IDOWU v. ADESANYA
(2020)LCN/14740(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Wednesday, November 11, 2020
CA/L/789/2018
RATIO
LAND LAW: WHO CAN RIGHTLY SUE TO PROTECT FAMILY LAND
I agree and it is trite that any member of the family can sue to protect family real property. But such member cannot sue for declaration of title to the family real property for himself vide Animashawun v. Osuma & Ors. (1972) N.S.C.C. 253 at 261 following Sogunle v. Akerele and Ors. (1967) N.M.L.R. 58 where the Supreme Court re-emphasised that a member of a family may take steps to protect family property or his interest in the family property. Where, however, a member acts without authority in bringing the action, the family will not be bound by the result unless for some reasons the family was estopped from denying that the action was binding. The head of the family can, however, take steps to protect family property even without prior authority of the other member of the family. The above proposition would not, however, apply where the property is covered by a Will. PER IKYEGH, J.C.A.
WILL: NATURE OF THE POWER OF THE EXECUTOR OF A WILL
The executor of a will derives his title under the Will, if he has been appointed executor by the will. The said title vests in the executor as from the date of the death of the testator without any interval of time while the probate itself is the authentication of his title and becomes a document of title itself if it affects the legal estate in the land, and since an executor derives his title from the will and not from the grant of probate he may commence an action in Court in respect of the property as executor before probate, but he cannot proceed beyond the stage at which it becomes necessary to prove his title, as the only evidence of his title is the grant of probate vide Halsbury’s Laws of England (Fourth Edition) page 22 paragraphs 29, 30 and 31 relying in particular on the apt cases of Re Pawley and London Provincial Bank (1900) 1 Ch 58, Wankford v. Wankford (1704) 1 Salk 299 at 303, Willa v. Rich (1742) 2 Atk 285, Thompson v. Reynolds (1827) 3 C & P 123, Meyappa Chetty v. Supramanian Chetty (1961) AC 603, Re Crowhurst Park, Sim Hilditch v. Simmons (1974) 1 ALL ER 991, Newton v. Metropolitan Rly Co. (1861) 1 Drew & SM 583, Re Masonic and General Life Assurance Co. (1885) 32 ChD 373, R V Nethelseal Inhabitants (1791) 4 Term Rep. 258 at 260, Pinney v. Hunt (1877) 6 ChD 373. PER IKYEGH, J.C.A.
WILL: MEANING OF PROBATE
‘Probate’ simply means the official process of proving that a Will, which is a legal document that says what is to happen to a person’s property when they die, is valid vide Oxford Advanced Learner’s Dictionary (6th Edition) 928. PER IKYEGH, J.C.A.
WILL: POWER OF THE EXECUTOR TO INSTITUTE AN ACTION IN RESPECT OF A WILL
There is in addition the case of Lotanna v. Ojukwu (1997) 9 NWLR (pt. 522) 613 at 628 to the effect that where a Will exists, the property of the deceased, including the right of action vests in the executor(s) on the testator’s death and the executor(s) can institute an action, as executor(s), before he proves the Will, but he cannot obtain judgment before probate because production of the probate is the only way a person is permitted to prove his title as executor relying on the English cases of Ingall v. Moran (1944) 1 All ER 97, Tarn v. Commercial Banking Co. 12 Q.B.D. 294.
It was also held in the case of The Administrators/Executors of the Estate of General Sani Abacha (Deceased) v. Samuel David Eke-Spiff and Ors. (2009) 7 NWLR (pt. 1139) 97 that a plaintiff has no legal power to sue another person as an administrator or executor of an Estate of a deceased person without naming the person of such administrator or executor on the writ and ascertaining that Letters of Administration, or probate, as the case may be, legally empowering that person sued to administer the estate of the deceased, was obtained prior to the initiation of the writ; that the issue of legal personality is fundamental and cannot be waived; and that where a plaintiff has no locus standi the action filed by him should be struck out.
There is the case of Ataguba and Company v. Gura Nigeria Limited (2005) 8 NWLR (pt.927) 429 where the Supreme Court held that for an action to be properly constituted so as to vest jurisdiction in the Court to adjudicate, there must be competent plaintiff and a competent defendant; and that as a general principle only natural persons (human beings) or artificial persons such as body corporate like incorporated companies, corporations or statutory bodies partnerships, trade unions, friendly societies and foreign institutions authorized by their own law to sue and be sued, though unincorporated, are juristic persons following the cases of Agbonmagbe Bank Ltd. v. General Manager G. B. Ollivant Ltd. (1961) All NLR 116, Shittu v. Ligali (1941) 16 NLR 21, Fawehinmi v. N.B.A. (No.2) (1989) 2 NWLR (pt.105), Carlen (Nig.) Ltd, v. Unijos (1994) 1 NWLR (pt.323) 631, Iyke Medical v. Pfizer Inc. (2001) 10 NWLR (pt.722) 540. PER IKYEGH, J.C.A.
