NATAALU & ANOR v. MUHAMMAD & ORS
(2022)LCN/17176(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Monday, July 04, 2022
CA/KN/260/2021
Before Our Lordships:
Ita George Mbaba Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Between
1. BAITO NATAALU 2. KABIRU MUHAMMAD APPELANT(S)
And
1. HARUNA MUHAMMAD 2. BASHIR MUHAMMAD 3. HASSAN MUHAMMAD 4. HUSSAIN MUHAMMAD 5. SAIDU MUHAMMAD 6. RABI MUHAMMAD 7. HINDU MUHAMMAD 8. AISHATU MUHAMMAD RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE ISSUE OF LOCUS STANDI
The issue of lack of locus standi to institute an action was not considered by the lower Court. Issue of locus standi in Court, actually, touches on the jurisdiction of the Court, if the Court considering the issue comes to the conclusion that the litigant lacked locus standi to bring the action, and so the Court would have no jurisdiction to entertain the suit. See the case of PDP Vs Edede & Anor (2022) LPELR – 57480 (CA), where it was held:
“In the words of the Apex Court, the term locus standi denotes a legal capacity to institute proceedings in a Court of law. It is said to be used interchangeably with such terms as standing or title to sue. It is the right of a party to appear and to be heard on a question before any Court of law. See Pam vs. Mohammed (2008) LPELR-2895 (SC). See also Daniel vs. INEC (2015) LPELR-24566 (SC), where the Supreme Court per Rhodes-Vivour JSC, held that: “Locus standi denotes the legal capacity to institute proceedings in Court. It is a threshold issue that goes to the root of the suit. On no account should the merits of the case be considered before locus standi is decided. Locus standi affects the jurisdiction of the Court, consequently, if the plaintiff does not have locus standi to institute the suit, the Court would have no jurisdiction to entertain the suit. Usually, it is the plaintiff that is questioned as to whether he has locus standi.” Per BARKA, JCA. PER MBABA, J.C.A.
THE RESPONSIBILITY OF THE COURT WHEN CONSIDERING AN INTERLOCUTORY APPLICATION
The law is trite, that while considering an interlocutory application, the trial Court must restrain itself from commenting on the substance of the main case, ahead of time, or from delving into the substantive matter.
See Abdullahi Vs Nigerian Army & Ors (2018) LPELR – 45202 (SC), where it was held:
“The law frowns seriously on a Court taking on substantive issues fit only for the appeal, when hearing interlocutory applications. In other words, care must be taken to avoid making observations in its ruling on that application, which might appear to pre-judge the main issue in the proceedings relative to the said application – see Mortune V. Gambo (1979) LPELR-1913(SC) and Buremoh V. Akande (2017) LPELR-41565(SC), wherein M. D. Muhammad, JSC, aptly observe – A Court must avoid the determination of a substantive issue at the interlocutory stage. It is never proper for a Court to make pronouncement in the course of interlocutory proceedings on issues before the Court. Interlocutory applications – – must remain the handmaid and aid that enable the Court reach the ultimate goal of doing substantial justice between the parties in the real issues in litigation between Parties.” Per AUGIE, JSC. PER MBABA, J.C.A.
