DUNU MERCHANTS LIMITED v. ANTHONY NNAJI OBANYE & ORS (2014)

DUNU MERCHANTS LIMITED v. ANTHONY NNAJI OBANYE & ORS

(2014)LCN/7528(CA)

In The Court of Appeal of Nigeria

On Friday, the 14th day of November, 2014

CA/E/137/2009

RATIO

APPEAL: PRELIMINARY OBJECTIVE; WHETHER A FORMAL NOTICE OF PRELIMINARY OBJECTION MUST BE FILED BY THE RESPONDENT BEFORE THE HEARING OF THE APPEAL
The authorities of N.E.P.A. v. Ango (2001) 15 NWLR (pt. 737) 627 at 645; Onochie v. Odogwu (2006) 2 SC (pt. 2) 153 at 155-156 and Nsirim v. Nsirim (1990) 3 NWLR (pt. 138) 285 at 297 by this court and the Supreme Court respectively were to the effect that a formal notice of preliminary objection must be filed by the respondent before the hearing of the appeal “so that argument on it can be heard in court”. However, in Nsirim v. Nsirim, the learned Jurist – my lord Obaseki, JSC indicated that:
“While notice of preliminary objection may be given in the brief, it does not dispense with the need for respondent to move the court at the oral hearing prayed of”.
It meant that in as much as a respondent intending to raise a point of law in a notice of preliminary objection to the hearing of the appeal, could formally file such a notice, he can also raise a notice of his preliminary objection, in his brief of argument and at the hearing of the appeal, he moves the court on the same preliminary objection notified in his brief of argument.
Undeniably, the essence of the notice whether formal or vide a brief of argument of the respondent, is to ensure that the appellant has an opportunity of reacting to the preliminary objection before the hearing of the appeal. This is now commonly done by the appellant through the filing of a reply brief of argument. Hence, the Supreme Court recently in Charles Chikwendu Odedo v. Independent National Electoral commission (INEC) (2007) ALL FWLR (pt. 392) 1907, (2008) 17 NWLR (pt. 1017) 554, (2008) 7 SCNJ at 25, (2008) 7 SC 25 provided a guide as to how a preliminary objection can be raised in a brief of argument. It is to be raised under a conspicuous title or heading; ‘preliminary objection’ and followed by the grounds of the objection and supported with the argument thereon. Also see Chief Emmanuel Osita Okereke v. Alhaji Umaru Yar’Adua & ors. (2008) 5 SCNJ 1, (2008) ALL FWLR (pt. 430) 626; (2008) 8 MJSC 182, (2008) 12 NWLR (pt. 1100) 95, (2008) 34 NSCQR 370; Ralph Uwazurike v. Attorney-General, Federation (2007) 2 SCNJ 369 at 380, (2007) 40 WRN 79, (2007) 2 SC 169, (2007) 8 NWLR (pt. 1035) 1, (2007) ALL FWLR (pt. 368) 834 and the more recent decisions of this court in His Excellency, Mr. Ayo Fayose, Governor, Ekiti State v. Independent Communication Network & 3 ors. (2012) 10 WRN 147 at 167 – 168; Dr. Eratus B. O. Akingbola v. The Chairman, Economic & Financial Crimes Commission (2012) 9 NWLR (pt. 1306) 475 at 497.
For all I have been saying, I am of the considered opinion that the preliminary objection at the instance of the respondents, having been notified in their brief of argument and to which the appellant responded in her reply brief of argument, the non-filing of a notice of preliminary objection by the respondent is not fatal to nor does it infirm the said preliminary objection. I am satisfied that the respondents’ preliminary objection is competent and I now proceed to consider and determine it.” per. TOM SHAIBU YAKUBU, J.C.A.
COURT: JURISDICTION; THE IMPORTANCE OF JURISDICTION TO A PROCEEDING, WHEN IT SHOULD DETERMINED, WHEN CAN A COURT BE SAID TO BE COMPETENT, THE EFFECT OF THE LACK OF JURISDICTION OF A COURT AND WHAT THE COURT MUST LOOK AT IN DETERMINING WHETHER IT HAS JURISDICTION

Before Their Lordships

MASSOUD ABDULRAHMAN OREDOLAJustice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBUJustice of The Court of Appeal of Nigeria

MISITURA O. BOLAJI-YUSUFFJustice of The Court of Appeal of Nigeria

Between

DUNU MERCHANTS LIMITEDAppellant(s)

AND

1. ANTHONY NNAJI OBANYE
(FOR THEMSELVES AND FOR AND ON BEHALF OF MEMBERS OF MGBELEKEKE
2. UMERAH ANAZONWU
3. ANACHEBE ANAZONWU
4. VINCENT OBIORA OBIOZOR
5. BARR. DAN ANAZONWU
6. DR. NWACHUKWU ANAZONWU
7. CHARLES CHUKWUEMEKA ANAZONWU
8. DR. OKEY ANAZONWURespondent(s)

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of the Anambra State High Court of Justice, holden at Onitsha, dated 12th May, 2008.

Anthony Nnaji Obanye (For himself and as representing members of the Mgbelekeke Family, Onitsha) had sued the appellant along with some other defendants, with respect to a land in dispute which is described as being part and parcel of the larger Ose Okwodu (or Otu Okwodu) land of the plaintiffs and situate at Onitsha. The Claim against the appellant particularly is that the appellant as the 4th defendant acting with the 5th defendant on or about the 21st October, 1998; purporting to be acting under a management contract dated 4/12/97 between them and the 1st – 3rd defendants “broke and entered on the plaintiffs land now in dispute with the active assistance of armed policemen and drove away plaintiffs’ tenants and have since assumed possession by injecting thugs and tenants thereon and collecting rents and fees.” Hence, the reliefs claimed by the plaintiff/respondent against the defendants jointly and severally included

“(a) Special damages at the rate of N800,000.00 per month from the 21st day of October, 1998 till they vacate the land in dispute, being plaintiffs’ loss of earning as aforesaid.
(b) N10,000.00 (Ten Million Naira) general damages for trespass.
(c) An order of perpetual injunction restraining all the defendants by themselves, their servants, agents, privies jointly or severally or in any union from committing further acts of trespass on the land in dispute in this case or howsoever interfering with the plaintiffs’ use of or rights over the aforesaid land.”