JURISDICTION: RELATIONSHIP BETWEEN LOCUS STANDI AND JURISDICTION
Locus standi and jurisdiction are interwoven. Lack of locus standi would be lack of jurisdiction as it is trite that the question whether the person whose standing is in issue is a proper party to request an adjudication of his dispute which is an issue of jurisdiction.
The Supreme Court held in the case of Onuekwusi and Ors. v. The Registered Trustees of the Christ Methodist Zion Church (2011) 6 NWLR (pt.1243) 341 that there must be before the Court juristic or juridical person(s) who can make the claim and against whom the Court can make an enforceable order and that a Court will lose jurisdiction if a party has no locus standi. The action should have been struck out on that ground vide Oloriode and Ors. v. Oyebi and Ors. (1984) 1 SCNLR 390. PER IKYEGH, J.C.A.
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
MOSES ADEBOWALE IDOWU (Suing For And On Behalf Of The Entire Michael Oyabola Idowu’s Family) APPELANT(S)
And
LAGUN ADESANYA RESPONDENT(S)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is against a decision of the High Court of Justice of Lagos State (the Court below) by which it dismissed the appellant’s claim on ground of lack of locus standing and estoppel.
The claim in brief was for a declaration that the appellant was entitled to statutory right of occupancy of the parcel of land located at No. 381 Agege Motor Road, Mushin, Lagos and for an order on the respondent to deliver up forthwith and vacate the disputed parcel of land to the appellant as the bonafide owner of the disputed land as well as for an order against the respondent to account for and refund the sum of N14 Million received on the disputed property being accrued rent payable and unremitted to the appellant; together with N500,000 damages for trespass, unlawful harassment, detention and humiliation of the appellant; and a perpetual injunction restraining the respondent and his agents/privies or whosoever from trespassing or continuing further acts of trespass on the disputed land by making representation of offer for sale or representing themselves as the owner or the disputed parcel of land
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or giving the land out for reward, whether cash or kind and dealing with the land in any manner whatsoever.
Pleadings and evidence were frontloaded and exchanged by the disputants. The appellant’s case in the amended statement of claim and the evidence of his sole witness was that he was at all material times the heir, attorney and executor of the estate of Michael Oyebola Idowu, now deceased; that the deceased was his father and as his first son was given power of attorney to manage his properties on behalf of his siblings even before his death; that his father had entered into a lease agreement with Texaco Nig. Plc for a period of 20 years with an option of renewal for a further 20 years subject to adequate prior notice; that, for ease of convenience, his late father entrusted the respondent to be caretaker over the land, being a friend of the family and, also, a lessee/tenant on the rear land adjoining the land in dispute; that the respondent apparently discharging his caretaking role took the lessee, Texaco Nig. Plc, to Court over the validity of the lessee’s option to renew the lease for a further period of 20 years in which the Court found for the
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respondent in suit No. CA/L/127/94 and judgment sum of N14 Million as accrued rent paid to the respondent who did not remit it to the owners on behalf of him during the life time of the appellant’s father.
The evidence proceeded that upon the death of the appellant’s father they (member of the family) took inventory of the estate and discovered that the lease term of Texaco Nig. Plc had been determined by effluxion of time and as such delivery of the property was required; that the respondent harassed him using thugs and policemen claiming that the land had been sold to him.
The respondent’s case from his amended statement of defence and counter claim and evidence was that appellant’s father sold the parcel of land to him in 1982 which consists of Texaco Petrol Station situate at 381 Agege Motor Road, Challenge, Mushin Lagos which the appellant is aware of this covered with a Deed of Assignment executed in his favour at the time Texaco Nig. Plc was lessee whom the appellant’s father had introduced to the respondent to take over the land in 1987 after the expiry of the lease of Texaco Nig. Plc; and that when dispute arose over the land between Texaco
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Nig. Plc and the respondent, the latter took the matter to Court where he won the litigation in which the appellant’s late father had testified to the ownership of the disputed parcel of land by the respondent thus making the respondent the bonafide owner of the disputed parcel of land.
The Court below heard the evidence and read with written submission before entering judgment against the appellant in the terms earlier stated in the discussion.
