ELDER ANDREW A. GEORGE & ORS v. H.R.H. EZE JACOB ABRAHAM & ORS
(2017)LCN/9480(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of February, 2017
CA/PH/573/2013
RATIO
COURT: COMPETENCE AND JURISDICTION OF COURT IN RELATION TO WHO CAN INSTITUTE ACTIONS
It is crystal clear that the issues raised in this appeal touch on, the propriety of the capacity in which the action of the two Respondents of the 1st set of Respondents who were claimants at the trial Court was brought, which in turn border on the competence of the suit itself and a fortiori the jurisdiction of the trial Court to entertain the suit.
“It is a general principle of law that it is only proper natural and juristic persons who can initiate and defend an action. Therefore, defects in the competence of a party in an action is fatal. The gravamen of the instant matter is the competence of the Umu-Okara Uboh-Azaga Family, Ogbogu, Onelga, Rivers State to sue and be represented by the 1st set of Respondents in the present action. It is fundamental that competency to institute an action, otherwise known as locus standi, is an essential factor in deciding the competency of the action itself. In the case of: Yesufu v. Gov. Edo State (2001) 13 N.W.L.R. (Pt.731) p. 517, the Apex Court on this position of the law had the following to say:
The issue of locus standi goes to the competence or standing of the plaintiff to institute the action at all. Locus standi is the legal capacity of plaintiff/Claimant to institute an action in a Court of law in exercise of his right under Section 6 (a) (b) of the Constitution of the Federal Republic of Nigeria, 1979. That is why it can be raised in limine after the statement of claim has been filed and served. If the Plaintiffs statement of claim disclosed no personal interest in the claim put forward by him he will have no locus standi to institute the action and the Court will have no jurisdiction to entertain same. Adesanya v. President (1981) 2 NCLR 358, (1981) 5 SC 112; Fawehinmi v. Akilu & Anor. (1987) 4 N.W.L.R. (Pt.67) 797. Consequently locus standi affects capacity to sue. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
WORDS AND PHRASES: NATURAL PERSON DISTINGUISHED FROM JURISTIC PERSON
The term natural person denotes a human being, while a juristic person is an entity, an artificial or unnatural person that is duly allotted identification by law as possessing the rights and duties of a human being. In this sense, the term juristic person includes corporations, partnerships and such other associations, whether registered, incorporated or unregistered or unincorporated. Concomitantly, a natural person or juristic person who can sue and be sued can also sue and be sued in a representative capacity. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSAINI Justice of The Court of Appeal of Nigeria
Between
1. ELDER ANDREW A. GEORGE
2. ELDER RAPHAEL GEORGE
3. CHIEF S. N. GEORGE
4. CHIEF G.G. DIKE
5. CHIEF ORIS ONYIRI
(For themselves and on behalf of Umu-Okara-Azaga Family ONELGA, Rivers State). Appellant(s)
AND
1. H.R.H. EZE JACOB ABRAHAM (Ochi-Oha 1 of Ogbogu)
2. REV. EMMANUEL ZACHARIAH
(For themselves and on behalf of Umu-Okara Uboh-Azaga Family, Ogbogu ONELGA, Rivers State)
3. TOTAL E & P. NIG. LTD Respondent(s)
OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Rivers State sitting in Omoku Judicial Division (hereinafter called ?the trial Court?) delivered in Suit No: OHC/20/2012 on 20th June, 2013.
The background facts of this matter are that, the 1st set of Respondents herein took a writ of summons as Claimants against the Appellants herein as 1st to 5th Defendants and the 2nd set of Respondents herein as 6th Defendant and claimed as follows (unedited):
a. A declaration that the Claimants as an independent and autonomous family is entitled to 25% (one-quarter) share of all the properties and assets owned by Azaga the fore father of the Claimants, the 1st- 5th Defendants and the Umu-Azaga family of Ogbogu town.
b. An order of the Court compelling the 6th Defendant to recognize, treat, accord and give the Claimants all their rights, benefits, privileges, entitlements, etc as one of the independent and autonomous families and landlords in Ogbogu own?the Operational Area of the 6th Defendant.