WHETHER OR NOT THE COURTS MUST CONSIDER ALL ISSUES PLACED BEFORE THEM
Issue of locus standi of the Respondents, raised in the preliminary objection, was fatal. The Court had a duty to consider and resolve every genuine issue properly raised before it, for determination. See News Watch Communication Vs Atta (2006) 4 SCNJ 282 at 297. See also Obionwu & Ors Vs INEC (2013) LPELR – 22573 (CA) and Honey Well Flour Mills Plc Vs Eco Bank (2018) LPELR – 45127 (SC), where it was held:
“It is now well-settled that, except in clearest of terms, it is the duty of all lower Courts to consider all issues placed before them, A. G. Leventis Plc v Akpu (2007) LPELR – 5 (SC); Owodunni v. Registered Trustees of Celestial Church of Christ and Ors (2000) 6 SC (pt.II) 60; [2006] 6 SCNJ (pt. 299) 426, 422, Ikpeazu v. Otti and Ors (2016) LPELR- 40055 (SC) 19; A – C, Katto v. CBN (1991) 9 NWLR (pt. 240) 126, 149, Okonji v. Njokanma [1991] 7 NWLR (pt. 202) 131, 150, Chukwu v. Soleh Boneh (2000) 2 SCNJ 18, 38, Brawal Shipping (Nig) Ltd v. F.I. Onwadike Co. Ltd (2000) 6 SCNJ 508, 522, Ojogbue v. Nnubia [1972] 6 SC 227; Yakassai v. Incar Motors Ltd. (1975) 5 SC 107, Citec International Estate Limited & Ors v. Josiah Oluwole Francis & Ors (2014) LPELR – 22314 (SC), C.N. Okpala and Sons Ltd v. Nigerian Breweries Plc (2017) LPELR-43826(SC) 17; A-F.” Per NWEZE, JSC. PER MBABA, J.C.A.
THE POSITION OF LAW ON LOCUS STANDI
Locus standi is a legal terminology that explains the legal capacity and interest of a plaintiff in the action he brings to Court. The claim (writ and statement of claim) must trace his right/interest to the substance of the litigation and/or property in dispute identifying his subsisting actionable right/interest, to justify the taking of the action. There must be a beneficial right accruing to him, either as an individual or group, in the claim, as opposed to the general rights of bye-standers. See the case of Bakare & Ors Vs Ajose-Adeogun & Ors (2014) LPELR-25024 (SC), where it was held:
“What then is “locus standi?” This is a Latin phrase meaning “place of standing”. The right to bring an action or to be heard in a given forum. See Black’s Law Dictionary Ninth Edition page 1026. In other words, locus standi is the legal capacity of plaintiff/claimant to institute an action in a Court of law in exercise of the claimant’s constitutional right. That is the reason the issue can be raised in limine after the Statement of Claim has been filed and served. Therefore, ordinarily, if the Statement of Claim discloses no personal sufficient interest in the subject matter of the case, the plaintiff will have no locus standi to institute the action and the Court will have no jurisdiction to entertain same. See Professor T. M. Yesufu v. Governor of Edo State & Ors (2001) LPELR 3526; (2001) 8 SCM 189.” Per ARIWOOLA, JSC. PER MBABA, J.C.A.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the interlocutory decision of the Kano State High Court in Suit No. K/02/2020, delivered on 23/2/2021, whereof the learned trial Judge dismissed the preliminary objection raised by the Defendant (now Appellant) against the suit.
At the High Court, the Respondents had sought the following reliefs:
(1) A declaration that by virtue of Hausa custom and tradition, the puddle situate at Lungun Cikin Gida, Gandun Albasa, Kano State, belongs to Sarki.
(2) A declaration that the puddle, situate at Lungun Cikin Gida, Gandun Albasa, Kano encroached on the plaintiffs’ land by 33ft width and 76ft length, resulting from the 1986 and 1993 overflowing in which the puddle destroyed the plaintiffs’ house.
(3) A declaration that the plaintiffs are entitled to recover the 33ft width and 76ft length of their land consumed by the puddle.
(4) Cost of action.
Appellants at the lower Court had filed preliminary objection to the suit, challenging the locus standi of the plaintiffs to bring the suit and saying that the trial Court lacked jurisdiction to entertain the suit. The trial Court, in a considered ruling, dismissed the preliminary objection. The Court said:
“In the case before me, the plaintiff/respondent (sic) in his statement of claim is seeking to recover a piece of land, measuring 33ft width and 76ft length, from the land in dispute. This is my opinion; the plaintiff/respondent (sic) is claiming exclusive right to the plot of land measuring 33ft width and 76ft length. This does not I (sic) touch on the distribution of estate of Late Mallam Nata’alu.