Not satisfied with the judgment the appellant filed an original notice of appeal which was subsequently regularized culminating in the filing of an amended notice of appeal with five (5) grounds on 09/09/19 but deemed as properly filed on 30/09/20. The appellant filed his brief on 27/07/18 where it was argued that the statement of claim and the evidence revealed that he is the first eldest son child of the deceased owner of the disputed land a fact which the respondent admitted in paragraphs 10-13 of the amended statement of defence in page 248 of the record and that the respondent also admitted that the appellant sold a portion of his father’s late estate to and that by Section 1 (2) of the Administration of Estate Law of Deceased person in Lagos State (vol.2) 2013
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the appellant on whom devolution of the real estate of the deceased father as personal representative vested the appellant with the legal capacity to sue vide A.-G., Lagos State v. Eko Hotel Ltd. (2006) 18 NWLR (pt.101) 450, Section 6(6)(b) of the 1999 Constitution, Uwazuruonye v. Gov., Imo State (2013) NWLR (pt. 1355), FBN Plc. v. Aswani (2015) NWLR (pt.1463) 207; Adeyori v. Adeniran (2001) 10 NWLR (pt.720) 163, Zangina v. Comm. Of Works Borno State (2001) 9 NWLR (pt.718) 486, Olowosago v. Adebanjo (1988) 4 NWLR (pt.88) 2015, Orogan v. Soremekun (1986) 5 NWLR (pt.44) 688.
The appellant submitted that the respondent had admitted in paragraph 10-13 of the statement of defence contained in pages 217 and 248 of the record as well as by paragraphs 8-11 of the respondent’s written witness statement on oath contained in page 251 of the record that the appellant’s father was the original owner of the disputed parcel of land so the respondent had the task of proving how he came to own the land which he was unable to discharge as the purchase receipt alone did not confirm that the title and interest in the property
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passed to the respondent as purchaser; more so, the respondent did not prove that the document of title is genuine and valid and has been duly executed or stamped vide Adedeji v. Oloso (2007) 5 NWLR (pt.1026) 179, Sogunle v. Akerele (1967) NWLR 68, Obawole and Anor v. Coker (1994) 5 NWLR (pt.345) 416, Obawole v. Williams (1996) 10 NWLR (pt.477) 166, Shobajo v. Ikotun (2003) 14 NWLR (pt.840) (no pagination), Kachalla v. Banki (2001) 10 NWLR (pt.721) 458.
The appellant submitted that just like pleadings and motion, a party is entitled to the averments or prayers in the pleadings or motion vide Adeyemi v. Lan Baker Nig. Ltd. (2000) 7 NWLR (pt.663) 33 and that had the Court looked at the appellant’s counter affidavit with the particulars of forgery, the decision which culminated into appeal No.CA/L/482/2010 vide pages 74 – 77 and 95 – 100 of the record showing the Court below was wrong in arriving at its decision that the facts of forgery were not pleaded placing reliance on Onwuka v. Owolewa (2001) 7 NWLR (pt.713) 714, Danga Zau v. Bokir International Company Ltd. (2011) 14 NWLR (pt. 1267) 309 for the proposition that the Court is entitled to
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look at its own record even though not formally brought before it by the parties.
The appellant submitted that as the lease agreement was altered or tampered with, it no longer had authentic value and was vitiated and transferred nothing to the respondent vide Dakolo v. Dakolo (2011) 16 NWLR (pt.1272) 48, Braimah v. Abasi (1998) 13 NWLR (pt.581) 180.
The appellant submitted that by the amendment granted in the ruling in page 292 of the record the respondent was entitled to amend the statement of defence and the counter claim and not the survey plan Exhibit D contrary to the principle of amendment that it should not be made where it will entail injustice to one of the parties or where one of the parties is acting Mala Fide vide Ologunleko v. Oguneyehun (2008) 1 NWLR (pt. 1067) 416; and that it was not shown that there was a nexus between the land in dispute and the deed of conveyance of 10.06.1982 with the detachment of the survey plan of 24.10.1956 showing there was a lacuna in the respondent’s case which was fatal to his case vide Ogbu v. Wokoma (2001) 7 NWLR (pt.713) 762.
