ELDER GODWIN IBE AMADI & ANOR v. FYNECOUNTRY ABRAHAM & ORS
(2019)LCN/13160(CA)
In The Court docket of Enchantment of Nigeria
On Tuesday, the 30th day of April, 2019
CA/PH/854/2013
RATIO
APPEAL: FAILURE TO TIE ISSUES FOR DETERMINATION IN APPELLANTS BRIEF TO GROUND OF APPEAL DOES NOT RESULT IN ISSUES BEING STRUCK OUT
In DADA V. DOSUNMU (2006) LPELR 909 @ 12; ONNOGHEN; JSC (as he then was) held that:-
although it is rather mandatory and fascinating for the realized counsel for the appellant to at all times relate or tie the problems formulated for dedication within the appellants temporary to the grounds of enchantment from which the mentioned points are distilled, failure to take action might not essentially consequence within the points being struck out for being incompetent
See additionally NWANKWO & ANOR V. NWAWULU & ORS (2015) LPELR 40703.PER ABUBAKAR MUAZU LAMIDO, J.C.A.
LOCUS STANDI: DEFINITION
Locus standi or standing to sue is the authorized proper of a celebration to an motion to be heard in litigation earlier than a Court docket of legislation or Tribunal. An individual is alleged to have locus standi if he has proven enough curiosity within the motion and that his civil proper and obligation have been or are in peril of being infringed. See OLAGUNJU V. YAHAYA (1998) Three NWLR (PT 542) 501 NNUBIA V. AG RIVERS STATE (1999) Three NWLR (PT 593) 35 and GUDA V. KITTA (1999) 12 NWLR (PT 629) 21.PER ABUBAKAR MUAZU LAMIDO, J.C.A.
LOCUS STANDI AND JURISDICTION ARE INTERWOVEN
Additionally it is a settled legislation that locus standi and Jurisdiction are interwoven within the sense that absence of a locus standi goes to have an effect on the Jurisdiction of a Court docket earlier than which an motion is introduced. Subsequently, the place there isn’t a locus standi to institute an motion within the first place, the Court docket can’t correctly assume Jurisdiction to entertain an motion. See WAZIRI V. DANBOYI (1999) Four NWLR (PT 398) 239 and AG AKWA IBOM STATE V. ESSIEN (2004) 7 NWLR (PT 872) 288. Thus being a difficulty if Jurisdiction, locus standi will be raised at any stage or degree of the proceedings in a swimsuit, even for the primary time on enchantment. See AG AKWA IBOM STATE V. ESSIEN (supra) and EBONGO V. EWEMEDIMO (1995) Eight NWLR (PT 411) 22.PER ABUBAKAR MUAZU LAMIDO, J.C.A.
JUSTICES
CORDELIA IFEOMA JOMBO-OFO Justice of The Court docket of Enchantment of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court docket of Enchantment of Nigeria
ABUBAKAR MUAZU LAMIDO Justice of The Court docket of Enchantment of Nigeria
Between
1. ELDER GODWIN IBE AMADI
2. MR EMMANUEL AMADI
(For themselves and on behalf of Daniel Amadi household of Rumuehienwo, Eledo, Rukpokwu in Obio/Akpor Native Authorities Space of River State) Appellant(s)
AND
1. FYNECOUNTRY ABRAHAM
2. ERNEST WORLU
3. STEPHEN AMADI
4. GODWIN O. AMADI
(For themselves and on behalf of Rumu-Ijima neighborhood of Rukpokwu in Obio/ Akpor Native Authorities Space) Respondent(s)
ABUBAKAR MUAZU LAMIDO, J.C.A. (Delivering the Main Judgment): That is an enchantment towards the choice of the Rivers State Excessive Court docket, Port Harcourt Judicial Division delivered on 12th August, 2013 by George Will, J (as he then was).
On the trial Court docket, the claimants claimed towards the defendant the next reliefs:
1. A declaration that claimants have the customary proper of occupancy to all that piece or parcel of land often called and known as “Ohia ? Mini Kparachi Mgbakiri” mendacity and located behind the previous Rubber plantation in Rukpokwo Obio Apkor native Authorities Space of Rivers State.
2. A declaration that defendant trespassed into that piece or parcel of lands often called and known as ?Ohia Mini kparichi Mgbakiri mendacity and situate behind the previous Rubber plantation in Rukpokwu Obio Akpor Native Authorities Space of Rivers State all which belongs to the claimants.
