GRIER HOUSE ESTATES LTD v. NICON TRUSTEES LTD & ORS (2022)

GRIER HOUSE ESTATES LTD v. NICON TRUSTEES LTD & ORS

(2022)LCN/16757(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, December 14, 2022

CA/LAG/CV/439/2020

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Peter Oyinkenimiemi Affen Justice of the Court of Appeal

Between

GRIER HOUSE ESTATES LIMITED APPELANT(S)

And

1. NICON TRUSTEES LIMITED 2. ABAHM ONAH 3. EJETA OTUONIYO RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON PRELIMINARY OBJECTIONS

A preliminary objection is a specie of objection which, if sustained by a Court, will render further proceedings in a matter unnecessary. See Abe v. UniIlorin (2013) 16 NWLR (Pt. 1379) 183, APC v. INEC (2015) 8 NWLR (Pt. 1462) 531, Jim-Jaja v. C.P, Rivers State (2013) 6 NWLR (Pt. 1350) 225, Petgas Resources Ltd. v. Mbanefo (2018) 1 NWLR (Pt. 1601) 442, Ekemezie v. Ifeanacho (2019) 6 NWLR (Pt. 1668) 356.

For this reason, the law commands the Court to deal first with a preliminary objection when raised in any proceedings. See Uwazurike v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035)1, FBN Plc v. T.S.A. md. Ltd (2010) 15 NWLR (Pt. 1216) 247, Okereke v. James (2012) 16 NWLR (Pt. 1326) 339, APC v. INEC (Supra), Ogboru v. Uduaghan (2013) 1 NWLR (Pt. 1311) 357, Efet v. INEC (2011) 7 NWLR (Pt. 1247) 423, Sa’eed v. Yakowa (2013) 7 NWLR (Pt. 1352) 133, Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113, Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1057) 1, Umanah (Jnr.) v. NDIC (2016) 14 NWLR (Pt. 1533) 458, Esuwoye v. Bosere (2017) 1 NWLR (Pt. 1546) 256, Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142. I will obey this legal commandment so as not to insult the law. PER OGBUINYA, JCA.

THE IMPLICATION OF LAW ON THE ABSENCE OR PRESENCE OF LOCUS STANDI

There is no gainsaying the fact that the marrow of the double issue evinces jurisdictional question in the sense that they quarrel with the appellant’s locus standi to institute the action in the lower Court. It is trite law that the absence or presence of locus standi in a party will divest or infuse jurisdiction into a Court to discountenance or entertain a matter before it. See Emezi v. Osuagwu (2005) 12 NWLR (Pt. 939) 349/(2005) 30 WRN 1; A.-G., Anambra State v. A.-G. Fed (2007)11 NWLR (Pt. 1047) 4, Admin/Exec., Estate Abacha v. Eke-Spiff (2009) 17 NWLR (Pt. 1171) 614, Ajayi v. Adebiyi (2012) 11 NWLR (Pt. 1310 1370, Uwazuruonye v. Gov., Imo State (2013) 8 NWLR (Pt. 1355) 28, Adebayo v. PDP (2013) 17 NWLR (Pt. 1382) 1, Okwu v. Umeh (2016) 4 NWLR (pt. 1501) 120, Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452, Rebold Ind. Ltd. v. Magreola (2015) 8 NWLR (Pt. 1461) 210, Centre for Oil Pollution Watch v. NNPC (2019) 5 NWLR (Pt. 1666)518, Nworka v. Ononeze-Madu (2019) 7 NWLR (Pt. 1672) 422, A.-G., C.R.S. v. FRN (2019) 10 NWLR (Pt. 1681) 401. It is an ambitious and a jealous concept in that the law insists it must be decided before a Court handles the merit of a case. See Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113, Araruma v. Ubah (2021) 8 NWLR (Pt. 1779) 511. From an etymological perspective, the cliché, locus standi, traces its ancestry to the Latin Language which means: “place of standing”. In its expounded legal form, locus standi denotes the legal right or capacity of a person to institute an action in a Court of law when his right is trampled upon by somebody or authority, see INEC v. Ogbadibo L. G.(2016) 3 NWLR (Pt. 1498) 167, Centre for Oil Pollution Watch v. NNPC (supra) Nworka v. Ononeze-Madu (supra), A.-G., C.R.S. v. FRN (supra), Ararume v. Ubah (2021) 8 NWLR (Pt. 1779) 511. Locus standi was evolved to protect the Court from being converted into a jamboree by professional litigants who have no interest in matters before it. See Taiwo v. Adegboro (2011) 11 NWLR (Pt. 1259) 562, Al – Hassan v. Ishaku (2016) 10 NWLR (Pt. 1520) 230. For a party to establish locus standi, he must show that the matter is justiciable – capable of being disposed of judiciously in a Court of law – and the existence of dispute between parties. See Taiwo v. Adegboro (supra), Ajayi v. Adebiyi (supra). Again, he has to show that he has sufficient interest in the subject-matter of the action and that his civil rights and obligations are in the danger of being infringed on. See Jitte v. Okpulor (2016) 2 NWLR (Pt. 1497) 542, Nyesom v. Peterside (supra), Al – Hassan v. Ishaku (supra), Centre for Oil Pollution Watch v. NNPC (supra), Nworka v. Ononeze-Madu (supra), A.-G., C.R.S. v. FRN (supra). PER OGBUINYA, JCA.

THE POSITION OF LAW ON THE RECEPTION OF FRESH EVIDENCE ON APPEAL

​The Court grants the application if applicant satisfies the necessary conditions. This procedure, reception of fresh evidence on appeal, is firmly propagated in our corpus juris in that the case law, in a flood of ex-cathedra authorities has given its blessing to it. See Asaboro v. Aruwaje (1974) 4 SC 119, Ariran v. Adepoju (1961) 1 All NLR 722, Nwanezie v. Idris (supra), Okpanum v. S.G.E (Nig.) Ltd. (1998) 7 NWLR (Pt. 559) 537/(1998) 5 SCNJ 142, Amechi v. INEC (2008) 5 NWLR (Pt. 1080) 227, UBA Plc v. BTL Ind. Ltd. (2005) 10 NWLR (Pt. 933) 356, Ehinlanwo v. Oke (2008) 16 NWLR (Pt. 1113) 357, Uzodinma v. Izunaso (No. 2) (2011) 17 NWLR (Pt. 1275) 30, Onwubuariri v. Igboasoiyi (2011) 3 NWLR (Pt. 1234) 357, Adeyefa v. Bamgboye (2013) 10 NWLR (Pt. 1363) 532, CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66, GTB Plc v. Innoson Nig. Ltd. (2017) 16 NWLR (Pt. 1591) 181, Statoil Nig. Ltd. v. Inducon Nig. Ltd. (2018) 9 NWLR (Pt. 1625) 586, Enilolobo v. N.P.D.C. Ltd. (2019) 18 NWLR (Pt. 1703) 168, Dike-Ogu v. Amadi (2020) 1 NWLR (Pt. 1704) 45, Sharing Cross E-S Ltd. v. Umaru Adamu Ent. Ltd. (2020) 10 NWLR (Pt. 1733) 561, Oboh v. NFL Ltd. (2021) 14 NWLR (Pt. 1766) 305, UBN Plc. v. Petro Union Oil & Gas Co. Ltd. (2022) 7 NWLR (Pt. 1829) 199. PER OGBUINYA, JCA.

WHETHER OR NOT LEAVE OF COURT IS REQUIRED TO RAISE A JURISDICTIONAL ISSUE

Indisputably, the inelastic position of the law is that leave of Court is not required to raise a jurisdictional issue. See Wema Sec. & Fin. Plc v. NAIC (2015) 10 NWLR (Pt. 1484) 93, Onemu v. Comm., Agric & National Resources, Asaba (2019) 11 NWLR (Pt. 1682.  PER OGBUINYA, JCA.

