JONAH CAPITAL NIG & ORS v. INC. TRUSTEES OF RIVER PARK RESIDENT ASSOCIATION ABUJA & ANOR
(2022)LCN/16963CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, April 14, 2022
CA/A/774/2019
Before Our Lordships:
Monica Bolna’an Dongban-Mensem Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
1. JONAH CAPITAL NIGERIA 2. PAULO HOMES LTD 3. COMMON CONSULTANTS LTD 4. HOUSES FOR AFRICA NIGERIA LTD APPELANT(S)
And
1. INCORPORATED TRUSTEES OF RIVER PARK RESIDENT ASSOCIATION ABUJA 2. FEDERAL CAPITAL
DEVELOPMENT AUTHORITY RESPONDENT(S)
RATIO
THE POSITION OF LAW ON PRIVITY OF CONTRACT
As a principle of law, privity of contract postulates the rule that only parties to a contract can sue or be sued on it with a view to seeking its benefit. The rule will therefore not allow a stranger to sue or seek to enforce a contract or assume liabilities or obligations under it because there is in law said to exist privity of contract only between the contracting parties. In this wise, privity of contract upholds and protects the sanctity of contracts. See Oshevire Ltd vs. Tripoli Motors (1997) 4 SCNJ 246, Reichi vs NBCI (2016) 8 NWLR (Pt. 1514), 274, John Davids Construction Co. Ltd v. Riacus Co. Ltd & Anor (2019) LPELR CA/C/179/2017. PER GAFAI, J.C.A.
THE POSITION OF LAW ON THE EQUITABLE PRINCIPLE OF CONSTRUCTIVE TRUST
The equitable principle of constructive trust is another recognized exception to the privity rule. It postulates that a party to a contract may constitute himself a trustee for a third party under the contract and confer such rights enforceable in equity on the, third party. It is imposed by equity to satisfy the demands of justice and good conscience. Thus, when property has been acquired in such a circumstance that the holder of the legal title may not in good conscience retain beneficial interest, equity converts him into a trustee. See Anuruba vs. E.C.B. Ltd(2005) 10 NWLR (Pt.933), 321 at 335. PER GAFAI, J.C.A.
WHETHER OR NOT AN UNCHALLANGED AFFIDAVIT EVIDENCE IS DEEMED ADMITTED
It is trite law that unchallenged affidavit evidence is deemed admitted and the facts deposed therein and any documents attached to it be regards as established by the Court. See COMMUNITY HEALTH PRACTITIONER OF NIGERIA & ORS v MEDICAL AND HEALTH WORKERS UNION OF NIGERIA & ORS (2008) 2 NWLR (Pt. 1072) 575, per Mukhtar, JSC, (as he then was) at page 619, paras. C – F; UGWUANYI v NICON INSURANCE PLC (2013) LPELR- 2009 (SC), per JCC; INEGBEDION v SELO-OJEMEN & ANOR (2013) LPELR-19769(SC); and BADEJO v FED. MIN. OF EDUCATION (1996) LPELR- 704 (SC), Per Mohammed, JSC at page 24, paras D – F.”
See page 416 – 417 of the Record of Appeal. PER GAFAI, J.C.A.
THE POSITION OF LAW ON ESTOPPEL PER REM JUDICATA
It is indeed a risk which could result in dire consequences for a party to raise Preliminary Objection and fail to take the cautionary steps of equally responding to the case of the adversary. Surplus is better than parity. It is easier to struggle with excess than to wallow in the penury of insufficiency. Infact, it is safe to say that it is callous to rely solely on the success on the Preliminary Objection without putting forward any form of defence, if any. This is because of numerous reasons, one of which is that the law is like a pendulum, one can never be completely certain which way it would go. A Party would be helpless if the Preliminary Objection is thrown out. Such a party would be estopped from subsequently putting up a defence or even raising a fresh suit based on the principle of resjudicata. See the decision of the Apex Court in the case of TORIOLA & ANOR V. WILLIAMS (1982) LPELR – 3258 (SC) where the doctrine of resjudicata was explained thus:
“Estoppel per rem judicata is a rule of evidence whereby a party (or his privy) is precluded from disputing in any subsequent proceedings matters which had been adjudicated upon previously by a competent Court between him and his opponent. Per OBASEKI, J.S.C. See also MORINATU ODUKA & ORS V. KASUMU & ANOR (1968) N.M.L.R. 281, AG NASARAWA STATE V. AG PLATEAU STATE (2012) LPELR – 9730 (SC), AJIBOYE V. ISHOLA (2006) LPELR – 301 (SC) and ODUKA & ORS V. A. KASUMU & ANOR. (1967) LPELR – 25504 (SC). PER DONGGAN-MENSEM
BATURE ISAH GAFAI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory Abuja in Suit No. CV/3095/17 delivered on the 14th of December, 2018 coram Muhammad J. (now JCA) in which the Appellants’ Notice of Preliminary Objection was dismissed and judgment entered in favour of the 1st Respondent.
