BARR. IHEDIOHANMA A. AKPONYE v. CHIEF (DR) RAY IHUOMA & ORS
(2013)LCN/5986(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of March, 2013
CA/OW/255/2011
RATIO
APPEAL: AN APPELLATE COURT IS ENJOINED TO CONFINE ITSELF TO ISSUES RAISED BY THE PARTIES
Generally Appellate Court is enjoined to confine its self to the issues raised by the parties, but where the issues raised are pluralized or fragmented, or crafted in a manner likely to obscure the crucial and real issues that would have the effect of property and adequately determining the dispute between the parties, the Court would be entitled to distill such or other issues from Appellants grounds of appeal – see Kalu v. Uzor (2006) 8 NWLR (Pt.981) 66 C.A.PER TIJJANI ABUBAKAR, J.C.A
APPEAL: COURT OF APPEAL: WHETHER A COURT OF APPEAL HAS THE POWER TO ADOPT OR FORMULATE ISSUES
It is settled that the Court of Appeal has the power to adopt or formulate issues that in its view would determine the real grouse in an appeal before the Court, see Ikegwuoha v. Ohawuchil (1996) 3 NWLR (pt. 435) page 146 and Aduku V. Adeioh (1994) 5 NWLR (Pt. 346) page 582.PER TIJJANI ABUBAKAR, J.C.A
LOCUS STANDI: THE COURT PROCESS THAT MUST BE LOOKED AT IN DETERMINING WHETHER A PARTY HAS LOCUS STANDI
To determine locus standi of Plaintiff the only Court process to look at by the Court is the statement of claim. It is the statement of claim that should exclusively donate locus standi. See ADESONAYE v. ADEWOLE (2006) 14 NWLR (Pt. 1000) 242.PER TIJJANI ABUBAKAR, J.C.A
APPEAL: WHERE THE COURT OF APPEAL CAN INTERFERE IN THE DECISION OF THE TRIAL COURTS
I am aware that it is not always right for the appellate Court to disturb the findings of the trial Court but certainly this rule has an exception where the conclusion is perverse or where the Court admitted and relied on inadmissible evidence, see BALOGUN V. LABIRAN (1988) 3 NWLR (Pt.80) 66 at 68 EBBA v. OGODO & ANOR (1984) 1 SCNLR 392.
The appellate Court shall set aside any decision reached relying on inadmissible evidence. See UMAR v. BAYERO UNIVERSITY (1988) 4 NWLR (Pt.86).PER TIJJANI ABUBAKAR, J.C.A
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
BARR. IHEDIOHANMA A. AKPONYE Appellant(s)
AND
1. CHIEF (DR) RAY IHUOMA
2. MRS ADAKU IHUOMA
3. THE PEOPLE DEMOCRATIC PARTY
4. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
5. THE NIGERIA POLICE FORCE Respondent(s)
TIJJANI ABUBAKAR, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, holden at Owerri, by Honourable Justice Lambo Akanbi delivered on the 10th day of June 2011.
“The Appellant, Plaintiff before the Court below, commenced his action by originating summons, and submitted the following questions for determination by the trial Court.
1. Whether by the combined provision of part V1 article 34(b), 34(c), 34(i) of the PDP Electoral guidelines, Article 9(i) (h) of the constitution of PDP, the participation in the PDP primaries on the 3/1/2011 by the 2nd defendant who is not a registered voter in Ahiazu Mbaise Local government Area of Imo State is not a nullity since she is not so qualified.
2. Whether by the combined provisions of Section 36 of the 1999 Constitution of the Federal Republic of Nigeria and generally the provisions of natural justice Sections 4 and 36 of the Police Act, and Regulations 353 of the Police Regulation, and the sensitive role of the Police in general elections in Nigeria the participation of the 2nd Defendant through the PDP primaries under the in terminating support and sponsorship of the 1st Defendant is wrongful and voia.
3. Whether by the combined provisions of part V1, articles 35 (i), 34(h) of the PDP Electoral guide lines, Articles 17(g) of the Constitution of PDP, the participation in the PDP primaries on the 3/1/2011 by the 2nd Defendant and her candidacy of PDF is not a nullity and void since she did not meet the membership requirement of the party.