THE POSITION OF LAW ON DOCUMENTS ATTACHED TO AN AFFIDAVIT

In the same vein, documents attached to an affidavit forms part and parcel of it. See Iyeke v. P.T.I (2019) 2 NWLR (Pt. 1656) 217, APC v. Lere (2020) 1 NWLR (Pt. 1705) 254, Ezeanochie v. Igwe (2020) 7 NWLR (Pt. 1724) 430, Zakhem Oil Serve Ltd. v. Art-In-Science Ltd. (2021) 18 NWLR (Pt. 1808) 341. To begin with, the admissibility vel non of those documents does not, by a stretch of judicial interpretation, fall within the wide firmament of jurisdictional issue. Secondly, a document has to be admissible to form part of an affidavit on which it is hoisted. In other words, an affidavit ought not parent an inadmissible evidence for utilisation by the Court. In effect, these two weak-kneed defences, which the respondents brandished and paraded to salvage the documents, are disabled from their birth. They cannot fly!

Indubitably, law grants to the Court, either trial or appellate, the unbridled latitude to expunge admitted inherently inadmissible evidence at the judgment stage. The wisdom behind this hallowed principle of law is plain. A Court of law is divested of the jurisdiction to act on an inadmissible evidence in reaching a decision. See Alade v. Olukade (1976) 2 SC 183, IBWA v. Imano Ltd (2001) 3 SCNJ 160, Durosaro v. Ayorinde (2005) 8 NWLR (Pt. 927) 407, Namsoh v. State (1993) 5 NWLR (Pt. 292) 129, Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) 307, Abubakar v. Chuks (2007) 18 NWLR (Pt. 1066) 389, Philips v. E.D.C. & Ind. Co Ltd. (2013) 1 NWLR (Pt. 1336) 618, Nwaogu v. Atuma (2013) 11 NWLR (Pt. 1364) 117. In all, I uphold the appellant’s objection to the admissibility of Exhibits 12-14. PER OGBUINYA, JCA.

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal probes into the correctness of the decision of the Federal High Court, Lagos Division (hereinafter abridged to “the lower Court”), coram judice: M.S. Hassan, J., in Suit No. FHC/L/CS/1046/2019, delivered on 26th February, 2020. Before the lower Court, the appellant and the respondents were the plaintiff and the defendants respectively.

​The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. The property in dispute is litigation-friendly. On 19th August, 2009, the appellant purchased, via a Deed of Assignment, a parcel of land situate at Alma Beach Estate Ikate Elegushi, Lekki, Lagos State from Alma Beach Estates Limited. Hitherto, on 20th February, 1991, there was an executed Trust Deed between Grande Alma Nigeria Limited (which later metamorphosed into Alma Beach Estates Limited). By virtue of the Trust Deed, the second respondent was appointed a receiver/manager of Alma Beach Estate Limited. On 10th August, 2017, the first respondent filed an action, originating summons, registered as Suit No. FHC/L/CS/1242/2017, before the lower Court which sought for its direction for the second respondent’s act and exercise of powers over 150 plots of land within Alma Beach Estate Limited. The first respondent filed an ex parte application concurrently which sought for police protection for the second respondent to enter into the said premises. On 26th October, 2017, the lower Court, presided over by Chuka Austine Obiozor, J., granted the ex parte application by making an interim order thereon. The respondent therein, Alma Beach Estates Limited, filed a preliminary objection against the suit. On 22nd June, 2018, the lower Court, per A. O. Faji, J., dismissed the suit on the basis of the preliminary objection. The first respondent appealed against the decision in Appeal No. CA/L/999/2018. On 18th April, 2019, this Court allowed the appeal in part by substituting the order of dismissal with order of striking out of the suit. The appellant alleged that in May and June, 2019, the respondents, using the instrumentality of the Nigerian Police Force, thugs and hoodlums, based on the interim order of 26th October, 2017, broke into and destroyed the appellant’s property, harassed, intimidated, assaulted and arrested the occupants of the property. Sequel to these, the appellant beseeched the lower Court, via an originating summons filed on 25th June, 2019, wherein it tabled against the respondents two questions and the following reliefs:
“1. Whether having regards to the judgment of the Court of Appeal delivered on the 18th day of April, 2019, striking out Suit No: FHC/L/CS/1242/17, the Defendants through the instrumentality of the Nigerian Police Force, can validly rely on the interim Order of Honourable Justice Obiozor made on the 26th day of October, 2017 in Suit No: FHC/L/CS/1242/17, to invade, take over, intimidate, harass and assault the occupants on the Plaintiff’s property situate at Alma Beach Estate, Ikate Elegushi, Lekki, Lagos State, measuring approximately 3,577 square meters and registered as No. 51 at page 51 in Vol. 2241 at the Lagos State Land Registry?
2. Whether the order of the Honourable Justice Obiozor made on the 26th day of October, 2017 in Suit No: FHC/L/CS/1242/17 is still subsisting?
In the event that questions above is (sic) answered in the negative, the Plaintiff prays this Honourable Court for the following reliefs:
1. A DECLARATION that pursuant to the ruling of Honourable Justice A. O. Faji delivered on the 22nd day of June, 2018 and a consequent Judgment of the Court of Appeal delivered on the 18th day of April, 2019, striking out Suit No: FHC/L/CS/1242/17, the order of Hon. Justice Obiozor delivered on the 26th day of October, 2017 in Suit No: FHC/L/CS/1242/17 is no longer valid and subsisting.
2. A DECLARATION that any action, directly or indirectly taken by the Defendants pursuant to the Order of Honourable Justice Obiozor made on the 26th day of October, 2017 in Suit No: FHC/L/CS/1242/17 is invalid, null and void and of no effect.
3. A DECLARATION that the Defendants acting through the Nigerian Police Force cannot validly rely on the interim Order of Honourable Justice Obiozor made on the 26th day of October, 2017 in Suit No: FHC/L/CS/1242/17, to invade, take over, intimidate, harass and assault the occupants on the Plaintiff’s property situate at Alma Beach Estate, Ikate Elegushi, Lekki, Lagos State.
4. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants, either by themselves, their assigns, privies, agents or howsoever described and/or all persons claiming through them, from relying on the Order of Honourable Justice Obiozor made on the 26th day of October, 2017 in further invading, entering, harassing and intimidating the occupants of the Plaintiff’s land situate at Alma Beach Estate, Ikate Elegushi, Lekki, Lagos State, measuring approximately 3,577 square meters and registered as No. 51 at page 51 in Vol. 2244 at the Lagos State Land Registry.”

In reaction, the respondents, upon service of the originating summons on them, entered a conditional memorandum of appearance and filed a notice of preliminary objection on 15th July, 2019. The appellant reacted to the preliminary objection by filing the necessary processes. On 19th December, 2019, the lower Court consolidated the hearing of the originating summons and the notice of preliminary objection. In a considered composite judgment, delivered on 26th February, 2020, reflected at pages 855 – 870, volume II, of the record, the lower Court granted the preliminary objection and dismissed the originating summons.

The appellant was dissatisfied with the decision. Hence, on 13th May, 2020, the appellant launched a 5-ground notice of appeal which is copied at pages 871 – 875, volume II, of the record. Subsequently, with leave of this Court, the appellant filed an amended notice of appeal on 29th January, 2021 but deemed properly filed on 8th February, 2022, hosting six grounds, wherein it prayed this Court for:
“a. An Order setting aside the judgment of the Federal High Court, Lagos Judicial Division, Coram Honourable Justice Hassan delivered on the 26th day of February, 2020 in Suit No: FHC/L/CS/1046/2019 between Grier House Estates Limited v. Nicon Trustees Limited & 4 Ors.
b. An order granting the reliefs sought as per the Appellant’s Originating Summons.”

Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of argument in line with the procedure regulating the hearing of civil appeals in this Court. The appeal was heard on 28th September, 2022.

