NATIONAL HOSPITAL, ABUJA & ORS v. NATIONAL COMMISSION FOR COLLEGES OF EDUCATION & ORS
(2013)LCN/5845(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 16th day of January, 2013
CA/A/227/2006
RATIO
WORDS AND PHRASES: MEANING OF LOCUS STANDI
All the parties have made submissions correctly, on the definition of locus standi. The term connotes a legal capacity to commence an action in a competent court of law without hindrance. The plaintiff, for him to have the locus standi, must show that he has a special right or that he has sufficient or special interest in the performance of the duty sought to be enforced or where the interest is or will be adversely affected. See AKINNUBI VS, AKINNUBI (1997) 2 NWLR (Pt. 486) 144; NNUBIA VS. A.G RIVERS (1999) 3 NWLR (Pt. 593) 82; and INAKAJU VS. ADELEKE (2007) 4 NWLR (Pt. 1025) 423. PER ABUBAKAR DATTI YAHAYA, J.C.A.
JURISDICTION: CIRCUMSTANCES WHERE A COURT WILL NOT HAVE JURISDICTION TO ENTERTAIN
It is worthwhile to note that a party may have the locus standi to file an action, but the court he instituted the action at, may not have the jurisdiction to entertain it. This may arise where the particular court has no jurisdiction to entertain the subject matter, or that it is not properly constituted, or because a statutory provision has ousted its jurisdiction. But where a party has no locus standi to commence the action, then no court, no matter its status, will have the jurisdiction to entertain that action even if it is properly constituted and the subject matter within its competence. PER ABUBAKAR DATTI YAHAYA, J.C.A.
EVIDENCE: HOW CAN CONFLICTS IN AFFIDAVITS EVIDENCE BE RESOLVED
It is not only by calling oral evidence that conflicts in affidavits evidence, can be resolved. Where there is authentic documentary evidence in support of one of the affidavits, the court can use that documentary evidence, to resolve the conflict. See ELEGBU VS. FIRST AFRICAN TRUST BANK LTD (1992) 1 NWLR (Pt. 220) 699 at 720. PER ABUBAKAR DATTI YAHAYA, J.C.A.
JUDGMENT: EFFECT OF JUDGMENT AND ORDERS OF A COURT OF COMPETENT JURISDICTION
The law is clear. Judgments and orders of a court of competent jurisdiction, remain valid and subsisting and binding on the parties and their privies (which the appellants are) until they are set aside. See NWORA VS. NWABUEZE (2011) 12 SCNJ 67 at 82 and AKINFOLARIN VS. AKINOLA (1994) 4 SCNJ 30 at 46. PER ABUBAKAR DATTI YAHAYA, J.C.A.
JUSTICES
ZAINAB ADAMU BULKACHUWA Justice of The Court of Appeal of Nigeria
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
1. NATIONAL HOSPITAL, ABUJA
2. DR. ALFRED D. FOM
3. DR. TALEMOH W. DAH
4. DR. MOHAMMED F. JEGA
5. DR. A. M. BELLO
6. DR. S. M. R. IBRAHIM
7. DR. OLUWALE OLAOMI
8. DR. MOHAMMED S. MORA
9. DR. KATAGUM D. A.
10. MAL. HABIB MOHAMMED
11. JOSEPHINE OLUSOJI-AKOMOLAFE (MRS.)
12. MR. Y. O. BASHORUN
13. MOBOLAJI OLAWOYIN (MRS.) Appellant(s)
AND
1. NATIONAL COMMISSION FOR COLLEGES OF EDUCATION
2. MINISTER, FEDERAL CAPITAL TERRITORY, ABUJA
3. FEDERAL CAPITAL DEVLOPMENT AUTHORITY, ABUJA
4. PRODEVS NIGERIA LIMITED Respondent(s)
ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): This appeal arose from the Ruling of Nyako J, of the Federal High Court Abuja delivered on the 31/7/06. The appellants herein as plaintiffs, instituted an action before the Federal High Court Abuja and in their statement of claim prayed for –
(a) A declaration that the 1st defendant being an Agency of the Federal Republic of Nigeria and having acquired interest in Plot No. 2333 Kigoma Street, Wuse Zone 7 Abuja same rest entirely on the Federal Republic of Nigeria and subject to disposal by the Ad-Hoc Committee set up for the sales of Federal Government Properties.
(b) A declaration that the 2nd – 13th plaintiffs being Public Servants by virtue of their employment with the first plaintiff and being the respective occupants of the various flats at plot 2333 Kigoma Street, Wuse Zone 7 Abuja are entitled to benefit and or be offered the right to purchase their respective accommodations in line with the Federal Government Monetization Policy.
(c) A declaration that the 2nd – 13th plaintiffs having been duly issued with various letters of offer for the sale of the flats contained in plot No. 2333 Kigoma Street Wuse Zone 7 Abuja by the 2nd and 3rd Defendants and having duly accepted same, the said plaintiffs are rightful allottees and or owners of the flats contained in the said plot of land and entitled to undisturbed and unencumbered possession and occupation.
(d) A declaration that the purported Public Auction Sale of plot No. 2333 Kigoma Street Wuse Zone 7 Abuja by Public Auction to the 4th Defendants is illegal and void.