At the trial Court, the 1st Respondent, then as the Plaintiff, sought by Originating Summons, the interpretation of a Development Lease Agreement between the 1st Appellant and the 2nd Respondent. Proceeding on a prospect of a positive interpretation in its favour, the 1st Respondent sought thereby several declaratory and injunctive Reliefs against the Appellants; which were all granted.
Aggrieved by the decision, the Appellants lodged this Appeal vide their Notice of Appeal filed on the 19th of December, 2018; complaining against the Judgment on six grounds as follows:
“GROUND 1
The learned trial Judge erred in law when he held that the Plaintiff/Respondent can enforce the terms and conditions contained in a Development Lease Agreement in which they are not parties on the basis that they were beneficiaries and Trustees under the said Agreement.
GROUND 2
The learned trial Judge erred in law when he held that the 1st Respondent has the locus standi to maintain this action.
GROUND 3
The learned trial Judge erred in law when he made the following orders; setting aside the various Power of Attorney granted by the 2nd Defendant to the 3rd and 4th Defendants respectfully on the 7th June, 2012, the joint Estate Development Agreement between the 3rd Defendant and Constructii Proactii Ltd as well as between the 3rd Defendant and Constructii Proactii Ltd; and every Agreements purportedly executed by them or their agents in respect of the development of Plot 4, Clauses 7.2 and 10 Clauses 2.3 of the Development Lease Agreement.
GROUND 4:
The lower Court misdirected itself in law, which misdirection occasioned serious miscarriage of justice when it granted an order, directing the Appellants to refund monies paid as consideration for contract of sale entered with several unspecified persons.
GROUND 5
The lower Court misdirected itself in law which misdirection occasioned serious miscarriage of justice when it made an order that the Appellants should refund the Development fees, electricity connection fees and water connection fees paid by the 1st Respondent for service provided by the Appellants
GROUND 6
The judgment the lower Court is perverse and delivered in violation the principles CE law.”
The respective particulars enumerated under the grounds are noted. See pages 420 – 423 of the Record of Appeal.
The Appellants’ Brief of Argument in this appeal was filed on the 29th of June, 2021 but deemed properly filed on the 7th of July, 2021. The 1st Respondent’s Amended Brief of Argument filed on the 4th of February 2022 was deemed properly filed on the 8th of February, 2022. The Appellant’s Reply on point of law filed earlier on the 14th of October 2021 was therefore consequentially deemed properly filed also on the 8th of February, 2022. These are the main processes for the parties in this Appeal. It is to be noted that the 2nd Respondent did not file a Brief of Argument or any process.
In the Appellants’ Brief of Argument settled by their learned counsel P. T. Akan Esq., two Issues for determination are submitted on:
“1. Whether the decision of the trial Court that the 1st Respondent has the locus standi to enforce the terms and conditions contained in the Development Lease Agreement (DLA) which binds only the 1st Appellant and 2nd Respondent is right in law (Distilled from Grounds 1 and 2).
2. Whether the order granted by the trial Court directing the Appellants to refund the monies alleged to have been paid by the 1st Respondent for provision of electricity and water did not occasion serious miscarriage of justice and liable to be set aside. (Distilled from Ground 5).”
The 1st Respondent too presented the same issues although couched differently by its learned counsel Chinedu G. Udora Esq. thus:
“Whether the lower Court was right when it held that the 1st Respondent had locus standi to bring this action? (Distilled ground 1 and 2).
Whether the lower Court was right when it made an order directing the Appellant to refund the monies collected for electricity and water bill? (Distilled from ground 5).”
It is thus clear that both first Issues for the parties are the same and so shall be accordingly treated together here.