c. An order of Court compelling the
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6th Defendant to divide, at source, and give 50% of all rights, benefits, privileges, (including but not limited to royalties, monies, contracts, job chances/slots, scholarship slots, skill acquisition chances, Christmas/festival largess, homages, compensation, etc) accrual to the Claimants and the 1st ? 5th Defendants from the operations of the 6th Defendant on the Claimants and 1st?5th Defendants? joint land in Ogbogu housing 6th Defendant?s Ibewa 2B Oil and Gas wells, Ibewa cluster with eleven (11) Custer oil and gas wells pipelines, oil wells numbers OB 34, OB 61, OB 62, OB 63, OB 64, OB 104, OB 123, OB 124, etc.
d. An order perpetual injunction restraining the 6th Defendant from giving to 1st ? 5th Defendants the Claimants? share of the rights, privileges, benefits, etc accrual to them from the operations of the 6th Defendant on the joint land owned by Claimants and 1st?5th Defendants mentioned in relief (c) above.
e. An order of Court sharing and or partitioning into two equal shares the following assets or properties jointly owned by the Claimants and the 1st ? 5th Defendants:
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?(i) Usor-Udo farmland at ogbongu
(ii) Okor pond at ogbongu
(iii) Stror pond at ogbongu
(iv) Agila pond at ogbongu
(v) Orogbeni pond at ogbongu
(vi) Oregbeni swamp first and second.
f. The sum of N20,000,000.00 (Twenty Million Naira) representing general and special damages.
At the close of pleadings, the Appellants by a motion on notice filed on 15th March, 2013, sought the order of the trial Court to strike out the suit of the 1st set of Respondents. The grounds upon which the application was predicated are as follows:
1. That the Umu-Okara Uboh-Azaga Family, ONELGA, Rivers State on behalf of which the case was instituted is not a juristic or juridical entity that can sue or be sued, and therefore lack the capacity to confer on the named Claimants the power to sue on its behalf.
2. That Claimants lack the legal competence or locus standi to institute the action.
3. That in the absence of a competent Claimant, the suit is not properly constituted, incompetent and the trial Court lacks the jurisdiction to adjudicate over it.
The application was supported by an affidavit of seven paragraphs
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– see pages 362 to 366 of the record of appeal for this and other accompaniments and the Appellants? written address in support of the motion. Although the 1st set of Respondents did not file a counter-affidavit, they opposed the application and filed a reply on points of law to the Appellants? written address. Upon the due consideration of the submissions of learned counsel to buttress the opposing positions of the parties. The learned trial Judge on 20th June, 2013 delivered his considered Ruling and held that, ?the 1st set of Respondents are competent to sue both in their natural persons and as persons capable of protecting their family interests in the subject matter of the litigation?, the Appellants? application was therefore refused and consequently dismissed.
?
Irritated by the said decision of the trial Court, the Appellants filed this appeal against it to this Court vide their original Notice of Appeal dated and filed on 2nd July, 2013. By the leave of this Court granted on 16th February, 2016 the original Notice of Appeal was duly amended. For clarity and ease of reference, the three grounds of appeal contained in
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the Amended Notice of Appeal dated and filed on 22nd February, 2016 without their particulars are hereunder reproduced unedited as follows:
GROUND A.
The learned trial judge erred in law when he held that the representative capacities of the parties in this suit are not faulty and accordingly the trial Court has jurisdiction to entertain the suit.
GROUND B.
The learned trial judge erred in law when he failed to follow the decision of the Court of Appeal in the cases of NDUKA VS EZENWAKU (2001) 6 NWLR (PT 709) 494 and LION of AFRICAN INSURANCE LTD VS MR. & MRS. ESAN (1999) 8 NWLR (PT 614) 197 which are in all fours with the instant case but choose to follow the decision in the S.P.D.C. (NIG) LTD VS. EDAMKUE (2009) ALL FWLR (PT 489) 407 which is not in all fours with the instant case.
GROUND C
The learned trial judge erred in law when he glossed over the crucial question of law raised by the 1st?5th Defendants/Appellants which bothers on the capacity of Umu-Okara-Azaga family, ONELGA, Rivers State to be represented in a suit same not being a juristic person that can be represented in that capacity, and held that the
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Claimants? capacity is not faulty.