During its hearing, learned appellant’s counsel, Babajide Koku, SAN, adopted the appellant’s brief of argument, filed on 28th September, 2021 but deemed properly filed on 8th February, 2022, and the appellant’s reply brief of argument, filed on 22nd March, 2022, as representing his argument for the appeal. He urged the Court to allow it. Similarly, learned counsel for the respondents, Ejeta Otuoniyo, Esq., adopted the respondents’ brief of argument, filed on 8th March, 2022, as forming his reactions against the appeal. He urged the Court to dismiss it.

Respondents’ preliminary objection.
On 18th February, 2022, the respondents (objectors) filed a preliminary objection challenging the competence and jurisdiction of this Court to hear the appeal for want to locus standi to maintain the appeal on the subject, estoppel and unremitting abuse of judicial process on the following grounds.
“1. The Appellant/Respondent lacks locus standi to sue and or deal with the charged assets in the Debenture and or take steps in respect of the assets conveyed in Favour of the 1st Applicant consequent upon the appointment of a Receiver in terms of the Debenture Trust Deed dated 20/2/1991 and Registered as 75 at pages 75 in Volume 1949 in the Lands Registry in the office at Lagos.
2. The Respondent herein being a privy of the debtor company is in estoppel by Deed pursuant to the terms of the Deed of Debenture Trust Deed dated 20/2/1991 and Registered as 75 at page 75 in Volume 1049 Lands Registry in the office at Alausa, Lagos, by virtue of Section 169 of the Evidence Act, 2011 and accordingly disallowed from maintaining this Amended Notice of Appeal and the brief dated 27th September, 2021 or any proceeding against the Respondent/Applicants in respect of the charged assets and the Receivership constituted by the Deed of Debenture Trust Deed dated 20/2/1991 and Registered as 75 at page 75 in Volume 1949 Lands Registry in the office at Alausa Lagos.
3. The Appellant/Respondent’s Amended Notice of Appeal and brief herein is filed mala fide to supplant the law and gain advantage to the detriment of the Respondents/Applicants despite the extant Deed of Debenture Trust Deed dated 20/2/1991 and Registered as 75 at page 75 in Volume 1949 Lands Registry in the office at Alausa, Lagos and same is an abuse of Court process and improper use of the judicial process against the effectual administration of justice, and more so, as two different suits including the one sought to be appealed by the Federal High Court have unambiguously followed the law and declared the Respondent and the debtor company as lacking locus standi to sue or deal on the assets.”

It is supported by a 29-paragraph affidavit, sworn to by Abah Onah, Esq., the second respondent, with 15 annexures, marked as Exhibits 1 – 15, attached to it. In opposition, the appellant filed a 5-paragraph counter-affidavit, on 22nd March, 2022, deposed to by Oloruntola Sogunro – a litigation officer in the law firm of appellant’s counsel.

In the respondents’ brief of argument, learned counsel distilled two issues for determination of the objection, to wit:
“1. Whether the Appellant/Respondent a privy to the debtor company held not to have locus standi to deal and sue on charged assets by this Court can approach the Court by way of filing a Notice of Appeal effectively re-litigating the self-same issue earlier decided by this Court?
2. Whether the Appellant/Respondent is bound by the decision of this Court to lack the locus standi to deal or sue as touching charged assets covered by the Debenture Trust Deed in its judgment delivered on 25th October, 2016 in Nicon Trustees Ltd v. Alma Beach Estates Limited, CA/L/365/2004 (Exhibit 5) and followed by the Federal High Court in its ruling in Suit No. FHC/L/CS/1242/17 on the 9th of January, 2018 (Exhibit 8), the judgment of Honourable Justice M. S. Hassan in Suit No. FHC/L/CS/1046/2019 between GRIER HOUSE ESTATE LIMITED V. NICON TRUSTEES LIMITED & 4 ORS on 26th February, 2020 (Exhibit 9).”

Admirably, learned appellant’s counsel adopted the two issues crafted by the respondents’ counsel.

Arguments on issues one and two
Learned respondents’ counsel submitted that estoppel and absence of locus standi are jurisdictional issues which can be raised at any time. He relied on Obikoya v. The Registrar of Companies and Official Receiver of Pool House Group (Nig.) Ltd. (1975) LPELR – 2175 (SC). He stated the importance of jurisdiction and lack of it leads to nullity. He cited Obiuwebi v. CBN (sic – no citation); Odukoya v. Ojoola CA/L/1030/2016. He asserted that this Court held in Appeal No. CA/L/365/2004 that the appellant’s predecessor-in-title lacked locus standi to sue on the charged assets. He added that the appellant is a privy of the debtor company and its title document of 2009 came long after the crystallisation of the charged assets. He explained that the lower Court rightly relied on the ruling of 9th January, 2018 in Suit No. FHC/L/CS/1242/2017 and the decision in Appeal No.CA/L/365/2004 in holding that the appellant had no locus standi.

Learned counsel maintained that the appellant is a privy to the debtor/company and had no independent locus standi from the company. He referred to Oyerogba v. Olaopa (1998) LPELR – 2878 (SC). He insisted that the appellant is estopped by deed estoppel, issue estoppel and res judicata from relitigating the settled issue of lack of locus standi. He reasoned that estoppel subsists once the question is substantially the same in the two suits even when parties alternate in them. He relied on Oyerogba v. Olaopa (supra), Coker v. Sanyaolu (1976) 9 – 10 SC 20. He observed that once an issue of locus standi is upheld, other issues are not considered. He cited Emezi v. Osuagwu (2005) LPELR – 1130 (SC). He opined that this Court cannot change its earlier decision. He referred to Ogundare v. Executive Governor of Lagos State (2017) LPELR – 41859 (CA). He persisted that the appeal is an abuse of Court process. He cited Dingyadi v. INEC (sic – citation).

On behalf of the appellant, learned Senior Counsel contended that Exhibits 12 – 14 were afterthought and made during the pendency of this appeal and are inadmissible. He relied on Sheriff v. PDP (2017) 14 NWLR (Pt. 1585) 212, Abagbado v. Faruk (2019) 1 NWLR (Pt. 1653) 292, Gwar v. Adole (2003) 3 NWLR (Pt. 808) 516; Section 83 (3) of the Evidence Act, 2011. He added that Exhibits 12 – 14 are extraneous to the appeal and should be disregarded by the Court. He cited Section 115 (2) of the Evidence Act, 2011, The Reg. Trustees of N.A.C.H.PN v. M.H.W UN (2008) LPELR-3196 (SC). He posited, in the alternative, that Exhibits 12-14 are fresh evidence which cannot be taken on appeal without leave of Court. He referred toWaniko v. Ade-John (1999) 9 NWLR (Pt. 619) 401.

Learned Silk further contended that the appellant has a constitutional right of appeal having been aggrieved by the decision of the lower Court. He relied onAni v. Effiok (2017) 8 NWLR (Pt. 1567) 281. He opined that the questions, reliefs in the originating summons and the affidavit in support of the originating summons, show that the appellant has locus standi before this Court. He cited Ilori v. Benson (2000) 9 NWLR (Pt. 673) 570. He explained that the decision in Appeal No. CA/L/365/2004 was specific on charged assets which did not cover the appellant’s property. He stated that the respondents did not adduce a contrary evidence. He insisted that the appellant owned the res, has locus standi and not caught by estoppel. He took the view that the suit was not caught by res judicata because the parties, issues and subject-matter in it and Appeal No. CA/L/365/2004 are not the same. He referred toLawal v. Salami (2002) 2 NWLR (Pt. 752) 687. He referred to Assan v. Okposin (2000) 10 NWLR (Pt. 676) 659. He concluded that the suit was not caught by estoppel and res judicata.