The Claim was filed on 9th Dec., 1999. The 4th defendant (now appellant herein) in an amended statement of defence dated 1st February, 2007 but deemed filed on 1st November, 2007 by the court below, averred at paragraph 7 thereof, that her “contract dated 4-12-97 with members of obi Anazonwu’s family of Ogbeoze Village, Onitsha (her principal) as regards the management of the subject matter of this suit in their stead is no longer subsisting as same has been withdrawn/terminated on the 20th day of October, 2006.” So, at paragraph 11 of the aforesaid amended statement of defence, the appellant (4th defendant) averred, to wit:

“11. The 4th defendant shall at the trial challenge the jurisdiction of the Honourable Court to entertain this suit against her as the plaintiffs have no reasonable cause of action against her.”

In an application made pursuant to order 39 Rule 1 (1) & (2); order 15 Rule 18 (1) (a) of the Anambra State High Court (Civil Procedure Rules and also under the inherent jurisdiction of the Honourable Court, the 4th defendant (appellant herein) prayed for:

“(i) AN ORDER striking out the 4th defendant as a party to this suit.
(ii) AN ORDER striking out this suit in its entirety or alternatively an order dismissing same.
(iii) Upon the grant of prayers (I) and (II) an order setting down the counter claim in the 4th defendant’s statement of defence for hearing.
(iv) AND FOR SUCH FURTHER ORDER(S) as the Honourabte Court may deem fit to make in the circumstances of this suit.
GROUNDS.
1. Court lacks jurisdiction to entertain the suit and there is no locus on the plaintiffs to incept this suit.
2. The statement of claim discloses no reasonable cause of action against the 4th defendant and the plaintiffs claim in this action are frivolous, baseless and vexatious.
3. The suit is incompetent for non-compliance with statutory procedural rules.
4. The suit is an abuse of process of court.”

The application was dated 26th February, 2008 but filed on 28th February, 2008. There was an affidavit of 17 paragraphs, with Exhibit FC1, FC2, FC3, FC4, FC5 and FC6, annexed thereto, in support of the application. There was a written address filed in support of the application.

The plaintiff/respondent in opposing the application, filed a counter affidavit of 16 paragraphs with a written address in support thereof. The learned trial judge F. C. Nwizu, J., in his ruling on the application, dismissed the same and concluded that he had the jurisdiction to entertain the claim.

There are three grounds of appeal upon which the appeal is anchored against the ruling of the learned trial judge. In pursuance of the prosecution of the appeal, appellant’s brief of argument dated 17th April, 2013 was with Leave of this Court sought and obtained, filed on 24th January, 2014. Two issues were identified for determination therein, to wit:

“(i) whether on the basis of EXHIBITS ‘FC5’ & ‘FC6’ and in particular EXHIBIT ‘FC5’ of which was an expired temporary permit granted by the Nigeria Inland Waterways Authority; do the 1st Respondents (as Plaintiffs in the Lower Court) have the requisite locus standi to commence this Suit as vested owners of the said land? If the answer is in the negative, is the issue of lack of locus standi not co-terminus with the issue of lack of jurisdiction.
(ii) Whether the Appellant (as 4th Defendant in the Lower Court) being an agent of a disclosed principal is a proper and necessary party to the Suit in the court below leading to this Appeal?”

The 1st Respondent’s brief of argument dated 18th February, 2014 was filed on 21st February, 2014. There is a notice of preliminary objection incorporated in the 1st respondent’s brief of argument aforesaid. The issue for determination, identified in the 1st respondent’s brief of argument is:
“Notwithstanding that the Appellant is an agent of a known principal and given the legal principle that jus tertii is not a defence, can it be said that the lower court lacked the jurisdiction to entertain the claim before it.”

The appellant’s Reply brief of argument dated 27th June, 2014 was filed on 30th June, 2014.

The appeal was taken on 24th September, 2014. Both learned counsel for the appellant and the 1st respondent, respectively adopted their briefs of argument and urged us to allow or dismiss the appeal, as the case may be. It is instructive that, neither the 2nd, 3rd & 4th Respondents nor the 5th to 8th respondents filed any brief of argument with respect to this appeal.

There are some preliminaries which must be considered and determined before delving into a consideration of the real kernel in this appeal. Firstly, there is the challenge by the appellant with regard to the competence of the 1st respondent’s brief of argument. Secondly, is the 1st respondent’s challenge by his preliminary objection against the appellant’s grounds of appeal?

The appellant contended at paragraphs 1.0 – 1.3 of the appellant’s reply brief of argument to the effect that the 1st respondent’s preliminary objection against her grounds of appeal, is incompetent. This, he contended, was because according to learned appellant’s counsel, no leave of the court was sought and obtained by the 1st respondent to move the preliminary objection before the oral argument on the appeal commenced.
He urged that the preliminary objection should be struck out for being incompetent. He placed reliance on Okolo v. UBN Ltd (1998) 2 NWLR (pt. 539) 618 CA; E. B. N. Ltd v. Halico Nig Ltd (2006) 7 NWLR (pt. 980) 568 CA; Minister of Works and Housing V. Shittu (2007) 16 NWLR (pt. 1060) 351 at 370 CA.

Learned appellant’s counsel further submitted that where there is a requirement for leave of court to be obtained by a party who failed to so do, such a failure is fatal to the party’s case. He relied on Oke v. Nwa Ogbuinya (2001) 1 SC (pt. 1) 22 at 29; Ayalogu v. Agu (1998) 1 NWLR (pt. 532) 129; Inyang v. Ekong (2002) 2 NWLR (pt. 751) 284 at 307; Olowosoke v. Oke (1972) 11 SC 1; National Inland Water Ways Authority v. Shell Petroleum and Development Company unreported suit No. CA/PH/342/2005 of 10th July, 2006.