4. Whether by the failure to follow strictly the combined provisions of part V1 articles 41 (a), 41(b), 41(c), 42(b), 42(c), 42(d), 42(c) of the PDP Electoral guidelines, the primaries elections conducted an the 3/1/2011 for the office of House of Assembly candidate of PDP is not a nullity and consequently void.
5. Whether by the failure to follow folly the combined provision of part VI Articles 34(c), 34(d) and 36 of the PDP electoral guidelines by the 2nd defendant for the primary elections conductions on the 3/1/2011 for the office of House of Assembly candidate a PDP her participation is a nullity and consequently void.
6. Whether in line with the construction of Section 106(d) of the 1999 Constitution of the Federal Republic of Nigeria the 2nd Defendant who did not meet the membership requirement of PDP is qualified to participate in elections, or be a member of Imo State House of Assembly Ahiazu Mbaise State constituency.
Upon the determination of the questions stated herein, the Plaintiff Appellant sought for reliefs found at pages 2-3 of the record of appeal. The 3rd Defendant Respondent brought a motion on notice dated 31 day of March 2011, filed on the 1/4/2011 praying that Plaintiffs/Appellants suit be struck out for want of jurisdiction, the 3rd Defendant brought the application pursuant to Order 29 Rules 1, 2, 3 and 4 of the Federal High Court Civil Procedure Rules 2009.
The grounds for the application are:
“1. That the Plaintiff/Respondent has no locus standi to present and pursue.
This matter any larger in view of the fact that, the Plaintiff is the official candidate of labour party in the coming State Assembly elections in Ahiazu State constituency.
2. That the suit constitutes an abuse of process of Court as same is contrary to the express provisions of Section 87 at the electoral Act 2011, and merely Issued as a continuation of political battle.”
Appellant said, the first and second Respondents filed joint affidavit in reaction to the originating summons, Appellant said, the 3rd Respondent opted to file motion on notice challenging jurisdiction, that 3rd Respondent did not file counter affidavit in reaction to the originating summons, 4th Respondent filed Processes without application to regularize having filed out of time.
The trial Court took the originating summons along with the application challenging jurisdiction filed by 3rd Defendant; the Court therefore eventually delivered judgment on 10th June, 2011. The Appellant said the 2nd Defendant proceeded to participate in the election despite the pendency of the action. Second Defendant was then returned as elected.
The plaintiff Appellant became aggrieved and filed notice of appeal with thirteen grounds of appeal.
Let me add, that, the grounds of appeal include grounds challenging the competence of the motion challenging locus standi of the Appellant. The Appellant Akponye settled Appellants briefs and nominated the following issues for determination.
1. Whether, the reliance of the lower Court on facts slated in the motion on notice, and in the defence of the Defendants to challenge and determine the locus standi of the Appellant is incompetent and void.
2. Whether from the entire circumstances of this action, and the various provisions of the Electoral Act, the lower Court was right in holding that the Appellant has no locus standi to institute this action, and that the action is on abuse of process.
3. Whether the Court can invoke the Courts inherent powers to determine the action of the Appellant on merit, grant the claims and declare as void for non compliance with the law, the candidature of the 2nd Defendant/Respondent including her election that was carried out during the pendency of the action.
Learned Senior Counsel Nwakanma SAN for the first and second Respondents formulated four issues for determination, the issues are:
1. Whether the learned trial judge erred in law when he struck out the Appellants suit on grounds of want of locus standi, and for being an abuse of Court Process (grounds 3, 4, 5, 6 and 9)
2. Whether the learned trial Judge was right in law when after considering the cases put forward by the parties and particularly the 3rd Respondent’s motion, – held that the Appellant does not have the locus standi to maintain the instant action grounds (1, 2 and 8).
3. Whether the Appellants fundamental right was infringed upon ground 9.
4. Whether the Appellant was entitled to judgment on the State at evidence before the court grounds 7, 10, 11 and 12.
Learned Counsel Olachi C. Nwugo (Mrs.) for the fourth Respondent formulated and argued five issues on behalf of the fourth Respondent, the issues are:
1. Whether the trial Court was right in striking out the Suit by first determining the motion on notice challenging the jurisdiction of the court or the ground that the Plaintiff lacks legal capacity to maintain the action.
