore strike out the arguments contained in paragraphs 5.1 to 5.7 and 5.20 to 5.26. See R.S.C.S.C.N. V. Fubara (2002) 5 NWLR (Pt759) 109 CA. Ekong V. Udo (2002) 16 NWLR (Pt 293) 1 CA.
Yusuf V. Kode (2002) 6 NWLR (Pt. 762) 231 CA. That leaves the Appellants with arguments in paragraphs 5.8 to 5.20 of their brief.
However the Appellants have another problem and this has to do with the power of Attorney upon which the appeal was predicated.
Learned Counsel for the Respondent flied a brief in response to paragraphs 5.8. to 5.20 in the Appellant’s brief. He formulated an issue similar to the one in the Appellant’s brief but added issues (a) and (b) purportedly arising from the main issue. There is only one ground of appeal and the principle of formulating of issues is that an issue is framed from one or usually more grounds of appeal. See Adejumo ors v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417. Labiyi v. Anretiola (1992) 10 SCNJ 1 at 2. It is not desirable to formulate more issue than the grounds of appeal.
Issues (a) and (b) in the Respondent’s brief are hereby struck out and so is the argument based on them. The Respondent’s argument on the issue left which is essentially a recast of Appellant’s issue is to the effect that the power of Attorney did not confer power on the donee to institute and/or maintain an action in respect of the property over which the power was given.
At the Court below the Respondent (then defendant) challenged the competence of the suit and ipso facto the jurisdiction of the Court to entertain it. A preliminary objection as raised orally by the Respondent in the Court below is meant to scuttle the suit in limine. In resolving the preliminary objection the Court is bound to consider only the writ of summons and the statement of claim. If the claim endorsed on the writ of summons is different from the claim in the statement of claim in the Court below, the Court will limit itself to the statement of claim since it supercedes the claim in the writ.
In this case neither the writ of summons nor the statement of claim made reference to a power of Attorney. The power of Attorney was referred to as Exhibit WC in paragraph 2 of the affidavit in support of the motion ex parte. The Appellants did not rest their claim on the power of Attorney. With regards to the power of Attorney Learned Counsel for the Appellants below hot and cold simultaneously. He predicated the appeal on the interpretation of the power of Attorney and at the same time he denied suing under the power of Attorney.
In paragraph 5.20 Learned Counsel argued, inter alia that:
“Nevertheless, we reiterate that the Plaintiffs/Appellants did not intend to sue under the power of Attorney, that is why they sued with their names…”
The lower Court stated at page 40 of the records:
“In considering a preliminary objection, attacking the competence of action a Court should limit itself to the case put forward by the plaintiff and not any material introduced by the defendant objector…”
Thus not only that the power of Attorney considered by the trial Judge was not mentioned in the writ and/or statement of claim, Learned Counsel for the Appellants said he did not rely on the power of Attorney in the claim. In dealing with the preliminary objection the trial Court ought not to have referred to the power of Attorney just because it was produced by the Plaintiffs (now Appellant) in motions filed after the writ of summons and the statement of claim had been filed. Be that as it may, the trial Court could have struck out the suit as incompetent without reference to the power of Attorney that surfaced after the Plaintiff/Appellant had filed the writ and statement of claim based on which the preliminary objection was raised. Pursuant to the general powers of the Court under S.15 of the Court of Appeal Act, 2004, I shall now consider matters which the Court should have relied on to arrive at the decision it did arrived at on the basis of the power of Attorney.
In paragraph 5 of the statement of claim the subject matter by the suit was described as belonging to the Leader and under the management and control of the third plaintiff. See paragraph 11 Of the records.
In Paragraph 6 he arrived:
“That the second and third Plaintiffs are heir apparent to the subject matter…”
And in paragraph 7 it was pleaded that the first Plaintiff was appointed:
“As the Administrative Assistance (Sic) to the Queen Mother to assist her in the day to day supervision of the properties and assets under her management.”
