AZUBUIKE NWUKE ESQ V. DR. NWANMA BEATRICE ONYIKE (2013)

AZUBUIKE NWUKE ESQ V. DR. NWANMA BEATRICE ONYIKE

(2013)LCN/6013(CA)

In The Court of Appeal of Nigeria

On Friday, the 8th day of March, 2013

CA/PH/80/2010

RATIO

APPEAL: WHETHER ANY FACTS OR GROUND OF APPEAL WILL LEAD TO AN ISSUE FOR DETERMINATION

In an appeal, it is not every fact in dispute or every ground of appeal which raises an issue for determination. An issue in an appeal must be a proposition of law or fact, so cogent weighty and compelling that a decision on it in favour of a party to the appeal will entitle him to the judgment of the Court.PER STEPHEN JONAH ADAH, J.C.A.

APPEAL: PROLIXITY OF ISSUES FORMULATED IS NOT A MERIT

APPEAL: WHETHER THE NUMBER OR QUALITY OF GROUNDS OF APPEAL AND ISSUES DETERMINE WHETHER AN APPEAL WILL BE WON
Appeals are not won on large number or quantity of grounds of appeals and issues. On the contrary, appeals are won on the quality of the content of grounds, of appeal and issues. See Iwuoha v. Nipost Ltd (2003) 8 NWLR (Pt.822) 308.PER STEPHEN JONAH ADAH, J.C.A.

APPEAL: ISSUES ARE MEANT TO FLOW FROM THE GROUNDS OF APPEAL IN AN APPEAL

It is appropriate to note here that Issues are meant to flow from the grounds of appeal in an appeal, and where they do not so flow, they become incompetent and will be struck out by the Court. See Nteogwuile v. Otuo (2001) 16 NWLR (Pt.738) page 58; and Olowosago v. Adebanjo (1988) 4 NWLR (Pt.88) page 275).PER STEPHEN JONAH ADAH, J.C.A.

APPEAL: CROSS APPEAL: HOW A RESPONDENT WHO HAS NOT CROSS APPEALED MUST FORMULATE ITS ISSUE FOR DETERMINATION

A Respondent who has not cross-appealed, (in which case he may raise issue to marry his ground of appeal), must when formulating an issue for determination in his brief of argument distill it from the grounds of appeal framed by the Appellant in his notice of appeal. Where an issue is not married to a ground of appeal, then it becomes an issue with no leg to stand on and deserves to be struck out for being incompetent. See Alhaji Kokoro-Owo & 6 Ors. v. Lagos State Government & 4 Ors. (2001) 11 NWLR (Pt. 723) page 237; U.A.C. Nigeria Ltd. v. Global Transporte S.A. (1996) 5 NWLR (Pt.448) page 291; and Nnaji v. Ede (1996) 8 NWLR (Pt.466) page 332. See also the case of EMESCO J. v. CORNA S. & CO. (2006) 11 NWLR (pt. 991) 365.PER STEPHEN JONAH ADAH, J.C.A.

LOCUS STANDI: “DEFINITION”

LOCUS STANDI: GUIDING PRINCIPLES TO DETERMINE WHETHER LOCUS STANDI IS PRESENT
More insight was given by his Lordship in the case of Ajayi v. Adebiyi (supra) which I believe should be a guide to the resolution of the issues generated in this instant appeal. His Lordship Adekeye, JSC at pages 175 (G – H) and L76 (A – H) held as follows:-
“The guiding principles to determine whether a person locus standi or not are:
(a) He must be able to show that his civil rights and obligations have been or are in danger of being infringed.
(b) The fact that a person may not succeed in the action is immaterial.
(c) Whether the civil rights and obligations having been infringed depends on the particulars of the case.
(d) The Court should not give any unduly restrictive interpretation to the expression locus standi.PER STEPHEN JONAH ADAH, J.C.A.

LOCUS STANDI: TEST FOR DETERMINATION OF LOCUS STANDI OF A PERSON

The tests for the determination of the locus standi of a person are:
a. The action must be justiciable.
b. There must be a dispute between the parties.
Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) page 423;
Akinnubi v. Akinnubi (1997) 2 NWLR (Pt.486) page 144;
Adesokan v. Adegorolu (1997) 3 NWLR (Pt.493) page 261;
Attorney General Kaduna State v. Mallam Umaru Hassan (1985) 2 NWLR (Pt.8) page 483; Elendu v. Ekwoaba (1995) 3 NWLR (Pt.386) page 704″.PER STEPHEN JONAH ADAH, J.C.A.

LOCUS STANDI: RELATIONSHIP WITH JURISDICTION

Locus standi and jurisdiction are interwoven in the sense that locus standi goes to affect the jurisdiction of the Court before which an action is brought. Thus where there is no locus standi to file an action, the Court cannot properly assume jurisdiction to entertain the action. Locus standi being an issue of jurisdiction can be raised at any stage or level of the proceedings in a suit even on appeal at the Court of Appeal by any of the parties without leave of Court or by the Court itself suo motu. The issue can be raised after the Plaintiff has duly filed his pleadings by a motion and or in a statement of defence.PER STEPHEN JONAH ADAH, J.C.A.

LOCUS STANDI: LOCUS STANDI IS NOT DEPENDENT ON THE SUCCESS OR MERIT OF A CASE

LOCUS STANDI: IS A CONDITION PRECEDENT
The issue of locus standi is a condition precedent to the determination of a case on merit. Where a Plaintiff has no locus standi to bring a suit, the suit becomes incompetent and the Court lacks the jurisdiction to entertain it, the only order the Court can make in the circumstance is that of dismissal. (See again Ajayi v. Adebiyi supra).PER STEPHEN JONAH ADAH, J.C.A.

