CHIEF SAMUEL C. UDEAGWU v. SIR CHRISTIAN ORAKA & ORS
(2019)LCN/13136(CA)
In The Court of Appeal of Nigeria
On Thursday, the 18th day of April, 2019
CA/OW/94/2012
JUSTICES
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
CHIEF SAMUEL C. UDEAGWU – Appellant(s)
AND
1. SIR CHRISTIAN ORAKA
2. MR. PRECIOUS C. NWANKWU
3. MR. KINGSLEY ABBAS OGBONNA
4. MRS. EDITH NWOGWUGWU
5. MRS. OGBANNA LINUS E.
6. NZE CHRISTOPHER ONUOHA
7. MR. PETER UWAKWE
8. OSISOMA NGWA LOCAL GOVERNMENT COUNCIL – Respondent(s)
RATIO
THE TEST FOR DETERMINING WHETHER A JUDGMENT/ ORDER IS FINAL OR INTERLOCUTORY FOR THE PURPOSES OF APPEAL
The test for determining whether a judgment/order is final or interlocutory for the purposes of appeal, has adequately been discussed in the case of EBOKAM VS. EKWENIBE & SONS TRADING COMPANY LTD. (1999) LPELR?993 (SC) pp 11?13 paras D?A; where it was held as follows:- “…It is well established by a myriad of decided cases both in England and in this country that there are two distinct tests to be applied in deciding whether a decision of a Court of first instance is interlocutory or final. The two classical authorities upon which these tests are formulated are Bozson v. Altrincham U.D.C. (1903) 1 K.B 547 and Salaman v. Warner (1891) 1 QB 734. In the Bozson’s case, at p. 548 Lord Alverstone C.J. said:- “It seems to me that the real test for determining this question ought to be this: Does the judgment or order as made, finally dispose of the rights of the parties. If it does, then I think it ought to be treated as a final order: but if it does not it is then, in my opinion, an interlocutory order”. In Salaman v. Warner case at p. 735 Lord Esher M.R. put the matter thus:- “Taking into consideration all the consequences that would arise from deciding in one way or the other respectively, I think the better conclusion is that the definition which I gave in Standard Discount co. v. La Grange is the right test for determining whether an order for the purpose of giving notice of appeal under the rules is final or not. The question must depend on what would be the result of the decision of the Divisional Court, assuming it to be given in favour of either of the parties. If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules, it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory”. (Italics mine). PER ANDENYANGTSO, J.C.A.
FACTORS THAT CONSTITUTES A FINAL JUDGEMENT OR ORDER
Now, what constitutes a final judgment/order? There have been a lot of judicial definitions of what is a final judgment/order dating as far back as the 18th Century and early 19th Century. A few of these old cases are:-
(1) In re FAITHFUL EX PARTE MOOKE (1885) 14 QBD 627 at 629 a final judgment was defined by Cotton L. J. to be a judgment obtained in an action by which a previously existing liability of the defendant to the plaintiff is ascertained or established ? unless there is something to show the use of the words in an extended sense.?
(2) In SOLOMON VS. WARNER (1891) 1 QB 734 at 736 Lopes L. J. defined a final judgment as ?a judgment or order would be final within the meaning of the rules, when, whichever way it went, it would finally determine the rights of the parties. To put the definition in another word, no order, judgment or other proceeding can be final which does not at once affect the status of the parties, for whichever side the decision may be given, so that if it is given for the plaintiff it is conclusive against the defendant, and if it is given for the defendant it is conclusive against the plaintiff.
Flowing from the above, the real test for determining what is a final or interlocutory judgment/order sought,is this: ?Does the judgment/order as made, finally dispose of the rights of the parties? If it does, then it is a final judgment/order. But if it does not, it is an interlocutory judgment/order. This is the view adopted by majority of Nigerian Judges as can be seen, for instance, in the case of OMONUWA VS. OSHODIN (1985) LPELR?2654 (SC) at pages 14?16 paras D?A. PER ANDENYANGTSO, J.C.A.
WHETHER OR NOT THE DECISION AGAINST A PERSON IN ONE CAPACITY CAN BE RES JUDICATA AGAINST HIM SUING IN ANOTHER DISTINCT CAPACITY
Now, in the case of ISHIE VS. MOWANSO (2000) 13 NWLR (Pt. 684) 279 at 292, for the purposes of res judicata it was held:- Simply put the law is that a decision against a person in one capacity cannot be res judicata against him suing in another distinct capacity. See Cardoso vs. Daniel (1986) 2 NWLR (Pt. 20) 1; Ibero & Anor. vs. Ume?Ohana (1993) 2 NWLR (Pt. 277) 510. But it has to be noted also that res judicata applies to privies in blood such as ancestor and heir; privies in law such as testator and executor, intestate and administrator and privies in estate such as vendor. PER ANDENYANGTSO, J.C.A.
IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the Ruling of the High Court of Abia State, Osisioma Judicial Division, Coram Justice N. C. Otti, J. (as she then was), now retired Chief Judge of Abia State, in which she dismissed the application of the Appellant which prayed the lower Court for an order striking out the suit of the Respondents for lack of jurisdiction on the ground that conditions precedent to the exercise of the jurisdiction of the Court were not met.
The facts of the case are as follows:-
?Sometimes in 1992 the then Obioma Ngwa Local Government Council (L. G. C. for short) set out to develop an industrial market for shoe makers who were scattered all over Lower Line and in private homes around Faulks Road and in various shanties around Ariaria Market, constituting fire hazards. Consequently the L.G.C. advertised in papers and on radio for interested members of the public who were willing to finance the building of the market shops to apply by filling forms for allocation of spaces and authority to build on same on the area housing the present Ariaria/Umuehilegbu
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Industrial Market.
The Respondents (as plaintiffs) applied for and were allocated space upon which they built shops, having paid the stipulated amount and having completed the due processes, went into occupation.
Meanwhile, the Appellant sued the Local Government in Suit No. A/130/92 and got judgment in his favour on 31/1/1994, which he used in attempting to eject the Respondents from the Market on the ground that he was the owner of the land upon which the Market was built.
The Respondents then went to Court and filed Suit No. HOS/88/2001, asking for the judgment in Suit No. A/130/92 to be set aside on the ground that it was obtained by fraud committed on the Court. They also filed a motion seeking for interlocutory injunction restraining the appellant pending the determination of the main suit.
The Appellant then filed motion for an order striking out the suit on the ground that the Court lacked the jurisdiction to entertain same because the conditions precedent to the exercise of jurisdiction have not been complied with and the action was improperly constituted.
?After protracted and prolonged proceedings with the application passing
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through the hands of two Judges, the Hon. Justice N. C. Otti, J (as she then was) now retired Chief Judge heard the application and delivered a ruling on 4th October, 2007, against the Appellant. This Ruling has now generated this appeal.
This Notitce of appeal was filed on 21st December, 2007, containing 5 grounds, which, shorn of their particulars, are as follows:-
?GROUND ONE
The learned trial judge erred in law in holding that the issue of locus standi could not be raised until the Statement of claim was filed.
GROUND TWO
The learned trial judge erred in law in holding that:
?I agree with learned counsel for the respondents that it is a misconception to submit that the Respondents are not parties for the purposes of bringing this suit to set aside the judgment?
GROUND THREE
The learned trial judge erred in law when she held that the issue of locus standi could only be raised by the procedure in Order 24 of the High Court (Civil Procedure) Rules 2001 which requires that pleadings must have been filed by both parties with the issue raised in the statement of defence.
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GROUND FOUR
The learned trial judge erred in law in dismissing the Appellant?s objection after holding that it was premature because of the absence of pleadings.
GROUND FIVE
The judgment is against the weight of evidence.?
The relief sought by the Appellant is:-
?That the decision of the lower Court be set aside and the case dismissed.?
The Appellant?s amended brief of argument and reply brief to the preliminary objection settled by Chineyere Umeojiaka (Mrs.) were filed on 15/2/2017 and 30/5/2018 and deemed properly filed and served on 2/5/2017 and 31/5/2018 respectively.
The Respondents? amended brief containing a preliminary objection was filed on 4/5/2017.
This appeal was heard on 23/1/2019. C. A. Obianwu Esq. appeared for the Appellant while C. N. Ijoma Esq. appeared for the 1st to 7th Respondents, holding the brief of M. O. Onyeka Esq. C. N. Ijoma adopted the preliminary objection which notice was filed on 16/2/2016 and urged us to uphold same and dismiss the appeal.
C. A. Obianwu Esq., adopted the Reply to the preliminary objection and urged us to overrule same and hear the appeal on its merits.
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After this, C. A. Obianwu Esq. adopted the Appellant?s amended Brief of Argument and urged us to allow the appeal and set aside the Ruling of the lower Court. C. N. Ijoma Esq. adopted the Respondents? brief and urged us to dismiss the appeal and affirm the decision of the lower Court.
