ENGR. JOSEPH CHIKEZIE OBI V. MR. NGOZI BENEDICT IREGBU
(2011)LCN/4448(CA)
In The Court of Appeal of Nigeria
On Monday, the 11th day of April, 2011
CA/PH/416M/2005
RATIO
LEAVE OF COURT: CONSEQUENCE OF AN APPELLANT NOT OBTAINING THE LEAVE OF THE LOWER COURT OR THE APPELLATE COURT BEFORE LODGING AN APPEAL AGAINST AN INTERLOCUTORY DECISION OF THE TRIAL COURT
Is the appeal on an interlocutory decision of the trial court or not? If it is, the appellant needed to have obtained the leave of the lower court or this court before lodging this appeal, If this was not obtained the appeal would be incompetent. See NALSO & TEAM ASSOCIATES V. NNPC (1991) 8 NWLR (PT. 212) 652. PER TUNDE OYEBANJI AWOTOYE JCA
FINAL/INTERLOCUTORY DECISION: TEST TO APPLY IN DETERMINING WHETHER A DECISION IS FINAL OR INTERLOCUTORY
According to Tobi JSC in ALOR V. NGENE (supra), if the order made finally disposes of the rights of the parties then the order is final. If not, then it is interlocutory. PER TUNDE OYEBANJI AWOTOYE JCA
GROUND OF APPEAL: HOW TO DETERMINE WHETHER A GROUND OF APPEAL IS ONE OF LAW ALONE OR ON MIXED LAW AND FACT
Aderemi JSC in FBN PLC V. ABRAHAM (2009) 8 WRN 1 at 17 explained it this way:
“…a ground of appeal questioning the exercise of discretion by a lower court is a ground not of law but at best of mixed law and fact…” Therefore, where, as in the instant case’ the grounds of appeal reveal a misunderstanding by the court below or a misapplication of the law to the settled and admitted factual contents of the claim such grounds are pure grounds of law. See (1) OGBECHIE V. ONOCHIE (1986) I NSCC 433 (1985) 3 SC 54, 1986 2 NWLR (Pt. 23) 484 (2) METAL CONSTRUCTION (WA) LTD v. MIGLIORE (1990) ALL NLR 142; (1990) 2 SCNJ 20; (1990) NWLR (PT. 126) 299 and (3) P.N. UDOH TRADING COMPANY LTD. V. SUNDAY ABERE (2004) 24 WRN 1, (2001) FWLR (PT. 57) 900, (2001) 11 NWLR (PT. 723) 114.” PER TUNDE OYEBANJI AWOTOYE JCA
ORDER: PROPER ORDER TO BE MADE WHERE A COURT DECLINES JURISDICTION TO ENTERTAIN AN ACTION
Where a court declines jurisdiction to entertain an action the proper order to make is a striking out and not a dismissal of the action. See OKOLO v. UBN LTD (2004) 3 NWLR (PT. 859) 87. PER TUNDE OYEBANJI AWOTOYE JCA
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
ENGR. JOSEPH CHIKEZIE OBI
(Joined by Order of Court as the Next Friend/Guardian Ad Litem of Master Bruno Ekenedilichukwu Iregbu, Miss Adaku Iregbu and Miss Onyinyechi Iregbu, the children of the deceased Appellant, Mrs Appolonia Chidinma Iregbu. Appellant(s)
AND
MR. NGOZI BENEDICT IREGBU Respondent(s)
TUNDE OYEBANJI AWOTOYE JCA, (Delivering the leading Judgment): This is the appeal against the decision of High Court Rivers delivered on 9/3/2004.
The plaintiff now appellant had instituted an action against the defendant claiming as follows:-
“(i) A declaration that the collection of the rents by the Defendant from the Tenants in the premises known and referred to as No. 314 Old Aba/Port Harcourt, Oyigbo, Rivers State (a premises owned and built by the Plaintiff’s husband late Mr. Peter Ugurum Iregbu) without the consent of the Plaintiff is wrongful.