On points of law, learned respondents’ counsel argued that issue of jurisdiction in a preliminary objection can be raised without leave of Court. He relied on Onemu v. Commissioner for Agric and National Resources, Asaba (2020) 44 WRN 48, Western Still Works Ltd. v. OAU, Ile-Ife (2020) 6 WRN 78, Akwodo v. Obbi  (2022) 5 WRN 33. He described Exhibits 12-14 as part and parcel of the affidavit and no leave of Court was required to introduce them. He insisted that the composite plan shows that the portion claimed by the appellant forms part of the charged assets. He opined that the appellant did not raise the identity of the subject matter before the lower Court. He claimed that the first respondent submitted its survey plan in Suit No. FHC/L/CS/1242/2017 and the lower Court, Per Obiozor, J., pronounced on it.

Resolution of the preliminary objection
It cannot be gainsaid that the respondents (objectors) greeted the appeal with a stiff opposition via a preliminary objection. The respondents seek to abort the appeal in limine on three terminal grounds catalogued above.

A preliminary objection is a specie of objection which, if sustained by a Court, will render further proceedings in a matter unnecessary. See Abe v. UniIlorin (2013) 16 NWLR (Pt. 1379) 183, APC v. INEC (2015) 8 NWLR (Pt. 1462) 531, Jim-Jaja v. C.P, Rivers State (2013) 6 NWLR (Pt. 1350) 225, Petgas Resources Ltd. v. Mbanefo (2018) 1 NWLR (Pt. 1601) 442, Ekemezie v. Ifeanacho (2019) 6 NWLR (Pt. 1668) 356.

For this reason, the law commands the Court to deal first with a preliminary objection when raised in any proceedings. See Uwazurike v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035)1, FBN Plc v. T.S.A. md. Ltd (2010) 15 NWLR (Pt. 1216) 247, Okereke v. James (2012) 16 NWLR (Pt. 1326) 339, APC v. INEC (Supra), Ogboru v. Uduaghan (2013) 1 NWLR (Pt. 1311) 357, Efet v. INEC (2011) 7 NWLR (Pt. 1247) 423, Sa’eed v. Yakowa (2013) 7 NWLR (Pt. 1352) 133, Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113, Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1057) 1, Umanah (Jnr.) v. NDIC (2016) 14 NWLR (Pt. 1533) 458, Esuwoye v. Bosere (2017) 1 NWLR (Pt. 1546) 256, Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142. I will obey this legal commandment so as not to insult the law.

A clinical audit of the two issues, clearly, reveals that they share a common mission, id est, to puncture the legal capacity of the appellant to institute the action which transfigured into the appeal. To this end, I will, in order to conserve the scare juridical time and for spatial constraint, amalgamate the conjoined issues one and two and fuse their considerations without either issue compromising its identity.

However, there is one stubborn tangential point which cries for its resolution by this Court. It is the appellant’s chastisement of the admissibility of Exhibits 12-14, attached to affidavit in support of the preliminary objection, on the basic premises of their dates of production. The agitation wears two limbs. Each limb is canalised within a narrow compass. The first limb accuses those documents of being manufactured during the pendency of the suit which rendered them inadmissible. The appellant staked its grouse on the provision of Section 83 (3) of the Evidence Act, 2011 which is in pari materia with the defunct Section 91 (3) of the Evidence Act, 2004. Since the provision is the cynosure of this knotty limb, it is germane to mine it out whence it is domiciled in the Evidence Act, 2011, ipsissima verba, as follows:
“(3) Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”
It is decipherable from the phraseology of the provision, which is comprehension-friendly, that twin requirements, which are embedded in it, must be satisfied by an objector. It must be shown that the document was made when the action was pending and by a person interested. The Supreme Court has sanctioned this hallowed principle of law in loads of judicial authorities. See Anyaebosi v. R.T. Briscoe Ltd. (1987) 3 NWLR (Pt. 167) 290, N.S.I.T.F.M.B. v Klifco Nig. Ltd. (2010) 13 NWLR (Pt. 1211) 307, U.T.C. (Nig.) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221, Isiaka v. Amosun (2016) 9 NWLR (Pt. 1518) 417, Ladoja v. Ajimobi (2016) 1 NWLR (Pt. 1519) 87; B.B. Apugo & Sons Ltd. v. OHMB (2018) 13 NWLR (Pt. 1529) 206, Anagbado v. Faruk (2019) 1 NWLR (Pt. 1653) 292, Elias v. FRN (2021) 16 NWLR (Pt. 1800) 495.

In an abiding loyalty to the expectation of the law, I have consulted the record: the spinal cord of the appeal. My port of call is at the abode of the originating summons which colonises pages 4 – 6, volume I, of the record. It, amply, discloses that the suit was commenced on 25th June, 2019. Judgment was delivered thereon on 26th February, 2020. I have given a microscopic examination to Exhibits 12-14 which are in the heat of expunction. Exhibit 12, a ruling of the High Court of Lagos State, was delivered on 18th April, 2019. Exhibit 13, a composite plan in Suit No. FHC/L/CS/1059/208, bears the date of 16th November, 2021. Exhibit 14, report on the said composite plan, with a galaxy of attachments, was authored on 15th March, 2021. I have situated the birthdays of those exhibits with that of the action. The raison d’ etre for the juxtaposition is not far-fetched. It is to ascertain if the exhibits were fabricated evidence during the pendency of the action. It is axiomatic that the dates of production of those exhibits, save that of Exhibit 12, were posterior to the commencement of the matter. Put the other way round, the exhibits, Exhibits 13 and 14, came to being after the appellants had instituted the action. If flows that those exhibits offend the second limb of the inviolable provision of Section 83 (3) of the Evidence Act, 2011, chronicled above, in that they were absent throughout the gestation period of the case in the lower Court. The consequence of this statutory defilement is far-reaching. Those exhibits are caught in the intractable vortex of inadmissibility as ordained by the sacrosanct provision.

The second of the appellant’s agitation appertains to the improper manner of introduction of those Exhibits 12-14 without the leave of Court. In order to pacify the law, I have perused the mountainous record, which is the bedrock of the appeal, with the finery of a toothcomb. Incidentally, I am unable to locate, even with prying eagle-eye of an appellate Court, the residences of those documents in the mountainous record which binds the parties and the Court. Their absence in the record signifies that they were not part and parcel of the proceedings of the lower Court which were/are warehoused in the windy record. The import of this is simple. The documents are pesissimi exempli of fresh/additional evidence. It is ultra vires this Court to admit further evidence as a matter of routine judicial exercise. The provision of Order 4 Rule 2 of the Court of the Appeal Rules, 2021 grants this Court the licence, in deserving circumstances, to receive such fresh evidence. In this wise, the jurisdiction of this Court is ignited by an application for leave to adduce/tender further evidence and supported by an affidavit. The Court grants the application if applicant satisfies the necessary conditions. This procedure, reception of fresh evidence on appeal, is firmly propagated in our corpus juris in that the case law, in a flood of ex-cathedra authorities has given its blessing to it. See Asaboro v. Aruwaje (1974) 4 SC 119, Ariran v. Adepoju (1961) 1 All NLR 722, Nwanezie v. Idris (supra), Okpanum v. S.G.E (Nig.) Ltd. (1998) 7 NWLR (Pt. 559) 537/(1998) 5 SCNJ 142, Amechi v. INEC (2008) 5 NWLR (Pt. 1080) 227, UBA Plc v. BTL Ind. Ltd. (2005) 10 NWLR (Pt. 933) 356, Ehinlanwo v. Oke (2008) 16 NWLR (Pt. 1113) 357, Uzodinma v. Izunaso (No. 2) (2011) 17 NWLR (Pt. 1275) 30, Onwubuariri v. Igboasoiyi (2011) 3 NWLR (Pt. 1234) 357, Adeyefa v. Bamgboye (2013) 10 NWLR (Pt. 1363) 532, CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66, GTB Plc v. Innoson Nig. Ltd. (2017) 16 NWLR (Pt. 1591) 181, Statoil Nig. Ltd. v. Inducon Nig. Ltd. (2018) 9 NWLR (Pt. 1625) 586, Enilolobo v. N.P.D.C. Ltd. (2019) 18 NWLR (Pt. 1703) 168, Dike-Ogu v. Amadi (2020) 1 NWLR (Pt. 1704) 45, Sharing Cross E-S Ltd. v. Umaru Adamu Ent. Ltd. (2020) 10 NWLR (Pt. 1733) 561, Oboh v. NFL Ltd. (2021) 14 NWLR (Pt. 1766) 305, UBN Plc. v. Petro Union Oil & Gas Co. Ltd. (2022) 7 NWLR (Pt. 1829) 199. The respondents, in their infinite wisdom, starved this Court of any concrete evidence of such application which is sine qua non for the activation of the jurisdiction of this Court for the admission of those documents which, to all intents and purposes, bear the sobriquet of fresh evidence.