The appellant submitted that the judgment in the Magistrate Court was
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for the recovery of possession not ownership of title to the disputed land and that possession is not invariably based on ownership and can be pursued by the respondent against a third party vide Hawad Int. School v. Nima Project Ventures Ltd. (2005) 1 NWLR (pt.908) 567, so the Court below was wrong in holding that the appellant was caught by the doctrine of estoppel by standing-by vide Nwakonwobi v. Udeorah (2013) 7 NWLR (pt.1354) 508 at 509, Agbogunleri v. Depo (2008) 4 NWLR (pt.1074) 235
The appellant also submitted that the Court below should not have accorded probative value to Exhibits E and F on the testimony by the appellant’s father at the Magistrate Court without regard to the conditions of Sections 39 and 40 of the Evidence Act 2011 (Evidence Act) to the effect that the proceedings were between the same parties or their representative in interest; the adverse party in the first proceeding had the right and opportunity to cross examine and the questions in issues were substantially the same in the first as in the second proceedings and that with respect to the previous case the question was not substantially the same with the second case.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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The appellant concluded his arguments that the respondent did not establish title to the disputed land on any of the five (5) recognized methods of proving title to land vide Yusuf v. Kode (2002) 6 NWLR (pt.756) (no pagination), Mogaji v. Cadbury (1985) 2 NWLR (pt.7) 393, Adisa v. Oyinwola (?) (2000) 10 NWLR (pt.674) 116; upon which the appellant advocated for the appeal to be allowed.
The respondent’s brief was filed on 09.10.19 in which it was argued that the issue of locus standi, wherever, raised is a threshold issue of jurisdiction vide Agboola v. Agbodemu and Ors. (2008) LPELR-8461. The respondent elaborated by submitting that locus standi denotes the legal capacity based on sufficient interest in a subject matter to institute proceedings in Court to indicate a specific cause or wrong relating to the civil rights and obligations of the claimant vide Oyewumi v. Osunbade (2001) FWLR (pt.82) 1919, Elendu v. Ekwoaba (1995) 3 NWLR (pt. 386) 704.
The respondent then referred to the representative capacity the appellant initiated the action at the Court below on behalf of the entire Michael Oyebola Idowu family when the property is covered by a
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Will, Exhibit C 1, as Estate property, in respect of which the Executors of the Will with the production of letters of probate, would be the proper person to sue and that in this case the late father of the appellant wrote a Will appointing the appellant and three of his siblings (Mrs. Olufemi Majekodunmi, Mrs. Audrey Adenike Leigh and Emmanuel Adekoyejo Idowu) as other Executors and not only the appellant as Sole Executor, consequently it was contended that only the four Executors of the Will would have the locus standi to initiate an action with respect to the Estate Property as held by the Court below in part of its judgment contained in page 379 of the record vide Lotanna v. Ojukwu (1997) 9 NWLR (pt.522) 613 to 628, Administrative/Executors of the Estate of Abacha v. Eke-Spiff (2009) 7 NWLR (pt.1139) 97 at 126 .
The respondent contended that the appellant’s late father who originally owned the parcel of land had divested himself of title to it by sale to the respondent in 1982, therefore the appellant no long had title to the disputed parcel of land under any of the five (5) possible ways of establishing title to land; and that the Court below was
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right in holding that the appellant had not proved his title to the land vide Idundun v. Okumagba (1976) 9 – 10 SC 227, Amadeogu v. Onanaku (1976) 9 – 10 SC 227, Gbadamosi v. Akinloye (2013) LPELR – 20937.
The respondent contended that Exhibit D, the deed of conveyance, though unregistered vested equitable title in the respondent and served as evidence of sale or transaction with respect to the parcel of land which was confirmed by the appellant’s late father in his evidence at the Chief Magistrate Court vide Okoye v. Dumez Nig. Ltd. (1985) 1 NWLR (pt. 4) 783 at 790.
The respondent contended that since the action was not fought on affidavit evidence but on pleadings the allegation of fraud having not pleaded the Court below was right to hold that the fraud was not pleaded vide Federal University of Technology Minna v. Okoli (2011) LPELR 9053; and that the appellant had not shown any material adverse effect on the decision of the Court below.
The respondent contended that as the Court below had not decided any issue in respect of cross-examination on a survey plan, so the issue for determination and ground of appeal are incompetent as both
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do not have any connection with the judgment appealed against and should not be countenanced vide MTN Nigeria Communication Limited v. Abubakar (2014) LPELR-22783, Obi v. INEC (2007) 9 M.J.S.C. 1 at 29.
The respondent referred to the facts that the appellant’s father, bought the property in dispute and sold it to the respondent in 1982 and the respondent to the knowledge of the appellant’s father sued Texaco Nig. Plc not as attorney but as owner for possession of the property in dispute at Magistrate Court and judgment was delivered in favour of the respondent which was overturned by the High Court but restored by the Court of Appeal and then the filing of the present action where the appellant alleged his late father made him the caretaker of the property.