2. Whether the trial Judge rightly held that the Plaintiff lacked locus standi to maintain the action, grounds 1, 2, 4 and 8.
3. Whether the trial Judge erred in law when he abused the processes filed by the 4th Defendant and other Defendants ground 13.
4. Whether the appeal court can invoice the courts inherent powers to determine the suit on the merit.
5. Whether the plaintiff/Appellant is entitled to the reliefs he is seeking having regard to all the pieces of evidence placed before the Court ground 7, 10, 11 and 12.
In this appeal, the Appellant nominated three issues, first and second Respondents formulated four, and the fourth Respondent formulated five.
Generally Appellate Court is enjoined to confine its self to the issues raised by the parties, but where the issues raised are pluralized or fragmented, or crafted in a manner likely to obscure the crucial and real issues that would have the effect of property and adequately determining the dispute between the parties, the Court would be entitled to distill such or other issues from Appellants grounds of appeal – see Kalu v. Uzor (2006) 8 NWLR (Pt.981) 66 C.A.
It is settled that the Court of Appeal has the power to adopt or formulate issues that in its view would determine the real grouse in an appeal before the Court, see Ikegwuoha v. Ohawuchil (1996) 3 NWLR (pt. 435) page 146 and Aduku V. Adeioh (1994) 5 NWLR (Pt. 346) page 582.
For the purpose of resolving the issues in this appeal. I am sure despite the probability of over-lap and repetition, Appellants issues for determination will properly, adequately and finally determine this appeal, I therefore adopt the said issues, and for the avoidance of doubt the issues shall be:
1. Whether the reliance of the lower Court on facts stated in the motion on notice and in the defence of the Defendants to challenge and determine the locus standi of the Appellant is incompetent and void.
2. Whether, from the entire circumstances of this action, and the various provisions of the electoral act, the lower Court was right in holding that, the Appellant has no locus standi to Institute this action, and that, the action is an abuse of process.
3. Whether, the Court can invoke the Courts inherent powers to determine the action of the Appellant an merit, grant the claims and declare as void for non compliance with the law the candidature of the 2nd Defendant/Respondent including her election, that was carried out during the pendency of this action.
Learned Counsel H. F. Akponye, Appellant argued the above issues in his brief of argument filed on 15th November 2011.
On issue number one, learned counsel said the issue is distilled from grounds 3, 4, 5 and 6 of Appellants grounds of appeal. He said, reliance by the lower Court on motion on notice in the absence of defence of the defendant to challenge and determine the locus standi of the Appellant is incompetent and therefore void.
Learned Counsel said, the 3rd Defendant Respondent filed motion on notice in answer to originating summons without counter affidavit to the action. Counsel said the motion on notice amounts to demurrer, which he said has been abolished by the Federal High Court Civil Procedure rules 2009. He said the Court below ought not entertain the motion, he referred this Court to Order 16 of the Federal High Court Civil Procedure rules 2009, he said the rules are clear and unambiguous particularly Rules 1 and 2 (i) he said the 3rd Defendant did not state any point of law in any pleading. He said the 3rd Respondent did not obtain leave of Court before raising the preliminary objection in line with the provisions of the rules of Court; he said the lower Court could not have validly pronounced on the issue.
Learned Counsel said, the 3rd Defendant having failed to raise the purported points in the pleading or seek leave of Court to raise preliminary points defeated their own application because it is incompetent and ought to be struck out 3rd Defendant should have filed answer to the originating summons. Learned Counsel urged this Court to dismiss same as being an abuse of process.
Counsel said issue of locus standi can only be raised in a proper defence, and not in a motion on notice; he relied on AJILOWURA v. DISU & ORS (2006) 140 LRCN 1930; learned Counsel said, the only way the Defendant could challenge the capacity or locus of the Plaintiff to sue would have been to file statement of defence which will meet the averments in the statement of claim heard-long.
