DR. B.U. OKAFOR v. ATTORNEY-GENERAL OF RIVERS STATE & ANOR
(2012)LCN/5226(CA)
In The Court of Appeal of Nigeria
On Thursday, the 15th day of March, 2012
CA/PH/91/2010
RATIO
RAISING A PRELIMINARY OBJECTION ON GROUND OF LACK OF JURISDICTION
It needs be stated right away that a preliminary objection can be raised by the defendant to an action of the plaintiff without the defendant filing statement of defence when it is on ground of lack of jurisdiction. See NNONYE V. ANYICHIE (2005) 2 NWLR (PT. 910) 623; NDIC V CBN (2002) 7 NWLR (PT.272); ARJAY LTD V ARDUE MANAGEMENT SUPPORT LTD (2003) 2 SCNJ 148; CIAFA V. GOVT. OF KWARA STATE (2003) 4 NWLR (PT.1024) 375; NKUME V. ODILI (2006) 6 NWLR (PT. 977) 587. PER. T. O. AWOTOYE J.C.A.
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
DR. B.U. OKAFOR
(SUING BY HIS LAWFUL ATTORNEY, BEN IKEH) Appellant(s)
AND
1. ATTORNEY-GENERAL OF RIVERS STATE
2. MINISTRY OF URBAN DEVELOPMENT, RIVERS STATE Respondent(s)
T. O. AWOTOYE J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of J.N Ogbuji J. of High Court of Rivers State delivered on 27/10/2009.
The appellant had on 16/3/2009 at the court below instituted an action through his lawful attorney Ben Ikeh against the Respondent the defendant without filing their defence filed a preliminary objection urging the court to strike out the suit for lack of jurisdiction.
The trial court in its ruling delivered on 27/10/2009 held that the power of attorney annexed to the statement was not authenticated to show due execution and therefore the appellant had no locus standi to prosecute the suit and so struck the suit out.
The appellant being aggrieved appealed to this court vide his Notice of Appeal filed on 25/01/2010. The Notice of Appeal contains 3 ground of appeal which are as follows (shorn of their particulars)
“GROUND OF APPEAL
i. The learned trial judge erred in law and this had led to a gross miscarriage of justice when he held that the power of attorney donated by the Appellant was defective and appellant thereby has no locus standi to commence the suit against the defendants.
ii. The learned trial judge erred in law and violated the appellant’s right to fair hearing when he struck out the appellant’s claims based on the defendants’ preliminary objection to the power of attorney by which the suit was instituted.
iii. The learned trial judge erred in law and this has led to gross miscarriage of justice when he struck out the appellant’s claims upon the preliminary objection of the defendants which had not filed their statement of defence.
iv. other grounds of appeal may be filed on receipt of records of appeal.”
After transmission of record of appeal parties filed and exchanged brief of argument.
The appellants brief was settled by their counsel E. B. Ukiri. He formulated one sole issue for determination to wit:
“GROUND OF APPEAL
Whether a court can properly determine the validity of a document which had not been tendered by any of the parties (sic) as exhibit before the court nor produced to the court where judicial notice is permissible. He urged the court to set aside the Ruling of the lower court because;
(a) the power of attorney was not properly placed before the court.
(b) The defendants did not file statement of defence but instead filed preliminary objection,
(c) the defendant in the power of attorney was merely procedural and did not affect the locus standi of the appellant to commence and prosecute the case. He cited GBAAJOOR V OGUNDUREJI (1960) 1 ALL NLR 583; FIRST BANK OF NIG. PLC V. IBENNAH (1996) 5 NWLR part 451 at 725 ; AJIDE V KELENI (1985) 3 NWLR PT.12, 28 18 and other cases, He urged the court to allow the appeal.”
The Respondents in their brief argued preliminary objection after giving notice earlier on 4/10/2011. The respondent’s brief was settled by Dagogo Israel Iboroma, their counsel. Learned counsel submitted that the decision of the trial court was an interlocutory decision as it did not finally settle the respective rights of the parties submitted for determination. He relied on OWOH v AZUK (2008) 6 NWLR (PT.1112) 113 at 127. He submitted that it therefore followed that this appeal was interlocutory and should have been filed in compliance with section 25 of the Court of Appeal Act within 14 days from the date of the decision. In other words it was filed out of time and so the appeal was incompetent and should be struck out.