It is the law under Islamic Personal Law, that an estate of a deceased will not be ripe for distribution until any dispute in connection with the estate is resolved. In the instant case, before the estate of the Late Nata’alu could became (sic) question regarding the issue of succession in order to confer jurisdiction on Sharia Courts. All issues or disputes attributed to the estate must be resolved to make the estate inheritable i.e. question of title to a land, a dispute over the right to make a particular property within the estate, payment of debts and other issues that are related to the estate… I therefore do not agree with the submissions and agreements (sic) of Counsel to the defendant that the claim of the plaintiff/respondents before this Court is an issue of the distribution of the estate of Late Nata’alu, which is an issue of Islamic personal law 1 do not consider the further counter-affidavit of the plaintiff/respondent, this is because Exhibit DLHT attached is a document made in Hausa language and there is no any version of it made in the language of the Court. Consequently, the Notice of Preliminary Objection by the defendant/applicant has no merit and is hereby dismissed.” See pages 87-88 of the Record of Appeal.
Dissatisfied with the above, Appellants filed this appeal, as per the Notice of Appeal, filed on 13/12/2021. (Pages 90 – 92 of the Record of Appeal), with three (3) grounds of appeal. They filed their brief of arguments on 30/12/2021 and distilled three (3) issues for the determination of the Appeal, namely:
(1) Whether the failure of the lower Court to make pronouncement on the issue of locus standi raised therein by appellants amount to fracture on their constitutional right of fair hearing? (Ground 1).
(2) Whether considering the nature of the respondents’ claim before the lower Court and appellants’ statement of defence, there is heritable issue, which the lower Court is not competent to decide? (Ground 2).
(3) Whether the respondents have locus standi to initiate for the Emir of Kano, when the Emir is alive and did not authorize them to so do? (Ground 3).
The Respondents filed no brief, and when the appeal was argued on 30/5/2022, the Respondents and their Counsel, failed to appear, but had been served with the hearing notice and with the Appellants’ brief.
Arguing the issue 1, Appellants’ Counsel, Dalhatu Shehu Usman, Esq., said the Court is bound to hear any motion or objection properly raised before it and to deliver ruling on same accordingly; that failure to do so amounts to infraction to the Applicants’ right of fair hearing. He relied on the case of News Watch Communication Vs Atta (2006) 4 SCNJ 282 at 297; Imegwu Vs Okolocha (2013) V. 2-3 MJSC pts p. 85.
Counsel said that in this case, Appellants had objected to locus standi of the Respondents to bring the action or seek any reliefs, on behalf of the Emir, who is alive and has not sent the Respondents to sue on his behalf. He noted that the trial Court failed to consider the arguments on the above and/or to resolve same.
Counsel added, under the issue 3, that for a litigant to have the right to sue, he must have the locus standi to do so, and where he lacks the requisite standing to sue, the Court lacks jurisdiction to entertain the claim. He relied on the case of AG Adamawa State Vs AGF (2006) Vol. 1 MJSC 1 at 9, which is to the effect that a person is said to have locus standi, if he has shown a sufficient interest in the action and that his civil right and obligation have been or are in danger of being infringed.
Counsel said that considering the 2nd (sic) relief sought in the suit by Respondents (actually, 1st relief), for the declaration of title to half of the land for the Emir of Kano, and considering the facts deposed to by Appellants in their affidavit in support of the objection, the plaintiffs (now respondents) have no locus standi to sue, on behalf of the Emir of Kano, as they have no authority of the Emir to do so.