(ii) An Order of Court directing the Defendant to pay over to the Plaintiff all the sums of money collected by the Defendant from the said premises at the said No. 314 Old Aba/Port Harcourt, Oyigbo, Rivers State.
(iii) A Perpetual Injunction restraining the Defendant either by himself, his agents, servants and/or privies from entering, trespassing and/or doing anything whatsoever on the said premises which is against the proprietary interest of the Plaintiff.
(iv) The sum of N50, 000,000.00 (Fifty Million Naira) only for damages.”
The plaintiff raised the Writ of summons to issue but before filing statement of claim the defendant filed a motion on notice objecting to the action on the following grounds:-
“1. The property situate at 314, Aba/Port Harcourt, Oyigbo, Rivers State (hereinafter “property in dispute”) was the bona fide property of the late Mr. Joseph Iregbu Ejeh who died intestate on 25th August, 1995.
2. The Defendant/Applicant is the sole Administrator of the Estate of Joseph Iregbu Ejeh which includes the property in dispute.
3. The Plaintiff/Respondent lack the locus standi to administer or institute an action in respect of the property in dispute or any other property forming part of the Estate of Joseph Irgebu Ejeh.
4. This Honourable Court lacks jurisdiction to entertain this suit for want of locus standi and competence.”
The plaintiff reacted by filing a counter affidavit.
After hearing the parties the learned trial judge granted the application and held inter alia thus:
“Having considered all these, I find that the plaintiff/respondent has no locus standi to institute this action over the subject matter in dispute. This being so this suit is incompetent and this court lacks jurisdiction to hear it. This case is therefore dismissed.”
It is against this decision that the plaintiff/Appellant being aggrieved filed amended Notice of Appeal on 31/8/2009 with the leave of court granted on 18/7/2009. After the transmission of the record of appeal parties filed and exchanged their respective briefs of argument.
The Respondent filed notice of preliminary objection but incorporated his argument inside the main brief.
Issues 1 and 2 of the Respondent’s brief are on the preliminary objection. They are:-
(i) Whether the Appeal is competent
(ii) Whether this Honourable Court has the jurisdiction to entertain the appeal.
On issue 1 the learned counsel for the Respondent submitted that the decision appealed against was on interlocutory decision, which required leave of the court before an appeal could be instituted. He referred to Section 14(i) of the Court of Appeal act and section 241(1b) and 242(1) of the 1999 Constitution.
He submitted further that the appeal was brought after the expiration of 14 days contrary to the provision of section 24(1) and 24(2a) of the Court of Appeal Act in interlocutory decision. He cited SANUST V. AYOOLA (1992) 11/12 SCNJ (PT. 11) 142.
He further contended that Ground A. B. of the Appellant’s grounds of appeal were on mixed law and facts and so should be struck out as no leave of court was obtained as required by the law. He submitted further that Grounds E of the Grounds of Appeal did not allege any wrong doing on the part of the trial court. He referred to AJUWON V. AHANNI (1993) 12 SCNJ 32 at 52.
Learned counsel further submitted that Ground E depended heavily on the letter of administration admitted by the trial court but which did not form part of the Record of Appeal. He contended that this amounted to abandonment of the grounds of appeal.
On issue two, learned counsel for the Respondent submitted that in consequence of the earlier submissions this appeal was incompetent. He referred to several cases including PETER ODOFIN V. CHIEF AGU & ANOTHER (1992) 3 SCNJ 161; ADELEHAN V. ECU-LINE NV (2006) 3 FWLR (PT. 325) 4395 at 4616.
He finally submitted that this court had no jurisdiction to entertain this appeal.
The appellant responded to the submissions of the Respondent on the preliminary objections in their reply brief.
Learned counsel for the appellant submitted that the decision appealed against was a final decision. He cited OGUNTIMEHIN V. ONOTOYE (1957) 2 FSC 56; AFUWAPE v. SHODIPE (1957) SCNR 265 and some other cases. He particularly referred to the case of ALOR V. NGENE (2007) ALL FWLR (PT. 362) 1836 at 1847 – 1849 where Tobi JSC referred to the two conditions laid down for determining whether or not an order of court was final or interlocutory.