In a spirited bid to castrate the appellant’s objection against the documents, the respondent erected the defences of the documents being jurisdictional question and forming part of the affidavit. Indisputably, the inelastic position of the law is that leave of Court is not required to raise a jurisdictional issue. See Wema Sec. & Fin. Plc v. NAIC (2015) 10 NWLR (Pt. 1484) 93, Onemu v. Comm., Agric & National Resources, Asaba (2019) 11 NWLR (Pt. 1682.

In the same vein, documents attached to an affidavit forms part and parcel of it. See Iyeke v. P.T.I (2019) 2 NWLR (Pt. 1656) 217, APC v. Lere (2020) 1 NWLR (Pt. 1705) 254, Ezeanochie v. Igwe (2020) 7 NWLR (Pt. 1724) 430, Zakhem Oil Serve Ltd. v. Art-In-Science Ltd. (2021) 18 NWLR (Pt. 1808) 341. To begin with, the admissibility vel non of those documents does not, by a stretch of judicial interpretation, fall within the wide firmament of jurisdictional issue. Secondly, a document has to be admissible to form part of an affidavit on which it is hoisted. In other words, an affidavit ought not parent an inadmissible evidence for utilisation by the Court. In effect, these two weak-kneed defences, which the respondents brandished and paraded to salvage the documents, are disabled from their birth. They cannot fly!

Indubitably, law grants to the Court, either trial or appellate, the unbridled latitude to expunge admitted inherently inadmissible evidence at the judgment stage. The wisdom behind this hallowed principle of law is plain. A Court of law is divested of the jurisdiction to act on an inadmissible evidence in reaching a decision. See Alade v. Olukade (1976) 2 SC 183, IBWA v. Imano Ltd (2001) 3 SCNJ 160, Durosaro v. Ayorinde (2005) 8 NWLR (Pt. 927) 407, Namsoh v. State (1993) 5 NWLR (Pt. 292) 129, Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) 307, Abubakar v. Chuks (2007) 18 NWLR (Pt. 1066) 389, Philips v. E.D.C. & Ind. Co Ltd. (2013) 1 NWLR (Pt. 1336) 618, Nwaogu v. Atuma (2013) 11 NWLR (Pt. 1364) 117. In all, I uphold the appellant’s objection to the admissibility of Exhibits 12-14. On this score, in order to appease the law, I will ostracise Exhibits 12-14 from this appeal. Accordingly, Exhibits 12-14 are hereby expunged as inadmissible and unusable documents in the determination of the appeal. Having cleared the coast, I will proceed to attend to the hub of the preliminary objection.

Now, the main plank of the respondents’ nursed grievance, indeed the thrust of the fused issues and the appeal, interrogates the locus standi of the appellant to institute the suit, in the lower Court, which mothered the appeal. Specifically, their grudge is that it inherited the lack of locus standi, which this Court slammed against its predecessor-in-title, Alma Beach Estates Limited, in Appeal No. CA/L/365/2004, on the footing of issue estoppel. It is a subtle summon on this Court to engage in the exploration of the undulating forensic contours of locus standi within the perimeter of issue estoppel.

There is no gainsaying the fact that the marrow of the double issue evinces jurisdictional question in the sense that they quarrel with the appellant’s locus standi to institute the action in the lower Court. It is trite law that the absence or presence of locus standi in a party will divest or infuse jurisdiction into a Court to discountenance or entertain a matter before it. See Emezi v. Osuagwu (2005) 12 NWLR (Pt. 939) 349/(2005) 30 WRN 1; A.-G., Anambra State v. A.-G. Fed (2007)11 NWLR (Pt. 1047) 4, Admin/Exec., Estate Abacha v. Eke-Spiff (2009) 17 NWLR (Pt. 1171) 614, Ajayi v. Adebiyi (2012) 11 NWLR (Pt. 1310 1370, Uwazuruonye v. Gov., Imo State (2013) 8 NWLR (Pt. 1355) 28, Adebayo v. PDP (2013) 17 NWLR (Pt. 1382) 1, Okwu v. Umeh (2016) 4 NWLR (pt. 1501) 120, Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452, Rebold Ind. Ltd. v. Magreola (2015) 8 NWLR (Pt. 1461) 210, Centre for Oil Pollution Watch v. NNPC (2019) 5 NWLR (Pt. 1666)518, Nworka v. Ononeze-Madu (2019) 7 NWLR (Pt. 1672) 422, A.-G., C.R.S. v. FRN (2019) 10 NWLR (Pt. 1681) 401. It is an ambitious and a jealous concept in that the law insists it must be decided before a Court handles the merit of a case. See Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113, Araruma v. Ubah (2021) 8 NWLR (Pt. 1779) 511. From an etymological perspective, the cliché, locus standi, traces its ancestry to the Latin Language which means: “place of standing”. In its expounded legal form, locus standi denotes the legal right or capacity of a person to institute an action in a Court of law when his right is trampled upon by somebody or authority, see INEC v. Ogbadibo L. G.(2016) 3 NWLR (Pt. 1498) 167, Centre for Oil Pollution Watch v. NNPC (supra) Nworka v. Ononeze-Madu (supra), A.-G., C.R.S. v. FRN (supra), Ararume v. Ubah (2021) 8 NWLR (Pt. 1779) 511. Locus standi was evolved to protect the Court from being converted into a jamboree by professional litigants who have no interest in matters before it. See Taiwo v. Adegboro (2011) 11 NWLR (Pt. 1259) 562, Al – Hassan v. Ishaku (2016) 10 NWLR (Pt. 1520) 230. For a party to establish locus standi, he must show that the matter is justiciable – capable of being disposed of judiciously in a Court of law – and the existence of dispute between parties. See Taiwo v. Adegboro (supra), Ajayi v. Adebiyi (supra). Again, he has to show that he has sufficient interest in the subject-matter of the action and that his civil rights and obligations are in the danger of being infringed on. See Jitte v. Okpulor (2016) 2 NWLR (Pt. 1497) 542, Nyesom v. Peterside (supra), Al – Hassan v. Ishaku (supra), Centre for Oil Pollution Watch v. NNPC (supra), Nworka v. Ononeze-Madu (supra), A.-G., C.R.S. v. FRN (supra).

Nota bene, in an action commenced by dint of originating summons, the affidavit in support serves as the statement of claim. See Uwazuruonye v. Gov., Imo State (2013) 8 NWLR (Pt. 1355) 28, PDP v. Ezeonwuka (2018) 3 NWLR (Pt. 1606) 187, Lau v. PDP (2018) 4 NWLR (Pt. 1608) 60, Owuru v. Adigwu (2018) 1 NWLR (Pt. 1599) 1, CBN v. Aribo (2018) 4 NWLR (Pt. 1608) 130.

It must be stressed, that it is only a plaintiff’s statement of claim or affidavit, not a statement of defence or a counter-affidavit, that is relevant in determining the jurisdiction of a Court. See lzenkwe V. Nnadozie (1953) 14 WACA 301, UBA Plc. v. BTL Ltd (2006) 19 NWLR (Pt. 1013) 361, Ngere V. Okuruket ‘XIV’ (2017) 5 NWLR (Pt. 1559) 440. 