In harmony with the Rules of practice of this Court, the learned Counsel for the Appellants, Sir S.I. Enweluzo settled the Appellants? Brief of Argument which was filed on 7th October, 2013 but deemed properly filed and served on 16th February, 2016. In the said brief of argument, the two issues crafted for the resolution of the appeal state as follows:
(1) Whether the trial Judge did not err in law when he glossed over the crucial question of law raised by the Defendants/Appellants which borders on the capacity of Umu-Okara-Azaga family, ONELGA, Rivers State to be represented in the suit, same not being a juristic person that can be so represented in that capacity, and holding that the Claimants? capacity is not faulty?
?(2) Whether the trial Court is not bound in law to follow the decisions in NDUKA V. EZENWAKU (2001) 6 N.W.L.R. (Pt.709) 494 and LION OF AFRICA INSURANCE LTD. V. ESAN (1999) 8 N.W.L.R. (Pt.614) 197 which facts are on all fours with the instant case as against the decision in S.P.D.C. (NIG.) LTD. V. EDAMKUE (2009) ALL F.W.L.R.(Pt.489) 407, which borders on substitution of
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a represented party?
However, despite service of the Appellants? brief of argument on the two sets of Respondents, the latter failed to file their briefs of argument in response thereto.
On 14th November, 2016 when this appeal was heard by this Court the learned Counsel for the Appellants, Sir C.I. Enweluzo identified and adopted the Appellants? brief of argument in urging upon this Court to allow the appeal, set aside the decision of the trial Court and strike out the suit of the 1st set of Respondents before the trial Court, for incompetence and consequent want of the requisite jurisdiction of the trial Court to adjudicate upon the said suit.
Mrs. B.V. Okoro, the learned Counsel for the 2nd set of Respondents at the said hearing of the appeal informed this Court that the 2nd set of Respondents are not contesting the appeal, hence they did not file a brief of argument.
The 1st set of Respondents were absent and not represented by a counsel at the hearing of the appeal despite service on them of notices of hearing and all the processes filed by the Appellants in the appeal. Therefore it is deemed that the 1st set of
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Respondents are not desirous of contesting the appeal.
I have considered the two issues donated by the Appellants for determination. Although they are unwieldy and inelegantly couched, their tenor is not farfetched, they are geared towards determining the correctitudeness of the learned trial Judge?s holding that the 1st set of Respondents could sue and of course be sued representing their family at large. I do believe that is the entreaty of this appeal. Hence, I shall adopt the two issues and consider them together in the resolution of the appeal, as they are intertwined.
APPELLANTS? COUNSEL?S SUBMISSIONS ON THE ISSUES
The learned Counsel for the Appellants contended that, the Umu-Okara Uboh-Azaga Family, Ogbogu, ONELGA, Rivers State, to which the 1st set of Respondents belong, not being a juristic personality that has the capacity to sue and be sued, cannot in the same vein be represented in a cause before the Courts. On this position, he relied on the cases of: (1) Nduka v. Ezenwaku (2001) 6 N.W.L.R. (Pt. 709) p. 494; (2) Lion of Africa Insurance Ltd. v. Esan (1999) 8 N.W.L.R. (Pt. 614) p. 197 and (3) Macfoy v. United
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Africa Company Ltd. (1961) 3 All E.R. p. 1169. According to learned Counsel, this is the crux of the challenge by the Appellants of the competence of the suit of the 1st set of Respondents before the trial Court. He opined that the learned trial Judge?s decision under fire is a shy away from the task of resolving this all-important subject, as required of him by law. He relied in this wise on the cases of: (1) Okonji v. Njokanma (1999) 14 N.W.L.R. (Pt. 638) p. 250; (2) Jamgbadi v. Jamgbadi (1963) NSCC p.281 at p. 282; (3) Kraus Thompson Organisation Ltd. v. University of Calabar (2004) 9 N.W.L.R. (Pt. 879) p. 631; (4) Opuiyo v. Omoniwari (2007) All FWLR (Pt. 378) p. 1093 at p.1101, para. E; (5) Brawal Shipping v. Onwadike Co. (2000) 6 SCNJ p. 508 at p.522 and (6) Uzuda v. Ebigah (2009) All FWLR (Pt.493) p.1224 at p. 1249, paras. E ? F. He remonstrated the learned trial Judge for veering off the course of making a finding on the core issue of whether a party who is not a natural or artificial person recognized by law can be represented in a suit. Rather, he went into the issue of the capacity and competence of the 1st set of Respondents to sue both
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in their natural persons as well as persons capable of protecting their family interests in the subject matter of the litigation.