Learned appellant’s counsel further contention at paragraphs 2.0 – 2.2 of the appellant’s reply brief of argument is that as at 17th January, 2014, the appellant’s brief of argument had been filed and served on the respondents, who had 30 days to file their briefs of argument by virtue of order 18 Rule 4(1) of the Court of Appeal Rules, 2011. Therefore, according to him, the 1st respondent’s brief of argument which was filed on 21st February, 2014 was out of time and therefore incompetent. And that since no leave of this court was sought and obtained for an extension of time to file the 1st respondent’s brief out of time, the same is incompetent.
He referred to Iro & ors v. Echewendu & ors (1996) 8 NWLR (pt. 468) 629; Mohammed v. Kiagestar Nig. Ltd. (1996) 1 NWLR (pt. 422) 54.

Resolution of appellant’s contentions

I have deeply considered the submissions of the learned appellant’s counsel with respect to the competence of the 1st respondent’s preliminary objection and his brief of argument. With respect to the first leg of the appellant’s contention, the straight forward answer is contained in the more recent decision of this court in Mrs. Mary Wilkey v. Mrs. Ogbohu Ogiegbaen & Anor (2014) ALL FWLR (pt. 712) 1700 at 1714 – 1715; inter alia:
“I have considered the contention of the learned senior counsel to the appellant to the effect that the respondents’ preliminary objection is incompetent because of its non-compliance with order 3 rule 15(1) of the Court of Appeal Rules, 2002. Undoubtedly, the respondents, brief of argument was prepared and filed in July 2006, pursuant to the then extant 2002 rules of this court. Order 3, rule 15(1) of the said 2002 rules, says
“A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection and shall file such notice together with twenty copies thereof with the registrar within the same time.”
It is noteworthy that order 10, rule 1 of the Court of Appeal Rules, 2007 and order 10 rule 1 of the Court of Appeal Rules, 2011, are in pari material with order 3, rule 15(1) of the 2002 rules of this court.
In the instant case, I have perused all the processes filed by the parties and it is glaring that the respondents did not file a formal notice of their preliminary objection in accordance with order 3, rule 15(1) of the 2002 rules of this court which was in force when the respondents’ brief of argument was filed in July, 2006.
The authorities of N.E.P.A. v. Ango (2001) 15 NWLR (pt. 737) 627 at 645; Onochie v. Odogwu (2006) 2 SC (pt. 2) 153 at 155-156 and Nsirim v. Nsirim (1990) 3 NWLR (pt. 138) 285 at 297 by this court and the Supreme Court respectively were to the effect that a formal notice of preliminary objection must be filed by the respondent before the hearing of the appeal “so that argument on it can be heard in court”. However, in Nsirim v. Nsirim, the learned Jurist – my lord Obaseki, JSC indicated that:
“While notice of preliminary objection may be given in the brief, it does not dispense with the need for respondent to move the court at the oral hearing prayed of”.
It meant that in as much as a respondent intending to raise a point of law in a notice of preliminary objection to the hearing of the appeal, could formally file such a notice, he can also raise a notice of his preliminary objection, in his brief of argument and at the hearing of the appeal, he moves the court on the same preliminary objection notified in his brief of argument.
Undeniably, the essence of the notice whether formal or vide a brief of argument of the respondent, is to ensure that the appellant has an opportunity of reacting to the preliminary objection before the hearing of the appeal. This is now commonly done by the appellant through the filing of a reply brief of argument. Hence, the Supreme Court recently in Charles Chikwendu Odedo v. Independent National Electoral commission (INEC) (2007) ALL FWLR (pt. 392) 1907, (2008) 17 NWLR (pt. 1017) 554, (2008) 7 SCNJ at 25, (2008) 7 SC 25 provided a guide as to how a preliminary objection can be raised in a brief of argument. It is to be raised under a conspicuous title or heading; ‘preliminary objection’ and followed by the grounds of the objection and supported with the argument thereon. Also see Chief Emmanuel Osita Okereke v. Alhaji Umaru Yar’Adua & ors. (2008) 5 SCNJ 1, (2008) ALL FWLR (pt. 430) 626; (2008) 8 MJSC 182, (2008) 12 NWLR (pt. 1100) 95, (2008) 34 NSCQR 370; Ralph Uwazurike v. Attorney-General, Federation (2007) 2 SCNJ 369 at 380, (2007) 40 WRN 79, (2007) 2 SC 169, (2007) 8 NWLR (pt. 1035) 1, (2007) ALL FWLR (pt. 368) 834 and the more recent decisions of this court in His Excellency, Mr. Ayo Fayose, Governor, Ekiti State v. Independent Communication Network & 3 ors. (2012) 10 WRN 147 at 167 – 168; Dr. Eratus B. O. Akingbola v. The Chairman, Economic & Financial Crimes Commission (2012) 9 NWLR (pt. 1306) 475 at 497.
For all I have been saying, I am of the considered opinion that the preliminary objection at the instance of the respondents, having been notified in their brief of argument and to which the appellant responded in her reply brief of argument, the non-filing of a notice of preliminary objection by the respondent is not fatal to nor does it infirm the said preliminary objection. I am satisfied that the respondents’ preliminary objection is competent and I now proceed to consider and determine it.”
In the instant case, the 1st respondent gave an indication of his preliminary objection in his brief of argument against the appellant’s grounds of appeal. The appellant exercising his right of reply, responded to the preliminary objection vide the appellant’s reply brief of argument.
Furthermore, at the hearing of the appeal on 24th September, 2014; the 1st respondent’s learned counsel, first moved his preliminary objection before the appeal was argued. I fail to see what the 1st respondent’s learned counsel ought to have done that he did not do. He was clearly on firma terra with respect to the requirement of the law regarding the 1st respondent’s preliminary objection. Therefore, I am of the firm opinion that the contention of the appellant’s learned counsel, in this regard, is of no moment, hence it is overruled by me.

With respect to the contention of appellant’s learned counsel against the alleged late filing of the 1st respondent’s brief of argument, it is on record herein, that the appellant’s brief of argument dated 17th April, 2013 was filed, with leave of this court sought and obtained, on 24th Jan, 2014 and not on 17th January, 2014 alluded to erroneously, by Mr. Mackings Nezianya, for the appellant. The 1st respondent’s brief of argument was filed on 21st February, 2014. A simple arithmetical/mathematical calculation clearly shows that the period from 24th January, 2014 when the appellant’s brief was filed and 21st February, 2014 when the 1st respondent’s brief was filed is 29 days. Therefore, it cannot be true and it is infact not true that the 1st respondent’s brief of argument, was filed out of time, donated to him by order 18 rule 4 (1) of the Court of Appeal Rules, 2011.