LOCUS STANDI: HOW TO LOCATE THE LOCUS OF A PLAINTIFF

STATEMENT OF CLAIM AND AFFIDAVIT ARE TWO DIFFERENT PROCESSES IN LAW
At this point, I need to set it clear that a statement of claim or pleadings and an affidavit are two different processes in law. Pleading is a foundation document in which a party to a legal proceeding sets forth or responds to allegations, claims, denials, or defences. BLACKS LAW DICTIONARY 9TH EDITION.PER STEPHEN JONAH ADAH, J.C.A.

PLEADINGS: PURPOSE OF PLEADINGS
The purpose of pleading, it is settled, is to give the other side in the case, at the earliest opportunity, the case the other side is to meet. See American Cyanamid Company v. Vitality Pharmaceuticals Ltd (1991) 2 NWLR (Pt.171) 15.PER STEPHEN JONAH ADAH, J.C.A.

AFFIDAVIT: DEFINITION

An affidavit is defined in BLACKS LAW DICTIONARY 9TH EDITION as a voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths. Affidavit is evidence but pleadings are not. The law as it is today is that when an issue of jurisdiction is raised the Court can determine the issue from the materials available before it. See Ajayi v. Adebiyi (supra).PER STEPHEN JONAH ADAH, J.C.A.

LOCUS STANDI: THE ISSUE OF LOCUS STANDI CAN BE DETERMINED AT THE EARLIEST OPPORTUNITY FROM THE STATEMENT OF CLAIM

STARE DECISIS: NATURE

The doctrine of stare decisis is well entrenched in our legal system. In Eperokun v. Unilag (1986) NWLR (Pt.34) 162 Oputa JSC held as follows:-
“The Supreme Court of Nigeria does not enjoy any legal or constitutional immunity from error. But having said this, I must hasten to add that before a decision of this Court can be reconsidered and over-ruled, the court has to be satisfied that the decision is erroneous otherwise the best policy is stare decisis et non quieta movere (to stand by the decision and not to disturb settled points),. Otherwise again little respect will be paid to our judgments if we overthrow that one day which we resolved the day before.”
Also in, the case of Paul Odi v. Osajile (1995) 1 NWLR (pt.1) 17, Bello JSC (as he then was) elaborately held as follows:-
“The practice of this court in non-constitutional cases has well been settled. Recognizing that precedent is an essential foundation upon which certainty of the law may be assured the Court ordinarily adheres to the rule of stare decisis and does not readily depart from its previous decision. However, where the Court is satisfied that its previous decision is erroneous and was reached per incuriam and to perpetuate the error, by following such decision, will result in considerable injustice then the Court will depart form such decision or overrule it. Thus in Johnson v. Lawanson (1971) All N.L.R. 56 the Court held that it would not perpetuate an erroneous decision which was reached per incuriam and which, if followed, would inflict hardship and injustice upon generations in the future or cause temporary disturbance of rights acquired under such a decision.”PER STEPHEN JONAH ADAH, J.C.A.

STARE DECISIS: ADVANTAGES OR IMPORT OF STARE DECISIS

JUSTICES

EJEMBI EKO Justice of The Court of Appeal of Nigeria

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria

Between

AZUBUIKE NWUKE ESQ. Appellant(s)

AND

DR. NWANMA BEATRICE ONYIKE Respondent(s)

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Rivers State High Court Port-Harcourt delivered on the 29th day of April, 2009.
The facts of this case are swift and straight forward. The Respondent as Plaintiff at the Lower Court took out a writ of summons on the 17/1/2005 against the Defendant now appellant in this appeal and his mother Mrs Evelyn Ebere Nwuke (now deceased). In the writ and all the subsequent processes before that Court the Respondent endorsed her capacity as “suing as the executrix/trustee of the Estate of Late Chief J.H.E. Nwuke”. (See pages 1, 5, and 6 of the Record of Appeal).
The Appellant after filing his statement of defence at the Lower Court, raised an objection contending that the Respondent lacked the locus standi to institute the action as an executrix of the Will when her position
as executrix had been declared null and void by the Rivers State High Courts’ judgment delivered on 2/12/1983. The Appellant in presenting his objection filed a motion on notice supported with an affidavit of which he annexed a copy of the Will of late Chief J. H. E. Nwuke and the certified true copy of the judgment of the High Court delivered on 21/2/1983. The Respondent filed a reply address in response to the motion at the Lower Court. The learned trial Judge in his ruling delivered on 29/4/09 dismissed the objection of the Appellant. The Appellant being dissatisfied with the ruling has now appealed to this Court.
The notice of appeal was dated and filed on 4/5/09. The Appellant raised five grounds of appeal in the said notice and asked for the relief requesting that the ruling of the lower Court be set aside and the Appellant’s preliminary objection challenging the Claimant’s/Respondent’s locus standi be upheld and the suit dismissed in its entirety.
The five grounds of appeal were the foundation for issues raised for determination in this appeal.
The Appellant’s brief of argument was filed on 15/6/11 and the Respondent’s brief of argument was filed and deemed effective on 12/11/12 by order of court. Appellant’s reply brief was also deemed effective on 12/11/12 by Order of Court.
On hearing the appeal on 23rd day of January 2013, the learned counsel for the Appellant adopted his brief of argument and his reply brief and urged the Court to allow the appeal. The Respondent’s counsel on his own part adopted his brief of argument on that day and urged the Court to dismiss this appeal.
The Appellant in his brief raised three issues for determination.
These issues are:-
1. Was the learned trial judge right in law when he refused to consider the Appellant’s affidavit in support of his motion and exhibits thereto attached in determining the Respondent’s locus standi?
2. Whether the learned trial judge would have arrived at a different conclusion in his ruling had he considered the Appellant’s supporting affidavit and the annexures thereto.
3. Whether the learned trial judge was right to have relied on the case OWODUNNI vs. REGISTERED TRUSTEES OF THE CELESTIAL CHURCH OF CHRIST & 3 ORS (2000)10 NWLR (PT.675) page 315 at 354 – 355 cited by the Respondent’s counsel in opposing the Appellant’s objection when the case of NDIC vs. CBN (2002) 7 NWLR (Pt. 766 page 272 – 301 relied upon by Appellant in its reply on points of law is a latter decision, current and apposite on the point and in fact overrides the case of OWODUNNI vs. REGISTERED TRUSTEES OF THE CELESTIAL CHURCH OF CHRIST.
The Respondent in his own brief formulated one issue which is couched as follows:
“Whether the trial Court was right when it held that the Respondent had the locus standi to institute and maintain the action.”
The Respondent in arriving at this issue for determination submitted that the three issues formulated by the Appellant can be subsumed in the sole issue he formulated. Issues to be formulated I must say here are to be well guided in line with established guidelines. It is elementary law that issues for determination must be formulated from the grounds of appeal, whether the issues, arise from the Appellant’s brief or the Respondent’s brief. See Okpala v. Ibeme (1989) 2 NWLR (Pt.102) 208; Ehot v. The State (1993) 4 NWLR (Pt.290) 6M; Din v. African Newspaper of Nigeria Ltd. (1990) 3 NWLR (Pt.139) 392; Idika v. Erisi (1988) 2 NWLR (Pt.78) 563; Madumere v. Okafor (1996) 4 NWLR (Pt.445) 637.
Issues formulated are emphatically meant to be the offspring of the grounds of appeal. They are never coined or formulated in vaccuo neither are they generated from the abstract realms of emptiness. They are to be generated and grounded in the grounds of appeal. Grounds of appeal themselves should be based-only in respect of the live issues or the issues in controversy in the appeal. A ground of appeal is the complaint of the Appellant on the judgment of the lower Court. An issue is that which, if decided in favour of the Appellant, will in itself give a right to the relief sought in the appeal.