It was the strong view of the Appellants? learned counsel that the case of:S.P.D.C. (Nig.) Ltd. vs. Edamkue (supra) is distinguishable from and therefore not applicable to the instant case. He opined that the ratio decidendi of the case of: S.P.D.C. (Nig). Ltd. v. Edamkue (supra) is that, an amendment by way of substitution can be effected to bring a party in conformity to the evidence already adduced to reflect the representative capacity under which the party being represented should have sued in the first instance. That this position of the law presupposes that the represented party which is sought to be substituted is a legal personality under the law and therefore prima facie properly before the Court. Contrariwise, according to him, in the instant case, the 1st set of Respondents not being juristic persons, were not properly before the trial Court.
?
It was further argued by the learned counsel for the Appellants that the law is trite that cases are not decided in vacuum but in relation to their peculiar facts
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and that the pronouncements of Courts on an issue of law must be taken together with relevant facts in order to decipher the clear meaning of same vis–vis the principle of ?stare decisis? which stipulates that the lower Courts are bound to follow the decisions of higher Courts. Hence, where the facts of a case earlier decided upon are dissimilar to the facts of a case at hand, an earlier decision, even if it is a decision of the Supreme Court would not bind a lower Court. To put it in other words, where the facts of a case decided by a higher Court are not similar but distinguishable from that of the lower Court or where the facts are not on all fours with each other, the principle of stare decisis need not apply or be adhered to. Learned counsel on this position referred to the cases of: (1) Clement v. Iwuanyanwu (1989) 3 N.W.L.R. (Pt. 107) p.39 at p.64, paras. C ? D and (2) Afro Continental Nig. Ltd. v. Ayantuyi (1991) 3 N.W.L.R. (Pt.178) p.211. He surmised that the case of: S.P.D.C. (Nig.) Ltd. v. Edamkue (supra) upon which the trial Court relied in its Ruling under challenge though a decision of the Apex Court, is not applicable
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to the instant matter and reliance cannot safely be placed thereon. Rather it is the cases of: (1) Nduka v. Ezenwaku and (2) Lion of Africa Insurance Ltd. v. Esan (both supra) that are more apposite to the instant case.
RESOLUTION OF ISSUES
It is crystal clear that the issues raised in this appeal touch on, the propriety of the capacity in which the action of the two Respondents of the 1st set of Respondents who were claimants at the trial Court was brought, which in turn border on the competence of the suit itself and ?a fortiori? the jurisdiction of the trial Court to entertain the suit.
?It is a general principle of law that it is only proper natural and juristic persons who can initiate and defend an action. Therefore, defects in the competence of a party in an action is fatal. The gravamen of the instant matter is the competence of the Umu-Okara Uboh-Azaga Family, Ogbogu, Onelga, Rivers State to sue and be represented by the 1st set of Respondents in the present action. It is fundamental that competency to institute an action, otherwise known as ?locus standi?, is an essential factor in deciding the competency of the
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action itself. In the case of: Yesufu v. Gov. Edo State (2001) 13 N.W.L.R. (Pt.731) p. 517, the Apex Court on this position of the law had the following to say:
The issue of locus standi goes to the competence or standing of the plaintiff to institute the action at all. Locus standi is the legal capacity of plaintiff/Claimant to institute an action in a Court of law in exercise of his right under Section 6 (a) (b) of the Constitution of the Federal Republic of Nigeria, 1979. That is why it can be raised in limine after the statement of claim has been filed and served. If the Plaintiff?s statement of claim disclosed no personal interest in the claim put forward by him he will have no locus standi to institute the action and the Court will have no jurisdiction to entertain same. Adesanya v. President (1981) 2 NCLR 358, (1981) 5 SC 112; Fawehinmi v. Akilu & Anor. (1987) 4 N.W.L.R. (Pt.67) 797. Consequently locus standi affects capacity to sue.