Learned Counsel said, the Court below was wrong in relying on the facts stated in a motion on notice. He said the only process to be considered by the Court in the circumstance shall be the processes filed by the Plaintiff he relied on OWUDUNNI v. REGISTERED TRUSTEES CELESTIAL CHURCH (2000) FWLR (Pt. 9) 1455 at 1495; and said it cannot be disputed that the question whether or not a Plaintiff has a locus standi in a suit is determinable from the totality of all the averments in his statement of claim, learned Counsel referred the Court to MOMODU v. OLOTU, (1970) 1 ALL NLR 117 at 123. BOLAJI v. REV BAMGBOSE (1986) 4 NWLR (Pt.632).
Learned Counsel said consideration of facts that are not in the affidavit in support of the originating summons by the lower Court was wrong and amount to a breach of fundamental rights of the Plaintiff Appellant to fair hearing.
Learned Counsel Akponye said in ascertaining whether the Plaintiff in an action has locus standi, it is necessary to examine the statement of claim filed in Court, to see if it discloses a cause of action. He said only plaintiff’s statement of claim should be looked into to see if the Plaintiff has locus standi to Institute the action. He relied on FAWEHINMI v. PRESIDENT FRN (2007) 4 NWLR (Pt.1054) 275 and ADESOKUN v. ADEGOROLU (1997) 3 NWLR (Pt. 493) 261 at 278.
Learned Counsel Akponye referred this Court to EBO-VGO v. UWEMEDIMO (1995) 8 NWLR (Pt. 411) page 22 at 51, and said where a Defendant raises issue at locus standi in a motion, the Court must look at the statement of claim and not the affidavit in support. The rationale is straight forward if the Court looks at the affidavit, this is in effect seeking supportive evidence from the defendant which should not be the situation, Mr. Akponye said where an action is commenced by originating summons like the instant case it is the affidavit in support that will be looked into to find out if the Plaintiff has locus standi to file the action, learned Counsel again relied on FAWEHINMI v. PFESIDENT FRN (Supra); and INAKOJU & ORS v. ADELEKE & ORS (2007) 143 LRCN 1 at 80 and 92.
Mr. Akponye said by failing to consider the facts stated by the Plaintiff/Appellant in the supporting affidavit of the originating summons in the consideration and determination of the question of jurisdiction and locus standi the lower Court clearly breached the right of fair hearing of the plaintiff Appellant. He said fair hearing within the meaning of Section 33(i) of the Constitution means trial conducted in compliance wilt all the rules or laws meant to ensure justice counsel relied on NTUKIDEM V. OKO (1983) 5 NWLR (Pt.45) 900 at 933.
Learned Counsel said issue of locus standi was raised argued and determined without jurisdiction. He therefore urged the Court to resolve this issue in favour of the Appellant and hold that the determination of the issue of locus standi relying on averments in a motion on notice, and on the counter affidavits of the Defendants without any recourse to the affidavit in support of the originating summons was wrongful and occasioned injustice to the Appellant whose fair hearing by such conduct was breached.
In his response, learned senior counsel Nwakanma SAN said Appellants complain is that the learned trial Judge decided the case on the 3rd Respondents motion only.
Learned counsel said, all the Respondents raised the issue of Incompetence of the action, oh the ground that the Appellant has no locus standi to maintain the action having decamped from PDP to the labour party where he picked ticket to contest election in the House of Assembly.
Learned Counsel for the 1 and 2 Respondents said, the second Respondent said Appellants action is an abuse of Court process in that the Appellant had no right to sue her. Counsel said soon after PDP primaries on the 3rd at January 2011 the Appellant left the PDP and joined the labour party, where he became the official candidate of the Labour Party.
Chief Nwakanma said the Court took the application challenging jurisdiction and the substantive suit. He said the procedure adopted by the learned trial Judge is pursuant to Order 29 Rules 1, 2 and 3 of the Federal High Court Civil Procedure Rules 2009.
Learned Counsel referred this Court to ERESIA ‘EKE v. ORIOKOHA (2010) 8 NWLR (Pt. 1197) 421 at 438, and said, the Purpose of preliminary objection is to terminate, stop or end a proceeding or some aspect of this proceeding in an action or appeal if it succeeds. He said that is why it is expedient to hear and determine the preliminary objection first; learned counsel retied on REIDER JACKS V. INEC (2009) ALL FWLR (pt. 464) IBRAHIM v. FULANI (2010) 17 ALL FWLR (Pt. 1222) 241.
