BASSEY EKPENYONG ASUQUO v. ETINYIN MAURICE EDEM EYO
(2011)LCN/4534(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of May, 2011
CA/C/93/2009
RATIO
GROUND OF APPEAL: EFFECT OF A GROUND OF APPEAL WHICH ALLEGES ERROR OF LAW BUT FAILS TO SET OUT THE PARTICULARS OF SUCH ERRORS
…in the case of GLOBAL TRANS OCCEANICO S. A. VS. FREE ENT. NIG LTD (2001) FWLR (pt 40) 1706; 1718 para E-F the apex court made it clear that any ground of appeal which alleges error in law or misdirection contravenes the provisions of order 3 Rule 2(2) of the court of Appeal Rules 1981 (which is in pari material with Order 6 Rule 2(2) of the Court of Appeal Rules 2007 and is to that extent incompetent and liable to be struck out. In INTRO SHIPPING LTD vs. LOGOS TRADING N. V. (2001) FWLR (pt 71) 1706; 1711 made it clear in the following words;- “It is also well settled that a ground of appeal which alleges error of law but fails to set out the particulars of such errors is incompetent in law”. Thus a criticism of a judgment without giving the particulars of the mistakes alleged is a mere criticism of a judgment without giving the particulars of the mistakes alleged which is, at best, fishing, a speculative fault finding that is not within the scope of matters allowed to be tabled for consideration before the appellate court. This has also been made clear in DAMBAM vs. LELE (200) FWLR (pt 24) 1461; 1488; DIKIBO VS. IBULAYA (2007) ALL FWLR (pt.383) 166; 171. PER JAFARU MIKA’ILU, J.C.A.
GROUND OF APPEAL: WHETHER AN INCOMPETENT GROUND OF APPEAL HAS TO BE STRUCK-OUT
By order 6 Rules 3 of the court of Appeal Rules, 2007 an incompetent ground of appeal has to be struck-out. PER JAFARU MIKA’ILU, J.C.A.
LOCUS STANDI IN CHIEFTAINCY ACTION: POSITION OF THE LAW ON THE TYPES OF LOCUS STANDI THAT EXIST IN CHIEFTAINCY ACTIONS AND WHAT THE PLAINTIFF MUST DISCLOSE TO SATISFY THE COURT THAT HE HAS THE REQUISITE LOCUS STANDI TO INSTITUTE SUCH ACTION
It is trite law that two types of locus standi exist in chieftaincy actions. They are where the plaintiff avers that the right to fill the chieftaincy stool is that of his ruling family in which case the plaintiff must sue in a representative capacity or on behalf of that family; or where the plaintiff avers that the right to fill the chieftaincy stool is his personal right in which the plaintiff will sue in his personal capacity. Refer to DARAMOLA vs. ATTORNEY-GENERAL ONDO STATE (2000) FWLR (pt.6) 997; 1027. In either case the plaintiff must disclose his locus standi in his statement of claim by pleading. (i) that he belongs to a ruling family, (ii) that it is the turn of his family to fill the chieftaincy stool, (iii) that there is or there ought to be a vacancy in the chieftaincy stool (iv) that he is an eligible candidate for the stool, and (v) that he had taken part as a candidate in the selection process to fill the stool. Refer to ADEWUNI VS. ATTORNEY.GENERAL, EKITI STATE (2002) FWLR (pt 92) 1835; 1871 – 1872. PER JAFARU MIKA’ILU, J.C.A.
LOCUS STANDI: WHAT THE COURT MUST CONSIDER IN DETERMINING THE ISSUE OF LOCUS STANDI
It is trite that a court cannot look at any document or even evidence outside the writ of summons and statement of claim in determining the issue of locus standi, hence the averments in the appellants Reply to the Statement of Defence are of no moment. Refer to DANIYAN vs. IYAGIN (2002) FWLR (pt 120 1805; 1825. PER JAFARU MIKA’ILU, J.C.A.
JUSTICES
JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
BASSEY EKPENYONG ASUQUO Appellant(s)
AND
ETINYIN MAURICE EDEM EYO Respondent(s)
JAFARU MIKA’ILU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Ikot Nakanda High court in suit No HCA/19/2008. Before the said High court the plaintiffs claimed against the defendant in representative capacity for as follows:-
(a) A declaration that the defendant is no longer fit to be a village head.
(b) An order deposing the defendant from the office of the village headship.
(c) The sum of N120,000.00 damages.
The defence counsel filed a preliminary objection to the suit.
The trial court upheld the defendants’ objection and struck-out the plaintiff’s substantive suit No. HCA/19/2008. The plaintiff therein therefore filed this appeal.
Before this court the appellant has filed appellant brief of argument raising the following issues for the determination of the appeal.
1. Whether the learned trial judge had a right to approach to the substantive suit HCA/19/2008 which the trial judge struck-out because he had struck-out an earlier incompetent suit HCA/2/2005 for lack of jurisdiction.
2. Whether the trial judge properly directed himself as to what constitutes estoppel per rem judicata.
3. Whether the trial judge has no jurisdiction simpliciter in chieftaincy matters, if he has.
4. Whether the learned trial Judge considered the competency of the substantive suit HCA/19/2009 which clothes the court with jurisdiction.
On the other hand in the Respondent’s brief of argument the following issues have been raised for determination;
i. Whether the previous ruling by the High Court in suit No. HCA/2/2005 operates to create an estoppel against this present action by the appellant. (This covers appellant’s issues 1 and 2 and all his grounds of appeal).
ii. Assuming there is no estoppel, whether the appellant has disclosed his locus standi to maintain this action. This covers appellant’s issues 3 and 4).