?The term ?natural person? denotes a human being, while a juristic person is an entity, an artificial or unnatural person that is duly allotted identification by law as
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possessing the rights and duties of a human being. In this sense, the term ?juristic person? includes corporations, partnerships and such other associations, whether registered, incorporated or unregistered or unincorporated. Concomitantly, a natural person or juristic person who can sue and be sued can also sue and be sued in a representative capacity.
The position of the law is as clearly adumbrated by the learned Counsel for the Appellants that, a trial judge in the place of the learned trial judge in the instant matter has the abiding duty and responsibility to thrash out properly all issues duly raised and argued before him. The duty is that imposed on a judge by the grund norm, the Constitution or Statute which established his office. The essence of the duty is to forestall a miscarriage of justice being occasioned on any of the parties before him. The duty is so sacred that it cannot be digressed from.
?
Now on whether the suit of the 1st set of Respondents/Claimants was properly constituted and hence competent, two named Claimants sued ?For themselves and on behalf of Umu-Okara Uboh-Azaga Family, Ogbogu ONELGA, Rivers
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State?. The position of the Appellants before the trial Court relying on the cases of: (1) Ndoka v. Ezenwaku and (2) Lion of Africa Insurance Ltd v. Esan (both supra) was that the status of the 1st set of Respondents/Claimants in their family?s representative capacity is not juristic or natural or corporation sole or an aggregate that can sue or be sued. Hence, in the same vein it cannot mandate or authorize any person or group of persons including the 1st set of Respondents/Claimants to sue on its behalf. Further, that in the absence of competent parties before the Court, the action itself becomes incompetent. On the above reiterated position of the Appellants, the learned trial Judge stated that he agreed with those principles of law and the legal decisions in support thereon ? See paragraph 3 at page 3 of the Ruling of the trial Court contained in page 107 of the record of appeal. Likewise, the stance of the 1st set of Respondents/Claimants is that a person has the right to protect his family?s interest in a property or title to land and can sue for himself and on behalf of the family in a representative capacity. They relied on the
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case of: S.P.D.C. Nig. Ltd. V. Edamkue (supra). On this stance of the 1st set of Respondents/Claimants, the learned trial Judge also had the following to say:
The position taken by the Respondents? Counsel is equally a true state of the law.
See page 4 of the Ruling of the trial Court contained at page 108 of the same record of appeal.
From the above review, it is my firm view that it cannot be said by any stretch of imagination that the learned trial Judge glossed over the vital points and crucial questions of law raised and canvassed by either the Appellants or the 1st set of Respondents before him.
In the final analysis, the learned trial Judge in the matter of the Appellants? application held as follows:
A careful look at the capacities of the parties on record shows and without doubt that the claimants and 1st to 5th Defendants sued and are sued in dual capacities. First as individual natural persons with interest over the subject matter of the litigation. Secondly as members of a group or collection of people called the Umu-Okara Uboh-Azaga Family and the Umu-Okara Azaga Family for the claimants and for 1st to 5th
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defendants respectively. The rights of the parties in their individual natural persons with interest in the res of the litigation is not in doubt and cannot be challenged. The Statement of Claim shows that they have such interest in the res. What therefore can come under attack is the representative capacity of the parties, that is, as representing the families they purposed to have instituted the action for and against.
I have taken time to read the authorities referred to me by Counsel in the matter. In SHELL PETR. DEV. CO. LTD. VS. EDAMKUE & 23 (supra) also reported as (2009) 39 NSCQR 597 at p.618 the Supreme Court was of the firm view that once it is established by the pleading or evidence that an action is fought in a representative capacity a trial Court or appellate Court will be entitled to enter Judgment for or against the party in that capacity even if an amendment to reflect that capacity had not been applied for or obtained. This is the law and the very first paragraph of the Statement of Claim in this Suit is indicative of the fact that the claimants are fighting the case in a representative capacity. I cannot in the circumstance say that
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the claimant?s representative capacity is faulty.
In the final analysis I hold that the parties on record are competent to sue both in their natural persons and as persons capable of protecting their family interests in the subject matter of the litigation.