On issue 2, Counsel said the case no. CV/332/2019 before USC Hotoro, which the Appellants filed, predating that of the lower Court, was within the jurisdiction of the Sharia Court, and Appellants had filed it seeking for distribution of estate of Late Nata’alu against all the heirs of the Respondents/plaintiffs’ father and any other person having common inheritance or claim with him; so since the plaintiffs and the defendants (now appellants) are all heirs and they based their title on heritable estate, the case was qualified to be a dispute over inheritance, within the jurisdiction of Sharia Court, and High Court was restricted on that issue. He added that, though the Sharia Court has no jurisdiction to entertain a dispute over possession of land within urban area, that when the dispute becomes issue of succession, the Sharia Court can competently entertain same. He relied on Garba Vs Dogon Yaro (1991) NWLR (Pt 165) 102 at 105.
Counsel added that the Case No. CV/332/19, before the USC Hotoro (Sharia Court matter), had to do with an issue of succession, which the Sharia Court had requisite jurisdiction to entertain, and so the lower Court was estopped to handle the case.
Counsel urged us to resolve the issue for Appellant and to allow the Appeal.
RESOLUTION OF THE ISSUE
I think the 3 issues for the determination of this appeal against the interlocutory decision of the lower Court, can be summed into two, namely:
(1) Whether the lower Court had, in fact, considered in its ruling, the salient issues raised by Appellants against the Respondents’ lack of locus standi to bring the suit.
(2) Whether the Respondents, in fact, lacked locus standi to bring the suit, and the effect of same (absence of locus standi) on the jurisdiction of the lower Court.
I tend to agree with the learned Counsel for the Appellants, that the learned trial Court did not consider the issue of locus standi, raised by Appellants at the lower Court. Appellants had raised and argued two issues for the determination of the preliminary objection, on page 84 of the Records of Appeal, namely:
1) Whether the plaintiffs have locus to litigate on behalf of the Emir of Kano.
2) Whether the Case No. CV/332/19 is within the jurisdiction of USC Shahuci.
The Respondents’ Counsel, at the lower Court, had argued on: “Whether relying on the plaintiffs’ writ of summons, statement of claim and the facts contained in the plaintiffs’ counter-affidavit, this Court ought to dismiss the defendants’ Notice of Preliminary Objection dated 5th March, 2020.” See page 85 of the Records.
The trial Court appeared to have adopted the position of the Respondents’ Counsel, when it considered the preliminary objection on the single issue of “whether this Court has the jurisdiction to determine the claim of the plaintiff (sic) in the substantive Suit.”
The issue of lack of locus standi to institute an action was not considered by the lower Court. Issue of locus standi in Court, actually, touches on the jurisdiction of the Court, if the Court considering the issue comes to the conclusion that the litigant lacked locus standi to bring the action, and so the Court would have no jurisdiction to entertain the suit. See the case of PDP Vs Edede & Anor (2022) LPELR – 57480 (CA), where it was held:
“In the words of the Apex Court, the term locus standi denotes a legal capacity to institute proceedings in a Court of law. It is said to be used interchangeably with such terms as standing or title to sue. It is the right of a party to appear and to be heard on a question before any Court of law. See Pam vs. Mohammed (2008) LPELR-2895 (SC). See also Daniel vs. INEC (2015) LPELR-24566 (SC), where the Supreme Court per Rhodes-Vivour JSC, held that: “Locus standi denotes the legal capacity to institute proceedings in Court. It is a threshold issue that goes to the root of the suit. On no account should the merits of the case be considered before locus standi is decided. Locus standi affects the jurisdiction of the Court, consequently, if the plaintiff does not have locus standi to institute the suit, the Court would have no jurisdiction to entertain the suit. Usually, it is the plaintiff that is questioned as to whether he has locus standi.” Per BARKA, JCA
Of course, having failed to consider the issue, whether the respondents could institute the suit for which they asserted that the land belonged to the Sarkin Kano (the Emir) (see the 1st relief), and sought declaration of title to same, as in 2nd and 3rd reliefs, the trial Court, in my opinion, had failed to consider a fundamental aspect of its jurisdiction to entertain the suit. It appears the trial Court had rather be laboured over the issue of whether the Sharia Court, in Suit No. CV/332/19 (instituted by Appellants) which predated the Suit No. K/02/2020, under consideration, was within the powers of the said Sharia Court to determine. And in attempting to resolve that second issue, the trial Court appeared to have delved into the substance of the main Suit (K/02/2020).