?3. Perpetual injunction restraining the defendant whether or not by themselves, their servant, agent, privies or in any other case nonetheless coming into the claimant land or in any method interfering with claimant land often called and
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known as ?Ohia-Mini kparachi Mgbakiri mendacity and situate behind previous Rubber plantation in Rukpokwu Obio Akpor native Authorities Space of Rivers state.
4. N5,000,000.00 (5 Million Naira) being common damages for trespass dedicated by the defendants on that piece or parcel of land often called and known as ?Ohia-Mini kparachi Mgbakiri mendacity and situate behind previous Rubber plantation in Rukpokwu Obio Akpor native Authorities Space of Rivers state which is the property of the claimants.
5. Additional or different order(s) because the Honourable Court docket might deem match to make within the circumstances of this matter.
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The claimants? writ of summons was accompanied by an announcement of declare, listing of witnesses, witnesses assertion, listing of and copies doc on being served with the originating processes the defendant filed their assertion defence and witness assertion on oaths. The claimant filed a reply to the assertion of defence and an extra witness assertion on oath. Upon shut of pleadings, the Claimants known as two witnesses in proof of their declare and the defendant additionally known as two witnesses. Events filed and adopted their written
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addresses.
In a thought-about Judgment the trial Court docket dismiss the claims after holding that the claimants don’t have any locus standi to institute the swimsuit having conveyed the land they’re disputing with the defendants and that the claimants haven’t made out all or any of their claims towards the defendants.
Aggrieved by the choice, the claimant filed their discover of enchantment which relies upon 4 grounds, the mentioned grounds are reproduced hereunder :-
GROUND ONE
The realized trial Choose erred in legislation by delivering Judgment in favour of the Respondent when the Court docket lacks Jurisdiction.
PARTICULARS ERROR
(a) The Court docket confer Jurisdiction on itself and ship Judgment ratter that putting out the case when he upheld (sic) that appellant doesn’t have locus standi to institute the swimsuit.
GROUND TWO
The realized trial decide erred in legislation when His lordship invoked the presumption of irregularity towards admitted proof.
PARTICULARS OF ERROR
(a) That it’s a should that Appellants who’re boundary neighbors of the Respondent should show possession of the land by survey plan and or switch to a 3rd social gathering by way of deed of
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conveyance.
(b) These appellants should not have the appropriate to sue even when the road of boundary claimed and partly trespasses upon by respondents have an effect on the appellant.
GROUND THREE
The realized trial Choose erred in legislation by failure to judge totality of proof adduced in associated with the subject material of the swimsuit which is mainly boundary line dispute not possession of land stricto senso, each events having admitted that they’re boundary neighbors.
PARTICULARS OF ERROR
(a) The appellant didn’t show by proof the boundary line between their land and the land of the respondent.
GROUND FOUR
The Judgment is towards the load of proof.
PARTICULARS OF ERROR
(a) The Judgment of the honourable Court docket isn’t based mostly on challenge pleaded earlier than it for dedication (sic).
According to the principles of this Court docket, events filed and adopted their temporary of argument on the listening to of this enchantment. Within the appellants temporary of argument filed on 16/01/14 however deemed filed on 10/03/16, settled by A. O. Sylvester, Esq., three points for dedication have been formulated. These points are:-
1. Whether or not the trial Court docket has
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Jurisdiction to ship Judgment when appellant have been mentioned by the Honourable Court docket to not have locus standi.
2. Whether or not the trial Court docket was misdirected itself by invoking the presumption of irregularity towards admitted proof.
3. Whether or not the trial Court docket failed to judge the totality of proof adduced in associated (sic) with the subject material of this swimsuit.
Within the respondent temporary of argument filed on 07/12/18 however deemed filed 10/03/16, settled by P. O. L. Adujie, Esq., a preliminary objection was raised and argued on the next grounds :-
(i) The appellant do have the locus standi to prosecute this enchantment as they don’t have any justifiable curiosity in the subject material of the enchantment and even on the trial Court docket.
(ii) The enchantment is incompetent as the problems formulated for dedication by the appellant usually are not and can’t be associated to the grounds of enchantment as contained within the discover of enchantment.
(iii) The appellant temporary of argument is incompetent having been filed out of time and with out the prior go away of the Court docket.
The respondent proceeded to formulated three points for dedication arising from the grounds of their
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objections the problems are:-
(i) Whether or not the claimants have the locus standi to current this enchantment, a fortiori, to have prosecuted the case on the Excessive Court docket
(ii) Whether or not from the formulation of the problems for dedication the enchantment is incompetent.