As indicated earlier, the respective arguments for the parties under the Issue are rooted in the Appellant first and second Grounds of Appeal (supra) both of which, as may be recalled, question the correctness of the trial Court’s decision when it held that the 1st Respondent has the locus standi to institute the suit in respect of the Development Lease Agreement to which it was not a party but only on the basis that its members were beneficiaries to the agreement. Traversing through the particulars enumerated under each of the two Grounds, it would appear that both grounds could as well have been raised as a single ground because they are both basically on whether the trial Court was right when it recognized the 1st Respondent’s locus standi to seek to enforce the Development Lease Agreement. Both grounds as argued under the respective first issues of the parties will thus be treated and determined together; without forsaking the worth of specific, peculiar arguments under each.
In arguing both grounds under their first issue (supra), the Appellants appear to have narrowed their grievance to a portion of the Judgment found at pages 404 – 406 of the Record which, although extensive, is for the sake of better appreciation of the Issue reproduced here thus:
“A proper understanding of the principle stated above would show that it does not admit such wide application as counsel the defendants would want to make it. The principle is hedged by qualifications. Footnote 1 to paragraph 783 of the work cited contained one such qualification as follows: The contract must, however, a clear intention to create a trust in favour of a third party. It is not legitimate to import into contract the idea of a trust when the parties have given no indication that such was their intention: Re Schebsman, exp Official Receiver, Trustee v. Cargo Superintendents (London) Ltd. and Schebsman (1994) Ch at 89, (1943) 1 All ER 768 at 770, (Pages 26 – 27, parasol. C- C).
In the instant case, having examined the Development Lease Agreement, I am persuaded by the argument of the learned Counsel for the Plaintiff that by the nature of the Development Lease Agreement (DLA), the 1st Defendant invariably leased the land to the Defendant under its mass housing scheme the 2nd Defendant to develop same not for its sole benefit but for the benefit of interested members of the public. In other words, it is apparent that the DLA has created a constructive trust in which the 2nd Defendant is a trustee of the land which it should develop the use, enjoyment and benefit of the member of the public, this case the of the Plaintiff.
Additionally, as rightly argued by the learned Counsel for the Plaintiff covenants in an agreement relating to land which run with the land are enforceable by third parties where such covenants affect their title or interest in the said land even though they may not be parties to such agreement. See the English case of: SMITH v RIVER DOUGHLAS CASEMENT BOARD 19032 CH. 539 at 550-551; REGISTERED TRUSTEES OF MASTERS VESSEL MINISTRIES (NIG) INC. v EMENIKE & ORS (2017) LPELR-42836(CA) and DILLI v ADAMU & ANOR (2016) LPELR 40227 (CA) (which were also cited by the Plaintiff’s Counsel).
In the instant case, the covenants which run with the land are contained in the Development Lease Agreement between the 1st Defendant and the 2nd Defendant. The Plaintiff whose members have bought properties from the 2nd Defendant, are invariably bound to observe the obligations created in those covenants. In my respectful view, it will amount to gross injustice to deny them from claiming rights which may also be available to them under those same covenants. This appears to me to be the underlying reason behind the exception. As pointed out by the learned Counsel for the Plaintiff, some these rights can be clearly seen in some the paragraphs the DLA (See paragraphs 7.8 and 7.9 of the DLA – Exhibit AAz attached to the affidavit support the Originating Summons).
It is this light that discountenance the first ground of objection of the 2nd 5th Defendants/Applicants and hold that the doctrine of privity contract does not apply to the members of the Plaintiff this case, and the Plaintiff has the to bring this action.”
I have gone to great length to reproduce the foregoing portion for two reasons; firstly to accord a good understanding of the issue and secondly but more importantly, to understand the reasonings that informed the trial Court’s ultimate decision on the disputed locus standi of the 1st Respondent.