It is trite that prolixity of issues formulated is not a merit as it is more likely to obscure the core issues to be determined. Multiplicity of issues tends to reduce most of them to trifles. Issues formulated must have the content and character of issues and should be based on substantial law or fact rather than on numerous trifling slips.
Appeals are not won on large number or quantity of grounds of appeals and issues. On the contrary, appeals are won on the quality of the content of grounds, of appeal and issues. See Iwuoha v. Nipost Ltd (2003) 8 NWLR (Pt.822) 308. It is appropriate to note here that Issues are meant to flow from the grounds of appeal in an appeal, and where they do not so flow, they become incompetent and will be struck out by the Court. See Nteogwuile v. Otuo (2001) 16 NWLR (Pt.738) page 58; and Olowosago v. Adebanjo (1988) 4 NWLR (Pt.88) page 275). A Respondent who has not cross-appealed, (in which case he may raise issue to marry his ground of appeal), must when formulating an issue for determination in his brief of argument distill it from the grounds of appeal framed by the Appellant in his notice of appeal. Where an issue is not married to a ground of appeal, then it becomes an issue with no leg to stand on and deserves to be struck out for being incompetent. See Alhaji Kokoro-Owo & 6 Ors. v. Lagos State Government & 4 Ors. (2001) 11 NWLR (Pt. 723) page 237; U.A.C. Nigeria Ltd. v. Global Transporte S.A. (1996) 5 NWLR (Pt.448) page 291; and Nnaji v. Ede (1996) 8 NWLR (Pt.466) page 332. See also the case of EMESCO J. v. CORNA S. & CO. (2006) 11 NWLR (pt. 991) 365.
In the instant case, the Appellant formulated his three issues from the five grounds of appeal indexed for determination in this appeal. Those three issues when considered will meet the justice of this appeal as the sole issue raised by the Respondent is subsumed in the three issues generated by the Appellant for determination. I therefore adopt those three issues as raised by the Appellant for consideration in this appeal.
ISSUE ONE:
This issue posed the question of whether the learned trial judge was right in law when he refused to consider the Appellant’s application in support of his motion and exhibits thereto attached in determining the Respondent’s locus standi. The Appellant in his argument canvassed that the learned trial judge erred in law in refusing to look at the Appellant’s affidavit and the annexures to the said affidavit and thereby reached an erroneous conclusion that the Respondent possessed the locus standi to institute and prosecute the suit as an executrix to the Will of the late Chief J.H.E. Nwuke. He submitted that the learned trial judge misdirected himself and thereby erred in law for refusing to consider the Appellant’s affidavit and annexures thereto. He relied on the case of NDIC vs. CBN (2007) 7 NWLR (Pt.766) 272, at page 296 paragraphs B-E; ATTORNEY GENERAL OF ENUGU vs. OMABA (1998) 1 NWLR (Pt.532) page 83; YESUF vs. GOVERNOR EDO STATE & ORS (2001) 6 SC 56.
In reply the Learned Counsel for the Respondent argued that there is no conflict between the Supreme Court decision in Owodunni v. Registered Trustees of CCC (2000) 10 NWLR (Pt.675) 315, 354 – 355 and that of NDIC v. CBN (supra). That what the Supreme Court decided is that the issue of jurisdiction should be decided by the materials before the Court. The implication of this he said, is that where pleadings have not been filed and exchanged, the issue of jurisdiction, in the appropriate cases, can be determined by an affidavit in support of motion.
But, that where as in this appeal, pleadings have been duly filed and exchanged, the appropriate material to determine the issue of jurisdiction is the pleadings. That it would be absurd for a Court to ignore the pleadings before it in preference of affidavit such as a supporting affidavit to determine the issue of jurisdiction, especially jurisdiction predicated on locus standi since it is settled law that locus standi must be disclosed by the statement of claim. (See Momoh v. Olotu (1970) 1 ALL NLR 117).
The decision of the learned trial Judge complained about is at pages 113 – 114 of the Record of appeal. The high point of the decision reads:-
“The Supreme Court in the case of Owodunni v. Registered Trustees of Celestial Church of Christ & 3 Ors. (2000) 10 NWLR (Pt.675) page 315 at 354-355 paragraphs H – A; page 357 F-G, stated that the “question whether or not a Plaintiff has a locus standi in a Suit is determinable from a totality of all the averments in his Statement of Claim. Thus in dealing with the locus standi of a Plaintiff, it is his Statement of Claim alone that has to be carefully scrutinized with a view to ascertaining whether or not it has disclosed his interest and how such interest has arisen in the subject matter of the action”.
Relating the above position of the law to the instant case, the Claimant in paragraphs 2 and 3 of the Statement of Claim pleaded as follows:-
Paragraph 2.
“The Plaintiff is the second daughter of late Chief Jonas Happy Elemuwa (J.H.E) Nwuke and a Co-executrix of the Will of Chief J.H.E. Nwuke dated 25th day of June 1965 and it is hereby pleaded.
Furthermore, Probate was granted by the Rivers State High Court on the 25th day of October 1976 to the Plaintiff and the 1st Defendant and the said Probate will be relied upon at the trial by the plaintiff’.
Paragraph 3.
“Apart from the facts averred in paragraph 2 hereof, the Plaintiff is also the Co-executrix of the property of Chief J.H.E. Nwuke which is covered by a Certificate of Occupancy dated the 30th day of March 1990 and is registered as Number 36 at page 36 Volume 160 of the Lands Registry Port Harcourt. The Plaintiff hereby pleads the Certificate of Occupancy”.
From the above paragraphs of the Statement of Claim, the Claimant has succinctly stated her position and interest as it relates to the subject matter before the Court, the basis on which she instituted the present action. This is what the law enjoins the Court to do at this stage where the standing of a litigant is in contention. The Court cannot at this stage of the proceedings determine and, hold that the Claimant is not an Executrix in the Will of late Chief J.H.E. Nwuke, as prayed by the Applicant.
The Applicant having challenged the locus standi of the Claimant to institute this action, the Court as earlier stated can only look at the Statement of Claim and no more. It therefore follows that all submissions and averments of the Applicant outside of the confines of the principles of locus standi go to no issue and are hereby discountenanced.
I therefore hold that the present action is competent as the Claimant has the locus standi to institute same. I accordingly dismiss the application for being misconceived and lacking in merit.”
The Learned trial Judge from the record of appeal was called upon to determine the issue of locus standi of the Respondent who was the Plaintiff at the lower Court. The trial judge had recourse only to the statement of Claim filed by the plaintiff and found that the Plaintiff had locus in this case. Locus standi as a subject has been well discussed by our superior Courts of record over the years and enough guidance has been given by the long line of cases that by now should have cleared all doubts and confusion on what locus standi is and how it should be determined when the issue is raised. Unfortunately, the issue keeps coming before the Courts and parties keep snarling at its determination by the Courts. From the authorities, it is well settled that locus standi is an issue of jurisdiction and it is a threshold issue. A threshold issue means “inception”, “beginning’, “starting point”, “and commencement”. It is an issue that should be looked at, at inception. Jurisdiction is a threshold issue in that a Court must have jurisdiction before it can enter into the cause or matter at all or before it can make a binding order in it. See the cases of Odofin v. Agu (1992) NWLR (pt.229) 350; Nalsa in Team Associates v. N.N.P.C, (1991) 8 NWLR (pt.212) 652; Adefulu v. Oyesile (1989) 5 NWLR (pt.122) 277; Elebanjo v. Dawodu (2006) 15 NWLR (pt.1001) 76; Owodunni v. Registered Trustee of C.C.C. (2000) 6 SC (Pt.111) 60.