He further replied the Respondent on the Grounds of Appeal attacked under the preliminary objection.
On Ground A, he submitted that it was a question of law and that there was no disputed fact since no statement of defence was filed at the trial court, He posited further that in determination of the question of locus standi, the court was duty bound to look at the plaintiff’s claim as contained in the writ of summons and the statement of claim he referred to the case of RIMI V. INEC (2004) ALL FWLR (PT 210) 1321 and other cases.
On Ground B of the Grounds of Appeal he adduced the same submissions on Ground A.
On Ground C learned counsel submitted that it was a ground of law.
On Grounds D and E he submitted that no leave of court was needed as they were grounds of law.
He finally urged the court to dismiss the preliminary objection.
For clarity’s sake I shall quote the ground of appeal as contained in the appellant amended notice of appeal filed on 31/8/2009 in extenso.
“GROUNDS OF APPEAL (Excluding the particulars)
A. The learned trial judge erred in law in holding that the Plaintiff/Appellant had no locus standi to institute the suit.
B. The learned Trial Judge erred in law in relying on the Motion on Notice together with the accompanying exhibits to determine the issue of whether or not the Plaintiff/Appellant has locus standi to institute the action instrumental to this appeal instead of the Writ of Summons wherein the claims of the Plaintiff were endorsed; the statement of claim having not been filed by the Plaintiff/Appellant.
C. The Learned Trial Judge erred in law in deciding at interlocutory level, the substantive issue in the suit.
D. The Learned trial judge erred in law in dismissing the suit instead of striking out the suit when she held that the Plaintiff/Appellant had no locus standi to institute the suit.
E. The learned trial judge erred in law in giving full probative value to the letter of Administration that was surreptitiously obtained while this suit was pending and/or after the commencement of this suit.”
The first question to be considered under the preliminary objection is whether the appeal is competent. Is the appeal on an interlocutory decision of the trial court or not? If it is, the appellant needed to have obtained the leave of the lower court or this court before lodging this appeal, If this was not obtained the appeal would be incompetent. See NALSO & TEAM ASSOCIATES V. NNPC (1991) 8 NWLR (PT. 212) 652.
Learned counsel for the Appellant has satisfactorily explained the test to apply in determining whether a decision is final or interlocutory in his Reply brief.
According to Tobi JSC in ALOR V. NGENE (supra), if the order made finally disposes of the rights of the parties then the order is final. If not, then it is interlocutory.In the light of the above, it seems clear that the decision of the trial court to the effect that the plaintiffs lacked locus standi and dismissing the action was a final decision and not an interlocutory decision. The objection of the Respondent on this therefore fails.
Now to the Grounds of Appeal. How does one determine whether a ground of appeal is on law alone or on mixed law and fact? Aderemi JSC in FBN PLC V. ABRAHAM (2009) 8 WRN 1 at 17 explained it this way:
“…a ground of appeal questioning the exercise of discretion by a lower court is a ground not of law but at best of mixed law and fact…”
Therefore, where, as in the instant case’ the grounds of appeal reveal a misunderstanding by the court below or a misapplication of the law to the settled and admitted factual contents of the claim such grounds are pure grounds of law. See (1) OGBECHIE V. ONOCHIE (1986) I NSCC 433 (1985) 3 SC 54, 1986 2 NWLR (Pt. 23) 484 (2) METAL CONSTRUCTION (WA) LTD v. MIGLIORE (1990) ALL NLR 142; (1990) 2 SCNJ 20; (1990) NWLR (PT. 126) 299 and (3) P.N. UDOH TRADING COMPANY LTD. V. SUNDAY ABERE (2004) 24 WRN 1, (2001) FWLR (PT. 57) 900, (2001) 11 NWLR (PT. 723) 114.” I shall consider this point in the above light.
The plaintiffs claim at the trial court is afore-quoted. The claim was founded on the assertion that the premises known as No. 314 old Aba/Port Harcourt Oyibo Rivers State belonged to her late husband LATE MR. PETER UGURUM IREGBU. This is the basis of the action. Any preliminary objection raised on locus standi by the defendant must be on the assumption that the basis of the action was correct.