?Now, to the preliminary objection which is by law to be first taken and disposed of before considering the appeal in order to make it serve its purpose, which is to lead quickly to the termination or dismissal of a matter in limine, in order to avoid the dissipation of energy and valuable judicial time on matters which are not worthy of taking valuable time and resources of the Court. See UYAELUMUO VS. OBIEZE & ANR. (2018) LPELR?45256 (CA); YARO VS. AREWA CONSTRUCTION LTD & ORS. (2007) 6 SCNJ 418.
The Notice of Preliminary Objection filed on 16/2/2017, contains two grounds which are:-
?(a) The appeal was filed out of time.
(b) The Records Of Appeal And The Appellant?s Brief Of Argument Do Not Contain The Names Of All The Parties To The Proceedings Or The Suit At The Lower Court.?
?Upon being served with the notice of
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preliminary objection the Appellant immediately filed a Motion on 15/2/2017 seeking leave of Court to amend the Appellant?s Brief of argument to reflect the parties in the appeal and to deem the Amended brief of Argument as properly filed and served.
It is to be observed as stated in ground 1 of the application for amendment of Appellant?s Brief, and paragraph 4 of the supporting affidavit on the Notice of Motion, that the name of Osisioma Ngwa L.G.C. was contained on the Notice of Appeal but was omitted from the Appellant?s Brief of Argument. Therefore this ground of preliminary objection has been overtaken by event as the Appellant?s application for amendment has been granted to that effect by this Court.
What remains of the preliminary objection is the ground (a) that is to say, that the appeal was filed out of time.
?The learned Respondents? Counsel in his brief noted that the Ruling of the lower Court was an interlocutory decision, which was delivered on 4th October, 2007. He contended that by Section 24(2) of the Court of Appeal Act, the Appellant had 14 days to file the Appeal which expired on 18th or at most
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on the 19th day of October, 2007. However the Appeal was filed on the 21st day of December, 2007, more than 10 weeks after the Ruling appealed against was delivered, referring to page 99 of the Record. Learned Counsel also contended that the Appellant did not seek and obtain the leave of Court before filing the Notice of appeal as required by law.
Learned Counsel then submitted that the Notice of Appeal was filed out of time and without an order of Court extending time for the Appellant to do so. He submitted that the notice of appeal having been filed out of time, the appeal is incompetent and this Court has no jurisdiction to entertain same, referring to EBOKAM VS. EKWENIBE & SONS LTD. (sic) (1993) 6 NWLR (Pt. 297) 108 at 119. Submitting further, learned Counsel stated that if a trial Court ruled that it had the jurisdiction to entertain a cause or matter the decision is interlocutory because it has reserved in itself the hearing of the substantive suit, referring to A.I.B. LTD. VS. PACKOPLAST (NIG.) LTD. (2004) 3 NWLR (Pt. 859) 129 at 143 paras H?B.
The Appellant?s Counsel in his Reply to the preliminary objection referred to the
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case of A.I.B. LTD. VS. PACKPLAST(sic PACKOPLAST) (NIG.) LTD. (2004) 3 NWLR (Pt. 859) 129 at 143 paras H?B cited by the Respondent and stated that the Appeal arose from the decision of the trial Court on an application challenging the jurisdiction of the Court, referring to pages 43?45 of the Record. He stated that the trial Court refused the application thereby affirming its jurisdiction. Counsel referred us to the case of WESTERN STEEL WORKS LTD. VS. IRON AND STEEL WORKERS UNION (1986) NWLR (Pt. 30) 617 and quoted the dictum of Obaseki JSC and also the case of UGO VS. UGO (2017) 18 NWLR (Pt. 1597) 218 especially the dictum of Onnoghen CJN and submitted that a final decision can arise from an interlocutory application. He again cited and relied on IGUNBOR VS. AFOLABI (2001) 11 NWLR (Pt. 723) 148 to the effect that a final order or judgment at law is one which brings to an end the rights of the parties in the action. Learned Counsel referred to ALOR VS. NGENE (2007) 17 NWLR (Pt. 1062) 163 at 175 pars F?G; 177 para E and submitted that the decision appealed against is a final one for which the appellant did not need or require leave of Court.
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He urged us to overrule the preliminary objection.
Even though learned Counsel reacted to ground 2 on the omission of the Osisioma L.G.C, I have earlier noted that this ground is overtaken by event, that is to say, the filing of a motion seeking leave of Court to amend the Brief of argument of the Appellant, which leave was granted on 2/5/2017 and in consequence of which the Appellant?s Amended Brief of argument was deemed properly filed and served with the Osisioma Ngwa Local Government Council added as the 8th Respondent.