I am satisfied that the objection or challenge against the 1st respondent’s brief of argument by the appellant, is lame. It did not fly. I overrule it accordingly.

I shall now consider the 1st respondent’s preliminary objection to the appellant’s grounds of appeal. It says:

“NOTICE BY 1ST RESPONDENT OF INTENTION TO RELY UPON PRELIMINARY OBJECTION pursuant to order 10 rule 1 c.a. rules 2011

TAKE NOTICE that the 1st respondent herein intends, at the hearing of this appeal, to rely upon the following preliminary objections, to wit,

That the three grounds of appeal be struck out for incompetence and non-disclosure of reasonable grounds of appeal and the appeal itself be dismissed for want of grounds of appeal.

ALSO TAKE NOTICE that the GROUNDS of the objection are:-
1a. That the ground one as couched is a stranger to and unknown as a ground of appeal in, civil appeals.
b. In any case, the omnibus ground in civil appeals do not admit of particulars and is defeated by them.
c. Not being a proper and competent omnibus ground of appeal, it is vague and general in terms and discloses no reasonable ground of complaint.
d. Its particulars are also at variance with it
e. No issue was distilled from this ground.
2a. Ground two is vague and general in term and has failed to disclose the basis or ground on which the court erred in holding that it had jurisdiction.
b. The error in law is not located or pointed out.
c. The Appeal Court being now invited by the particulars Nos. a. and b. of the ground to scrutinize and construe Exhibits FC5 and FC6, issues of facts become involved rendering that ground, at best, one of mixed fact and law.
d. Neither the leave of the lower court nor of the court has been obtained in respect of this ground of appeal.
3a. ground three is highly generalized in the way and manner it is couched and thereby rendered vague.
b. Particular No. a. of the ground readily throws up issue of fact for which the leave of the lower court or this court ought to have been obtained.
c. The charge of “judicial impertinence” raised by particular No. c. is one of facts and requires the leave of court for it to be canvassed, given the seriousness of the allegation. It does not support the ground but merely attack the person of the trial judge.
d. The ruling of the lower court delivered after it was reserved at the end of arguments of the parties was very cogent, logical and just.
e. The necessary leave was not obtained.”

The submission/arguments of learned 1st respondent’s counsel with respect to the preliminary objection are at paragraphs 6.0 – 6.8 of the 1st respondent’s brief of argument. It is the contention of the 1st respondent’s counsel against ground one of the grounds of appeal, to the effect that it was wrongly framed as an omnibus ground. He referred to Obi v. Ozor (1991) 9 NWLR (pt. 213) 94 at 102 – 103.

With respect to grounds 2 and 3, learned 1st respondent’s counsel submitted that they are vague and general in terms contrary to order 6 Rule 3 of the Court of Appeal Rules, 2011. He contended that the particulars and the nature of the misdirection and error in law were not stated in the said ground of appeal. He referred to order VII Rule 2 (2) of the Supreme Court Rules upon which Okeke Anadi v. Okeke Okoli (1977) 7 SC 57 at 64 was decided, to the effect that:

“It is not enough to set out in quotation a passage in the judgment of the court of trial and allege, without more, that there is an ‘error in law or misdirection’ and such a bare allegation offends the provisions of the Supreme Court Rules Order VII Rule 2 (2) …”

Learned 1st respondent’s counsel submitted that order VII Rule 2 (2) of the Supreme Court, Rules is in pari material with order 6 Rule 2 (2) of the Court of Appeal Rules, 2011. He also referred to the book: Civil Practice in the Court of Appeal Nigeria, First edition, at p.195 by Ibe Ikwechegh, to the effect that the nature of the misdirection or error complained of with the full particulars of the alleged misdirection or error must be stated in the ground of appeal. Learned 1st respondent’s counsel further contended that particulars a and b in support of ground two and particular a. in support of ground three, deal with facts, hence those grounds are of mixed law and fact, therefore the appellant needed the leave of this court or the trial court to have raised grounds 2 and 3 by virtues of section 241 (1)(b) and 242(1) of the 1999 Constitution of the Federal Republic of Nigeria. He also contended that the allegation of “judicial impertinence” which is an issue of fact was not an issue at the court below nor was it part of the ruling of that court and that the same should be struck out or discountenanced. He urged that the three grounds of appeal should be struck out and that the appeal itself should be dismissed as there would be no grounds to support it.

In his response to ground one, appellant’s learned counsel submitted that since an omnibus ground of appeal deals with an evaluation of evidence by the trial court, an appellant who did not adduce evidence cannot avail himself of such a ground of appeal. He referred to S.C.O.A Nig Plc v. Mohammed (2004) 4 NWLR (pt. 862) 20 CA.

With respect to ground two, appellant’s learned counsel submitted that a ground of appeal is not incompetent merely because it alleges “error in law and on the facts or error in law and misdirection.” And that what makes a ground of appeal incompetent is if in the framing of such a ground of appeal, the respondent is left in doubt and without information as to what the complaint of the appellant is. He referred to the Manual of Brief Writing (In the Court of Appeal and the Supreme Court of Nigeria) by Phiilip Nnaemeka-Agu (CON) and revised by Chief Tom Anyafulude at page 114, among other decided authorities of the Supreme Court.

In his response to ground three, learned counsel to the appellant submitted that since the allegation of judicial impertinence borders on a refusal of a lower court in following or applying the decision of a superior court, it is a question of law and not fact or of mixed law and fact. He relied on Ogbechie v. Onochie (1986) 2 NWLR (pt. 23) 484 at 491 – 492; Okafor & ors v. Idigo II & ors (1984) N. S. C. C. (vol. 2) 360 at 372 to the effect that where improper inferences are made from the evidence adduced before the court or the findings so made, a complaint on such a ground would be that of law and not of fact.