However where as in this case’ the defendant sought to introduce new facts as the basis of his objection, such objection would only succeed if found to be correct. But where the plaintiff contested the new fact being introduced and filed a counter affidavit to challenge it in my respectful view, justice demanded that such issue should resolved after hearing of the parties. Moreso when the defendant had not filed his statement of defence. The basis of the objection of the defendant was that the property subject matter of the suit were bought by his late father MR. JOSEPH IREGBU EJEH. The meaning is the issue of ownership or title to the property which is crustal and crucial to the just determination of the case before the lower court had not been resolved.
There were violent conflicts in the affidavit which had to be resolved VIVA VOCE. See FALOBI V. FALOBI (1976) NMLR 169; FSB INTERNATIONAL BANK LTD V. IMANO NIGERIA LTD. (2000) 7 SC (PT. 1) 1. The facts upon which the decision of the lower court rested were disputed and yet unresolved. I therefore agree that the lower court applied the law to facts which were in dispute. In the circumstance Grounds A, B and D are on mixed law and facts. The appellant ought to have obtained leave of court for the grounds to be competent. Since no leave was obtained grounds A, B and D of the amended grounds of Appeal are incompetent. Issues 2.1- 2.3 formulated by the appellants being distilled from the incompetent grounds are thereby vitiated.
Grounds A, B and D of the amended Grounds of Appeal are incompetent and are therefore also struck out.
On Ground E of the amended Notice of Appeal. This Ground of appeal rests heavily on the exhibit which has not been transmitted to this court. It is on the letter of administration exhibited to the supporting affidavit of the defendant/appellant at the trial court but which is conspicuously missing from the records. A court, trial or appellate must see the exhibits’ before taking any decision on them. See EKPEMUPOLO V. EDREMODA (2009) 32 WRN 1 at 23; CHIEF OKOCHI & 3 ORS V. CHIEF ANIMKWOI & 2 ORS (2003) 2 SCNI 250 at 271. See also NWANA V. FEDA (2007) 11 NWLR (PT. 1044) 59.
It is the duty of the appellant to ensure the accuracy of the record of appeal forwarded to the appellate court. See AJAYI V. OMOROGBE (1993) 6 NWLR (PT. 301) 1512.
In the light of the above Ground E of the amended Grounds of Appeal cannot be argued. The exhibits on which it relies are not before the court and this court will not speculate on them. This also affects issue 2.5.
However, I hold that Ground C of the amended Grounds of Appeal is a ground of law which requires no leave of court. Issue 4 as formulated by the appellant is therefore valid.
The preliminary objection of the Respondent in the light of the aforestated therefore succeeds in part.
The only issue still standing is issue 2.4 as formulated by the appellant.
On the Respondent’s brief only issue 6 as formulated by learned counsel will stand as the grounds of appeal on which other issues rest have been struck out.
Issue 4 as formulated by the appellant is wide enough to embrace issue 6 as formulated by the Respondent.
I shall therefore concentrate on issue 4 in the Appellants brief, issues 4 of the appellant and issue 6 of the Respondents having been drawn from the same ground of appeal.
Issue 4 of the Appellant states:-
“Whether the learned trial judge was right in law in deciding the substantive issue in this case at the interlocutory stage.”
Learned counsel for the appellant submitted that it was trite law that a court was not, while dealing with preliminary or interlocutory matters to make pronouncement which would prejudice the fair hearing of the issues to be decided upon at the hearing of the substantive suit. He referred to A. G. ANAMBRA STATE V. OKEKE (2002) FWLR (PT. 112) 175 AT 209; F.S.B. INTERNATIONAL BANK LTD. V. IMANO NIG. LTD. (2000) FWLR (PT. 19) 392 at 412.
He submitted further that is was not permissible for the trial judge to conclude that the house at old Aba Port Harcourt Road Oyigbo did not belong to the appellant husband and that the Respondent was the right
manager of same. He relied on PANSON ENTERPRISES NIG. LTD V. NJIGHA (2001) FWLR (pt. 61) 1685 at 1706; ILOZOR V. AHMADU (2003) FWLR (PT. 163) 132 at 144.
