JUDE I. NWAGU V. EMEKA OKOLO
(2012)LCN/5589(CA)
In The Court of Appeal of Nigeria
On Friday, the 20th day of July, 2012
CA/E/31/2009
RATIO
ACTION: MEANING OF LOCUS STANDI
The term locus standi has been defined by the learned Author Nwadialo in his book titled “Civil Procedure in Nigeria” 2nd Edition 2000 at page 31 thus –
“The term locus standi denotes legal capacity to institute proceedings in a court of law and is used interchangeably with terms like “standing” or “title to sue” it has also been defined as the right of a party to appear and be heard on the question before any Court or Tribunal it is the right or competence to institute proceedings in a court enforceable in law”. PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A
ACTION: ESSENCE OF LOCUS STANDI
Locus standi is the competence of the Plaintiff to institute an action in court, without it the court itself cannot be clothed with jurisdiction to hear or entertain the Suit, accordingly locus standi is an issue of jurisdiction and can be raised at any stage or level of the proceedings in a Suit or even on appeal at the Court of Appeal by any of the parties without leave of court or by the court itself suo motu. See A.G. AKWA IBOM V. ESSIEN (2004) 7 NWLR (PT. 972) 288. PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
JUDE I. NWAGU Appellant(s)
AND
EMEKA OKOLO Respondent(s)
ABUBAKAR JEGA ABDUL-KADIR, J.C.A, (Delivering the Leading Judgment): This is an appeal against the Ruling of Enugu State High Court sitting at Enugu delivered by Ugwu (OFR) CJ on 10th day of November 2004.
The facts leading to this appeal are stated thus:-
By his statement of claim dated 16th May, 1993 the Respondent claim from the Appellant –
(a) N500,000.00 special and general damages for trespass and interference with the Plaintiff ‘s development of his said plot 67A.
(b) A perpetual Injunction restraining the defendant by himself or through his servants, agents and privies from further interference with the possession and use of the said plot 67A by the Plaintiff or by his mother who will execute the building works thereon.
The case of the Respondent/Plaintiff is that a mini commercial plot 67 A in the Trans-Ekulu Federal Housing Programme Phase I & II, 396.538 square metres in area was allegedly allocated to him. The Respondent/Plaintiff claimed that the Federal Ministry of Housing and Environment sold to the defendant the side of the duplex bungalow of three rooms on the adjacent plot 67 near the Respondent’s Plot 67A, The Respondent further claimed that when she moved to develop Plot 67A, she met stiff opposition from the Appellant who laid claim to the said Plot 67A as part of his compound.
Mrs P.N. Okolo mother of the Respondent stated that when she took labourers to Plot 67 A to clear the site, the Appellant and hired men drove them away while she called in the police.
The Appellant in his defence stated that he is the owner in possession enjoying peaceable occupation of the land which was allocated to him since 1983. The Appellant stated that all plots at Federal Housing Programme Phase I are contained in Blocks A -G and that there cannot be two plots called 67 and 67A in one block.
The Appellant further contends that the area allocated to him in the Plan No. CUO/EN D43/93 dated 6th September 1993 was by the Permanent Secretary Federal Ministry of Housing and Environment Ref Letter No. AC/14/36/OSAP/E3/N079 of 14th February 1983.
The Appellant in his defence stated that there is nobody by the name Emeka Okolo, that the name was a coinage just to disturb the Defendant/Appellant’s peaceable occupation of the land. That if the said Emeka Okolo exists he must be an infant at the time of taking out this Suit. Consequently that the Suit is incompetent and should be struck out.
Therefore, at the trial the Appellant brought a Motion on Notice dated 8th February 2003 and filed on 10th February 2003 wherefore he urged the court to make an order striking out the Suit as being incompetent before the court. The Respondent in opposing the Motion filed a counter affidavit of 15 paragraphs.