On Appellants complain that the learned trial Judge made use of facts contained in Respondents motion on notice instead of relying solely on his processes, he said that argument is misconceived he submitted that the court is not bound to look at the processes of the Plaintiff only when it is taking the preliminary objection in limine the situation is more so, where the court is taking the objection together with the substantive suit.
Learned counsel said, the objection resulting in striking out Appellants suit is not a demurrer, learned counsel relied on ADIGUN V. AYINDE (1993) 8 NWLR (Pt. 313) 516. INA v. TRUSTEES OF NIGERIAN RAILWAY CORPORATION PENSION FUND (1970) 1 ALL NLR 281, and said there is distinction between objection to jurisdiction and demurrer. He said, point of raw can be taken after the receipt of the statement of claim, and before any defence is filed. He relied on ELEBANJO v. DAWODU (2006) 15 NWLR (Pt. 1001) 76.
Learned counsel therefore said Appellants issue number one is misconceived that the argument by Appellant that 3rd Respondent ought to have raised the objection in its defence is not legally tenable is gross erroneous. Learned counsel therefore urged this court to resolve this issue in favour of the Respondents against the Appellant.
Olachi Nwugo learned counsel for the Respondent submitted on Appellants issue number one, that. Appellants contention that failure by the 3rd Defendant to file his pleadings before raising the objection amounted to demurrer same having been abolished by the Federal High Court Rules that such submission is grossly misconceived. Counsel said there is distinction between demurrer and objection to jurisdiction. In demurrer application, there should be a statement of claim in place, the facts of which the applicant would be required to admit before bringing his objection, on the other hand objection to jurisdiction can be raised at any time even when there are no pleadings filed, and the party raising objection needs not bring application under the rules of court. Learned counsel referred the court to ELEBANJO v. DAWODU (2006) 15 NWLR (pt.1001) page 76 at 91. Counsel said objection may be taken even on the face of writ of summons before filing statement of claim counsel also relied on ADEYEMI v. OPEYERI (1976) 1-10 Supreme Court 31. BARCLAYS BANK OF NIGERIA LTD. V. CENTRAL BANK OF NIGERA (1976) 1 ALL NLR 409.
Learned Counsel said, the learned trial Judge did not just take the objection in limine, rather he conducted full hearing and found that, the plaintiff had no locus standi to maintain the suit. Counsel relied on INAKOJU v. ADELEKE (2007) 4 NWLR (Pt. 1025) at 481 and urged this Court to resolve this issue in favour of the Respondents.
Let me state that at the hearing of this appeal on 3rd December 2012, learned Counsel J. Akanno filed notice of withdrawal from appeal, that 3rd Respondent applied to withdraw from the appeal counsel for the Appellant said since the 3rd Respondent withdrew it meant they had no objection to the appeal.
From the above submissions by learned Counsel, there are two points to consider in resolving this issue.
1. Whether by the Federal High Court Rules objection may be taken without filing defence.
2. Whether the trial Judge considered relevant materials in determining Appellants locus standi.
The first point in my view has to do with proper interpretation of Order 16 of the Federal High Court Civil Procedure Rules 2009.
The Appellant said before objection is raised, the 3rd Defendant Respondent ought to have filed defence before the Court. The Respondents on their part said filing defence before raising objection to jurisdiction was not necessary.
Order 16 of the Federal High Court Civil Procedure rules 2009 is reproduced as follows:
“1. No demurrer shall be allowed.
2(i). A party shall be entitled to raise by his pleadings any point of law, and any point so raised shall be disposed of by the Judge who tries the cause at or after the trial.
3. A point of law so raised may be consent of the parties, or by Order of the Court or a Judge in chambers on the application of either party be set down for hearing and disposed of at any time before the trial.
4. If in the opinion of the court or a Judge in chambers the decision on the point of law substantially disposes of the whole action or any distinct cause of action, ground of defence, set-off counter claim, or reply therein the court or Judge in chambers may thereupon dismiss the action, or make such other order therein as may be just.