The property in dispute does not belong to any of the Appellants. They pleaded that the property is that of the Leader. There is no evidence or averment that the owner of the property was dead at the time the action was commenced. Neither the 1st Plaintiff as manager of the property nor the 2nd and 3rd Plaintiffs/Appellant as heirs apparent had Authority of the owner of the property to bring this action in their names or even in the name of the owner. The respective status of the Appellants did not, jointly or severally, confer on them power to sue in their own names or to bring this action at all. The Appellants had no locus standi to bring this action over the property of the Leader who did not authorise them to sue. The Learned trial Judge determined the issues raised above but he veered off and considered and relied on the power of Attorney which was not relevant to the preliminary objection.
There is need to clear a mix-up in the wording of the claim in the Court below. There is a claim for a declaration that the act of the Defendants with regards to the subject matter of the suit:
“Is unlawful ultra vires, null and void?
See paragraph 12 (1) of the statement of claim.
The words “Ultra vires” are not appropriate in the claim before the Court below.” Ultra vires” means beyond or above the power conferred.
“It is an act which is invalid since it has been done in excess of authority conferred by law, in excess of powers.”
See page 36 of Academic’s legal Dictionary.
No law was alleged to have conferred any power on the Respondent to carry on any act on the disputed property. His act may be unlawful but not ultra vires.
In the same vein an act that is null and void is incapable of binding any one or giving rise to any rights or obligation under any circumstances. See Ishola V. Ajiboye (1998) 1 NWLR (Pt 532) 71 at 74. Again, the expression is not appropriate here. If the act of the defendant on which the claim is based is null and void, then on the facts of the case the action will fail.
The Appellant at paragraph 5.26 of his brief complained that:
“The case of Plaintiffs/Appellants was strangled at the trial stage because of the Court’s impatience to excavate the substratum of the case”
The implication of the above assertion is as clear as it is unsavoury: that the trial Court favoured one side to the detriment of the other side. The above language moves the party’s case neither forward nor backward but casts the Learned Trial Judge in the role of Counsel for the defence. It charges the Learned Trial Judge with a violation of his oath of office to do justice with out favour or ill-will. It is an unfounded accusation. It is the type of language described as trash by the Apex Court. See Platean Publishing V. Adophy (1986) 4 NWLR (Pt 34) P.210.
The Appellant’s brief is repelete with a condemnation of “Narrow technical approach to justice” and a cry for the need to pursue the course of substantial justice.
The need for substantial justice prevailing over technicalities will not arise in absence of the Substance of the case before the Court. A distinction must be drawn between substance and procedure. It is only in procedural matters that the Courts have moved far away from strict adherence to technicalities in favour of substantial or real justice. See A.G. Bendel V. Aideyan (1989)4 NWLR (Pt. 117).
In the matter at hand the Appellants who could not establish the standing to sue over the property of a third person cannot be heard to raise the issue of substantial justice. See Pacers Multi-Dyrcemic Ltd V. M.V “Dancing Sister” & Anor (2000) 3 NWLR (Pt 648) 241 CA where the Court held that locus standi is a threshold issue in the absence of which no issue can be gone into, not even the question whether or not the statement of claim discloses a cause of action. The only proper order to make is that of striking out the suit. See also Nigeria Airways Ltd V. Lapite (1990)7 NWLR (Pt. 163) P. 392 at 406.
It is my humble view that the preliminary objection is well taken. The suit is incompetent and it is hereby struck out. Appellants are to pay costs assessed at N30.000 to the Respondent.
KUMAI BAYANG AKAAHS, J.C.A.: I agree.
JEAN OMOKRI, J.CA.: I had the privilege of reading in advance the judgment just deliver by my learned brother N.S. Ngwuta, JCA. I agree with his reasoning and conclusion that the appeal is bereft of any merit or substance. The appellant could not establish the standing to sue over property of a 3rd person.
The plaintiff to an action must be competent to institute such action. It is imperative that a plaintiff whose locus standi is challenged must prove to the satisfaction of the court that he has the legal capacity to do the legal act which he had set out to perform. Competency to institute an action is an essential or indeed a vital factor in deciding the competency of the action itself and if challenged by a defendant the plaintiff has the onus of establishing it. See: Gov. Akwa Ibom State vs. Umah (2002) 7 NWLR (Pt. 767) 738 at 759. it is for this and further reason in the lead judgment that I also conclude that the appeal has no merit. I abide by the consequential orders and order as to Cost.
Appearances
DR. TONY UKAMFor Appellant
AND
DAFE DIEGBEFor Respondent