The law is trite, that while considering an interlocutory application, the trial Court must restrain itself from commenting on the substance of the main case, ahead of time, or from delving into the substantive matter.
See Abdullahi Vs Nigerian Army & Ors (2018) LPELR – 45202 (SC), where it was held:
“The law frowns seriously on a Court taking on substantive issues fit only for the appeal, when hearing interlocutory applications. In other words, care must be taken to avoid making observations in its ruling on that application, which might appear to pre-judge the main issue in the proceedings relative to the said application – see Mortune V. Gambo (1979) LPELR-1913(SC) and Buremoh V. Akande (2017) LPELR-41565(SC), wherein M. D. Muhammad, JSC, aptly observe – A Court must avoid the determination of a substantive issue at the interlocutory stage. It is never proper for a Court to make pronouncement in the course of interlocutory proceedings on issues before the Court. Interlocutory applications – – must remain the handmaid and aid that enable the Court reach the ultimate goal of doing substantial justice between the parties in the real issues in litigation between Parties.” Per AUGIE, JSC
Issue of locus standi of the Respondents, raised in the preliminary objection, was fatal. The Court had a duty to consider and resolve every genuine issue properly raised before it, for determination. See News Watch Communication Vs Atta (2006) 4 SCNJ 282 at 297. See also Obionwu & Ors Vs INEC (2013) LPELR – 22573 (CA) and Honey Well Flour Mills Plc Vs Eco Bank (2018) LPELR – 45127 (SC), where it was held:
“It is now well-settled that, except in clearest of terms, it is the duty of all lower Courts to consider all issues placed before them, A. G. Leventis Plc v Akpu (2007) LPELR – 5 (SC); Owodunni v. Registered Trustees of Celestial Church of Christ and Ors (2000) 6 SC (pt.II) 60; [2006] 6 SCNJ (pt. 299) 426, 422, Ikpeazu v. Otti and Ors (2016) LPELR- 40055 (SC) 19; A – C, Katto v. CBN (1991) 9 NWLR (pt. 240) 126, 149, Okonji v. Njokanma [1991] 7 NWLR (pt. 202) 131, 150, Chukwu v. Soleh Boneh (2000) 2 SCNJ 18, 38, Brawal Shipping (Nig) Ltd v. F.I. Onwadike Co. Ltd (2000) 6 SCNJ 508, 522, Ojogbue v. Nnubia [1972] 6 SC 227; Yakassai v. Incar Motors Ltd. (1975) 5 SC 107, Citec International Estate Limited & Ors v. Josiah Oluwole Francis & Ors (2014) LPELR – 22314 (SC), C.N. Okpala and Sons Ltd v. Nigerian Breweries Plc (2017) LPELR-43826(SC) 17; A-F.” Per NWEZE, JSC
I have also looked at the entire processes, filed by Respondents at the lower Court, wherein the property (land) claimed is said to belong to the Sarkin Kano (Emir). The reliefs sought, stated so, and in paragraphs 10 to 12 of the Statement of claim, Plaintiffs averred:
(10) “Since the 1986 and 1993 incidents, the plaintiffs have not been able to recover their full land, 33ft and 76ft of their land’s width and length respectively, have been encroached upon by the puddle up till today.
11) Now, the puddle is already depleted, and as the Plaintiffs are waiting for it to dry to be able to recover their land, all of a sudden the defendants came claiming ownership of the puddle, including part of the plaintiffs’ land which they have lost to the puddle through (sic) as a result of the expansion of the puddle.