5. The court or Judge in chambers may order any pleadings to be struck out, on the ground that if discloses no reasonable cause of action or defence being shown by the pleadings to be frivolous or vexations the Court or a Judge in chambers may order the action to be stayed or dismissed, or judgment to be entered accordingly as may be just”
6. No action or proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby and the court may make binding declarations of right whether any consequential relief is or could be claimed or not.”
John Inyong Okoro JCA in Federal College of Education Oyo V. Akinyemi 2007 CA interpreted Order 25 rules 1 & 2 of the Federal High Court Civil procedure Rules 2000, with respect to whether demurrer proceedings have been abolished in the Federal High Courts, and how a party seeking to raise a preliminary objection must do.
His lordship relied on Shell-Petroleum Development & 5 others V. Nwawka (2001) 10 NWLR (Pt.720) 64; and said:
“…There is no doubt demurrer proceedings had been abolished in the Federal High Court and any party seeking to raise any preliminary objection most follow the rules governing the court which the objection is to be raised. I had earlier state that rules of court are meant to be obeyed. However the Supreme Court has cautioned against following rules of court sheepishly and that at all times the interest of justice is paramount;…
I am of the view that where an objection has to do with jurisdiction simpliciter it can be raised whether or not the defendant has filed pleadings. Where however the matter before the Court is complicated, as to where it will require facts and investigation then the Court may order pleadings…”
His lordship Okoro JCA concluded by saying:
“…Where jurisdiction is the root of the matter and the claim can be dismissed for lack of jurisdiction simpliciter, it will serve no useful purpose to file a defence notwithstanding the rules of Court, the Learned trial Judge was therefore in error when he struck out the application of the Appellant on the ground that he did not plead the issue of jurisdiction the basis of the objection in his defence…”
From the decision of my Brother Okoro JCA, jurisdiction of Court may be challenged without necessarily filing statement of defence even where rules of Court provide otherwise, so long as so doing does not defeat the ends of justice; more so the jurisdictional issue raised by the defendant touched on Plaintiffs locus standi, it is settled that issue of locus standi could be raised after the Plaintiff has duly filed his pleadings, by a motion or in a statement of defence. EBONGO v. UWEMEDEMS (1995) 8 NWLR (Pt. 411) page 22.
The decision by the learned trial Judge to entertain 3rd Defendant Respondents objection without defence cannot be faulted I therefore resolve this point in favour of the Respondent.
The next point is whether the learned trial Judge considered relevant material in deciding the objection.
The 3rd Defendant Respondent brought motion on notice before the trial court pursuant to order 29 Rule 1, 2, 3 and 4 of the Federal High Court Civil Procedure Rules 2009.
Part of the motion reads:
“…the 3rd Defendant applicant shall be heard praying this Court for an order string out this suit for want of jurisdiction. Further take notice that, the grounds for this application are:
1. That the Plaintiff Respondent has no locus standi to present and pursue this matter any longer in view of the fact that the Plaintiff is the official candidate of labour party in the coming State Assembly elections in Ahiazu State constituency.
2. That the suit constitutes an abuse of court process as same is contrary to the express provisions of 5 & 7 of the electoral Act 2011 and merely issued as a continuation of political battle…”
From the application reproduced above, the 3rd Defendant challenged Plaintiff Appellants locus standi,
Page 374 – 375 of the record of appeal is proceedings of the trial court of 12th April 2011; let me reproduce part of the proceedings-
“Plaintiff:
The case is for hearing today we filed a motion address in support of the originating summons today the 12th day of April 2011. We filed originating summons on 24th March 2011 without an accompanying written address. We rely on the written address and urge the court to grant the claims…
MR AKAOLISA: We filed notice of preliminary objection dated 31st March 2011, and filed on 1st April. We filed a written address same date. We adopt it.
Mrs. AMADE: 4th Defendant filed an affidavit on 5th April with a written address. We adopt our written address. We confirm that the plaintiff is a member of another political party Labour Party as shown in the exhibits produced by the 1 and 2 on 5th Defendants.
COURT: Adjourned to 14th April 2011 for judgment.
In his address the plaintiff Appellant said, only Plaintiffs statement of claim should be considered to see if Plaintiff has locus standi to institute the action.