In his Ruling the learned trial Chief Judge held that though failure by the Plaintiff/Respondent to sue by his next friend (his mother) is a serious omission, that striking out the Suit will not in his thinking serve the justice of the case. He therefore discountenance the Defendant/Appellant’s Motion and made an order of amendment of the Suit by adding “suing by his next friend Mrs Pauline Nwando Okolo immediately after Emeka Okolo, the Plaintiff in the matter with a cost of N3,500.00.
Dissatisfied with the Ruling the Appellant appealed to this court against the said Ruling vide his Notice and grounds of Appeal dated 15th November 2004 containing four Grounds of appeal.
We took the appeal on 26/4/2012, at the hearing of the appeal counsel to the Appellant Mr. C.I. Enechionyia informed the court that the Appellant’s brief of argument is dated 7/5/10 and deemed filed on 16/5/11, that he also filed a reply brief dated 30/4/11 and filed on 31/5/11 he adopted the two briefs of argument and urged the court to allow the appeal. Counsel to the Respondent informed the court that the Respondent’s brief of argument is undated and filed on 16/5/11 and urged the court to dismiss the appeal. The Appellant formulated two issues for determination from the four grounds of appeal the issues are:-
1. Whether there are competent parties before the court
2. The effect of lack of real Capacity of a party to institute an action in law.
Counsel to the Respondent nominated a sole issue for determination.
The issue is stated thus:
“Whether the then learned Presiding Chief Judge exercised his discretion judiciously when he used the inherent powers vested in the court to amend the title of this Suit”.
The Issues nominated by the Appellant are apt for the determination of this appeal, therefore the issues will be adopted in the determination of the appeal.
On Issue No. 1, learned counsel to the Appellant submits that the trial Chief Judge erred in law when he held that the incapacity of the Plaintiff/Respondent to take out action against the Defendant in his own name being an infant was amendable. That the Plaintiff Emeka Okolo by the evidence of his mother was an infant when the cause of action arose. That being a minor he lacks the legal capacity to institute the action. Counsel contends that such absolute lack of competence bothers on locus standi of the Plaintiff to commence an action. Counsel referred to ERONBAR V. F.M.F. (2009) 15 NWLR (PT. 1165) 506; NWADIALO “CIVIL PROCEDURE IN NIGERIA” 2ND EDITION 2000 at page 31; MADUKOLU V. NKEMDILIM (1962) ALL NLR 587 at 595; STATE V. ONAGORUWA (1992) 2 SCMJ (PT.1) 1; WAZIRI V. STATE (1997) 3 N.W.L.R. (PT. 496) 689; A.G. LAGOS STATE V. DOSUMU (1983) 3 NWLR (PT.111) 552.
Finally on this issue counsel submits that the incapacity of the Plaintiff/Respondent to take out this action is incurable and such defect cannot be cured by an order of court for an amendment as was done by the court below.
On Issue No. 2, learned counsel to the Appellant submits that it is trite law that the issue of legal capacity is a fundamental prerequisite to the institution of actions in court reference made to ERONBAR V. FMF (supra); UMAR V. W.G.G. (NIG) LTD. (2007) (Pt 1032) 117; MADUKOLU V. NKEMDILIM (supra) counsel urged the court to allow this appeal, set-aside the decision of the court below in its entirety.
In response to the submissions of counsel to the Appellant on the two issues for determination counsel to the Respondent submits that where the Plaintiff fail to state the capacity in which he filed his action, the court can make an order to amend the writ and pleadings reference made to TOTLEMHAN V. TOTTENHAM (1986) ICH 628.
Counsel argues that the requirement of the infant Plaintiff suing by his next friend is a rule of practice and procedure and not a substantive law. That if such a rule is breached by an infant himself the court can amend the suit provided that it is not prejudicial to the other party in this case i.e the Defendant reference made to AKUNNIBI V. AKUNNBI & ORS (1997) 2 NWLR (PT.486) 144; PAUL NEBO V. PETER OGBODO (1962) VOL. VI EWLR 86.