RESOLUTION OF PRELIMINARY OBJECTION

The grounds of appeal have earlier been reproduced in this judgment. I have perused each of them very deeply. Ground one would have had no blemish if no particulars were stated there under to support it.
That is, the normal omnibus ground of appeal is rendered simply as:
“The judgment/ruling is against the evidence.” And no more. The introduction of particulars a, b, c, d and e, in support of ground one is what created the impression that the said ground of appeal is incompetent.
However, will a defective particular(s) in a ground of appeal render the ground itself incompetent and liable to be struck out? There are recent decisions of the apex court, such as Aderounmu V. Olowu (2000) 4 NWLR (pt. 652) 253; Hambe v. Hueze (2001) 4 NWLR (pt. 703) 372; (2001) 5 NSCQR 343 at 352; Abe v. University of Ilorin (2013) LPELR – 20643 (SC) to the effect that:
“Learned counsel must be reminded that grounds of appeal may stand on their own once they represent the appellant’s complaint against the decision he is not satisfied with and in respect of which grouse he seeks the appellate court’s intervention. Lack of or defective particulars in a ground of appeal would not necessarily render the ground itself incompetent. See Prince (Dr) B. A. Onafowokan and others v. Wema Bank Plc and others NSCQLR Vol. 45 (2011) 181 SC; Best (Nigeria) Ltd v. Black wood Hodge (Nigeria) Ltd and Others NSCQLR Vol. 45 (2011) 849.”
The essence of the above is to avoid undue regard to technicalities in order to do substantial justice. I will therefore tolerate ground one which stands alone without the particulars which I hereby discountenance.
I have also perused grounds two and three of the notice of appeal. I fail to see the merit in the submission of 1st respondent’s learned counsel that there are complaints of misdirection therein. The two grounds of appeal are complaints of error of law. However, I am not comfortable with the particulars stated under each of them. The said particulars are largely argumentative and in clear contravention of 0.6 r. 2(3) of the Court of Appeal rules, 2011, which mandated that:
“2. (3) The notice of appeal shall set forth concisely and under distinct heads, the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.” (underlining mine for emphasis only).
Nevertheless, the inelegance of the particulars in question, will not damnify the two grounds of appeal which can stand on their own without those particulars which are discountenanced by me. Therefore, in accordance and being guided by the decisions of the apex court highlighted earlier while considering ground one, by parity of reasoning, I have come to the conclusion that since grounds two and three evince errors of law which can stand on their own without their defective and inelegant particulars, they are good grounds of appeal.
In effect, the preliminary objection targeted against grounds one, two and three of the grounds of appeal, is without merit. It is accordingly dismissed.

I now turn my attention to a consideration and determination of the appeal on its merits.

Having perused the issues distilled for the determination of the appeal by both learned counsel for the respective parties, I adopt the sole issue for determination as couched by the 1st respondent’s counsel.

The thrust of the appellant’s contention is that by virtue of Exhibit ‘FC5’ which had expired on the 14th December, 1998 which was never renewed before the filing of the action by the 1st respondent as plaintiffs on the 9th December, 1999; the latter had no locus standi to have litigated on the subject matter in the claim which gave rise to this appeal. He referred to an article titled “Jurisdictional Limits of superior court of Record” by Tobi, JSC; published in Jurisprudence of Jurisdiction edited by Epiphany Azinge at pages 74-75; Civil Procedure in Nigeria by Fidelis Nwadialo, 2nd edition, at pages 31-32; Emezi V. Oguagwu (2005) 12 NWLR (pt. 939) 340 at 361 SC, to the effect that where a plaintiff lacked the locus standi to maintain an action, it goes to the jurisdiction of the court and consequently denies it the jurisdiction to determine the action.

With respect to his issue two, it is the contention of appellant’s learned counsel that by virtue of Exhibit ‘FC6’, which was made on 26th August, 1998, the 5th defendant had recovered the land in dispute from the appellant who was only an agent of the principal 5th defendant.
Therefore, according to learned appellant’s counsel, as at the time of the institution of the 1st respondent’s action on 9th December, 1999, the latter had no reasonable cause of action against the appellant and that since the 1st respondent had sued the 5th defendant as the principal, the appellant – an agent of the 5th defendant, was not a necessary party to the action of the 1st respondent. He referred Khonam V. John 15 NLR 12; Takun L. G. v. U. C. B. Nigeria Ltd (2003) 16 NWLR (pt. 846) 288 at 301-302 to the effect that where there is a disclosed principal of an agent the proper party to be sued is the principal whilst the disclosed agent is not a necessary party to the plaintiff’s action. He further relied on Carlen Nig. Ltd v. Unijos (1994) 1 NWLR (pt. 323) 631 at 659; Ikemefuna Amadiume & Anor V. Mrs. Agnes Solomon Ibok & 2 ors (2005) 10 CLRN 117 at 119 & 129; Niger Progress Ltd v. Nef Corporation (1989) 3 NWLR (pt. 107) 68; Leventis Tech. Ltd v. Petrojessica Ent. Ltd (1992) 2 NWLR (pt. 234) 449.

The 1st respondent’s learned counsel arguing per contra, submitted that Exhibits FC5 and FC6 which formed the bedrock of the appellant’s preliminary objection at the court below, premised on the locus standi of the 1st respondent to have instituted the action against the appellant, were only imported into the matter at the stage of the appellant’s preliminary objection on 28/02/08 and that the said Exhibits FC5 and FC6 contain triable issues which the 1st respondent could not have cross examined the appellant upon. It is the further submission of the 1st respondent’s learned counsel that Exhibit FC5 sought to set up a third party interest or title, that is, that of the Nigerian Inland Waterways Authority, which is contrary to the principle of jus tertii to the effect that a defendant cannot set up a defence in reaction to the claim of a plaintiff and plead that the latter is not “entitled to possession against him because a third party is the true owner, except where the defendant is acting with the authority of the true owner.”
He referred to the definition of jus tertii by P. G. Osborn in A CONCISE LAW DICTIONARY 5th Edition at page 181; Anukanti V. Ekweonyeso (1978) 1 SC 37 at 48. He submitted that in the instant case, there is nothing to show that the appellant or her disclosed principal acted with the authority of the Nigerian Inland Waterways Authority. Furthermore, learned 1st respondent’s counsel contended that since the latter’s action is founded in the tort of trespass, his possession cannot be disturbed except by the true owner of the property or one with a better title to the land. He relied on Salau v. Araba (2004) ALL FWLR (pt. 204) 88 at 126 where this court held that in a claim for trespass, “it is no answer for the claim, for a defendant to show that title to the land, is in another person.”