Having so noted ground 2 of the grounds of objection becomes otiose and same is struck out together with the submissions thereon.
This Court is thus left with Ground 1 of the Grounds of Preliminary Objection to consider.
I have already reviewed the issue and submissions of counsel on both sides.
?Now, the issue is whether the decision of the lower Court is a final decision, in which case the Appellant is not required to obtain leave before filing the appeal, the period for filing the appeal statutorily being 3 months in civil matters; or the decision is interlocutory, in which case the Appellant has 14 days to
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file the appeal, beyond which he has to seek and obtain the leave of Court for extension of time within which to file the appeal (See Section 24(2) of the Court of Appeal Act, 2004).
The Respondents in their Preliminary Objection argued that the decision is interlocutory, requiring the appellant to file the notice of appeal within 14 days or obtain leave for extension of time within which to file; that since the appellant had neither filed within 14 days nor obtained leave for extension of time within which to file the appeal, same is incompetent as it violated the provisions of Section 24 (2) of the Court of Appeal Act 2014.
The Appellant, on his own part has contended that the decision is final as it affirmed the jurisdiction of the lower Court to adjudicate on the main suit.
The test for determining whether a judgment/order is final or interlocutory for the purposes of appeal, has adequately been discussed in the case of EBOKAM VS. EKWENIBE & SONS TRADING COMPANY LTD. (1999) LPELR?993 (SC) pp 11?13 paras D?A; where it was held as follows:-
“…It is well established by a myriad of decided cases both in England and
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in this country that there are two distinct tests to be applied in deciding whether a decision of a Court of first instance is interlocutory or final. The two classical authorities upon which these tests are formulated are Bozson v. Altrincham U.D.C. (1903) 1 K.B 547 and Salaman v. Warner (1891) 1 QB 734. In the Bozson’s case, at p. 548 Lord Alverstone C.J. said:- “It seems to me that the real test for determining this question ought to be this: Does the judgment or order as made, finally dispose of the rights of the parties. If it does, then I think it ought to be treated as a final order: but if it does not it is then, in my opinion, an interlocutory order”. In Salaman v. Warner case at p. 735 Lord Esher M.R. put the matter thus:- “Taking into consideration all the consequences that would arise from deciding in one way or the other respectively, I think the better conclusion is that the definition which I gave in Standard Discount co. v. La Grange is the right test for determining whether an order for the purpose of giving notice of appeal under the rules is final or not. The question must depend on what would be the result of the decision of the Divisional
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Court, assuming it to be given in favour of either of the parties. If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules, it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory”. (Italics mine) There is no doubt that looking at the two test in Bozson’s and Salaman’s cases set out above one would say that the principles enunciated therein are slightly dissimilar to each other. In other words they are not saying the same thing. For while the test in Bozson’s case looks at the nature of the order made, the test in Salaman’s case looks at the nature of the proceedings in which the order is made. In England the position is now very clear in that the nature of the other test in Bozson’s case is very much preferred and applied. To this extent, it would appear that the Bozson’s case has overruled Salaman v. Warner case. In this country, the nature of the order made test has been approved and applied in our Courts.”
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In the same report at page 22 paras A?B the Court held:-
?the determining factor as to whether or not an order or judgment is interlocutory or final is not whether a Court has finally determined an issue but it is whether or not it has finally determined the rights of the parties in the claim before the Court.?
Now, what constitutes a final judgment/order?
There have been a lot of judicial definitions of what is a final judgment/order dating as far back as the 18th Century and early 19th Century.
A few of these old cases are:-
(1) In re FAITHFUL EX PARTE MOOKE (1885) 14 QBD 627 at 629 a final judgment was defined by Cotton L. J. to be a judgment obtained in an action by which a previously existing liability of the defendant to the plaintiff is ascertained or established ? unless there is something to show the use of the words in an extended sense.?
(2) In SOLOMON VS. WARNER (1891) 1 QB 734 at 736 Lopes L. J. defined a final judgment as ?a judgment or order would be final within the meaning of the rules, when, whichever way it went, it would finally determine the
13
rights of the parties.?
To put the definition in another word, no order, judgment or other proceeding can be final which does not at once affect the status of the parties, for whichever side the decision may be given, so that if it is given for the plaintiff it is conclusive against the defendant, and if it is given for the defendant it is conclusive against the plaintiff.