Further counsel contends that by the provisions of Order 26 Rules 5 of the High Court Rules 1988, the applicable law at the time of the application was made to the court, the court is duty bound to do substantial justice. Also counsel submits that the Appellant’s counsel did not call attention to any hardship or prejudice he will suffer if the case is not struck out but the heading of the Suit amended reference made to GBOGBOLULU OF VAKPO V. HEAD CHIEF HODO (1941) 7 WACA 164; OGBONNAYA V. MBEKWE (2005) 1 NWLR (PT 907) at 259.
Counsel urged the court to dismiss the appeal.
In reply on points of law, counsel to Appellant submits that what the Appellant did at the lower court was to challenge the jurisdiction of the court to entertain the Suit where there is total lack of legal capacity on the Plaintiff. That what was contended was that since the (infant) Plaintiff /Respondent represents a non juristic personality in law the action is incompetent and as such cannot activate jurisdiction of the court; reference was made to CBN V. SAP NIG LTD (2005) 3 NWLR (PT 911) 152; MADUKOLU V. NKEMDILIM (1962) 2, SCNLR 341; OKOLO V. UNION BANK OF NIG. PLC (2004) ALL FWLR (PT. 197) 981; FAWEHINMI V. NBA (NO. 2) 1989 2 NWLR (PT 558) 595; JOE SURAKATU V. HOUSING DEVELOPMENT SOCEITY LTD. (981) 4 SC 28; ROAD TRANSPORT EMPLOYEES ASSOCIATION & ORS. V. NATIONAL UNION OF ROAD TRANSPORT WORKERS (1996) 8 NWLR (PT. 469) 736 at 743; S.O. AKEGBEJO & 3 ORS V. DR. D.O. ATAGIA (DIRECTOR NIFOR) & 3 ORS (1998) 1 NWLR (PT.534) 459 AT 469.
The complaint of the Appellant in Issue No. 1 is whether there are competent parties before the court. The contention of the Appellant is that the Respondent being an infant at the time the action was instituted lacked the capacity to maintain the action. By the evidence before the court and the finding of the trial court there is no dispute that at the time the Suit was instituted the Respondent was an infant.
At page 35 of the printed record the trial Judge made the following findings:-
“It is not in doubt that the Plaintiff Emeka Okolo in 1992 when the cause of action arose was an infant and so lacked the capacity to take out this Suit by himself, His mother should have brought this action on his behalf as required by the Rules of practice and procedure and law. By Section 7(a) of the Land Use Act an infant acquire title to land through his guardian or trustee.”
The learned trial Chief Judge has relied on Order 26 Rule 5 of the High Court Civil Procedure Rules 1988 and the case of AKUNNIBI V. AKUNNIBI & ORS (supra) to hold that in order to do substantial justice the apparent defect in the Suit of the Respondent cannot be ignored and ordered an amendment to cure the defect.
The counsel to the Appellant has submitted that the defect intrinsic in the Suit of the Respondent is fundamental as it goes to the root of the suit and cannot be cured by the amendment ordered. The contention of the Appellant is that the Respondent being an infant at the time the action was instituted lacks the locus standi to initiate the Suit.
The term locus standi has been defined by the learned Author Nwadialo in his book titled “Civil Procedure in Nigeria” 2nd Edition 2000 at page 31 thus –
“The term locus standi denotes legal capacity to institute proceedings in a court of law and is used interchangeably with terms like “standing” or “title to sue” it has also been defined as the right of a party to appear and be heard on the question before any Court or Tribunal it is the right or competence to institute proceedings in a court enforceable in law”.
In the instant appeal there is no dispute that the Respondent is an infant. By Section 8(1) and (3) of the Legal Personality Law Cap 79 Laws of Anambra State an infant is defined as a human being under 21 years. Where an infant sues as Plaintiff he does so by a normal person described as “his next friend” and where he is sued as a Defendant, he defends as a normal person described as his “guardian ad litem”. An infant cannot properly bring or defend an action by himself. He should do so by another person designated his “next friend” if he is the one suing, i.e a Plaintiff, or where he is sued, i.e a Defendant by another person designated his “guardian ad literm”.