He added that where a trial court delved into the substantive matter while considering an interlocutory application the appellate court had a duty to order a retrial before another judge. He cited ORANYELI V. FIRST BANK OF NIGERIA PLC (2001) FWLR (PT. 68) 1217, UNIVERSITY PRESS LTD. V. MARTINS (NIG.) LTD (2000) NWLR (PT. 654) 584 AT 595.
He therefore urged this court to resolve the issue in favour of the appellant.
Learned counsel for the Respondent in his brief referred to the decision of the lower court and submitted that the trial court was in essence saying that the appellant would have had the locus standi or legal capacity to institute the action if she had the letter of administration in respect of the property. He submitted that the trial court did not decide the issue of the rightful ownership of the property in the ruling appealed against but on the fact that the plaintiff had no locus standi to institute the suit without a letter of administration.
I have carefully considered the arguments canvassed on both sides.
From the writ of summons and the counter-affidavit of the plaintiff/appellant she claimed that the property in question was built by her deceased husband. She claimed that she had proprietary interest in the property she claimed she was married to her husband under native law and custom. If the plaintiff could not sue as an administratrix of the estate could she sue as an interested person in the estate? Could she take action to challenge the defendant/applicant over the estate inspite of the letter of administration issued to the defendant? This is moreso, since the issue of ownership of the property was indispute. Did she, as a wife under native law and custom, have any proprietary right in the property of her deceased husband or any right to institute an action to protect the interest of her children in the said property?
The mere grant of a letter of administration does not exclude the operation of native law and custom to an estate. See OLOWU V. OLOWU (1985) 3 NWLR (PT. 13) 372.Did the plaintiff under section 43 of the 1999 Constitution have a Constitutional right to acquire (by marriage or inheritance etc) and own the said property? Could he under section 36(i) of the 1999 Constitution seek the determination of her civil right and obligations in court?
In some other customs, the plaintiff can institute this action to protect her personal interest. See EMOKPAE v. IDUBOR (2003) 17 NWLR (PT. 849) 290; AKINUBI V. AKINUBI (1997) 2 NWLR (PT. 486) 144.
If the defendant asserted to the contrary i.e. that the plaintiff had no locus then he ought to have supplied the facts or shown that under native law and custom applicable she could not. He who asserts must prove. See section 137 of the Evidence Act.
What determines whether a plaintiff has locus standi or not is whether or not he has legal right or sufficient interest in that subject matter? See AKINUBI V. AKINUBI (supra).
In the absence of a statement of claim and in the light of what is contained in the writ of summons and the affidavit filed at the lower court, I am of the respectful view that the lower court did not have enough facts to act on to determine this matter as it did.
Besides the above, the trial court ought not to have dismissed the action after granting the preliminary objection. Where a court declines jurisdiction to entertain an action the proper order to make is a striking out and not a dismissal of the action. See OKOLO v. UBN LTD (2004) 3 NWLR (PT. 859) 87.
It is in the light of the above that I resolve this issue in favour of the appellant.
This appeal has merit. It is hereby allowed. I hereby order a retrial of this action before another High court Judge in Rivers state. I award N50, 000.00 as cost in favour of the Appellant.
M. DATTIJO MUHAMMAD (OFR): I read in advance the lead judgment of my learned brother Awotoye JCA and agree with him that the endorsements on the writ of summons taken out by the Appellant sufficiently disclose the locus she has to maintain the suit. In an action commenced by such a writ, the writ and claim, where filed, provide the only basis of determining the locus of the plaintiff to institute the action. In the instant case the defendant is too eager to challenge the plaintiff’s right to institute the action and could not wait for her to file her pleadings. Lucky enough, the endorsements on the writ disclose very clearly why she institutes the action and deserves to be heard. The lower court is wrong to have gone outside the sufficient information discernible from the writ as endorsed in order to determine Respondents’ objections. See Onuorah v. KRPC (2005) 6 NWLR (Pt.921) 393, AG Kwara State v. Olawole (1993) 1 NWLR (Pt.272) 645 and Nkuma v. Odili (2006) 5 NWLR (Pt.977) 587.