Flowing from the above, the real test for determining what is a final or interlocutory judgment/order sought,is this: ?Does the judgment/order as made, finally dispose of the rights of the parties? If it does, then it is a final judgment/order. But if it does not, it is an interlocutory judgment/order.
This is the view adopted by majority of Nigerian Judges as can be seen, for instance, in the case of OMONUWA VS. OSHODIN (1985) LPELR?2654 (SC) at pages 14?16 paras D?A.
I therefore hold that the Ruling of C. N. Otti J, (as she then was) having determined finally the rights of the parties in the application before her, constitutes a final judgment/order which does not require the leave of Court to be appealed against.
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Consequently, the preliminary objection fails and is hereby overruled.
I shall now consider the main appeal.
I have already summarized the facts of this case, the grounds of and reliefs sought in this appeal. I shall now consider issues and submissions of Counsel in the appeal.
The Appellants distilled three issues from the five grounds of appeal which are:-
?3.1 Whether the trial Court was correct to hold that the issue of Locus Standi could not be raised until the statement of claim was filed. Grounds 1, 3 and 5
3.2. Whether the Respondents are proper parties for the purposes of bringing this suit to set aside the judgment. Ground 2.
3.3 Whether dismissal of the application is the proper action for the trial Judge to take having held that there were insufficient materials to determine the objection. Ground 4.?
The 1st?7th Respondents on the other hand formulated two issues to wit:-
?(a) Whether the holding of the learned trial Judge that the application was premature, having been brought when pleadings are yet to be filed in the suit was wrong and occasioned a miscarriage of justice (Grounds 1, 3 and 4)
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(b) Whether the learned trial Judge erred in law when she dismissed the application of the Appellant. (Grounds 2 and 5)
ARGUMENTS IN SUPPORT OF THE ISSUES
ISSUE 1
Learned Appellant?s Counsel answered issue 1 in the negative and submitted that lack of locus standi is an objection to jurisdiction and thus can be raised at any stage of the proceedings, since it denotes the legal capacity to institute proceedings in a Court of law as well as a right of a party to appear and be heard on the question before any Court or tribunal, referring to OGUNSANYA VS. DADA (1992) 4 SCNJ 244 at 256.
Learned Counsel, though conceding that lack of locus standi can be determined from the statement of claim, as decided in THOMAS VS. OLUFOSOYE (1986) 1 NWLR 669 and BOLAJI VS. BAMGBOSE (1986) 4 NWLR 633, contended that the Courts have also held several times that pleadings are not necessary for the determination of the standing of parties to bring an action in Courts and that once sufficient materials exist, the Court is entitled to determine the issue of lack of locus standi before it even only on the writ of summons, or affidavit evidence relying on
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EREBOR VS. MAJOR & CO. LTD (2001) 5 NWLR (Pt. 706) 300, which he quoted extensively, and MARADESA VS. GOV. OF OYO STATE (1986) 3 NWLR (Pt. 27) 125 and FAWEHINMI VS. AKILU (NO. 1) (1987) 4 NWLR (Pt. 67) 797.
Learned Counsel then submitted that the Respondents filed a 33 paragraph affidavit containing sufficient materials to enable the trial Judge rely upon in order to determine the issue of lack of locus standi without recourse to the statement of claim and that the learned trial Judge was wrong to have held as she did on page 95 of the Record.
Contending further, the learned Counsel stated that the learned trial Judge neglected to consider and failed to distinguish the authorities cited before her on this point, which approach has occasioned a miscarriage of justice.
Counsel quoted page 96 of the Record and submitted that the issue of locus standi is an issue of law which goes to the jurisdiction of the Court and can be raised independently of the procedure prescribed by Order 24 of the Rules of the lower Court, relying on:-
1. NDIC VS. CBN (2002) 18 WRN 1
2. IKINE VS. EDJERODE (2001) 18 NWLR (Pt. 745) 446.
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Referring to the submission of the Respondents? Counsel at the lower Court that the objection taken by the appellant was a demurrer, learned counsel submitted that the objection being taken by the appellant was not a demurrer, relying on P.D.P. VS. ADEYEMI (2002) FWLR (Pt. 84) 155 and AJAYI VS. ADEBIYI (2012) 11 NWLR (Pt. 1310) 137. He again submitted that an objection to locus standi can be raised at an early stage, even before the defendant files his statement of defence, relying onBOLAJI VS. BAMGBOSE (1986) 4 NWLR (Pt. 37) 632) and that the issue of locus standi does not depend on the success of the suit but on whether the plaintiff has sufficient interest in the subject-matter of the dispute, relying on ADESOKAN VS. ADEGOROLU (1997) 3 SCNJ 1 at 16. He then urged us to resolve this issue in favour of the Appellant and against the Respondents.