However, chances of success of an action is irrelevant in considering locus standi. See Taiwo v. Adegboro (supra), Ajayi v. Adebiyi ​(supra), Okwu v. Umeh (supra), Centre for Oil Pollution Watch v. NNPC (supra).

A resumé of the genesis of the objectors’ objection is submissive to easy appreciation. There was a Trust Deed between Grande Alma Nigeria Limited (which transmuted into Alma Beach Estate Limited) and the first respondent on 20th February, 1991. The Trust Deed created a charge over the landed property of the latter at Alma Beach Estate Limited. The debenture later crystalised. On 16th October, 2003, Alma Beach Estates (the debtor company) besieged the High Court of Lagos (the High Court) and, inter alia, sought for a nullification of the Trust Deed. The case meandered, in the measured millipede speed of Court processes, to this Court via Appeal No. CA/L/365/2004. On 25th October, 2016, this Court, in a unanimous judgment, exhibit 7, declared that the Alma Beach Estate Limited lacked the locus standi to sue over the charged asset upon which a receiver/manager had been appointed. Meanwhile, on 19th August, 2009, while Suit No. LD/849/2003, which sired the Appeal No. CA/L/365/2004 was pendente lite, the appellant purchased part of the charged assets from Alma Beach Estates Limited. In law, such acquisition is enmeshed in the nest of lis pendens with its attendant caustic consequences on its validity. See Enegwe v. I.M.B. (Nig.) Ltd. (2006) 19 NWLR (Pt. 1013) 146, Best (Nig.) Ltd. v. B.H. (Nig.) Ltd. (2011) 5 NWLR (Pt. 1239) 95, Oronti v. Onigbanjo (2012) 12 NWLR (Pt. 1313) 23, Osidele v. Sokunbi (2012) 15 NWLR (Pt. 1324) 470, BFI Group Corp v. BPE (2012) 18 NWLR (Pt. 1332) 209. The Deed of Assignment evidencing the transaction is Exhibit GRJ attached to the appellant’s affidavit in support of the originating summons. Put simply, in the eyes of the law, the appellant is a successor-in-title over part of the charged asset. On 25th June, 2019, the appellant filed the suit which birthed the appeal. The contention of the objectors is that the appellant has no locus standi to bring the action because this Court had denied its predecessor-in-title, Alma Beach Estates Limited, the locus standi over the charged assets in the Trust Deed. The protestation is, principally, anchored on issue estoppel.

Generally, the doctrine of issue estoppel postulates that within a cause of action, several issues may come into question which are necessary for the determination of the whole case. The rule is that once one or two of such issues have been distinctly raised in a cause of action and appropriately determined or resolved between the same parties by a Court of competent jurisdiction, neither party nor his servant, agent or privy is allowed to re-open or relitigate that or those decided issues all over again in another matter between the same parties or their agents or privies on the same issues. For issue estoppel to apply, the parties, the issues, the subject matter (res) in the previous proceeding and the current action must be the same and the issue must have been resolved in the previous case. See Salami v. Sokefun (2004) All FWLR (Pt. 207) 672, Omnia (Nig.) Ltd. v. Dyktrade (2007) 15 NWLR (Pt. 1058) 576, Ajiboye v. Ishola (2006) 13 NWLR (Pt. 998) 638, Ikotun v. Oyekanmi (2008) 10 NWLR (Pt. 1094) 100, Oloruntoba-Oju v. Abdul-Raheem (2009) 13 NWLR (Pt. 1157) 83, Oshoboja v. Amida (2009) 18 NWLR (Pt. 1172) 188, Gbemisola v. Bolarinwa (2014) 9 NWLR (Pt. 1411) 1, APC v. PDP (2015) 15 NWLR (Pt. 1481) 1, Esuwoye v. Bosere (2017) 1 NWLR (Pt. 1546) 256.

In an abiding loyalty to the dictate of the law, I have married the appellant’s case, which is sought to be impugned, with the elements of issue estoppel displayed above. The rationale for the comparison is not far-fetched. It is to discover if it flouted or obeyed the doctrine of issue estoppel in order to earn the disfavour or favour of the Court.

One of the conditions for the application of issue estoppel, catalogued above, is sameness of parties in the previous and current actions. It is foremost to appreciate the connotation of a party in litigation. 

A party is a person by or against whom a legal action is sought and whose name is designated on the record as plaintiff or defendant. See Green v. Green (2001) FWLR (Pt. 76) 795, Fawehinmi v. NBA (No. 1) (1989) 2 NWLR (Pt. 105) 494, BelIo v. INEC (2010) 8 NWLR (Pt.1196) 342, Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229.

A privy is “A person having legal interest of privity in any action, matter or property; a person who is privity with another”, see Bryan A. Garner, Black’s Law Dictionary, 10th edition (USA, West Publishing Co., 2014) page 1394. In law, parties include privies which are classified into three: (1) Privies in blood (as ancestor and heir) (2) Privies in law (as testator and executor; intestate and administrator) and (3) Privies in estate (as vendor and purchaser, lessor and lessee), see Coker v. Sanyaolu (1976) 9-10 SC 203, Oyerogba v. Olaopa (1998) 12 SCNJ 115. In the mind of the law, parties to an action embrace privies in estate, see Coker v. Sanyaolu (1976) 10 NSCC 566, Omoloye v. A. -G., Oyo State (1987) 4 NWLR (Pt. 64) 267, Balogun v. Adejobi (1995) 1 SCNJ 242, Adone v. Ikebudu (2001) 7 SCNJ 513; Oyerogba v. Olaopa (1998) 11 & 12 SCNJ 115, Abubakar v. B. O. & A. P. Ltd. (2007) 18 NWLR (Pt. 1066) 319, L. S. B. P. C. v. Purification Tech. (Nig.) Ltd. (2013) 7 NWLR (Pt. 1352) 82.

At this juncture, it is apropos to visit exhibit GRI-the Deed of Assignment between the Alma Beach Estates Limited and the appellant. It monopolises pages 13-17, volume I, of the record. The appellant traces the paternity of its rights and acquisition to the document. The reason is simple. Therein, the Alma Beach Estates Limited (the debtor company) assigned the unexpired residue of part of the disputed property to the appellant. It stemmed from that alienation, which was concretised in the Deed of Assignment, that the appellant became a successor-in-title to the debtor company over the disputed property. Thus, there was vendor-purchaser/assignor-assignee contractual relationship that existed inter see between the appellant and the debtor company by dint of Exhibit GRI. In essence, the appellant was/is privy in estate with the debtor company by virtue of Exhibit GRI. In the sight of the law, parties to an action encompass their privies whether on record or not. In effect, the law, in its infinite wisdom, has already crowned the appellant, beginning from the birth and execution of Exhibit GRI, with the deserved toga of party in the Exhibit 7, Suit No. LD/849/2003, on the footing of privy in estate.

That takes me to the second ingredient-similarity of subject-matter. At the cradle of this resolution, I had, after due consultation with the law, branded/stigmatised Exhibits 12-14 as inadmissible documents and jettisoned them from the record. I am not oblivious of the declaration. Nevertheless, the appellant merely scored a barren victory on the excision of those documents, especially Exhibits 13 and 14 which dealt on composite survey plan, from the appeal. The reason is this. There are other documents that have the same purpose with them. In this regard Exhibit GRI, the Deed of Assignment, and Exhibit 1, Trust Deed, come in handy.