For the foregoing and more so the fuller reasons contained in the lead judgment, I also find the appeal meritorious. I allow it and make the same consequential orders reflected in the lead judgment.
EJEMBI EKO, JCA: The facts of this case have been sufficiently summarized in the lead judgment just delivered by my learned brother, T.O. AWOTOEY, JCA. I had privilege of reading the judgment in draft.
The preliminary objection, the ruling of which is the subject of this appeal, was that the Plaintiff/Appellant had no locus standi in the suit. At the time of pre-emptive attack on the suit no statement of claim had been filed. The only process, against which the preliminary objection was directed, was the writ of summons together with the claims endorsed thereon. The endorsements are as follows –
1. A declaration that the collection of the rents by the Defendant from the Tenants in the Premises known and referred to as No. 314 Old Aba/Port Harcourt Road, Oyigbo, Rivers State (a premises owned and built by the Plaintiffs husband – late Mr. Peter Ugwum Iregbu) without consent of the Plaintiff is wrongful.
2. An order of court directing the Defendant to pay over to the Plaintiff all the sums of money collected by the Defendant from the said premises at the said No. 314 Old Aba/Port Harcourt Road Oyigbo, Rivers State.
3. A perpetual injunction restraining the Defendant either by himself, his agents, servants and/or privies from entering, trespassing and/or doing anything whatsoever on the said premises which is against the proprietary interest of the Plaintiff on the said premises.
4. The Sum of N50, 000,000.00 (Fifty Million Naira) only for damages.
The Defendant/Respondent, without waiting for statement of claim to be filed, and without filing any statement of defence, rushed his preliminary objection on 16th July, 2002 at page 4 of the Record. He claimed therein that the disputed property was the bona fide property of the late Mr. Joseph Iregbu Ejeh, who died intestate on 25th August, 1995; that he was sole Administrator of the property and that the plaintiffs/Appellants “lacked the locus standi the property, and also the locus standi to institute an action in respect of the property or any other forming part of the estate of the late Joseph Iregbu Ejeh. The basic fundamental principle of locus standi is that it is the claim of the plaintiff that determines his claim. The court can not go outside it. See FAJINIMI V. THE SPEAKER (1962) 1 ALL NLR 105 at 177.
At the stage of this objection founded on locus standi the defendant ought to have first waited for the plaintiff to file statement of claim and thereafter spring the attack based on the Plaintiff’s lack of locus standi. It is from the statement of claim that the Plaintiff would have stated what locus standi he had to contest with the defendant the right to collect rents from the disputed property.
In any case, it is ex facie the endorsement on the writ of summons in this case that the right the Plaintiff/Appellant asserted in bringing up the suit is the right of the widow of the late Mr. Peter Ugwum Iregbu who, she claimed was the person who “owned and built” the disputed property. The trial court, in my view, did not properly consider the endorsement. If it did, it would have been obvious that the Plaintiff/Appellant had disclosed her locus standi to bring the suit. The trial court therefore seriously erred in law in holding that the Plaintiff did not disclose her locus standi in the suit.
The trial court, also while considering the preliminary objection, had veered into deciding the substantive issue that is the ownership of the house in dispute. The trial court had therefore, prematurely prejudged the issue. The law is trite that a court, while dealing with preliminary or interlocutory matters is not permitted to make pronouncements that would prejudge the substantive issue in the suit, and thereby prejudice the fair hearing of those substantive issues. See A.G. ANAMBRA STATE v. OKEKE (2002) FWLR [pt.112] 175 at 209; F.S.B. v. INTERNATIONAL BANK LTD v. IMANO NIG. LTD (2000) FWLR [pt.19] 392 at 412.
With these serious errors, as committed by the trial court, I do not therefore hesitate to allow the appeal. The appeal is allowed. I hereby adopt all the consequential orders made in the lead judgment.
Appearances
C.I. Enweluzuo Esq.For Appellant
AND
P. C. Obasi Esq.For Respondent