In the most recent case of Ajayi v. Adebiyi (2012) 11 NWLR (Pt.1310) 137, Adekeye, JSC defines locus standi at page 175 (paragraph F – G) as follows:-
“Locus standi is the legal right of a party to an action to be heard in litigation before a Court of law or tribunal. The term entails the legal capacity of instituting or commencing an action in a competent Court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever.”
More insight was given by his Lordship in the case of Ajayi v. Adebiyi (supra) which I believe should be a guide to the resolution of the issues generated in this instant appeal. His Lordship Adekeye, JSC at pages 175 (G – H) and L76 (A – H) held as follows:-
“The guiding principles to determine whether a person locus standi or not are:
(a) He must be able to show that his civil rights and obligations have been or are in danger of being infringed.
(b) The fact that a person may not succeed in the action is immaterial.
(c) Whether the civil rights and obligations having been infringed depends on the particulars of the case.
(d) The Court should not give any unduly restrictive interpretation to the expression locus standi.

Locus standi to institute proceedings in a Court is not dependent on the success or merits of a case; it is a condition precedent to the determination of a case on the merits. Owodunni v. Registered Trustees of C.C.C. (2000) 6 SC (Pt.111) page 60; (2000) 10 NWLR (Pt.675) 315; Madukolu v. Nkemdilim (1962) 2 SCNLR page 341; Klifco Ltd. v. Philips Holzmann Attorney General (1996) 3 NWLR (Pt.435) page 276.
The issue of locus standi is a condition precedent to the determination of a case on merit. Where a Plaintiff has no locus standi to bring a suit, the suit becomes incompetent and the Court lacks the jurisdiction to entertain it, the only order the Court can make in the circumstance is that of dismissal. (See again Ajayi v. Adebiyi supra).
such is, from the foregoing, the depth and the width of the subject of locus standi and it is of utmost important for an issue of jurisdiction timeously raised in any case to be scrupulously thrashed before the Court can assume jurisdiction to entertain the merits of the case.
The issue canvassed by the parties as issue one in this case is whether the learned trial Judge was right when he refused to consider the Appellant’s affidavit in support of his motion and exhibits thereto attached in determining the Respondent’s locus standi. At this stage, it is imperative to have recourse to the record of this appeal and look into what transpired at the lower Court on the issue of locus standi of the Respondent/plaintiff.
The statement of Claim filed before that Court is at pages 6, 7, 8, 9, 10 and 11 of the Record. The motion on notice raising issue of locus standi is at page 64 while the affidavit in support is at pages 65 and 66 of the Record. The Deponent in that affidavit is the Appellant in this appeal. There was annexed to that affidavit the earlier judgment of the Rivers State High Court, Coram Hon. Justice V. O. Maxwell in suit NO.PHC/118/80. That Judgment was delivered on Monday the 21st day of February, 1983, The learned trial Judge at the lower Court considered only the statement of Claim filed by the Plaintiff on this issue of locus standi. To make the statement of claim handy in this appeal, I will paste in part, the said statement of claim. The relevant portion is that encompassing paragraphs 1, 2, 3, 4 to 8 of the statement of claim.
The portion reads as follows:-
IN THE HIGH COURT OF RIVER STATE OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT
SUIT NO. PHC/48/2005
BETWEEN:
DR. NWANMA BEATRICE ONYIKE………………………PLAINTIFF
(Suing as the Executrix of the Estate of Late Chief J.H.E. Nwuke)
AND
1. MRS EVELYN EBERECHI NWUKE
(Co-Executrix of the Estate of Chief J.H.E. Nwuke)
2. MUBUIKE NWUKE ESQ.) ……………………………. DEFENDANTS
STATEMENT OF CLAIM
1. The plaintiff is an Associate Professor at the Abia State University, Uturu and resides at Owerri in Imo State of Nigeria. The maiden name of the Plaintiff is Beatrice Nwanma Nwuke.
2. The plaintiff is the second daughter of late Chief Jonas Happy Elemuwe (J.H.E.) Nwuke and a co-executrix of the Will of Chief J.H.E. Nwuke dated the 25th day of June 1965 and it is hereby pleaded.
Furthermore, Probate was granted by the Rivers State High Court on the 25th day of October 1976 to the Plaintiff and the 1st Defendant and the said Probate will be relied upon at trial by the Plaintiff.