It admits of no argument that the two documents, among others, fall within the wide four walls of documents in that their contents are “expressed or described upon any substance by means of letters, figures or marks” see Section 258 of the Evidence Act, 2011. Remarkably, the law grants to the Courts the unfettered nod to read a document holistically so as to reach and garner harmonious results of its content. See Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377/(1987) SCNJ 98, Unilife Dev. Co. Ltd. v. Adeshigbin (2001) 4 NWLR (Pt. 707) 482, ACB v. Apugo (2001) 5 NWLR (Pt. 707) 482, Mbani v. Bosi (2006) 11 NWLR (Pt. 991) 400, Bunge v. Gov. Rivers State (2006) 12 NWLR (Pt. 995) 573, Agbareh v. Minra (2008)2 NWLR (Pt. 1071) 378, Nigerian Army v. Aminu-Kano (2010) 5 NWLR (Pt, 1188) 429, BFI Group v. BPE (2012) 18 NWLR (Pt. 1332) 209, Julius Berger Nig. PLC. v. T.R.C.B. Ltd (2019) 5 NWLR (Pt. 1665) 219.

In addition, in construing a document, the Court is enjoined by law to apply the literal rule as a canon of interpretation, id est, to accord the words deployed therein their ordinary grammatical meaning without any embellishments. See UBN v. Ozigi (1994) 3 NWLR (Pt. 333) 385, UBN Ltd. v. Sax (Nig.) Ltd. (1994) 8 NWLR (Pt. 361) 150, Enilolobo v. N.P.D.C. Ltd. (2019) 18 NWLR (Pt. 1703) 168. I will pay due obeisance to these legal commandments, on canons of interpretation of document, in order not to hurt the law.

In due obeisance to the desire of the law, I have given a global and merciless scrutiny to exhibit GRI, particularly at is habendum clause- the part of an instrument, such as a deed or will, which defines the extent and scope of the interest being granted and the conditions affecting the grant/disposition. See Anyaegbunam v. Osaka (2000) 5 NWLR (pt. 657) 386. Therein, the debtor company, as a beneficial owner, bequeathed and assigned to the appellant “ALL That piece or parcel of land situate, lying and being at Alma Beach Estate, Lekki Pennisular…Etiosa Local Government Area of Lagos State, Nigeria, Measuring approximately 3577.329 square metres in Alma Beach Estate Approved layout Plan….” The appellant’s reliefs laid out at the dawn of the judgment, confirm and solidfy the description in Exhibit GRI-the foundation of the appellant’s rights and interests. Exhibit 1, the Trust Deed, which spans pages 353-425, volume I, of the elephantine record, showcases the location of the charged asset at Alma Beach Estate in Lekki Pennisular with a humongous dimension that engulfs the disputed property. These highlights, plucked out from the record, with due reverence, expose the poverty of the appellant’s contention that the disputed property is located outside the province of the charged asset in the Trust Deed. I, therefore, hold the, humble, view that the res in the two actions, Appeal No. CA/L/365/2004 and the appellant’s action, which midwifed the appeal, are the same in that the disputed property in the later action is enveloped in the charged asset in the Trust Deed. Put bluntly, the appellant’s property forms part and parcel of the charge asset.

It remains to settle the sameness or otherwise of the issues in the two actions, videlicet: Suit No. LD/849/2003, which culminated in Appeal No. CA/L/365/2004, and the appellant’s suit which generated the appeal.

In the first place, the settled position of the law is that issues in matters are taken to be the same even though the wordings of the reliefs are different provided that the substance and end results are substantially the same. Ministry for Works v. Tomas (Nig) Ltd. (2002) 2 NWLR (Pt. 752) 740, Alhaji Abba Mohammed Sani v. The President FRN (2020) Legalpedia (SC) 42611, PDP v. Sheriff (2017) 15 NWLR (Pt. 1588) 219. It is therefore not the mandate of the law that the issues must mirror themselves “like Siamese twins in feature and outlook”, see Abubakar v. B.O. & A.P Ltd. (supra) at 373, per Tobi JSC. In point of fact, the law is duly satisfied once the issues are substantially the same in their likeness between/among the actions. In essence, it is the ultimate progeny of the reliefs and issues, not their manner of phraseology, that determines their similarities or otherwise. I will be properly guided by this inflexible principles of law on issues.

Incontestably, the reliefs in the two actions are important. At the dawn of the judgment, I had set out the reliefs in the suit that parented the appeal. It will be superfluous to recycle them again. The reliefs in Suit No. LD/849/2003, which gave rise to Appeal No. CA/L/365/2004, read:
“a. A declaration that the Trust Deed dated 20th February, 1991 made between Grand Alma Nigeria and NICON Trustees Limited and registered as No. 75 at Page 75 in Volume 1049 of the Lands Registry in the office at Alausa is void and unenforceable in so far as it purports to create a charge over the landed property of the 1st Plaintiff.
b. A declaration that the 1st Defendant does not have any valid or enforceable security over landed property of the Plaintiff.
c. A declaration that the purported appointment of the 2nd Defendant Mogbeyi Sagay by the 1st Defendant as a receiver over the landed property of the 1st Plaintiff is illegal, unlawful null and void.
d. An order setting aside the Trust Deed dated 20th February, 1991 made between Grand Alma Nigeria and NICON Trustees Limited and registered as No. 75 at Page 75 in Volume 1949 of the Lands Registry in the office at Lagos void and unenforceable in so far as it purports to create a charge over the landed property of the 1st Plaintiff.
e. An order setting aside the purported appointment of the 2nd Defendant as the Receiver over the landed property of the 1st Plaintiff.
f. An order that an account be taken of an amount which may be due or outstanding against the 1st Plaintiff by virtue of and under the Trust Deed dated 20th February, 1991 made between Grand Alma Nigeria and NICON Trustees Limited and registered as No. 75 page 75 in Volume 1949 of the Land Registry in the office in Lagos.

In due allegiance to the cardinal principles of law displayed above, I have given a universal examination to the reliefs claimed in the two matters with a view to discerning the issue in each. In Appeal No. CA/L/365/2004, which germinated from Suit No. LD/849/2003, the debtor company, the appellant’s assignor/grantor, queried the validity and enforceability of the Trust Deed over its charged landed property. It, also, sought for its abrogation and nullification. The appellant’s suit, which transfigured into this appeal, questions the validity and subsistence of an interim order of injunction, granted on 26th October, 2017, in Suit No. FHC/L/CS/1242/2017, over the disputed property which is housed in the charged asset. Thus, the two action trace their juridical pedigree to the Trust Deed and the charged asset. In essence, the casus belli in the two suits are symmetrical in that they orbit around the validity/viability of the Trust Deed over the charged asset. The success of Appeal No. CA/L/365/2004 has rendered the appellant’s suit lame and unnecessary because they owe their juridical root to the same substrata – the Trust Deed and the charged property. It flows that the issues in the two actions, in terms of their expected result, are substantially coterminous and not mutually exclusive. The validity of the Trust Deed vis-a-vis the secured asset is the confluence point where the issues meet and embrace themselves in the two matters, notwithstanding the reliefs differential.

My noble Lords, for the sake of completeness, decision in Appeal No. CA/L/365/2004, which was an offshoot of Suit No. LD/849/2003, was delivered by this Court – a penultimate Court in the judicial pyramid in this country. Thus, the decision was rendered in the proper forum competens with the requisite jurisdiction. Even if the decision is on its appellate journey to the Supreme Court is of no moment as it does not diminish, an inch, the bald fact it was determined by a Court of competent jurisdiction. After all, it is a notorious principle of law that a decision of a Court remains binding and subsisting until it is set aside. The decision in Appeal No. CA/L/365/2004 has to reap from the vineyard of this beneficient principle of law. It is a subsisting decision on the absence of locus standi of the appellant’s predecessor-in-title over the property in disputation.