The respondent contended that the appellant’s father gave evidence in support of the respondent at the Magistrate Court and that the appellant knew of the conduct of the cases which lasted for 12 years without protest or challenge but stood by and acquiesced in the litigation only to wait for 10 years after the death of his father to sue in this case; consequently, the respondent argued that even
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if the appellant had a right of action he had slept over it and was caught by the doctrine of standing by as held by the Court below in part of its judgment in page 388 of the record vide Alade v. Alemuloke (1988) 1 NWLR (pt. 69) 207 at 216, Afesojaiye v. Afesojaiye (2015) LPELR – 24368, Oyerogba v. Olaopa (1998) 13 NWLR (pt. 583) 509 at 519; upon all of which the respondent urged that the arguments of the appellant against the validity of the judgment of the Court below should not be countenanced.
The appellant’s reply brief was filed on 14/10/19 in which it was argued that Lotanna v. Ojukwu (supra) was on a lost will whereas the present case is with respect to the beneficiary of an existing Will showing Lotanna v. Ojukwu (supra) is distinguishable from the present case; that as the original ownership of the parcel of land was admitted to belong to the appellant’s late father, the onus shifted to the respondent to prove ownership vide Obawole v. Coker (supra); and that the issues said to have no basis in the decision of the Court below emanated from the proceeding as shown in the ruling of the Court below on 16.10.2017; therefore the appeal should be allowed with costs.
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I agree and it is trite that any member of the family can sue to protect family real property. But such member cannot sue for declaration of title to the family real property for himself vide Animashawun v. Osuma & Ors. (1972) N.S.C.C. 253 at 261 following Sogunle v. Akerele and Ors. (1967) N.M.L.R. 58 where the Supreme Court re-emphasised that a member of a family may take steps to protect family property or his interest in the family property. Where, however, a member acts without authority in bringing the action, the family will not be bound by the result unless for some reasons the family was estopped from denying that the action was binding. The head of the family can, however, take steps to protect family property even without prior authority of the other member of the family. The above proposition would not, however, apply where the property is covered by a Will.
The executor of a will derives his title under the Will, if he has been appointed executor by the will. The said title vests in the executor as from the date of the death of the testator without any interval of time while the probate itself is the
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authentication of his title and becomes a document of title itself if it affects the legal estate in the land, and since an executor derives his title from the will and not from the grant of probate he may commence an action in Court in respect of the property as executor before probate, but he cannot proceed beyond the stage at which it becomes necessary to prove his title, as the only evidence of his title is the grant of probate vide Halsbury’s Laws of England (Fourth Edition) page 22 paragraphs 29, 30 and 31 relying in particular on the apt cases of Re Pawley and London Provincial Bank (1900) 1 Ch 58, Wankford v. Wankford (1704) 1 Salk 299 at 303, Willa v. Rich (1742) 2 Atk 285, Thompson v. Reynolds (1827) 3 C & P 123, Meyappa Chetty v. Supramanian Chetty (1961) AC 603, Re Crowhurst Park, Sim Hilditch v. Simmons (1974) 1 ALL ER 991, Newton v. Metropolitan Rly Co. (1861) 1 Drew & SM 583, Re Masonic and General Life Assurance Co. (1885) 32 ChD 373, R V Nethelseal Inhabitants (1791) 4 Term Rep. 258 at 260, Pinney v. Hunt (1877) 6 ChD 373.
‘Probate’ simply means the official process of proving that a Will, which is a legal document that says what
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is to happen to a person’s property when they die, is valid vide Oxford Advanced Learner’s Dictionary (6th Edition) 928.
There is in addition the case of Lotanna v. Ojukwu (1997) 9 NWLR (pt. 522) 613 at 628 to the effect that where a Will exists, the property of the deceased, including the right of action vests in the executor(s) on the testator’s death and the executor(s) can institute an action, as executor(s), before he proves the Will, but he cannot obtain judgment before probate because production of the probate is the only way a person is permitted to prove his title as executor relying on the English cases of Ingall v. Moran (1944) 1 All ER 97, Tarn v. Commercial Banking Co. 12 Q.B.D. 294.
It was also held in the case of The Administrators/Executors of the Estate of General Sani Abacha (Deceased) v. Samuel David Eke-Spiff and Ors. (2009) 7 NWLR (pt. 1139) 97 that a plaintiff has no legal power to sue another person as an administrator or executor of an Estate of a deceased person without naming the person of such administrator or executor on the writ and ascertaining that Letters of Administration, or probate, as the case may be, legally
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empowering that person sued to administer the estate of the deceased, was obtained prior to the initiation of the writ; that the issue of legal personality is fundamental and cannot be waived; and that where a plaintiff has no locus standi the action filed by him should be struck out.