See pages 4 to 5 of the Ruling of the trial Court contained in pages 108 to 109 of the record of appeal.
From the above holding, it is not correct to say, indeed I find sacrilegious all the submissions of the Appellants? Counsel under issue one particularly paragraphs 3.3. to 3.9 at pages 3 to 4 of the Appellants? brief of argument, that the above reproduced findings of the trial Court was based on extraneous considerations rather than the issues submitted to it for resolution. It cannot also be correctly stated that the trial Judge kept mute and failed to make findings on the all ? important issue of whether a party who is not a natural or artificial person recognized by law can be represented in a suit. I have no doubt in my mind that the learned trial Judge properly conceived the nature of what he was called upon to decide.
?In my opinion, the word
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?family? is not notional; it is an association of people, a class of persons, who descended from a common ancestor. Therefore, although not a natural legal entity per se, the word ?family? is a conglomerate of natural persons who are of themselves individual natural legal entities. It is therefore not farfetched to say that these class of persons called ?family? can choose to come together and be represented in a suit. Hence, there is no rule of law or practice which forbids some of the persons of the same descent or family who are interested in a common subject- matter from suing or being sued in respect of same. Therefore, the law is now rock solid and it is the position of the Courts at all tiers that a person or group of persons has or have the unbridled right to protect his or their family property and can sue by himself or together in a representative capacity. There are a plethora of legal authorities of the Apex Court as well as this Court on this cast-iron position of the law. See the cases of: (1) Atanda v. Olarewaju (1988) 10 -11 S.C. p.1; (2) Ladejobi v. Oguntayo (2004) 18 N.W.L.R. (Pt. 904) p. 149 and (3) Sapo
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v. Sunmonu (2010) 11 N.W.L.R. (Pt. 1205) p. 374. This is equally the position of the Supreme Court in the case of:S. P. D. C. Nig. Ltd. v. Edamkue (supra) rightly relied upon by the learned trial Judge. The Supreme Court went further in the case to enunciate that, even where a person sued in a personal capacity instead of in a family representative capacity, an appellate Court can in the interest of justice, amend the plaintiff?s capacity to reflect the evidence and enter judgment for the plaintiff as representing his or her family. That once the plaintiff has expressed on a Writ or Statement of Claim that the action was brought in a representative capacity, as in the instant case, it is ?prima facie? evidence of authority to sue in that capacity.
?The learned Counsel for the Appellants in his bid to dent the capacity of the 1st set of Respondents/Claimants to institute their suit has depended so heavily on the case of: Nduka v. Ezenwaku (supra). With all due respect to learned Counsel, I fail to see in what way the case has completely advanced his position regarding the overall competency of the suit of the 1st set of
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Respondents/Claimants herein. At this juncture, I consider it apposite to refer to the very sound legal expositions of Olagunju, J.C.A. (Rtd.) in his concurring judgment in the said case of: Nduka v. Ezenwaku (supra) at pages 516, paragraphs G ? H and 517, paragraphs A ? C, in extenso, as follows:
Yet it must be borne in mind that the test of competence to challenge whether an action can be maintained in a representative capacity is the source of the opposition to the action which must flow from within the group authorizing the action though technically the fulcrum of the appellants? argument is that the respondents with legal capacity to institute legal action in their own right cannot institute the present action on behalf of a non-juristic entity,
The opposition which will justify the challenge of the authority of the representative of a group to sue or defend in a particular capacity must be an opposition coming from a section of the group. It must be an intra dissension within the group and not an inter dissidence between two groups with diametrically
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opposed interests in the matter before the Court. Nsima v. Nnaji (1961) All NLR 441, and Nnamani v. Agbo (1972) 2 ECSLR (Pt. 1`) 35, afford examples of the former kind where the authority of a group to sue was successfully challenged by a section of the same group while Onyemuze v. Okoli (No.1), (1973) 3 ECSLR (Pt.1) 150, and Anatogu v. Attorney-General of the East-Central State of Nigeria (1974) 4 ECSLR 37, are specimens of the latter type where a splinter of a group whose interest is in opposition to that of the plaintiffs were held to be incompetent to challenge the capacity in which the plaintiffs sued since the interest of both of them could not be anything but adverse one to the other.