With respect to the contention of the appellant that since she is an agent of a disclosed principal, no suit can be instituted against her in the circumstances of this case, 1st respondent’s learned counsel submitted that the 1st respondent’s claim bordered on tort and not contract hence the appellant can be sued as a joint tort feasor with her principal/master. He relied on Pan Bros. Ltd v. Landed Properties (1962) 2 ALL NLR (pt 1) 22 (SC); Salau v. Arab (supra) at 126; Okeke v. Petmag Nig. Ltd (2005) ALL FWLR (pt. 263) 760 at 775; Principal, Government Secondary School, Ikachi v. Igbudu (2006) ALL FWLR (pt. 229) 1442 at 1442; Ifeanyi Chukwu (OSONDU) Co. Ltd. v. Soleh Boneh (Nig) Ltd (2000) FWLR (pt. 27) 2046 at 2080 (SC). Therefore, according to 1st respondent’s learned counsel, the alleged trespass committed by the appellant on the land in question which was in the possession of the 1st respondent, rendered the appellant liable as a tort feasor, thus the learned trial judge was not in error in assuming jurisdiction over the case.

Resolution of sole issue:

The grouse of the appellant against the 1st respondent’s claim is that the latter did not possess the locus standi to have sued the former with respect to an alleged trespass committed by the former on the land in dispute on 21st October, 1998. The term locus standi simply denotes the legal capacity of a claimant to institute or bring an action in a court of law against a defendant. That is, the claimant/plaintiff must have a complaint against the action or inaction of a defendant which the former alleges is against his interest and for which he seeks a judicial relief from the court.
Therefore, the plaintiff must have an axe to grind with the action of the defendant and the said action which allegedly infracted on the right and interest of the claimant, must be justifiable, for which, he – the claimant/plaintiff can be relieved of by the court. Thus, if the court finds that the claimant has the legal capacity to sue the defendant upon the latter’s action which allegedly infracted or negatively impacted on the former’s right or interest on the subject matter of the claim, the court would possess the vires, the jurisdictional competence to hear and determine the claim. On the other hand, where the claimant has nothing to show prima facie, that the action of the defendant has adversely affected his own right or interest in the subject matter of the claim, he would have no locus standi – the legal capacity to sue such a defendant.
Senator Abraham Adesanya v. The president (1981) 2 NCLR 338 at 385, 386, 391 & 398; Attorney General of Kaduna State V. Hassan (1985) 2 NWLR (pt. 8) 483; Irene Thomas v. Olufosoye (1986) 1 NWLR (pt. 18) 669; Dr. Tosin Ajayi V. Princess (Mrs) Olajumoke Adebiyi & 3 ors (2012) 11 NWLR (pt. 1310) 137 at 176. Where that is the case, then the court will be deprived of the jurisdictional competence to assume, hear and determine the plaintiff’s claim. In other words, a want or lack of locus standi by a claimant in an action in court, invariably and adversely affect the jurisdiction of the court to entertain and determine the action at the instance of the claimant/plaintiff.