The arguments of the Appellant against the decision (supra) are quite extensive as well but will be highlighted in their main here. The biggest and central argument of the Appellant is that the trial Court totally misconceived the law on the capacity of the 1st Respondent to maintain the suit whose cause of action is founded on a contract in which the 1st Respondent is not a party. It is this argument which has resonated the entire allied arguments of the Appellants under this Issue. In that manner, it is argued further that the trial Court, instead of viewing and deciding the 1st Respondent’s competence or locus standi properly within the privity of contract rule, it decided same wrongly from the view point of the benefits accruing to the 1st Respondent; thereby falling into an erroneous decision. It is thus submitted that the trial Court’s approach is contrary to the laid down principle that such approach must be done within the privity rule; placing reliance here on the decisions in Vessel Leona II & vs. First Fuels Ltd (2002) LPELR – 1284 (SC) and Aondo vs. Benue Links Nig. Ltd (2019) LPELR – 46876 (CA). It is argued further that although the benefits accruable under the agreement between the Appellants and the 2nd Respondent are to the 1st Respondent that is not a reason under the law to confer the 1st Respondent with locus standi to sue or enforce the agreement.
It is also argued that the trial Court has no jurisdiction to introduce into the agreement non-existent terms as allegedly done by the trial Court in this case. In support of this argument, reliance is placed on the decision in Vincent Standard Steel Industries Ltd & Anor vs. Lead Bank Ltd (2009) LPELR 8214 (CA). It is thus argued that the trial Court’s holding that the 1st Respondent is by the implication of the agreement bound to observe the obligations under the agreement is one that seeks to introduce a non-existent term into the agreement; because neither the agreement nor the doctrine of constructive trust invoked by the trial Court in favour of the 1st Respondent could validly confer locus standi on the 1st Respondent to the extent of jettisoning the applicability of the doctrine of privity of contract to the case. The reference to clauses 7.8 – 7.9 of the agreement as done by the trial Court in its effort to confer locus standi on the 1st Respondent cannot, it is argued, be correct because those provisions did not repose any obligation on the 1st Respondent as to give rise to a right or locus standi in its favour. These are not the only but the main arguments of the Appellants under this Issue. Their entirety is however noted.
In arguing this issue for the 1st Respondent, its learned counsel contended that the Appellants are wrong when they disagreed with the trial Court’s decision that the 1st Respondent had the requisite locus standi to institute the suit within the exceptions to the doctrine of privity of contract to the effect that a third party can enforce a contract on land in respect of which his interest lies or where such contract has created a trust for his benefit. Learned counsel relied on a part of the same portion of the trial Court’s judgment at page 405 of the Record (supra) where the trial Court identified the exceptions to the privity rule and found same to be applicable to the 1st Respondent’s case. It is his further argument that the 1st Respondent has the locus standi in the suit also because the covenants in the agreement clearly affect the interest of its members in land. Learned counsel referred to the decision of this Court in Dilli vs. Adamu & Anor (2016) LPELR – 40227 where it was held that a stranger to a deed or contract for the sale of land whose title is affected by such deed or contract could seek an order to set it aside since it affects his title. Just as done by his learned friend for the Appellants, he too referred to paragraphs 7.8 – 7.9 of the agreement but to demonstrate the interest of the 1st Respondent in the land that formed the subject of the agreement. Learned counsel faulted the Appellants’ reliance on the decision in First Fuel Ltd case (supra) which the 1st Respondent submitted supports its argument that a third party can found on a contract whose purport is to create a trust in favour of a third party.
Another argument by the 1st Respondent is that paragraph 10.2.1 of the agreement expressly provides that the developed houses shall be sold by the Appellant on behalf of the 2nd Respondent; meaning that the Appellants’ role in the sale is as the agent of the 2nd Respondent and that agency is another exception to the privity rule. Reliance is placed on the decision in Makwe vs. Nwukor & Anor (2001) LPELR – 1830 (SC). It should be noted that this is only a summary.
I have carefully read the Appellants’ reply on points of law; more particularly in the arguments canvassed on this issue at its pages 4- 9 and note same.
As a principle of law, privity of contract postulates the rule that only parties to a contract can sue or be sued on it with a view to seeking its benefit. The rule will therefore not allow a stranger to sue or seek to enforce a contract or assume liabilities or obligations under it because there is in law said to exist privity of contract only between the contracting parties. In this wise, privity of contract upholds and protects the sanctity of contracts. See Oshevire Ltd vs. Tripoli Motors (1997) 4 SCNJ 246, Reichi vs NBCI (2016) 8 NWLR (Pt. 1514), 274, John Davids Construction Co. Ltd v. Riacus Co. Ltd & Anor (2019) LPELR CA/C/179/2017. As explained earlier, this is the Appellants’ main case and argument under this issue.