The respondents’ counsel further proceeded to formulate one issue for determination of the main appeal thus:
“Whether upon a proper evaluation of all the processes and documents before the Honourable court, the honourable court was right in striking out the appellants suit at the trial court?”
Learned counsel referred to the provision of Order 3 Rule 2 (1d) of the Rivers State High Court Rules and submitted that the Respondents did not need to file statement of defence before challenging the locus standi of the appellant. He relied on PAM V MOHAMMED (2008) 6 NWLR (PT. 1112) 1at 66; ELEBANYO V. DAWODU (2006) 15 NWLR (PT.1001) 76 AT 130, EBENGO V UWEMEDUNO (1995) 8 NWLR (PT. 411) 22 at 51.
He submitted that the power of attorney filed along with the statement of claim was defective and this deprived the plaintiff/appellant the locus standi to institute the action. He contended further that the power of attorney was not duly executed as it was not authenticated before a notary public, magistrate or judge.
The appellant in his reply brief submitted that the preliminary objection was totally misconceived. He submitted that an order striking out the suit was a final decision. He relied on IWUEKE V IBC (2005) 17 NWLR (PT. 955) Pg. 447 at 467; ALHAJI MOHAMMED & ANOR V. OLAWUNMI & ORS (1990) 2 NWLR (PT.133, 458 at 475-476.
I have deeply considered the argument canvassed on both sides. I shall first consider the preliminary objection raised by the respondents.
Was the ruling of the court below delivered on 27/10/2009 a final decision or interlocutory decision?
It is now settled that the correct test in determining this is to look at the nature of the order to see if it disposes finally of the rights of the parties and the parties can make no further reference to that court on the matter in which it has delivered its decision, see Ogolo v. Ogolo (2006) 10 WRN 92 at 116; ODUTOLA V ODERINDE (2004) 30 WRN 1. In my respectful view, the decision of the trial court striking out the suit on ground of lack of locus standi is a final decision, in that the issue of locus standi cannot be brought to the trial court again by the parties on the same set of facts.
That being so the preliminary objection which rests heavily on the above issue of whether the decision of the lower court was final or interlocutory must fail as the provision of section 25 of the Court Of Appeal Act is inapplicable to this appeal, it being a final appeal. The preliminary objection is therefore overruled.
Now to the main appeal, I am of the considered view that the issue formulated by the Respondent adequately represents the sole issue in this appeal and I adopt it for the purpose of the appeal.
Was the trial court right to strike out the suit based on the preliminary objection of the defendant?
It needs be stated right away that a preliminary objection can be raised by the defendant to an action of the plaintiff without the defendant filing statement of defence when it is on ground of lack of jurisdiction.
See NNONYE V. ANYICHIE (2005) 2 NWLR (PT. 910) 623; NDIC V CBN (2002) 7 NWLR (PT.272); ARJAY LTD V ARDUE MANAGEMENT SUPPORT LTD (2003) 2 SCNJ 148; CIAFA V. GOVT. OF KWARA STATE (2003) 4 NWLR (PT.1024) 375; NKUME V. ODILI (2006) 6 NWLR (PT. 977) 587.
However there is need to consider whether or not the objection of the defendants at the lower court raised the issue of jurisdiction.
The plaintiff had instituted the action by his lawful attorney Ben Ikeh. In compliance with the requirements of Order 3 Rules 2 (1) of the High Court Rivers State (Civil Procedure) Rules the plaintiff accompanied the writ of summons by a copy of the power of attorney issued by him authorizing Ben Ikeh to institute the action on his behalf. Ben Ikeh also swore to a written statement on oath in compliance wit the Rules of court.