ISSUE 2
Learned Appellant?s Counsel answered this issue in the negative and submitted that the Respondents are not the proper parties to bring this action, as they were not parties to the Suit No. A/130/92: SAMUEL UDEAGWU VS. OBIOMA NGWA LOCAL GOVERNMENT in which judgment was given for the Appellant.
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Counsel further submitted that the reliance of the Respondents on Section 64 of the Evidence Act, 2011 (as amended) in their Respondents? Brief, does not aid them as the section envisages that it is the parties to a suit who feel that a judgment has been obtained by fraud that bring this sort of action seeking to have it set aside, but certainly not the Respondents in this case, as they were not sued by the Appellant at the Court below. He relied onOLUFUNMISE VS. FALANA (1990) 3 NWLR (Pt. 136), which he quoted, and also ANATOGU VS. IWEKA II (1995) 8 NWLR (Pt. 415) 557 and VULCAN GASES LTD VS. G.F. IND. A.G. (2001) 9 NWLR (Pt. 719) 610 at 623. Counsel further submitted that the case of ISHIE VS. MOWANSO (2000) 13 NWLR (Pt. 684) 279 relied upon by the Respondents is inapplicable as it deals with ?parties? for the purposes of res judicata, which is completely different from this case and that Section 64 of the Evidence Act supports the case of the Appellant. He urged us to resolve this issue in favour of the Appellant and against the Respondents.
ISSUE 3
Learned Counsel again answered this issue in the negative and submitted that the lower
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Court ought not to have dismissed the appellant?s objection having held that there were insufficient materials to determine same. He argued that the proper order was striking out of the application. He submitted that by dismissing the application the appellant had been estopped from raising the issue thereby causing miscarriage of justice, relying onOKEKE VS. MODU (1996) 9 NWLR (Pt. 470) 121 at 127, which he quoted extensively.
Learned Counsel submitted further that even in situations where the Courts have held that plaintiffs lack the locus standi, the proper orders made are those of striking out and not dismissal, relying on OLUFUNMISE VS. FALANA (supra), OGUNSANYA VS. DADA (supra), MARADESA VS. GOV. OYO STATE (supra) and VULCAN VS. GIV (supra).
Learned Counsel concluded by urging us to allow the appeal for the following reasons:-
(1) Locus standi is an issue of law that can be raised at any time.
(2) The Courts have held in various occasions that lack of locus standi can be determined once there is sufficient information to doso, even if it is only based on the writ of summons, relying on EREBOR VS. MAJOR & CO LTD (supra).
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(3) The Supreme Court has also ruled on locus standi based on affidavit evidence, relying on FAWEHINMI VS. AKILU (supra)
(4) The Plaintiffs are not the proper parties to bring this action based on Section 64 of the Evidence Act.
(5) Having held that there were insufficient materials to determine the objection, the proper action for the trial Court to take was to strike out the application and not to dismiss it.
The 1st?7th Respondents on their part submitted on their two issues as follows:-
ISSUE (a)
Learned 1st?7th Respondents? Counsel submitted that the holding of the learned trial Judge that the application of the Appellant was premature, having been brought when pleadings were yet to be filed in the suit was not wrong and did not occasion any miscarriage of justice in the circumstance. Learned Counsel contended that the dismissal of the application of the Appellant was not based on its immaturity but on the fact that the Respondents are privies and or successors-in-title of the Defendant in the said suit.
?It is further submitted that Grounds 1, 2 and 4 of the Appeal are based on obita dicta and not on ratio
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decidendi of the Ruling of the learned trial Judge relying on BAMGBOYE VS. UNIVERSITY OF ILORIN (1999) 10 NWLR (Pt. 622) 290. Counsel submitted further that Grounds of Appeal and issues formulated therefrom are based on ratio decidendi and not on obita dicta relying on OMISORE VS. AREGBESOLA (2015) 5 NWLR (Pt. 1482) 205 at 263?264 paras F?B, and then urged us to strike out grounds 1, 3 and 4 of the appeal together with the issues distilled therefrom as they are incompetent.
It is the further submission of the 1st?7th Respondent?s Counsel that even the holding of the trial Court on pre-maturity of the Appellant?s application was in order as it was only the writ of summons that was filed at the time the Applicant filed his application on locus standi; rather than statement of claim, relying on OWODUNNI VS. REGD TRUSTEES OF C.C.C. & ORS. (2000) 10 NWLR (Pt. 675) 315 at 353?354 and ADESOKAN VS. ADEGOROLU (1997) 3 NWLR (Pt. 493) 261 at 263.