3. Apart from the facts averred in paragraph 2 hereof, the Plaintiff is also the co-executrix of the property of Chief J.H.E. Nwuke which is covered by a Certificate of Occupancy dated the 30th day of March 1990 and is registered as Number 36 at page 36 in Volume 160 of the Lands Registry Port Harcourt. The Plaintiff hereby pleads the said Certificate of Occupancy.
4. The property averred in paragraph 3 hereof is the subject matter of this suit. The property is described as No. 30A Opobo Crescent GRA, Port Harcourt and known for postal purposes as No. 28130 Opobo Crescent GRA, Phase 1, Port Harcourt. The said property is also known as Plot No. 20, Diobu, Government Residential Area (GRA) Port Harcourt in the Will averred in paragraph 2 hereof.
5. The 1st Defendant is the fourth wife of late Chief J.H.E. Nwuke. The 1st Defendant is the co-executrix/Trustee of the Will of Chief J.H.E. Nwuke which is pleaded in paragraph 2 hereof. Furthermore, the 1st Defendant is also the co-executrix of the property averred in paragraphs 2 and 3 hereof which is part of the Estate of Chief J.H.E. Nwuke.
6. The 2nd Defendant is the seventeenth child of the Plaintiff’s father and indeed the youngest son of late Chief J.H.E. Nwuke. The 2nd Defendant is the 1st son of the 1st Defendant.
7. The 2nd Defendant is neither a co-executrix nor a Trustee of the subject matter of this suit. The Plaintiff further avers that the 2nd Defendant is also not an executor or a Trustee of the Will of Chief J.H.E. Nwuke.
8. The plaintiff and the 1st Defendant are the administrators of the estate of Chief J.H.E. Nwuke including the subject matter of this suit.
The standing of the Plaintiff/Respondent in this case from the averments in the statement of claim is explained and asserted to be:
(a) The 2nd, daughter of late Chief Jonas Happy Elemuwa (JHE) Nwuke.
(b) A co-executrix of the Will of the said Chief Nwuke.
(c) She is one of those granted the probate of the Will of the said Chief Nwuke.
(d) She is also the co-executrix of the property which is subject matter of this suit.
In the case of In re: Ijelu v. L.S.D.P.C. (1992) NWLR (Pt.266) 414, the Supreme Court gave the following guide:
“There is a long line of authorities on the subject of locus standi or standing and the general principle is that for a person to have locus standi either to institute an action or to prosecute an appeal he has to show that he has special interested that the interest is not vague, or intangible, supposed or speculative or that it is not an interest which he shares with other members of society. He also has to show that such interest has been adversely affected by the act or omission which he seeks to challenge.” Per Mohammed, J.S.C.
A plaintiff will have locus standi in a matter only if he has a special legal right or alternatively if he has sufficient or special interest in the performance of the duty sought to be enforced or where his interest is adversely affected. See Ovie Whiskey v. Olawoyin (1985) 6 N.C.L.R. 156; Alhaji Agbonikhena and others v. Egba and others (1987) 2 NWLR (Pt.57) 494; Aberuagba v. Attorney-General Ogun State (1984) 5 N.C.L.R. 667. In Chief Ojukwu v. Governor of Lagos State (1985) 2 NWLR (Pt.10) 806, the Supreme Court held that the test of interest to determine a party interested in a matter is whether the person could have been joined as party to the suit. (See the Judgment of Karibi-Whyte, J.S.C in In re: Ijelu v. LSDPC (supra).
One other test of sufficient interest is whether the party seeking for the redress of remedy will suffer some fundamental injury or hardship arising directly from the litigation. If the Court is satisfied that he will so suffer, then he must be heard as he is entitled to be heard. But the injury or hardship must be directly related to the litigation. See Hon. Justice Karibi-Whyte, J.S.C.’s Judgment in In re ljelu v. L.S.D.P.C. (supra).
A look at the statement of claim of the Respondent from the record of appeal shows clearly that the Respondent (Plaintiff before the lower Court) has ably demonstrated as laid out in the statement of claim; that she has sufficient interest in the subject matter of this litigation to enable her take out a writ against the Defendants before the lower Court. The law is settled that when an issue of jurisdiction such as locus standi is to be determined the Court must scrutinize the statement of claim of the Plaintiff to locate the locus standi where there is a statement of claim. A review of the decisions of our superior Courts so far has clearly shown that an issue of jurisdiction transcends any High Court Rules.