What is stated here is however a general principle. As it is in all laws, there are always exceptions and qualification to their general provisions and thrust; expressed either in the law itself or other legislations or indeed developed through judicial interpretations by the Courts. As strict as the exclusionary rule of privity of contract is so are the exceptions to its application strong.
A few examples of the recognized exceptions includes a contract by an agent on behalf of an undisclosed principal who is entitled to sue on the contract. In this case, the rule looses its potency. See Golden Construction Co. Ltd vs. Stateco (Nig) Ltd (2014) 8 NWLR (Pt. 1408) 171 at 200, UBA Plc vs. Ogundokun (2009) 6 NWLR (Pt.1138) 450 at 482.
The equitable principle of constructive trust is another recognized exception to the privity rule. It postulates that a party to a contract may constitute himself a trustee for a third party under the contract and confer such rights enforceable in equity on the, third party. It is imposed by equity to satisfy the demands of justice and good conscience. Thus, when property has been acquired in such a circumstance that the holder of the legal title may not in good conscience retain beneficial interest, equity converts him into a trustee. See Anuruba vs. E.C.B. Ltd(2005) 10 NWLR (Pt.933), 321 at 335.
A third example is a contract whose terms affect a third party’s interest or title in land. The decision in Dilli vs. Adamu & Anor (supra) referred by the learned counsel to the 1st Respondent is quite relevant here.
As shown earlier, the Appellants’ contention is that the 1st Respondent is, on the facts, ineligible to be clothed with any feature of the exceptions to the privity rule such as to acquire the locus standi to enforce the Deed of Lease Agreement between the 1st Appellant and the 2nd Respondent. The key argument of both parties have been amply highlighted hereinearlier. Was the trial Court right in recognizing the 1st Respondent as a competent party to sue on the Deed of Lease Agreement?
In my view, the starting point in answering this question in from the facts in the Amended Originating Summons placed before the trial Court, found at pages 168 – 239 of the Record but more particularly at pages 172 – 175 and the Reliefs sought thereby at pages 169 -170 of the Record. Regardless of whether the Appellants agreed with those fact or not, it is unmistakable that the 1st Respondent had placed before the trial Court facts which easily disclosed locus standi in the cause of action. I think it would have amounted to travesty for the trial Court to disregard or downplay the compelling facts of the 1st Respondent in paragraphs 9 – 22 of the supporting affidavit, the cumulative effect of which is the glaring locus standi of the 1st Respondent to sue on the Development Lease Agreement; at least as a party whose interest in the land which is the subject matter of the Agreement is on the line.
As conceived and implemented through the Appellants, the Development Lease Agreement by the 2nd Respondent is all for the benefit of the members of the 1st Respondent and other interested citizens in the program/agreement. To posit that the 1st Respondent has no locus standi to sue on the agreement would, in my humble view, be rewriting the settled principles on locus standi. See Pam & Anor vs. Mohammad & Anor (2008) LPELR SC 238/2007, Ojukwu vs. Ojukwu & Anor (2008) LPELR – SC. 234/2002.
In addition, the terms of the Agreement, although drafted and executed by the 1st Appellant and the 2nd Respondent which might therefore suggest the application of the privity rule on it to the exclusion of the 1st Respondent, its general underlying thrust as demonstrated by the terms in its paragraphs 7.8, 7.9, 10.2.1 among others is the benefit and interest in the land by the 1st Respondent’s members. Once again, owing to their specific relevance to the issue at hand, the decisions in First Fuel Limited case (supra) and Dilli case (supra) come to mind. Both decisions clearly established the locus standi to sue on a contract or deed in which land is affected or as a beneficiary under the contract; even if nothing is expressly stated about any trust in the contract.
As stated earlier also, for reasons best known to the Appellants, they ignored to file any defence to the 1st Respondent’s suit; choosing instead to rely on their Preliminary Objection challenging the locus standi of the 1st Respondent and the jurisdiction of the trial Court; with all the attendant drastic risk that could befall such strategy as indeed happened in this case.
In the backdrop of the foregoing considerations, the respective similar first Issues for determination by the Appellants and the is Respondent can only be and are resolved against the Appellants.
As reproduced earlier, the respective second Issues formulated by the parties are also similar. Both are on whether the trial Court’s order directing the Appellants to refund monies paid to it by the 1st Respondent as electricity and water bills is not liable to be set aside.