There is the case of Ataguba and Company v. Gura Nigeria Limited (2005) 8 NWLR (pt.927) 429 where the Supreme Court held that for an action to be properly constituted so as to vest jurisdiction in the Court to adjudicate, there must be competent plaintiff and a competent defendant; and that as a general principle only natural persons (human beings) or artificial persons such as body corporate like incorporated companies, corporations or statutory bodies partnerships, trade unions, friendly societies and foreign institutions authorized by their own law to sue and be sued, though unincorporated, are juristic persons following the cases of Agbonmagbe Bank Ltd. v. General Manager G. B. Ollivant Ltd. (1961) All NLR 116, Shittu v. Ligali (1941) 16 NLR 21, Fawehinmi v. N.B.A. (No.2) (1989) 2 NWLR (pt.105), Carlen (Nig.) Ltd, v. Unijos (1994) 1 NWLR (pt.323) 631, Iyke Medical v. Pfizer Inc. (2001) 10 NWLR (pt.722) 540.
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The appellant filed the action for himself using his natural names and on behalf of the entire Michael Oyebola Idowu Family vide the application for a writ of summons contained in page 1 of the record and the heading of the statement of claim contained in page 3 thereof. The appellant then averred in paragraph 3 of the amended statement of claim contained in page 217 of the record that he is the “heir attorney and executor of the estate of Michael Oyebola Idowu (now deceased)”. The appellant’s written statement on oath contained in page 220 of the record deposed in paragraph 2 thereof that the appellant is the heir, attorney and executor of the estate of Michael Oyeboia Idowu, now deceased.
The following transpired in the evidence of the appellant contained in pages 211 of the record:
“Bodunwa: You recall that before the death of your Father was there any will made by him.
CW1: Yes, he made a Will. Yes, I was made one of the Executors.”
The Will, Exhibit C 1, is contained in pages 226-229 of the record wherein the Executors were mentioned in page 226 thereof thus-
“I HEREBY APPOINT the
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following of the children, that is. MRS. COMFORT OLUYEMI MAJEKODUNMI, (popularly known as YEMI IDOWU), a Housewife, of No. 47, Maye Street, Yaba, Lagos state, MOSES ADEBOWALE IDOWU, a Master Tailor, of No. 1 Mc Ewen Street, Yaba, Lagos, MRS. AUDRI ADENIKE LIEGH, a Proprietor of Nursery School, of No. 16, Sir Samuel Manua Road, Victoria Island, Lagos and EMMANUEL ADEKOYEJO IDOWU, a Banker, of No. 1 Mc Ewen Street, Yaba, Lagos to be the Executors and Trustees, of this my WILL.”
In this case, all the four executors of the Will (supra) should have sued together using their natural names and describing themselves as executors of the Will of the decease, Michael Oyabola Idowu. The Court below held in part of its judgment contained in pages 378 – 389 of the record that the appellant having positively identified himself as the executor of the Will of his deceased father and the Will having been admitted in evidence as Exhibit C1 only the executor(s) of the Will had the locus standi to institute the action as Executor(s) of the said Will, therefore the action was incompetent and deprived the Court below of the jurisdiction to have entertained it in the manner it was constituted.
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I agree. Locus standi and jurisdiction are interwoven. Lack of locus standi would be lack of jurisdiction as it is trite that the question whether the person whose standing is in issue is a proper party to request an adjudication of his dispute which is an issue of jurisdiction.
The Supreme Court held in the case of Onuekwusi and Ors. v. The Registered Trustees of the Christ Methodist Zion Church (2011) 6 NWLR (pt.1243) 341 that there must be before the Court juristic or juridical person(s) who can make the claim and against whom the Court can make an enforceable order and that a Court will lose jurisdiction if a party has no locus standi. The action should have been struck out on that ground vide Oloriode and Ors. v. Oyebi and Ors. (1984) 1 SCNLR 390.