In addition, the relevant things to be considered by the Court in determining the issues of jurisdiction are the facts as deposed to in affidavits, the writ of summons and the statement of claim where one had to be filed and served. The statement of defence is not one of the relevant materials for that purpose. See Ajayi v. Adebiyi (supra). In that case Adekeye JSC at page 181 paragraphs E – H held:
“Furthermore, an objection to jurisdiction can be taken at anytime depending on what materials are available. It would be taken in the following situations-.
a. on the basis of the statement of claim; or
b. on the basis of the evidence received; or
c. By a motion supported by affidavit giving full facts upon which reliance is placed; or
d. On the face of the writ of summons, where appropriate as to the capacity in which action was brought or against whom action is brought.
Attorney-General, Kwara State v. Olawale (1993) 1 NWLR (Pt. 272) page 645.
Izenkwe v. Nnadozie (1953) 14 WACA 361.
Adeyemi v. Opeyori (1976) 9-10 SC page 31.;
Kasikwu Farms Ltd. v. Attorney-General, Bendel State (1986) 1 NWLR (Pt.19) Page 695.
Barclays Bank of Nigeria Ltd. v. Central Bank of Nigeria (1976) 1 All NLR (Pt.1) 409
National Bank (Nig.) Ltd. v. Shoyeye (1977) 5 SC 181”
From the decision in this case of Ajayi v. Adebiyi (supra) it is certain and very well established that it is not an anathema or a taboo for a Court faced with the determination of locus standi of a Plaintiff to look into an affidavit supporting the motion raising the issue of jurisdiction. But in doing that care must be taken to ensure that it does not derail into giving consideration to the merit of the case before it. Of course, the stage of the proceeding before the issue is raised is also significant.

It must be borne in mind also that under our procedural laws, there are about four ways of initiation of proceedings before the Court. The mode provided under the High Court Rules by which actions are commenced include (a) writ of summons, (b) originating summons, (c) originating motions, and (d) petition of these four it is only where a writ of summon is deployed that pleadings are used. In respect of the other three, affidavits are mainly in use. Whatever the mode of initiation, in determining issues of jurisdiction the court would look at the materials placed before it for the determination of the locus standi of the Plaintiff. Where there is a statement of claim, it must be scrutinized for locus standi. Where there are affidavits also the court will look into them to determine the locus standi.
In the instant case the matter was originated by a writ of summons and there was the statement of claim of the Plaintiff before the Court. The Court looked at the statement of claim to take his decision on locus standi. The Court was absolutely right to have looked at the statement of claim.

The locus of the Plaintiff is always located in the pleadings and the Court is enjoined to look at it in determining locus standi but there is nothing wrong in looking at the affidavit of the objector if that will give the Court a clearer picture of the issue of locus standi raised.
At this point, I need to set it clear that a statement of claim or pleadings and an affidavit are two different processes in law. Pleading is a foundation document in which a party to a legal proceeding sets forth or responds to allegations, claims, denials, or defences. BLACKS LAW DICTIONARY 9TH EDITION.
The purpose of pleading, it is settled, is to give the other side in the case, at the earliest opportunity, the case the other side is to meet. See American Cyanamid Company v. Vitality Pharmaceuticals Ltd (1991) 2 NWLR (Pt.171) 15.