Undoubtedly and unquestionably, the importance and criticality of the question of jurisdiction, with respect to an action in a court of law, cannot be taken for granted nor can it be overemphasized. Therefore, being a threshold issue and fundamental to adjudication, the court must determine it first, for where it does not possess the vires, the jurisdiction to entertain the matter before it and still goes ahead to hear and determine it, albeit in a well conducted proceedings, it will be tantamount to an exercise in futility and counter-productive as the entire proceedings would be declared a nullity by an appellate court. Goldmark v. Ibafon (2012) 3 SCNJ (pt. 11) 565 at 597; Fed. Airports Authority of Nig v. Nwoye (2012) 16 WRN 154 at 184 (CA); Donbraye & Anor v. Preyor & ors (2014) LPELR – 22286 (CA); (2014) 25 WRN 44 at 75 – 76; Okoya v. Santili (1990) 2 NWLR (pt. 131) 172; (1990) 3 SC (pt. II) 1; Bronik Motors Ltd & Anor v. Wema Bank Ltd (1983) 1 SCNLR 296; (1983) 6 SC 158; Madukolu V. Nkemdilim (1962) 1 ALL NLR (pt. 1) 587 (1962) 2 SCNLR 341; (1962) 2 NSCC 374,where the apex court graciously stated succinctly the time-honoured golden rule, to the effect that a court is competent when:
“(a) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(b) The subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(c) The case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.”
It is where all the three conditions listed above co-exist, that a court will be imbued with the jurisdiction to hear and determine the case.
Hence, any defect in the competence of that court to hear the case, is fatal to the proceedings which will be a nullity, no matter, how brilliantly and well conducted and decided. Ajunwa v. SPDC (Nig) Ltd (2008) 10 NWLR (pt. 1094) 64 at 96; Oke v. Oke (2006) 26 WRN 186; (2006) 17 NWLR (pt. 1008) 224; Chevron (Nig) Ltd v. Warri North L. G. C. (2003) 15 NWLR (pt. 812) 28 at 44.
The law is firmly settled beyond peradventure, that the court in determining whether it possesses the jurisdiction to adjudicate over an action initiated before it, has the bounden duty to peruse the plaintiff’s claim as per the writ of summons and the statement of claim only as in the instant case. Uwazuruike v. Nwachukwu (2013) 3 NWLR (pt. 1342) 503 at 522; Merill V. Worldgate (2012) 3 SCNJ (pt. II) 639 at 662; Nika v. Lavina (2008) 7 SCNJ 72 at 85; Chevron Nig. Ltd v. Lonestar Drilling (Nig) Ltd (2007) 16 NWLR (pt. 1059) 168; Ikine v. Edjorode (2002) FWLR (pt. 92) 1775 at 1881.
Now, the learned trial judge in applying the golden dictum in Nkemdilim V. Madukolu (supra) in determining his jurisdiction over the 1st respondent’s claim correctly restated the law at pages 109-111 of the record of appeal, thus:
“Jurisdiction being so fundamental in our adjudication can be raised at any stage of the proceedings as in the present case. On issues arising from jurisdiction the factors to consider among others depends on whether the subject matter of the case is within its jurisdiction, again the court has to look and see if there is any feature in the case which prevents the court from exercising its jurisdiction.
The court will also find out whether the case that comes before it was initiated by due process of law upon fulfilling any condition precedent to exercise jurisdiction see Madukolu v. Nkemdilim 1962 1 ANLR vol. 2 p. 587; Western Steel Woks Ltd. v. Iron and Steel Workers Union (1986) 3 NWLR part 30 p. 617. A court must terminate a case on its own if it discovers that it has no jurisdiction even if the parties to the suit acquiesced to the irregularity since mere acquiescence does not give jurisdiction. See Sken Consult (Nig) Ltd. & Anor v. Godwin Sekondy Ukey (1981) 1 SC p. 6. The court will lack jurisdiction to entertain a case where the plaintiff lacks the locus standi to bring the action as contended by the applicant.
This is true and correct. In the instant case the jurisdiction of the court will be determined by the main and or the primary claim before it. I have looked at the claim and the relief of the plaintiff which is based on trespass and injunction. There is nothing so patent in the claim or the relief sought to suggest that the court has no jurisdiction to entertain the case. I have carefully gone through the amended statement of claim of the plaintiff to which the applicant itself has joined issues with but I am unable to find any feature in it which robs this court of its jurisdiction. Any feature which is not patent enough but latent must be resolved by evidence. It is not just enough to say that the court has no jurisdiction in a case without any concrete evidence or facts to substantiate same. This case which is 9 years old has suffered series of applications some of them are aimed to causing undue delays. It seems to me that the present application is one of the filibuster application which is designed to cause undue delays in this case. This court has the jurisdiction to entertain this case. The application challenging the jurisdiction of this court to entertain the suit is grossly misconceived.”
I have myself perused the 1st respondent’s amended statement of claim contained at pages 54-58 of the record of appeal. It is very clear to me that the said claim borders on trespass and injunction as rightly found by the learned trial judge. The learned appellant’s counsel made a lot of heavy weather of Exhibits FC5 and FC6 which were documents attached to the affidavit in support of his application of 26th February, 2008 and why the learned trial judge did not make use of those documents to decline jurisdiction over the claim. The learned trial judge was not obliged to peruse Exhibits FC5 and FC6 in order to determine his jurisdiction over the claim. The law which is no longer recondite is that he was limited to peruse only the 1st respondent/plaintiff’s writ of summons and statement of claim. Exhibits FC5 and FC6 are part of the appellant’s defence and at the stage of determining the court’s jurisdiction, it had no duty to peruse the defence of the appellant predicated on those documents. Oyedele & ors V. Ajayi & ors (2014) 30 WRN 145 at 153 – 154 & 156. I believe that, that is why the learned trial judge said:
“I have carefully gone through the amended statement of claim of the plaintiff to which the applicant itself has joined issues with but I am unable to find any feature in it which robs this court of its jurisdiction. Any feature which is not patent enough but latent must be resolved by evidence.”
I agree with his Lordship entirely. He was solidly on terra firma and the law is clearly on his side. Therefore, the contention by the appellant in this regard is of no moment as it is bereft of merits.

It seems to me very clear that learned appellant’s counsel had no positive response to the contention of the 1st respondent’s learned counsel to the effect that “an agent who commits an act of trespass on behalf of his principal is jointly and severally liable with the principal for such act” – Salau v. Araba (2004) ALL FWLR (pt. 204) 88 at 126 (CA); and that: “It is beyond dispute that an agent who commits a tort on behalf of or on the instruction of his principal is along with the said principal a tort feasor in law. The same is true where a servant commits a tort in the course of his employment”; was not responded to by the appellant’s learned counsel in his Reply Brief of Argument. I take it therefore, that those submissions by the 1st respondent’s learned counsel contained at paragraphs 6a.6 – 6a.8 are deemed as duly conceded by the appellant. Nwankwo v. Yar’Adua (2010) 3 SCNJ (pt. 1) 244; (2010) 12 NWLR (pt. 1209) 518; (2010) 45 WRN 1; Okongwu V. NNPC (1989) 7 SC (pt. 1) 127; (1989) 7 SCNJ 106; (1989) 4 NWLR (pt. 115) 296); (1989) 3 NSCC 118; applied in Donbraye & Anor v. Prevor & ors (2014) LPELR – 22286 (CA); (2014) 25 WRN 44 at 92; Richard Osa Nekpenekpen v. Iwuazor Egbemhonkhaye (2014) LPELR – 22335 (CA).
The above notwithstanding, the question of joint liability of a principal and an agent finds more expression in the law of tort, as in this case, where the disclosed principal and the agent (appellant herein) are joint tort feasors. Lai Mohammed v. Chief Afe Babalola (2012) 5 NWLR (pt. 1293) 395.

In the end, I resolve the sole issue herein against the appellant. The appeal is fluffy and without merits. I, dismiss it accordingly. The ruling of Nwizu, J., dated 12th May, 2008 is affirmed. Costs of N50, 000.00 is awarded to the 1st respondent against the appellant.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the benefit of reading before now, the lead judgment just delivered by my learned brother, Hon Justice Tom Shaibu Yakubu, JCA. I am in complete agreement with his reasoning and conclusion arrived thereat, to the effect that the appeal is unmeritorious and should be dismissed. What is more, my learned brother has ably and admirably dealt with the salient issues raised for determination in this appeal. Thus, I am also of the same view point that the instant appeal is devoid of merits. It is accordingly dismissed by me. I subscribe to the consequential orders made in the said lead judgment inclusive of the one on costs.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I am in full agreement with my learned brother Honourable Justice Tom Shaibu Yakubu, JCA that this appeal be dismissed. I add a few comments of mine. The appellant’s counsel contended that the respondent’s notice of preliminary objection is incompetent because no leave of the court was sought and obtained to raise the preliminary objection. By order 10 rule 1 of the Court of Appeal Rules, 2011, a respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time. It is now settled that in practice, such notice can be given by incorporating the notice of preliminary objection and the argument in support in the respondent’s brief of argument. Such notice is sufficient since the purpose of given adequate notice of preliminary objection is to enable the appellant prepare to meet the challenge, to the hearing of his appeal, see Rtd. T. Trustees, A. O. N. vs. N. A. M. A. [2014] 8 NWLR pt. 1408 page 1 at 33 – 35 [D -A]. The only other condition which must be complied with by the respondent is that he must with the leave of the court move his notice of preliminary objection at the oral hearing of the appeal and that must be done before the appellant argues his appeal, otherwise the objection would be deemed abandoned. The respondent complied with that condition. I do not see the basis for the attack of the appellant’s counsel on the competence of the respondent’s preliminary objection.