From the above postulation of the position of the law for an infant to be clothed with locus standi to institute an action in court as a Plaintiff he must do so through his “next friend” it is only when that is done that he can be said to be a competent party to the action.
Again the Respondent claim involved allocation of Plot under the Land Use Act CAP 15 LFN 1990 Section 7(a) of the Act states :-
7 – Restriction on rights of persons under the age of 21-
It shall not be lawful for the Governor to grant a statutory right of occupancy or subletting of a statutory right of occupancy to any person under the age of 21 years.
Provided that:-
(a) Where a guardian or trustee of a person under the age of 21 years has been duly appointed for such purpose, the Governor may grant or consent to the assignment or subletting of a statutory right of occupancy to such guardian or trustee on behalf of such a person under age.
In the appeal at hand it has not been shown in the pleadings of the Respondent/Plaintiff that a guardian or trustee has been appointed for the Respondent as required by the provisions of Section 7(a) of the Land Use Act Cap 15 LFN 1990.
The combine effect by the Respondent/Plaintiff not to initiate this action through his “next friend” and failure to comply with the provisions of Section 7(a) of the Land Use Act Cap 15 LFN 1990 deprives the Respondent the locus standi to maintain this Suit.
Locus standi is the competence of the Plaintiff to institute an action in court, without it the court itself cannot be clothed with jurisdiction to hear or entertain the Suit, accordingly locus standi is an issue of jurisdiction and can be raised at any stage or level of the proceedings in a Suit or even on appeal at the Court of Appeal by any of the parties without leave of court or by the court itself suo motu. See A.G. AKWA IBOM V. ESSIEN (2004) 7 NWLR (PT. 972) 288.
In the instant appeal the Respondent/Plaintiff being an infant did not initiate this Suit through his “next friend” and his claim being affected by the Provisions of the Land Use Act did not comply with Section 7(a) of the Land Use Act Cap 15 LFN 1990 robs him the necessary jurisdiction as his capacity to maintain the action is incurably defective as he can never on his own be a party to the Suit. I therefore hold that there are no competent parties before the court and Issue No I is resolved against the Respondent in favour of the Appellant.
On Issue No 2 the effect of lack of legal capacity of a party to institute an action in law, this issue is subsumed in Issue No 1 where already it has been determined that the Respondent lacked the legal capacity to initiate the Suit by suing the Appellant and this translates to the fact that the court has no jurisdiction to entertain the action in the first instance and it is liable to be struck out.
In the result this appeal is meritorious and it is hereby allowed. The Ruling of C.N. Ugwu (OFR) C.J. delivered on 10/11/2004 is hereby set aside. In its place an order is made striking out Suit No. E/453/92 for being incompetent. No order as to cost.
ADAMU JAURO, J.C.A: I have had the opportunity to read in advance the lead judgment of my learned brother, A.J. Abdulkadir JCA., just delivered. I entirely agree with the reasoning and conclusions reached therein and adopt same as mine.
I abide by all consequential orders made in the lead judgment.
SAMUEL CHUKWUDUMEBI, OSEJI, J.C.A: I have before now read in draft, the judgment just delivered by my learned brother ABUBAKAR JEGA ABDUL-KADIR JCA. I am in total agreement with the reasoning and conclusions contained therein.
Where a plaintiff ab inito lacks the capacity to institute an action, it robs the Court of the jurisdiction to entertain same and the proper order to make in the circumstance is that of striking out. See SOFOLAHAN VS. FOWLER (2002) 14 NWLR (PT.788) 664.
I therefore hold that this appeal is meritorious and it is hereby allowed. I also abide by the consequential orders made in the lead judgment including that of costs.
Appearances
Mr. C.I. EnechionyiaFor Appellant
AND
Mr. F. Mbadu gha,
Mis Mgbemena and
Mr. J. UdensiFor Respondent