From the authorities of our superior Courts the issue of locus standi is a threshold issue which can be determined at the earliest opportunity from the statement of claim. It need not wait until evidence is introduced. It would cease to be a preliminary point if it could not be decided without evidence being led. In the case of All Nigeria Peoples Party (ANPP) v. Peoples Democratic Party (PDP) & Ors (2003) LPELR 7179 (CA), Ikongbe JCA (of blessed memory) cited the case of Ege Shipping and Trading Industry & ors v. Tigris International Corporation (1999) 14 NWLR (pt.637) where Ogundare JSC at pages 84 – 85 held:
“surely where a defendant is disputing an averment of fact made in a statement of claim, the proper way to do so is not by filing an application to have the plaintiff’s action dismissed in limine but to file a defence traversing that averment of fact and establishing evidence at the trial on which the trial court will make a finding of fact either for or against the plaintiff on such averment of fact.
In the copious affidavit evidence placed before the trial Court, effort was directed to showing the contrary of the averments in the pleading of the Plaintiff. In my respectful view the way to do this is by traversing, in a statement of defence, such averments and not come by way of application to dismiss in limine.”
This in general is definitely the law. The averments in a statement of claim can only be countered by a statement of defence so that issues can be joined by the parties on the controversy before the court. But when it comes to determining an issue of jurisdiction which is a fundamental, issue, the court is enjoined to look at the materials placed before it in that respect and arrive at the decision early in the case. This is apt because, an issue of jurisdiction cannot be wished away or ignored. It if is raised it must be determined because if the court has no jurisdiction whatever decision it takes is a nullity.
In the instant case, the Appellant here raised an application calling for the suit before the lower court to be dismissed based on lack of locus standi. In the application he raised the issue of absence of locus of the Respondent. He laid the foundation of that application on the earlier decision of the High court in Exhibit ‘A’ annexed to the affidavit in support of his motion. This is the affidavit and the exhibit the Appellant wanted the lower court to consider in taking a decision on the issue of locus standi he raised. The learned trial judge is dominus litis. If he found as he did that sufficient material had been placed before the Court in the statement of claim to determine the issue of locus he would be right to act on the statement of claim of the Respondent and not bother about the affidavit of the Objector/Appellant in this case. His finding in this case is not perverse, Issue one is therefore settled in favour of the Respondent.
ISSUE TWO
This issue deals with whether the learned trial Judge would have arrived at a different conclusion if he considered the Appellant’s affidavit and annextures.
All that the affidavit in support of the motion set out to achieve is to show the Court that the Appellant was not executrix in the Will of late Chief J.H.E. Nwuke. The said affidavit is at pages 65 to 66 of the Regard of Appeal. Paragraphs 1, 2, 3, 4, 5, 6, 7 – 13 of the affidavit read:
1. That I am the 2nd Defendant on record in this suit and by reason thereof, I am conversant with the facts of this case.
2. That the Claimant in this suit filed this action sometime in 2005.
3. That the Claimant herein filed this action purportedly as the Executrix of the Estate of late Chief J.H.E. Nwuke.
4. That this fact is contained in paragraph 2 of the Claimant’s statement of Claim already before this Court.
5. That I know that the Claimant is not an executrix in the Will of my father, the late Chief J.H.E. Nwuke.
6. That I know that the Claimant’s was not named as an executrix in the Will of the late Chief J.H.E. Nwuke, but her name was introduced by an obliteration and that in fact in the judgment of the Court in suit No. PHC/118/80. The Hon. Justice Maxwell held that the obliteration introducing the Claimant as an executrix was not valid.
7. That a copy of the said judgment is hereby annexed and marked as “Exhibit A”.
8. That a copy of the Will of the late Chief J.H.E. Nwuke is hereby annexed and marked as “Exhibit B”.
9. That I know as a fact that a competent court of law as per ‘Exhibit A’, has declared the obliteration making the claimant an executrix as null and void.
10. That the Claimant is not an Executrix in my father’s Will and her institution of this suit as an Executrix is a l gross misrepresentation of the facts.
11. That the Claimant cannot maintain this action as an executrix of the estate of the late Chief J.H.E. Nwuke.
12. That it is in the interest of justice that this suit be dismissed for the claimant’s lack of locus to file this action.
13. That I depose to this affidavit in good faith and in accordance with the oaths Act, 2004.
The high point of this affidavit is that deposition in paragraph 6 where the deponent averred that the Respondent was not named as an executrix in the Will but that her name was introduced into the Will by an obliteration and that by the judgment of the High Court annexed as Exhibit (A) it was held that the obliteration was not valid.
Exhibit (A) which is the judgment in suit No. PHC/118/80 indicated that the Respondent in the instant appeal was the 3rd Defendant in that case. In the said judgment Exhibit A, the Court held at page 98 of the record as follows:-
“I held earlier on, that the probate granted to the 2nd and 3rd Defendants is not a nullity. The 3rd Defendant by virtue of the duties imposed on her in the Will is, in my view, an executrixs in taking probate. Therefore the probate granted to her and the 2nd Defendant is not null and void.
Similarly the fact that the Plaintiff is entitled to have her name restored in the wilt, does not render the grant to the 2nd and 3rd Defendants null and void.” (underlining mine)
The judgment in Exhibit (A) clearly regarded the Respondent herein as “an Executrix according to tenor”. The probate granted her was found not to be null and void. I therefore, cannot see how the Appellant got fuss that the Respondent’s position as an executrix of the will in question had been invalidated by the Judgment in Exhibit (A). The averments in the statement of claim show clearly that the Respondent was truly found by the learned trial Judge to have locus standi to sue in this case. The trial Judge was therefore right in the conclusion and would have still been right to arrive at the same conclusion if he had considered the Appellant’s supporting affidavit and the annexures. Issue two is also answered in the affirmative and resolved in favour of the Respondent.
ISSUE THREE
On issue three, the substance is whether the learned trial judge was right to have relied on the case of Owodunni v. Registered Trustees of CCC & Ors. (2000) 10 NWLR (Pt.675) 315, 354 – 355 instant of the case of NDIC v. CBN (2002) 7 NWLR (Pt.766) 272, 301.
The two cases referred to are decisions of the Supreme Court of Nigeria. Owodunni’s case was decided on 30th of June 2000 while the NDIC’S case was decided on 1st March 2002. These two decisions are subsisting decisions of the Supreme Court the Apex Court in Nigeria. No one over took the other. They are all extant decisions of the Supreme Court. They are binding on all the subordinate Courts in Nigeria. As long as none of them is overruled by the Supreme Court any Court in Nigeria can refer, follow and apply these two decisions in any case before it.