(iii) Whether or not the appellant?s temporary of argument is incompetent having been filed out of time and with out the prior go away of the court docket.
The appellants of their reply temporary didn’t formulate any challenge for dedication and didn’t undertake the problem as formulated by the Respondent; somewhat the appellants argued the grounds of objection as reproduced earlier on this Judgment. The Respondent adopted the problems for determinations are formulated by the appellant.
The legislation is now nicely settled, that, the place upon listening to of an enchantment, an objection is raised to the competence of the enchantment, an enchantment Court docket has an obligation to find out the Discover of Preliminary Objection first earlier than the dedication of the substantive enchantment. Within the mild of the place of the legislation, the preliminary objection shall be thought-about and its consequence will decide whether or not the substantive enchantment shall be thought-about or not.<br< p=””
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In arguing the primary grounds of objection and challenge for its dedication, realized counsel for the respondent argued that the appellant had no locus standi to institute the declare earlier than the trial Court docket, and to prosecute this enchantment if the averment in paragraph 3, 5, 6 and 13 of their assertion of declare is taken into account and in view of the averment and proof that the appellant have conveyed the mentioned land to 3rd events, the appellants locus standi is nonexistent and the very fact that there’s a covenant between the appellant and the third events is of no second within the absence of proof of such covenant. He referred to AG OF ADAMAWA STATE & ORS V. FEDERATION & ORS (2005) 18 NWLR (PT 985)581 @ 623; ADEFULU & ORS V. OYESILE & ORS (1989) 5 NWLR (PT 122) 377 @ 410 AND ADESANYA V. PRESIDENT FRN & ANOR (1981) 2 NCLR 388. Counsel urged the Court docket to resolve this challenge in favour of the Respondent and maintain that this enchantment is incompetent.
Discovered counsel for the appellant maintained that the appellants have locus standi to institute the motion on the trial Court docket and he referred to ILORI V. BENSON (2000) ALL FWLR (PT 26) 1846 and
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UNITED NIGERIA CO LTD V. NAHMAN & ORS (2008) ALL FWLR (PT 27) 1988. Discovered counsel didn’t nonetheless correct any response on whether or not the appellant have a standing to prosecute this enchantment or not.
Locus standi or standing to sue, or capability to sue denotes the authorized capability to start an motion in a court docket of Legislation. See ADESANYA V. PRESIDENT FRN & ANOR (1981) LPELR 147; THOMAS V. OLUFOSOYE (1986) NWLR (PT. 18) 669 and AG KADUNA STATE V. HASSAN (1985) LPELR 617. It’s a authorized requirement enabling an individual to take care of an motion and sometimes restricted to the prosecution of issues referring to the civil proper and obligation of a celebration be it at first occasion and even on enchantment.
The respondent?s competition is that the appellant don’t have any standing to file and argue this enchantment. The reality or fallacy of this floor will be decided if the place of the legislation on who is usually a social gathering to an enchantment is examined. In AKUNEZIRI V. AKENWA & ORS (2000) LPELR 393; MOHAMMED, JSC held that:
?A celebration to an enchantment have to be an individual exercising the appropriate of enchantment who is called within the report or an individual having an curiosity within the proceedings which time period would
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embrace an individual affected or prone to be affected or aggrieved or prone to be aggrieved by the proceedings.?
From the above, it may be seen {that a} proper of enchantment enures to a identified social gathering on the report who’s aggrieved by the choice of the trial Court docket or any particular person joined within the swimsuit as an social gathering.
The appellants herein have been that claimants on the trial Court docket, they claimed a number of reliefs towards the Respondents, the trial Court docket?s Judgment was towards them and been aggrieved, they enchantment towards the choice of the trial Court docket. Part 243(1) (a) of the Structure of the Federal Republic of Nigeria, 1999 (as amended) states that any proper of enchantment to this Court docket from the choice of the trial Court docket shall be exercisable on the occasion of a celebration thereto. The appellant being events to the swimsuit beneath problem are to my thoughts dress with the locus standi to enchantment towards the choice of the trial Court docket. This floor of objection along with the problem formulated is of no substance. It’s accordingly overruled.
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On the second challenge for dedication arising from floor two, it’s the submission of realized counsel for the
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respondents that the appellants? discover of enchantment contained 4 grounds of enchantment to which three points for dedication have been formulated nevertheless it can’t be mentioned with certainty which challenge was distilled from both of the bottom. He fur