The judgment of the court below is found at page 376 to 378 of the record of appeal.
The learned trial Judge said at page 376 to 377 of the record of appeal as follows:
“… Shortly after the originating process was served on the Defendants, the 3rd Defendant filed a motion on notice challenging the jurisdiction of the court from entertaining the Plaintiffs suit on the ground that the plaintiff lacks the legal capacity to maintain the action.
I shall therefore address the Plaintiffs locus first before proceeding to address the merit of the originating summons.
The Learned trial Judge continued at page 377 of the record to give the basis of the conclusion on locus standi, he said.
“In the affidavit in support of the 3rd Defendants motion on notice are depositions very positive and fundamental, that the plaintiff has left 3rd Defendant party by joining another party labour party under the platform he’s now contesting election into the State House of Assembly…
In the final analysis, I hold that the objection of learned counsel for the 3rd Defendant is greatly meritorious. The application succeeds. Consequently the Plaintiffs claim is here by struck out for lack of locus standi and abuse of process.”
To determine locus standi of Plaintiff the only Court process to look at by the Court is the statement of claim. It is the statement of claim that should exclusively donate locus standi. See ADESONAYE v. ADEWOLE (2006) 14 NWLR (Pt. 1000) 242.
Clearly in the instant appeal, the only evidence to consider in determining plaintiffs locus standi is the Plaintiffs statement of claim, from the record before us, it is obvious the learned trial Judge placed emphasis on Respondents materials before him; I have not seen where the trial Judge made specific reference to Plaintiffs claim before him.
I am aware that it is not always right for the appellate Court to disturb the findings of the trial Court but certainly this rule has an exception where the conclusion is perverse or where the Court admitted and relied on inadmissible evidence, see BALOGUN V. LABIRAN (1988) 3 NWLR (Pt.80) 66 at 68 EBBA v. OGODO & ANOR (1984) 1 SCNLR 392.
The appellate Court shall set aside any decision reached relying on inadmissible evidence. See UMAR v. BAYERO UNIVERSITY (1988) 4 NWLR (Pt.86).
I resolve issue one in favour of the Appellant and hold that there is denial of fair hearing. Issue number two in my view is a re-incarnation of issue number one it also relates to Plaintiffs locus standi. The Court having relied on improper materials to arrive at a decision, such decision must be set aside; having resolved issue one in favour of the Appellant issue two must also be so resolved in favour of the Appellant.On issue number 3 whether this court can exercise its powers under section 15 of the Court of Appeal act to determine this appeal on the merit.
There are requirements that must be met before the Court invokes its powers under section 15 of the court of Appeal Act. The question must be a ground of appeal, the court from which the appeal emanates must have jurisdiction in the matter, see EZEIGWE v. NWAWULU (2010) 4 NWLR (Pt.1183) 159 S.C.
This court must be careful in exercising this power in the instant appeal because not all materials are fully before this Court. We cannot therefore invoke our powers under Section 15 of the Court of Appeal Act.
On the whole therefore this appeal succeeds the judgment of the lower Court delivered on 10th June 2011 is hereby set aside, I order that this suit be remitted to the Federal High Court Owerri to be heard de-novo by another Judge other than Honourable Justice L. O. Akanbi.
I make no order as to cost.
MOJEED A. OWOADE, J.C.A: I have had the privilege of reading in draft the Judgment of my learned brother T. ABUBAKAR, JCA. I agree with the reasoning and conclusion and I abide with the consequential orders.
HARUNA SIMON TSAMMANI, J.C.A: I had the advantage of reading before now the judgment delivered by my Learned brother TIJJANI ABUBAKAR; JCA.
I agree with the reasoning and conclusion therein. Accordingly, I order that the judgment of the Court below delivered on 10/6/2011 be set aside. I order that the matter be remitted to the Federal High Court Owerri for hearing denovo by another judge other than L.O. Akanbi; J.
I abide by the order on costs.
Appearances
I.F. AkponyeFor Appellant
AND
B. C. Nwosu with Obinna John Agbasi for the 1st & 2 Respondents
J. Akanno for the 3rd Respondent
O. I. Amadi (Mrs.) for the 4th RespondentFor Respondent