Since it has been decided in the course of the discussion (supra) that the appellant lacked the standing to file the action which robbed the Court below of the jurisdiction to entertain it, the appeal should have terminated at this stage of the discourse, but as an intermediate Court between the Court below and the Supreme Court, it becomes necessary to decide the other
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issues raised and argued in the appeal to save time, cost and resources, in the event a further appeal to the Supreme Court ends in a reversal of the decision of the Court on locus standi/jurisdiction vide Dec Oil & Gas Limited v. Shell Nigeria Gas Limited (supra) following Owners MV “Arabella” v. N.A.I.C. (2008) 11 NWLR (pt.1097) 182, Chukwu (Osondu) Ltd. v. Soleh Boneh Ltd. (2000) 5 NWLR (pt.656) 322, Owodunni v. Registered Trustees C.C.C.(2000) 10 NWLR (pt.675) 315, Etajata v. Ologbo (2007) 16 NWLR (pt.1061) 554. See also N.U.R.T.W. v. R.T.E.A.N. (2012) 10 NWLR (pt.1307) 170 at 198, Obiuweubi v. C.B.N. (2011) 7 NWLR (pt.1247) 465, Ikpekpe v. W.R.&P. Co. Ltd. (2018) 17 NWLR (pt.1648) 280.
The appellant’s late father and predecessor-in-title had admitted on oath at the Magistrate Court that he sold the disputed land to the appellant. The said solemn admission is therefore binding on the appellant vide Joe Iga and Ors. v. Ezekiel Amakiri and Ors. (1976) II S.C. 1 at 12 – 13, Ashibuogwu v. A. – G., Bendel State and Anor. (1988) 1 S.C. 248 at 312.
Certainly, as between the appellant whose predecessor-in-title had admitted sale of the
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disputed parcel of land by him to the respondent in his life-time showing the appellant no longer had title to the land and the equitable interest in the land derived from the sale in 1982 prevailed by vesting better title to the respondent which sufficiently, in my opinion, discredited and demolished the appellant’s case thus disentitling the appellant to the declaratory reliefs sought in respect of the land which the Court below aright, in my opinion, refused to grant vide the case of Awomuti v. Salami and Ors. (1978) 11 N.S.C.C. 180 at 186 where the Supreme Court held that where the plaintiffs case is discredited by the defendant, the declaratory reliefs sought in the case should not be granted as declaratory reliefs are not granted as a matter of course.
It follows that a successor-in-title cannot bring an action for declaration of title in respect of land which his predecessor-in-title solemnly admitted he had divested his title thereto vide Ajadi v. Okenihun (1985) A.N.L.R. 240, Sanyaolu v. Coker (1983) 3 S.C. 124.
An unregistered deed of conveyance such as Exhibit D vested equitable title in the respondent and the appellant cannot hide under
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the fact that his later father who was to ensure its registration as vendor did not discharge his own part of the obligation vide Benjamin and Ors. v. Kalio and Anor. (2018) 15 NWLR (pt.641) 38.
Elaborating on the legal consequences of an unregistered instrument, the Supreme Court held in the fairly recent case of Atanda v. Commissioner, Lands & Housing, Kwara State (2018) 1 NWLR (pt. 1599) 32 that instruments that are registrable but are not registered are admissible as evidence of the purchase price or fees and to establish or prove equitable interest in land following Savage v. Sorrough (1937) 13 NLR 141, Ogunbambi v. Abowab (1951) 13 WACA 222, Okoye v. Dumez Nig. Ltd. (1985) 1 NWLR (pt.4) 783; because as between vendor and vendee unregistered contract for sale of land is admissible for the purpose of enforcement of a contract or personal obligation imposed on the vendor not as an instrument affecting land vide Fakoya v. St. Paul’s Church Shagamu (1966) W.N.L.R. 31 at 35.
The case was fought on pleadings. The High Court of Lagos State (Civil Procedure) Rules 2012 (the rules of the Court below), then applicable to the case, provide in Order 15 Rule 7(2)
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thereof that where a party raises any ground which makes a transaction void or voidable or such matters as fraud he shall specifically plead same. To do something ‘specifically’ is to do it in a detailed and exact way (Oxford Advanced Learner’s Dictionary, 6th Edition) 1143.
Consequently, to meet the requirement of Order 15 Rule 7(2) of the rules of the Court below, the pleader was bound to aver the particulars of the alleged fraud in his pleadings. It was not done so in the case. The affidavit evidence where fraud was alleged cannot take the place of pleadings because parties are required to join issues on pleadings where the case is fought on pleadings and evidence tendered towards proof of the matters alleged in the pleadings; not otherwise. For the proposition that fraud must be strictly/specifically alleged and particularized in a case litigated on pleadings, see Ojibah v. Ojibah (1991) 15 NWLR (pt. 189) 296, Olufunmise v. Falana (1990) 5 NWLR (pt.136) 1.