Flowing from the expansive tour d’ horizon on issue estoppel, done in consonance with the law, the objectors established the necessary ingredients of issue estoppel against the appellant’s action. Put starkly, the action was marooned in the murky ocean of issue estoppel. The debtor company’s want of locus standi to institute Suit No. LD/849/2003 contaminated the legal capacity of the appellant, its successor-in-title over the disputed property, to file its suit that produced the appeal. The appellant was plagued by the lack of locus standi of the debtor company, its grantor. In effect, the lower Court was not equipped with the requisite jurisdiction to entertain the appellant’s suit ab initio. This is because it eroded the inviolable second ingredient/condition precedent for a Court’s exercise of jurisdiction: there is no feature in the case which prevents the Court from exercising its jurisdiction. See Madukolu v. Nkemdilim (1961) NSCC, vol. 2, 374, Adeleke v. Oyetola (2020) 6 NWLR (Pt. 1721) 440. In the mind of the law, a condition precedent is: “the one that delays the vesting of a right until the happening of an event”. See Atolagbe v. Awuni (1997) 9 NWLR (Pt. 525) 537 at 562, per Uwais, CJN, Niger Care Dev. Co. Ltd. v. ASWB (2008) 9 NWLR (Pt. 1093) 493; A. –G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210, Jumbo United Co. Ltd. v. Leadway Ass. Co. Ltd. (2016) 15 NWLR (Pt. 1536) 439. The only way the appellant would have properly ignited the jurisdiction of the Court was contingent upon its fulfillment of that condition precedent. Its compliance is a prerequisite to the activation of the lower Court’s jurisdiction. Alas, it treated this condition precedent with disdain and contempt. The infraction constitute a serious coup de grace to the competence of the appellant’s suit and the appeal.

It is an elementary law that an appellate Court will be bestowed with jurisdiction where a lower Court, whence an appeal emanates, is endowed with jurisdiction. The converse is the law. Where a lower Court is disrobed of jurisdiction over a matter, an appellate Court will not be equipped with jurisdiction to deal with it. See C.G.G. (Nig) Ltd v. Ogu (2005) 8 NWLR (Pt. 927) 366, lkechukwu v. Nwoye (2015) 3 NWLR (Pt. 1446) 367, Yar’Adua V. Yandoma (2015) 4 NWLR (Pt. 1448) 123, Lafferi v. NAL Merchant Bank (2015) 14 NWLR (Pt. 1478) 64, Egbuchu V. CMB Plc (2016) 8 NWLR (Pt. 1513) 192, PDP v. Sylva (2012) 13 NWLR (Pt. 1316) 85, B.O.l. Ltd. v. Awojugbagbe (2018) 6 NWLR (Pt. 1615) 220, Ugo-Ngadi V. FRN (2018) 8 NWLR (Pt. 1620) 29, Saki v. APC (2020) 1 NWLR (Pt. 1706) 515, Ecobank (Nig.) Ltd. v. Anchorage Leisures Ltd.(2018) 18 NWLR (Pt. 1650) 116.

This Court is only empowered to deploy the provision of Section 15 of the Court of Appeal Act when a lower Court is clothed with the jurisdiction to entertain a matter. It follows from these, that want of jurisdiction of lower Court to hear the appellant’s suit, because it was/is mired in the quicksand of lack of locus standi of its initiator, is contagious. It taints and ousts the jurisdiction of this Court under Section 15 of the Court of Appeal which “Until it is awakened into action from its sleep by such a complainant, it remains a contended tiger sleeping in its lair”, see Ejowhomu v. Edok-Eter Ltd. (1986) 5 NWLR (Pt. 39) 1 at 35, per Aniagolu, JSC. In sum, the jurisdiction of this Court under the provision lies fallow until it is legitimately ignited. In the end, I have no choice than to resolve the conflated issues one and two against the appellant and in favour of the respondents.

My noble Lords, having found that this Court was robbed of the requisite jurisdiction to adjudicate over the appellant’s appeal, predicated on an infectious want of locus standi of the appellant in the suit, the law makes it idle to consider the other issues canvassed by the contending parties in the appeal, a fortiori when the trinity issues in the appeal are subsumed under the issues considered in the preliminary objection. In Ikechukwu v. FRN (2015) NWLR (Pt. 1457) 1 at 21, Nweze, JSC, incisively, declared:
“It cannot be gainsaid that, as a general rule, an intermediate Court, like the lower Court, [Court of Appeal] has a duty to pronounce on all the issues before it….
However, there are some exceptions to the above broad rule that applies to the lower Court, as an intermediate Court. Thus, for example, where the said Court, as an intermediate Court, decides that it lacks jurisdiction in an appeal before it, it, then, becomes unnecessary to consider other issues once it has taken a decision on the question of jurisdiction…It means, therefore, that where, as was the case at the lower Court, a preliminary objection challenging the competence of an appeal is upheld, it will be unnecessary to consider the arguments in support of the issues for determination distilled by the parties to the appeal….”
See also Braithwaite v. Skye Bank Plc (2013) 5 NWLR (Pt. 1346) 1, Oni v. Cadbury Nig. Plc (2016) 9 NWLR (Pt. 1516) 80, Okpe v. Fan Milk Plc (2017) 2 NWLR (Pt. 1549) 282, Ukiri v. FRN (2018) 12 NWLR (Pt. 1632) 1, Umezinne v. FRN (2019) 3 NWLR (Pt. 1660) 532, Ekemezie v. Ifeanacho (2019) 6 NWLR (Pt. 1668) 356, APC v. Umar (2019) 8 NWLR (Pt. 1675) 564, Regd. Trustees, Mission House Int’l v. All States Trust Bank Plc (2021) 17 NWLR (Pt. 1805) 275.

Where the jurisdiction of a Court to hear a matter is undermined by law, the order it makes is plain. It is one of striking it out. See Okolo v. UBN Ltd. (2004) 3 NWLR (Pt. 859) 87, Gombe v. P.W. (Nig.) Ltd. (1995) 6 NWLR (Pt. 402), CGG v. Ogu(2005) 8 NWLR (Pt. 927) 366, Uwazuruike v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035) 1, WAEC v. Adeyanju (2008) NWLR (Pt.1092) 270, Dairo v. UBN Plc. (2007) 16 NWLR (Pt. 1071) 347, Ikechukwu v. FRN (supra), Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1052) 423, Onyero v. Nwadike (2011) 18 NWLR (Pt. 1279) 954, Odom v. PDP (2015) 6 NWLR (Pt. 1456) 527; Statoil (Nig.) Ltd. v. Inducon (Nig.) Ltd. (2021) 7 NWLR (Pt. 1774) 1. This will be the destiny of the appellant’s appeal.

​On the whole, having resolved the conjoined issues one and two in favour of the respondents’ (objectors), the fortune of the preliminary objection, which they invented to exterminate the appeal in its embryo, is obvious. The preliminary objection is meritorious. Consequently, I uphold the preliminary objection. Accordingly, I strike out the appellant’s appeal for being incompetent. The parties shall bear the respective costs they incurred in the prosecution and defence of the doomed appeal.

ONYEKACHI AJA OTISI, J.C.A.: My learned brother, Obande Festus Ogbuinya, JCA made available to me a draft copy of the judgment now delivered, striking out this appeal. I agree with and adopt as mine the resolution of the issues arising for determination.

I also uphold the preliminary objection and strike out this appeal.

PETER OYINKENIMIEMI AFFEN, J.C.A.: My learned brother, Obande Festus Ogbuinya, JCA obliged me with a draft of the leading judgment just delivered, and I had the privilege of reading it before now. I agree with the judicial reasoning and conclusions reached on the issues raised in this appeal, which I adopt as my own.

I hereby record my concurrence with the leading judgment upholding the preliminary objection and striking out the appeal. I equally abide by the order on costs.

Appearances:

Babajide Koku, SAN, Dr. Muiz Banire, SAN with him, Chidinma Mbakwe, Esq. and Ayomide Olarewaju, Esq. For Appellant(s)

Ejeta Otuoniyo, Esq. with him, Elo-Ogene Oworu, Esq. and E.A. Eguanuku, Esq. For Respondent(s)