For ease of reference I quote the contents of the copy of the power of attorney filed by the plaintiff hereunder:-
“KNOW YE ALL MEN that by these presents, I, DR. B.U. OKAFOR of No. 2 Ozuzu Close, D/Line, port Harcourt, hereby appoint Ben Ikeh, a ,Company registered under the companies and Allied Matters Act to be my lawful Attorney with respect to the claim against the Urban Re-Orientation and Enforcement Department of the Rivers state Ministry of Urban Development (Agency) and in that regard, the Donee is hereby authorized to do any or all of the following acts or deeds:-
(a) To institute or commence legal action in Court against the said Agency for the purpose of securing adequate compensation.
(b) To demand, negotiate or settle the case if the Agency is ready and willing to settle the case amicably if a fair, adequate and reasonable compensation is offered.”
As aforestated, Ben Ikeh the attorney swore to statement on oath where he described himself as “male Christian, adult, Nigeria Citizen of No…………”
It needs be stated that in the power of attorney Ben Ikeh is described as “a company registered under the company and Allied Matters Acts.”
The power of attorney was also not authenticated. The trial court struck out the suit, because proper parties were not before the court and the claimant lacked locus standi.
With due respect I do not agree with the reasoning and decision of the learned trial judge on this issue. A donee of a power of attorney has no locus standi to institute an action on behalf of the donor. He must sue in the” name of the donor. He is merely an agent of the donor. See VULCAN GASES LTD V GESELLSCHAFT (2001) 26 WRN 1. On page 26 of the Report IGUH JSC. (delivering the lead Judgment of the Supreme Court) said:-
“The donee of a power of Attorney or an agent in the presentation of a court suit or action pursuant to his powers must sue in the name of the donor or his principal and not otherwise. See TIMOTHY OFODUM V. ONYEACHO (1966) (67) 10 ENLR 132; JONES V GURNEY (1913) WN 72; JOHN AGBUM V MALLAM GARUBA JEMEYITA (1972) 2 ECSLR 365.-
See also AMADI V FRN (2008) WRN 38 at 60.
In fact Uwaifo JSC in his contribution on page 54 of the Report stated that when there is an express written authority to the agent to sue, there is no need for a power of attorney.
His lordship stated (from pages 53 – 54) thus:-
“As I said, it is that of principal and agent. The question is did Mr. Okunlola have the authority of the respondent to commence this action? It is not therefore whether Mr. Okunlola had locus standi but the authority of his principal, the respondent…It can be seen that the authority to sue was in writing as per the affidavit which was exhibited as GIV I that was express written authority which existed before the originating summons was taken out. There was therefore no need for a power of attorney so called which is defined as “A power of attorney is a formal instrument by which one person empowers another to represent him or act in his stead for certain purposes. It may confer general or particular powers.”
It is clear from the above that the obvious defect in Power of attorney does not raise an issue of lack of locus standi but a question of whether or not DR. B.U Okafor authorized the commencement of the action at the trial court. This clearly is not an issue of jurisdiction.
The learned trial judge was, with due respect wrong to have entertained the preliminary objection and struck out the suit on a non-jurisdictional issue. The defect on the power of attorney could still have been corrected without prejudicing the action.
I therefore resolve the sole issue formulated in favour of the appellant. This appeal is allowed as it is meritorious.
The order of the lower court striking out the case at the lower court is hereby struck out. The said preliminary objection of the defendants is hereby dismissed.
Suit No. PHC/ 444/2009 DR; B.U. OKAFOR V ATTORNEY GENERAL OF RIVERS STATE & ANOR is hereby remitted back to the High Court of the State to be re-assigned to another judge by the Chief Judge of Rivers State for hearing de novo.
Parties are to bear their respective costs.
M. DATTIJO MUHAMMAD, J.C.A.: I have read in advance the lead judgment of my learned brother Awotoye JCA and agree with his reasonings and conclusion that the appeal which is meritorious succeeds. I abide by the consequential orders contained in the lead judgment including the order on costs.
PAUL ADAMU GALINJE, J.C.A.: I agree.
Appearances
E. B. Ukiri with E. C. NjokuFor Appellant
AND
D.I. IboromaFor Respondent