Learned Counsel argued that the Courts require more materials than are contained on writs of summons to determine the issue of locus standi; that there is distinction between
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locus standi and jurisdictional incompetence ex facie the writ of summons; that in the case of locus standi, proper procedure must be followed as contained in Order 24 of the Abia State High Court (Civil Procedure) Rules 2001, relying on MOBIL NIGERIA UNLIMITED VS. LAGOS STATE ENVIRONMENTAL AGENCY & ORS. (2003) 5 WRN 1 at 24; that the dismissal of the application did not occasion any miscarriage of justice since, whether or not Order 24 of the Rules of the lower Court were followed, the outcome of the application would have been the same.
?On the propriety of the dismissal of the application rather than striking out, learned Respondents? Counsel submitted that the lower Court was in order to have done so since the application was fully heard and dismissed on the ground that the Respondents had the locus standi to bring the action; that the submission of Appellant?s Counsel in paragraph 4.35 was misconceived and irrelevant as the issue before the Court is a motion challenging locus standi which was dismissed and not a suit dismissed for lack of locus standi. He then urged us to resolve this issue in favour of the Respondents and against the Appellant.
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ISSUE (B)
Learned Counsel answered this issue in the affirmative, adopting his submission above. He referred to a portion of the Ruling of the lower Court at page 95 para 4 of the Record and submitted that the Appellant did not complain about the finding of the trial Judge and then submitted that the reasoning of the lower Court was unassailable, as the Appellant has not contended that the Respondents are not privies of the Osisioma Ngwa L.G.C. in respect of the land, the subject-matter of this suit, the judgment which they seek to set aside.
Learned Counsel further submitted that the trial Judge considered the provisions of Section 64 of the Evidence Act, 2011 (as amended) in her Ruling as well as Section 243 (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria and came to the conclusion that the Respondents were parties by virtue of their being privies to the Defendant in that suit.
?Counsel finally urged us to resolve this issue in favour of the Respondents and against the Appellant and concluded by praying the Court to dismiss the appeal for the following reasons:-
(a) The basis for dismissing the motion was
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not that it was premature or failure to follow Order 24 of the High Court Rules
(b) The lower Court found that the Respondents were privies of the Defendant in the earlier suit and so had the locus to bring the present suit to set aside the judgment in the earlier suit on grounds of fraud.
(c) The Appellant did not contest the fact that the Respondents are privies of the Osisioma Ngwa L.G.C. in respect to the subject-matter of the judgment sought to be set aside by them in the fresh action on grounds of fraud.
(d) The lower Court rightly held that because they are privies of the Defendant in the said suit, they are deemed parties and were proper before the Court in the present suit.
RESOLUTION OF THE ISSUES
Having carefully considered the issues formulated by both sides I think they can be reduced to two issues thus:-
(1) Whether in the circumstances of this case, the Respondents are parties in Suit No. A/130/92? (Grounds 2 & 5)
(2) If the answer to issue 1 above is in the negative, whether the Respondents have the locus standi to bring the action in Suit No. HOS/88/2001? (Grounds 1, 3 and 4)
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Issue 1 (Grounds 2 and 5)
?Whether in the circumstances of this case, the Respondents are parties in Suit No. A/130/92? (Grounds 2 & 5)?
The main thrust of the contention, arguments and submissions of the Appellant is that the Respondents were and are not parties in the Suit No. A/130/92 and so are not competent to bring this suit No. HOS/88/2001, the subject-matter of this appeal. Put in another way, the Respondents, not being parties to the Suit No. A/130/92, between SAMUEL UDEAGA VS. OBIOMA NGWA L.G.C. in which judgment was delivered on 31st day of January 1994, have not the locus standi to bring the Suit No. HOS/88/2001, seeking to set aside the said judgment.
The learned Appellant?s Counsel has argued forcefully that the Respondents are not parties in this Suit and so cannot maintain an action to set aside the judgment on the ground of fraud, and that since the Respondents, not being parties to the suit, and not having the requisite locus standi to maintain the action, cannot invoke the jurisdiction of the Court to hear and determine the suits filed by them, and that the only way the Respondents can come into this matter is to initiate an
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appeal under Section 243 (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
Now, what is locus standi? It has been held to be a threshold issue, the absence of which terminates the action since the Court is thereby bereft of jurisdiction. See MADUKOLU VS. NKEMDILIM (1962) 1 ALL NLR 567; (1962) 2 SCNJ 341, and DADA & ANR. VS. OGUNSANYA & ANR (1992) LPELR?908 (SC) pages 24?25 paras G?B.