But what is decisive of any challenge of an action being instituted in a representative capacity is the element of flexibility that failure of a plaintiff to sustain an action in a representative capacity does not render the action incompetent per se as the Court is not precluded from rendering judgment on individual or personal basis rather than on group basis if that course is dictated by the evidence that emerged at the conclusion of the trial. See Nta v. Anigbo
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(1972) 5 SC 156, 175-176; Onyemuze v. Okoli (No.3), (1974) 4 ECSLR 98, and Amos v. Shell B.P. Petroleum Development Company Nigeria Ltd. (1974) 4 ECSLR 486, 488. Therefore, on this point, learned counsel for the appellants would not appear to be on strong wicket.
It is settled that a concurring judgment forms part of the leading judgment and a concurring judgment is indeed meant to complement by way of addition or an improvement on the issues resolved in the leading judgment. See the cases of: (1) Nwana v. F.C.D.A. (2004) 13 N.W.L.R. (Pt. 889) p. 128 and (2) Oloruntoba-Oju v. Abdul-Raheem (2009) 13 N.W.L.R. (Pt. 1157) p.83. I am not in alignment with the earlier position of this Court as reflected in its conclusion in the case of: Nduka v. Ezenwaku (supra) that, the suit of the Respondents therein was incompetent. Rather, I am at one with the reasoning in the concurring judgment that the fact that a family is not a legal entity that can sue or be sued cannot invalidate the rights or capacity of individuals of its component members to institute an action. At least that is the superior position of the Apex Court by which I am bound on the principle of
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?stare decisis? and correctly followed to by the learned trial Judge in his Ruling under scrutiny, as reiterated in the case of: S.P.D.C. Nig. Ltd. v. Edamkue (supra), which case is not in any way distinguishable from the instant case. The principle of law has been robustly stated in the case and rightly cleaved to by the learned trial Judge. The conclusion in the earlier decision of this Court in the case of: Nduka v Ezenwaku (supra) obviously not being the correct position of the law, the learned trial Judge was on firm ground not to have followed same. The case of: Lion of Africa Insurance Ltd. v. Esan (supra), a decision of this Court, also relied on by the learned Counsel for the Appellants has no bearing at all to the instance case and so is completely irrelevant. This is because in that case, the issue in contention is whether, the caption ?Mr. & Mrs.? has legal right and capacity to sue and be sued.
It is my humble but firm view that, the conclusion of the learned trial Judge the details of which I have already reproduced above, that the decision of the Supreme Court in the case of: S.D.P.C Nig. Ltd. v. Edamkue (supra)
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is the law and that the representative capacity of the 1st set of Respondents/Claimants in their suit is not defective, is right. There is no iota of doubt in my mind that the 1st set of Respondents/Claimants have the legal capacity to institute their suit both for themselves as well as representing their family, that is, Umu-Okara Uboh-Azaga Family, Ogbogu ONELGA, Rivers State, regarding the properties, the subject-matter of the suit. A fortiori, the suit being properly constituted is competent, thereby vesting the requisite jurisdiction in the trial Court to adjudicate upon the same.
Based on my above elucidation, the two issues donated for determination must be and are hereby resolved altogether against the Appellants.
Consequently, this appeal is doomed for failure. It is hereby dismissed entirely. The judgment of the trial Court delivered in this matter, Suit No: OHC/20/2012, on 20th June, 2013 is hereby affirmed. Hence, the said suit is remitted to the Chief Judge of the High Court of Rivers State for reassignment to another Judge of that Court other than Hon. Justice Sobere Biambo, for its trial ?de novo? on the merit.
?I make
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no order for costs.
JAMES SHEHU ABIRIYI, J.C.A.: I agree.
SAIDU TANKO HUSAINI, J.C.A.: I agree.
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Appearances:
Sir Enweluzo with him, C. Amanbosi, Esq.For Appellant(s)
Mrs. B.V. Okome for the 2nd set of Respondents.
1st set of Respondents not represented.
?For Respondent(s)
Appearances
Sir Enweluzo with him, C. Amanbosi, Esq.For Appellant
AND
Mrs. B.V. Okome for the 2nd set of Respondents.
1st set of Respondents not represented.
?For Respondent