As regards objection to the grounds of appeal, I have perused each ground. Ground 1 is:

“The Ruling is against is against the weight of evidence”.

There is a plathoral of authorities by this court and the apex court that in civil matters, the appropriate omnibus ground is simply that “that” “The judgment is against the weight of evidence”, see Auyeye v. Ashamu [1987] NWLR pt. 49 page 267, Ekpeayong v. Effanga and Anor (2009) L8 ELP 88W [CA], Welle v. Bogunioko [2007] 6 NWLR pt 1029 page 125, Adelusola v. Akinde and ors [2004] 12 NWLR pt. 887 page 295.

As regards grounds 2 and 3 which alleged error in law, it is no longer the law that once a ground of appeal alleges error in law and/or misdirection the passage of the judgment concerned must be quoted.
Once the particulars and the nature of the error is stated and the issue involved is understood, the purpose is served, see “B. A. S. F. Nig. Ltd v. Faith Ent. Ltd (2010) 4, NWLR pt. 1183 page 104 at 134 (D), Funduk End. Ltd v. James McArthur and ORS [1995] 4 NWLR pt. 392 page 640 at 651 [E-F], Ilori v. TELLA [2006] 18 NWLR PT. 1011 PAGE 267 AT 285.

For these and the other reasons stated by my learned brother in the lead judgment, I too agree that the objection lacks merit. As regards the substantive appeal, the gravamen of the appeal is that the court lacks the jurisdiction to adjudicate on the plaintiffs’ claim. Two aspects of jurisdiction were raised. The 1st is that the respondents who were the plaintiffs at the court below lack the locus standi to institute the action. The appellant’s contention is anchored on two letters attached to the affidavit in support of the application as Exhibit FC5 and FC6, a letter which granted a temporary permit to Mgbelekeke family to carry on business activities at Otu Okwuodu Beach and a counter affidavit sworn to by one Bonaventure Mokwe.
The law is trite that in ascertaining whether a plaintiff has locus standi to institute an action, it is the pleadings in the statement of claim that must disclose a cause of action vested in the plaintiff. See “Adefulu and ors v. Oyesile and Ors [1989] 5 NWLR pt 122 page 377, Douglas vs. S.P.D.C. Ltd AND ors NWLR pt 386 page 44. This is in consonance with the settled principle that the jurisdiction of the court is determined by the nature of the plaintiff’s claim as disclosed in the writ of summons or statement of claim where one has been filed and clearly not the statement of the defence. See the decision of this court in Douglas vs. S.P.D.C. Ltd and Ors (1998) L.P.E.L.R at 6457 (CA) where Musdapher, JCA as he then was held as follows:
In ascertaining the locus standi of a person to prosecute any action, it is usually the statement of claim that should be examined to see whether there is vested a justifiable right capable of being enforced. See Olagbegi vs Ogunleye 11. [1996] 5 NWLR PT 448 PAGE 332. The issue of locus standi involves the issue of the court jurisdiction to entertain the matter brought to it. It has been held that such issue cannot ordinarily be considered solely on the face of the writ of summons without a statement of claim filed. See Multi Purpose Ventures Ltd. Vs A. G. River State (1997) NWLR (pt. 522) page 642, See also ELENDU V. Ekwoaba [1995] 3 NWLR [pt. 386] 704. In the case of A.G. Enugu State v. Avop PLC. (1995) 6 NWLR [pt.399] page 90 at 113 Tobi, JCA said
“In deciding the issue of locus standi of the trial court, only the statement of claim should be looked into”.
The learned trial judge appreciated this settled principle and correctly applied same by having recourse to only the amended statement of claim of the respondents. He came to the right conclusion that there is no feature in the respondent’s claim which robs the court of its jurisdiction. The emphasis of the learned appellant’s counsel on failure of the learned trial judge to make use of exhibits FC5 and FC6 is totally misconceived, it has no support in law.

On the contention that the appellant is an agent of a disclosed principal. The general principle of law is that an agent acting on behalf of a known and disclosed principal incurs no personal liability.
However, the action from which this appeal emanated is for damages for trespass and injunction which no doubt is an action in tort. The law is that an agent who commits a tort on behalf of his principal is a joint tort feasor with his principal and may be liable either alone or together with his principal for his action or conduct and may be sued either alone or with his principal, see Management Ent. Ltd & Ors Vs Johnson Otusanya (1987) 4 SCNJ page 110, Ifeanyichukwu Osondu Co. Ltd Vs Jolel Boneh (Nig) Ltd (2003) 3 NWLR Pt.656 page 322, Mohammed Vs Babalola, SAN (2011) LPELR 8973 (CA).The appellant is an alleged tort feasor and the respondents are on a firm ground in joining the appellant in the action. Secondly, the appellant is speaking from both sides of the mouth; the appellant has counter-claimed against the respondents based on the same facts and cause of action. The attempt of the appellant to take refuge under the general principle of non-liability of an agent of a disclosed principal is a dubious attempt. I agree entirely with the learned trial judge that the application which culminated in this appeal was aimed at nothing but a delay and frustration of the hearing of the case. Unfortunately, that aim has been achieved. The case is now about fifteen years old and no indication that hearing has commenced. Counsel will certainly do well by desisting from using frivolous applications such as the one which culmunateed in this appeal to unnecessarily prolong the hearing and determination of cases in court.

For these and other reasons well articulated in the lead judgment, I too dismiss the appeal and abide by the consequential orders made therein.

Appearances

G. C. Madubuegwu, Esq., (holding the brief of Mackings Nezianya, Esq.)For Appellant

AND

Austin A. Ononye, Esq.
Ben Osaka, Esq.
J. E. O. Ogbuli, Esq.For Respondent