It is to be noted that in the Respondent’s brief of argument a preliminary objection has been raised. It is to the effect that of the three grounds of appeal in the appellant’s Notice of Appeal are all incompetent in law because no particulars have been provided for the errors of law alleged in those grounds of appeal contrary to the very clear and mandatory provisions of order 6 Rule 2(2) of the court of Appeal Rules of 2007.
Thus in apex court in the case of GLOBAL TRANS OCCEANICO S. A. VS. FREE ENT. NIG LTD (2001) FWLR (pt 40) 1706; 1718 para E-F the apex court made it clear that any ground of appeal which alleges error in law or misdirection contravenes the provisions of order 3 Rule 2(2) of the court of Appeal Rules 1981 (which is in pari material with Order 6 Rule 2(2) of the Court of Appeal Rules 2007 and is to that extent incompetent and liable to be struck out. In INTRO SHIPPING LTD vs. LOGOS TRADING N. V. (2001) FWLR (pt 71) 1706; 1711 made it clear in the following words;-
“It is also well settled that a ground of appeal which alleges error of law but fails to set out the particulars of such errors is incompetent in law”.
Thus a criticism of a judgment without giving the particulars of the mistakes alleged is a mere criticism of a judgment without giving the particulars of the mistakes alleged which is, at best, fishing, a speculative fault finding that is not within the scope of matters allowed to be tabled for consideration before the appellate court.
This has also been made clear in DAMBAM vs. LELE (200) FWLR (pt 24) 1461; 1488; DIKIBO VS. IBULAYA (2007) ALL FWLR (pt.383) 166; 171.
In the case at hand ground one in the Appellant’s Notice of appeal alleges that the trial Court erred in law in striking out the appellant’s suit because of its ruling in previous suit but no particulars have been provided as to the previous suit and why the decision in that previous suit did not justify the decision to strike out the present suit. Ground 2 alleges that the trial court erred in law to uphold a preliminary objection that this suit is estopped by the decision in a previous suit but no particulars given as to why that previous suit did not constitute an estoppel against the present suit. Also Ground Three alleges that the trial court erred in law when it held that the decision in a previous suit made without jurisdiction created an estoppel against the appellant’s suit, but no particulars have been provided as to why the decision in the previous suit amounted to one made without jurisdiction.
It is to be made clear that the appellant’s failure to give particulars of errors of law alleged in each of the three grounds of appeal is fatal to this appeal. By order 6 Rules 3 of the court of Appeal Rules, 2007 an incompetent ground of appeal has to be struck-out. In this case all the three grounds of Appeal are struckout as incompetent. The appeal itself is incompetent and must be struck-out by order 6 Rule 6 of the court of Appeal Rules 2007. As held in INTRO SHIPPING LTD vs. LOCOS TRADING N. V. (supra) to be a valid Notice of Appeal the notice must contain at least one valid ground of appeal. In this case there is not such valid ground of appeal. Where a notice of appeal is defective, in that there is no valid competent ground of appeal in it, it can not be cured by filing amendment grounds as there is nothing to appeal. This appeal is therefore incompetent.
The question of locus standi of the appellant to maintain this action is also fatal to the case of the appellant.
This case involves a chieftaincy matter where the appellant is seeking for the removal of the Respondent as village head. It is trite law that two types of locus standi exist in chieftaincy actions. They are where the plaintiff avers that the right to fill the chieftaincy stool is that of his ruling family in which case the plaintiff must sue in a representative capacity or on behalf of that family; or where the plaintiff avers that the right to fill the chieftaincy stool is his personal right in which the plaintiff will sue in his personal capacity. Refer to DARAMOLA vs. ATTORNEY-GENERAL ONDO STATE (2000) FWLR (pt.6) 997; 1027. In either case the plaintiff must disclose his locus standi in his statement of claim by pleading. (i) that he belongs to a ruling family, (ii) that it is the turn of his family to fill the chieftaincy stool, (iii) that there is or there ought to be a vacancy in the chieftaincy stool (iv) that he is an eligible candidate for the stool, and (v) that he had taken part as a candidate in the selection process to fill the stool. Refer to ADEWUNI VS. ATTORNEY.GENERAL, EKITI STATE (2002) FWLR (pt 92) 1835; 1871 – 1872.
In our case the appellant pleaded only one, that there ought to be a vacancy in the stool. The appellant did not plead that his family is a ruling family, nor did he plead that it was his turn or that of his family to fill the chieftaincy stool, or that he was even a candidate for the stool. Also the appellant did not sue either for himself as the person eligible for the stool or on behalf of his family as the family eligible to produce the candidate for the stool. Rather he sued on behalf of the entire village which is an approach unknown to law in chieftaincy action. The appellant urged this court to look at the statement of defence in this connection. It is trite that a court cannot look at any document or even evidence outside the writ of summons and statement of claim in determining the issue of locus standi, hence the averments in the appellants Reply to the Statement of Defence are of no moment. Refer to DANIYAN vs. IYAGIN (2002) FWLR (pt 120 1805; 1825.
In the final conclusion, it is clear that the appellant lacked the locus standi to maintain the action and trial court lacked the jurisdiction to reverse in this suit its previous decision in suit No. HCA/2/2005 that the appellant had no locus standi to sue for the removal of the respondent as a village head.
The appeal is incompetent and lacks merit, it is dismissed.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I had a preview of the leading judgment of my learned brother Mika’ilu, JCA and I agree with the conclusion reached therein, to the effect, that the appeal is incompetent and lacks merit. It is accordingly dismissed.
ISAIAH OLUFEMI AKEJU, J.C.A.: I read the draft of the lead judgment delivered by my learned brother, Jafaru Mika’Ilu JCA. I agree that the appeal lack merit and I dismiss it accordingly.
Appearances
P. A. Ukpanyang Esq.For Appellant
AND
Essien H. Andrew Esq.For Respondent