12) For over two centuries, since the puddle came into being, it has never been identified with anybody but Sarkin kano, and all this while the village head of Gandun Albasa is seen as the custodian of the puddle at the instance of the Sarki. The book of Hausa culture and tradition is hereby pleaded… (Underline mine).
With such pleading, the locus standi of the Respondent to institute the action is seriously called to question, where the said Sarkin Kano (the Emir) said to own the land or in custody of same, is not disclosed as the plaintiff or one of the plaintiffs, on the face of the writ, and the Respondents (plaintiffs) are not maintaining the suit for themselves and as representatives of the said Sarkin Kano (Emir). And there is no evidence or semblance of authority of the said Sarkin Kano (the Emir) granted to Plaintiffs, on the face of the writ, to bring the action!
While in some Paragraphs of the pleadings, Respondents appeared to stake ownership of the land, in some other, they alleged the land belonged to Sarki Kano!
Locus standi is a legal terminology that explains the legal capacity and interest of a plaintiff in the action he brings to Court. The claim (writ and statement of claim) must trace his right/interest to the substance of the litigation and/or property in dispute identifying his subsisting actionable right/interest, to justify the taking of the action. There must be a beneficial right accruing to him, either as an individual or group, in the claim, as opposed to the general rights of bye-standers. See the case of Bakare & Ors Vs Ajose-Adeogun & Ors (2014) LPELR-25024 (SC), where it was held:
“What then is “locus standi?” This is a Latin phrase meaning “place of standing”. The right to bring an action or to be heard in a given forum. See Black’s Law Dictionary Ninth Edition page 1026. In other words, locus standi is the legal capacity of plaintiff/claimant to institute an action in a Court of law in exercise of the claimant’s constitutional right. That is the reason the issue can be raised in limine after the Statement of Claim has been filed and served. Therefore, ordinarily, if the Statement of Claim discloses no personal sufficient interest in the subject matter of the case, the plaintiff will have no locus standi to institute the action and the Court will have no jurisdiction to entertain same. See Professor T. M. Yesufu v. Governor of Edo State & Ors (2001) LPELR 3526; (2001) 8 SCM 189.” Per ARIWOOLA, JSC
I think what makes the issue of locus standi of the Respondents crucial and tends to question same is the Relief that “by virtue of the Hausa custom and tradition, the puddle situates at Lungun Cikin Gida, Gandun Albasa Kano, Kano State, belongs to Sarkin Kano. (That is, the property in contention, which Respondents claim) And by Respondents’ pleading. For over two centuries since the puddle came into being, it has never been identified with anybody but Sarkin Kano, and all this while the village head of Gandun Albasa is seen as the custodian of the puddle at the instance of the Sarki.”
The Respondents, by their said pleading appear to be busy-bodies in the action, over a property they said belongs to the Sarkin Kano (the Emir), but without the said Sarkin Kano (alleged owner) listed on the face of the writ, or a display of authority given to them (Respondents) to sue, on behalf of the said owner — Sarkin Kano (the Emir).
I therefore see merit in the appeal and it is accordingly allowed. I set aside the decision of the trial Court and uphold the preliminary objection of the Appellants (as Defendants/Applicants) and strike out the suit for failure to disclose locus standi and for want of jurisdiction of the trial Court to entertain the action.
Respondents shall pay cost of this appeal, assessed at Thousand Naira (N50,000) to Appellants.
BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the leading judgment of my learned brother, ITA GEORGE MBABA, J.C.A. I am in agreement with his Lordship’s reasoning and conclusion. I also allow the appeal.
I abide by all the consequential orders contained in the leading judgment including that as to costs.
ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the ruling delivered by my learned brother, ITA GEORGE MBABA, JCA and I am in complete agreement with the reasoning and conclusion reached that the appeal is meritorious. I too allow the appeal and set aside the decision of the trial Court and abide by all other consequential orders as contained in the lead judgment.
Appearances:
DALHATU SHEHU USMAN, ESQ For Appellant(s)
…For Respondent(s)