The advantages or import of stare decisis in our adjudicatory jurisprudence cannot be over emphasized. Oputa, JSC in Epeirokun v. Unilag (supra) said:
“Standing by a previous decision which has not been proved to be perverse, or to have been decided per incuriam, or proved to be faulty legally or procedurally has a lot of advantages. It fosters stability and enhances the development of a consistent and coherent body of law. In addition, it preserves continuity and manifest respect for the past. It also assures equality of treatment for litigants similarly situated. It likewise spares the Judges the task of re-examining rules of law, or principles, with each succeeding case, and finally it affords the law a desirable measure of predictability.”
The cases of OWODUNNI and the Registered Trustees of CCC (supra) and that of NDIC v. CBN (supra) are valuable precedents on the issue of locus standi. None of them contradicts the other. The learned trial Judge was therefore right in applying OWODUNNI’s case in the instant case.
Issue three is therefore answered in the affirmative and resolved in favour of the Respondent. The lower Court’s decision in this case is proper. From the foregoing therefore, I come to the conclusion that the appeal of the Appellant against the decision of the lower Court is lacking in merit. This appeal, therefore, is hereby dismissed. The Ruling of the lower Court is hereby affirmed. I order a cost of N50,000 in favour of the Respondent against the Appellant.

EJEMBI EKO, J.C.A.: The appellant is the party named as the 2nd Defendant on the writ of Summons. He filed his Statement of Defence on 3rd July, 2006. Paragraph 2 was omitted therefrom. By motion on Notice, filed on 26th March, 2007, he sought to amend the Statement of Defence by inserting thereto the said paragraph 2, among other alterations to the original Statement of Defence.
The said paragraph 2 of the Amended Statement of Defence pleads inter alia that:
The Claimant (present Respondent) was not originally named in the Late J.H.E. Nwuke’s Will as an executrix. Her name was introduced as an executrix by virtue of an obliteration in the Will, which obliteration was declared invalid, null and void by the High Court of Rivers State in suit No. PHC/118/80 per Hon. Justice Maxwell. I wish to rely on a certified copy of the said judgment.
Appellant, as 2nd Defendant, subsequently on 19th February, 2009 brought an application for the dismissal of the suit on the ground of its “being incompetent, the claimant lacking the necessary locus standi to maintain the suit and the court thereby lacking the jurisdiction to entertain same”. The judgment in suit No.PHC/118/80 of 21st February, 1983 has been annexed thereto as Exhibit “A” It was averred in paragraphs 6 and 9 of the supporting Affidavit that “Exhibit “A” has declared the obliteration making the claimant an executrix as null and void”. The impression tenuously conveyed here is that since “Exhibit “A” has “declared the obliteration making the claimant an executrix as null and void”, it follows that she lacks the necessary locus standi to maintain the suit against the Defendants, including the 2nd Defendant/Appellant. It was not his defence that Exhibit “A” operates as estoppel per rem judicatam. He avoided that.
There is nothing in the affidavit supporting the motion to dismiss the suit at the trial court on which one can elicit thereform the want of the claimants Locus standi. On the other hand, there are abundant facts in the statement of claim attesting to the sufficient locus standi of the Claimant to maintain the suit against the Defendants, including the Appellant. The law is settled that it is not only from the statement of claim, where there is a challenge to the claimant’s locus standi, that the want of the claimant’s locus standi could be found. The trial ‘court is entitled to look into the defendant/objector’s affidavit in support of the motion to dismiss or strike out the suit on ground of the claimant’s lack of locus standi. The recent authority on this is AJAYI v. ADEBIYI (2002) 11 N.W.L.R. (pt.1310) 137 at page 181 E – H.
I see why the Appellant avoided the plea of estoppel per rem judicatam as a defence, also on jurisdiction, the basis of Exhibit “A” as a special defence to the suit against him. Exhibit A does not speak well in his favour. The judgment does recognize the Claimant as “an executrix according to tenor”, and the probate was not found to be a nullity contrary to the Appellant’s loud and fussy averments in that regard. In Exhibit A, it was held inter alia that “the obliteration is of no legal effect” such as to render “the will null and void”.
I read in advance the judgment just delivered by my learned brother S. J. ADAH, JCA. I have nothing further to add thereto. I am in complete agreement with the judgment which I hereby adopt, including all the consequential orders therein.
The appeal is frivolous. It is hereby dismissed in its entirety. The Ruling of the Rivers State High Court (Coram: J. N. Akpughunum, J) delivered on 29th April, 2009 in the Suit No. PHC/48/2005 is hereby affirmed, subject to my observations that at this stage, in addition to the Statement of claim, the trial court could took of the affidavit to determine whether the assertion of the defence that the claimant has not disclosed his locus standi to maintain the suit.

CHIOMA E. NWOSU-IHEME, J.C.A.: I read in draft the judgment just delivered by my learned brother, STEPHEN ADAH, JCA. I agree with and adopt his reasoning and conclusions. The appeal is clearly bereft of merit. It therefore fails and is accordingly dismissed.
I subscribe to the consequential orders made in the lead judgment inclusive of the one on costs.

Appearances

Miss M. S. Johnson with N. C. Womba Esq.For Appellant

AND

Dr. T. C. Osanakpo (SAN) with O. Mbeledogu Esq.For Respondent