In its Originating Summons before the trial Court, the 1st Respondent had sought inter alia for:
“2. A Declaration of the Court that the 2nd, 3rd, 4th and 1st Defendants not authorized under the Development Lease Agreement of 28th day May, 2007 and collect any fees from the Plaintiff such as development fees, electricity connection fee, service charge, water connection fee and or any other fees whatsoever from the subscribers of the said estate after selling of any building or developed stand to them.
6. A declaration of the Court that the subsequent demand of the sum of N500,000.00 by the 2nd Defendant through the 3rd 4th and 5th Defendants from members of the Plaintiff’s Association after sale of their buildings/houses to them is ultra vires, and void.”
(See pages and 170 of the Record appeal)
Two points are worth noting here. Firstly, although in the supporting affidavit to the Originating Summons, the 1st Respondent had stated interalia:
“16. That contrary to the express provisions the DLA particularly clause 2.4, the 3rd, 4th and 5th Defendants are demanding service charge from the Plaintiff and our members, even when we had informed them that we want to provide the services for ourselves. Photocopies of some of the demand letters for service charge are hereby annexed as Exhibit AA 6.
17. That the 3rd Defendant sometime in March, 2017 denied access to Bowed Environmental Services Ltd engaged by the Plaintiff for waste collection from entering the estate by blocking the access gate and preventing them from carrying out their duties while insisting that they are the only ones to provide said services for us. The said Bowed Environmental Services Ltd has not been able to enter our estate to carry on the services we have engaged them till date because the policemen and the security personnel stationed at the gate by the 3rd defendant not allow them entry into the estate. Copies of the letters of appointment of the Company and their acceptance are hereby annexed as Exhibit AA7a and 7b.
18. That recently, the 3rd Defendant has been going round sharing a sales agreement to our members and trying to coax theta into signing same their Certificate of Occupancy can be processed even when clause 7.2 of the DLA provides that the 1st Defendant is the only authorized person to execute any document in respect of the property. A copy of the said Deed of Sales Agreement is hereby annexed as Exhibit AA8.
19. That the said Sales Agreement contained clauses that makes it compulsory for every resident of the River Park Estate to pay service charge to the 3rd Defendant, a provision that was never contemplated in the DLA.
20. That despite the fact that the DLA authorized the Defendant to develop and build housing units in the said Plot for the benefit of the public which includes members of the Plaintiffs Association the 2nd Defendant through its agents are seeking to also manage the estate for the Plaintiff contrary to the terms and conditions of the DLA.
21. That clause 7.8 of the DLA provides that the 1st Defendant shall grant offer Letters to any interested Purchaser of the units in the said property 28-day completion building and care completed building yet the 2nd Defendant has refused to process the documentation of members of the Plaintiffs Association particularly those living in cluster I where development of Infrastructure and building have completed sold.
22. That the DLA did not authorize the 2nd, 3rd, 4th and 5th Defendants to demand or collect service charge, management fee or electricity and water connection fee from the Plaintiff or any of its members.”
The Appellants however ignored these facts by refusing to file a counter-affidavit. In other words, while the 1st Respondent had presented facts in support of the Reliefs nos. 2 and 6 (supra), the Appellant kept sealed lips. It is therefore not surprising that the trial Court reasoned thus:
“The above affidavit depositions which were substantiated with documentary evidence by the Plaintiff were not challenged nor controverted by the Defendants in this case. As stated earlier, the counter-affidavit of the 1st Defendant merely made depositions challenging the competence of the Plaintiff to sue, while the 2nd – 5th Defendants did not file any counter-affidavit to controvert the evidence the Plaintiff.
It is trite law that unchallenged affidavit evidence is deemed admitted and the facts deposed therein and any documents attached to it be regards as established by the Court. See COMMUNITY HEALTH PRACTITIONER OF NIGERIA & ORS v MEDICAL AND HEALTH WORKERS UNION OF NIGERIA & ORS (2008) 2 NWLR (Pt. 1072) 575, per Mukhtar, JSC, (as he then was) at page 619, paras. C – F; UGWUANYI v NICON INSURANCE PLC (2013) LPELR- 2009 (SC), per JCC; INEGBEDION v SELO-OJEMEN & ANOR (2013) LPELR-19769(SC); and BADEJO v FED. MIN. OF EDUCATION (1996) LPELR- 704 (SC), Per Mohammed, JSC at page 24, paras D – F.”