In this case the questions to ask are: are the Respondents parties in the Suit No. A/130/92? Do they have the locus standi to bring and maintain this action? The Respondents have relied on Section 64 of the Evidence Act 2011 (as amended) and the case ofISHIE VS. MOWANSO (2000) 13 NWLR (Pt. 684) 279 at 292 and submitted that they are parties by privy since there is a contract between them and the Defendant.
Now Section 64 of the Evidence Act 2011 (as amended provides thus:-
?64. A party to a suit or other proceeding may show that any judgment, order or decree which is admissible under Section 59, 60 or 61 and which has been proved by the adverse party, was delivered by a Court without
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jurisdiction, or was obtained by fraud or collusion.?
Section 243(1) of the Constitution relied upon by the Appellant provides thus:-
?243(1) Any right of appeal to the Court of Appeal from the decision of the Federal High Court or a High Court conferred by this Constitution shall be:-
(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney General of the Federation or the Attorney General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed.?
In both provisions the emphasis is on a party to the proceedings; and under the Constitution a person who is not a party but is affected by a decision or has interest in the case may appeal with the leave of Court against the decision.
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Now, in the case of ISHIE VS. MOWANSO (2000) 13 NWLR (Pt. 684) 279 at 292, for the purposes of res judicata it was held:-
?Simply put the law is that a decision against a person in one capacity cannot be res judicata against him suing in another distinct capacity. See Cardoso vs. Daniel (1986) 2 NWLR (Pt. 20) 1; Ibero & Anor. vs. Ume?Ohana (1993) 2 NWLR (Pt. 277) 510. But it has to be noted also that res judicata applies to privies in blood such as ancestor and heir; privies in law such as testator and executor, intestate and administrator and privies in estate such as vendor and purchaser, lessor and lessee. See Halsbury?s Laws Of England 3rd Edition, Vol. 15 page 96 or Article 172
The above is a scenario dealing with res judicata for the purposes of ousting the jurisdiction of the Court. Or put in another way, for the purposes of preventing re-litigation in respect of the same parties, same issues and same subject matters. I so hold.
Having so held I further hold that for the purposes of this appeal, the Respondents were/are not parties to the Suit No. A/130/92. SAMUEL A. UDEAGWU VS. OBIOMA NGWA L.G.C.
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Granted that they have interest in the subject matter of the Suit, that is to say, the Ariaria/Umuehilegbu Industrial Market, Osisioma, I hold the firm view that the remedy for the Respondents lies in the provisions of Section 243(1) (a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
I therefore resolve this issue against the Respondents and in favour of the Appellant.
Issue 2 (Grounds 1, 3 and 4)
?If the answer to issue 1 above is in the negative, whether the Respondents have the locus standi to bring the action in Suit No. HOS/88/2001
Having stated briefly what locus standi is, the question here is: do the Respondents have the requisite locus standi to bring the action which is the subject matter of this appeal?
I dare to answer this question in the negative. This is because I have earlier held that the remedy of the Respondents lies in Section 243(1) (a) of the amended 1999 Constitution of the Federal Republic of Nigeria.
Without much ado I resolve this issue in favour of the Appellant and against the Respondents.
?On the whole this appeal has merit and is allowed by me.
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The Ruling of the trial Court is hereby set aside. Parties shall bear their own cost.
RITA NOSAKHARE PEMU, J.C.A.: I had read in advance, the lead judgment just delivered by my Brother IBRAHIM ALI ANDENYANGTSO JCA.
I agree with his reasoning and conclusion.
I allow the appeal. The Ruling of the trial Court is hereby set aside.
I abide by the consequential order made as to costs.
ITA GEORGE MBABA, J.C.A.: I had privilege to read the lead judgment just delivered by my learned brother, Andenyangtso JCA, and I agree with his reasoning and conclusions therein, that the Appeal is meritorious.
?I abide by the consequential orders therein.
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Appearances:
C. A. Obianwu, Esq.For Appellant(s)
C. N. Ijoma Esq. for the 1st-7th Respondents.
8th Respondent unrepresentedFor Respondent(s)
Appearances
C. A. Obianwu, Esq.For Appellant
AND
C. N. Ijoma Esq. for the 1st-7th Respondents.
8th Respondent unrepresentedFor Respondent