Based on the discourse (supra), I find no merit in the appeal and hereby dismiss it and affirm the decision of the Court below that the appellant lacked the locus standi to have
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filed the action at the Court below; but vary the order of dismissal of the action to an order striking out the action for lack of locus standi of the appellant to have instituted it in his name for himself and on behalf of the entire Michael Oyagbola Idowu Family when the action should have been instituted in the natural names of the four executors of the Will followed with their description as the executors of the Will of the late Michael Oyagbola Idowu. Parties to bear their costs.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I entirely agree with, and do not desire to add to the decision of my learned brother, Joseph Shagbaor Ikyegh, JCA, which I was privileged to read in draft.
I adopt the entire decision as mine, with nothing more to add.
EBIOWEI TOBI, J.C.A.: I have had the privilege of reading in draft the leading judgment of my learned brother, Joseph Shagbaor Ikyegh, JCA and I am in agreement with the resolution of the issues presented by the parties and the conclusion reached therein. I however wish to comment on the argument that borders on locus standi. I opt to comment on this issue because whatever pronouncement is made on this issue
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would have determined this appeal with finality or otherwise without more; as locus standi of a plaintiff to institute an action is a condition precedent to the Court’s jurisdiction. It is inextricably linked to the exercise of jurisdiction by a Court. In other words, where the party initiating an action lacks locus standi, the Court would be robbed of jurisdiction. See Nworika vs. Ononeze-Madu (2019) 7 NWLR (Pt. 1672) 422 @ 444-445.
The Court has in Gov., Imo State vs. Amuzie (2019) 10 NWLR (Pt. 1680) 331 @ 352 defined the term locus standi to mean:
“Legal capacity to institute proceedings in a Court of law. Locus standi is a threshold issue that affects the Court’s jurisdiction.”
In Centre for Oil Pollution Watch vs. N.N.P.C. (2019) 5 NWLR (Pt. 1660) 518 @ 561-562, the apex Court while explaining the concept of locus standi, stated thus:
“A person aggrieved must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something. The person aggrieved must be a man who has been refused
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something which he had a right to demand. Therefore, in simple terms, the narrow and rigid conception of locus standi means that it is only a person who has suffered a specific legal injury by reason of actual or threatened violation of his legal right or legally-protected interest who can bring an action for judicial redress, In effect, the rule with regard to locus standi postulates a right-duty pattern which is commonly found in private law litigation. Subsequently English decisions clung to the pattern. Nigeria Courts, as legatees of the English concept of locus standi. In doing so, however, they would appear to have merged the narrow and restrictive concept of private law (cause of action test) with the requirements of public law… ” The question that begs for an answer in this appeal with respect to the issue on locus standi is from all facts and indication, “did the Appellant meet up with the above criteria as postulated by the Supreme Court to grant him locus standi to bring the suit as constituted in the lower Court?” To my mind, I would answer this in the negative. A closer look processes before the lower Court contained in the record of
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appeal will reveal that. I think it is safe at this junction to state that the document the Court is required to look at in determining if a party has the locus standi to sue is the statement of claim. The Supreme Court has held in the case of M.C.S. (Nig.) (Ltd./Gte) vs. C.D.T. Ltd (2019) 4 NWLR (Pt. 1661) 1 @ 26 thus:
“In determining whether a party has locus standi, the Court would have recourse to the plaintiff’s pleadings only. Standing to sue does not depend on the success or merit of claim but on the interest of the plaintiff in the subject matter of the suit.”
Similarly, in Dopah vs. Regd. Trustees, UMCN (2019) 4 NWLR (Pt. 1663) 520 @ 537-538, the Court held thus:
“The law is clearly established that, in determining the “locus standi” of a plaintiff, it is the statement of claim solitarily that a Court has to peruse. In other words, it is the only process that will receive the attention of the Court. (Disu vs. Ajilowura (2006) 14 NWLR (Pt. 1000) 783).”
As rightly observed by my learned brother and as can be gleaned from the processes before the lower Court, the Appellant, though appointed as an executor in the will in respect of the
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estate of Michael Oyebola Idowu, was not the only executor appointed under the will as there were other executors also appointed under the will and as such, the Appellant together with the other executors ought to have instituted this suit as executors of the will of Michael Oyebola Idowu.
In the circumstance, and for the fuller reasons given by my learned brother, Joseph Shagbaor Ikyegh, JCA, I also find that this appeal is unmeritorious and same is hereby also dismissed by me.
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Appearances:
Mr. O. O. Bodunwa For Appellant(s)
Respondent was served but was unrepresented For Respondent(s)