See page 416 – 417 of the Record of Appeal.
Secondly, none of the eight grounds of the Appellants’ Notice of Preliminary Objection which was their sole defence in the trial can be said to be a direct defence to the 1st Respondent’s reliefs nos. 2 and 6 (supra). In that situation, the Appellants stood bare without defence on the 1st Respondent’s reliefs 2 and 6 and cannot therefore now be heard to complain. In effect, this issue too is resolved against the Appellants.
On the whole, all the four issues having been resolved against the Appellants, the appeal fails as unmeritorious and is accordingly dismissed. The judgment of the lower Court in Suit No. CV/3095/2017 is affirmed.
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: I agree with the lead judgment prepared by my learned brother, ISAH BATURE GAFAI, JCA, dismissing the appeal.
It is indeed a risk which could result in dire consequences for a party to raise Preliminary Objection and fail to take the cautionary steps of equally responding to the case of the adversary. Surplus is better than parity. It is easier to struggle with excess than to wallow in the penury of insufficiency. Infact, it is safe to say that it is callous to rely solely on the success on the Preliminary Objection without putting forward any form of defence, if any. This is because of numerous reasons, one of which is that the law is like a pendulum, one can never be completely certain which way it would go. A Party would be helpless if the Preliminary Objection is thrown out. Such a party would be estopped from subsequently putting up a defence or even raising a fresh suit based on the principle of resjudicata. See the decision of the Apex Court in the case of TORIOLA & ANOR V. WILLIAMS (1982) LPELR – 3258 (SC) where the doctrine of resjudicata was explained thus:
“Estoppel per rem judicata is a rule of evidence whereby a party (or his privy) is precluded from disputing in any subsequent proceedings matters which had been adjudicated upon previously by a competent Court between him and his opponent. Per OBASEKI, J.S.C. See also MORINATU ODUKA & ORS V. KASUMU & ANOR (1968) N.M.L.R. 281, AG NASARAWA STATE V. AG PLATEAU STATE (2012) LPELR – 9730 (SC), AJIBOYE V. ISHOLA (2006) LPELR – 301 (SC) and ODUKA & ORS V. A. KASUMU & ANOR. (1967) LPELR – 25504 (SC).
For this reason and other reasons expounded in the lead judgment, I too hereby dismiss this appeal as lacking in merit.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been availed in advance a draft copy of the leading judgment just delivered by my learned brother, ISAH BATURE GAFAI, JCA. I am completely in agreement with the lucid reasoning and the impeccable conclusions reached therein. I hereby adopt the same as mine. I shall in support of this illuminating judgment say a word or two by way of my humbly contribution to the rich analysis in the leading judgment.
Now, there are some aspects of the concept of locus standi that interest me to the point of fascinating me. Locus standi is neither synonymous with presence of reasonable cause of action nor merit in the case of the party whose locus standi is challenged. Thus, once the party, usually the claimants shows sufficient interest in the subject matter enough to satisfy the legal constituents of locus standi that suffices and even the strongest of defenses can drive such a party away from the judgment seat of the Court on grounds of lack of locus standi.
The concept of locus standi, the lack or presence of it, is not to be looked for in any copious pleadings and or affidavit of the Defendant or Respondent, as the case may be, but squarely within the confines of the pleadings and or affidavit of the claimant or Appellant, as the case may be. If it were otherwise, Defendants or Respondents would develop the habit and or penchant to plead the claimant or Appellant out of his locus standi.
In the instant appeal, despite the avalanche of very illuminating submissions by the learned counsel for the Appellant, but which in the leading judgment this Court has been through, the locus standi of the 1st Respondent remained unshakeable and as solid as the rock of Gibraltar, which cannot easily be moved by mere legal submissions not solidly rooted in the glaring facts of this case.
My Lord, the Hon. PCA and my noble Lord, it is for the above few comments of mine but for the fuller reasons as adroitly marshaled out in the leading judgment that I too hold that the 1st Respondent was and is still clothed with the requisite locus standi in this case and that the appeal, in its entirety lacks merit and is liable to be dismissed. I too hereby dismiss it. I shall abide by the consequential orders made in the leading judgment.
Appearances:
K. J. OMANG with him E. O. UGWGEZE For Appellant(s)
CHINEDU G. UDORA with him KUDUS ALAFIA FOR 1ST RESPONDENT For Respondent(s)