(e) An order setting aside the purported sale of plot No. 2333 Kigoma Street, Wuse Zone 7 Abuja by Public Auction to the 4th Defendant.
(f) An order of prohibitive injunction restraining the Defendants either by themselves, servants, agents, privies howsoever from disturbing, ejecting or interfering with the 2nd to 13th plaintiffs’ peaceful enjoyment or occupation of the flats contained in the said property by virtue of the judgment or order of the Federal High Court Kaduna in Suit No: FHC/KD/CS/93/99.
The 1st respondent herein, as the 1st defendant before the Federal High Court Abuja (hereafter referred to as the trial court), filed its statement of Defence and also filed a Motion on Notice praying the trial court to dismiss or strike out the Action on the grounds that (i) the plaintiff lacks the locus standi to bring the action (ii) the court lacks the jurisdiction to hear it as the Federal High Court Kaduna had, in Suit No. FHC/KD/CS/93/99, ordered that the property in dispute be sold by public auction, which had been carried out and (iii) the action is an abuse of process.
After hearing the parties on the Motion, the trial court delivered its Ruling on the 31/7/06 and struck out the Suit.
Being dissatisfied with that Ruling, the appellants filed on the 3/5/06, a Notice and two grounds of appeal, which are reproduced here, without their particulars –
(1) The learned trial Federal High Court Judge erred in law when she (sic) held that the Appellants lacked the locus standi to institute the Suit which by their statement of claim they did not only establish a Justiciable dispute between them and the Respondents but their respective interest in the property in dispute.
(2) The learned Federal High Court Judge erred in law when in considering whether or not the Appellants have locus standi to institute the Suit, she (sic) based her ruling on the Affidavit Evidence filed without reference to the statement of claim of the Appellants.
In the Appellants’ Brief of Argument settled by their learned counsel E. Y. Kurah, filed on the 13/12/06, the appellants formulated one issue for determination thus: –
“Was the Honourable Trial Court right when it held that the Appellants did not establish the locus standi to institute the Suit?
The 2nd – 3rd respondents in their Brief of Argument deemed filed on the 12/3/12, also formulated a similar issue that of the appellants. A similar issue was also formulated by the 4th respondent via its brief settled by O. O. Soyebo SAN and deemed filed on the 27/5/09.
The 1st Respondent’s Brief of Argument was settled by Y. U. Usman SAN and filed on the 26/2/07. In it, the learned senior counsel formulated the following lone issue –
“Whether the Ruling appealed against is unassailable.
In view of the grounds of appeal filed, I shall utilize the lone issue formulated by the appellants in deciding this appeal, i.e. was the honourable trial court right when it held that the appellants did not establish the locus standi to institute the Suit?
Learned counsel for the appellants defined locus standi as the legal capacity to institute an action in court, relying upon LADEGOBI VS. OGUNTAYO (2004) ALL FWLR (Pt. 231) 1209 at 1232. The plaintiff has to establish a legal right or sufficient interest in the subject matter, he said, to have the locus to sue and that such right has been infringed – LAWAL VS. SALAMI (2002) FWLR (Pt. 87) 638. Counsel also placed reliance on ADENUGA VS. ODUMERU (2003) FWLR (Pt. 158) 1288 at 1303 – 1304 and OKAFOR VS. OKAFOR (2002) FWLR (Pt. 120) 1712 at 1731 to submit that it is the statement of claim alone, that should be considered by the court in determining the locus of the plaintiff as the proper person to request an adjudication over a subject matter. Learned counsel then referred to paragraphs 13, 14, 15, and 16 of the statement of claim to show that the appellants had contended that the property in dispute belongs to the 1st respondent, a Federal Government Agency, which had sold same to them. They paid the deposits required and that this is what enabled them to acquire interest in the subject matter of the dispute and it is this interest they sought to protect. The defendants, he said, had infringed on that right making them suffer an injury. They therefore have a right to go to court, to protect that right, he argued, since there is a dispute between them and the respondents.
Learned counsel for the appellants referred to page 221 of the record and submitted that the trial court had descended into the substantive matter, rather than decide the locus standi of the appellants. He argued that this was wrong, relying on IJEBU-ODE LOCAL GOVERNMENT VS. SEGUN (2005) ALL FWLR (Pt. 253) 635 at 652 and SOUTH PETROLEUM NIG LTD VS. F.G.N (2005) ALL FWLR (Pt. 240) 187 at 198.
On the issue of auction, which the appellants averred in their statement of claim that it did not take place, and the 1st respondent in the statement of defence had averred that it had taken place and the house sold to the highest bidder, learned counsel for the appellants argued that the trial court had over looked in its Ruling, what the appellants stated in their statement of claim and had considered what the 1st respondent canvassed in its statement of defence, thus believing the 1st respondent and disbelieving the appellants. This was not only unjust and premature, he argued, but was also wrong since a court is not allowed to consider a statement of defence in deciding the locus standi of a plaintiff, as only the statement of claim should lend itself to consideration, even if a statement of defence is filed. Counsel urged us as to resolve the issue in favour of the appellants.
Replying, learned senior counsel for the 1st respondent Mr. Y. U. Usman (SAN) submitted that the position of the appellants to the effect that only the statement of claim should be considered in deciding their locus standi, is not strictly correct. He referred to the case of NIGERIA DEPOSIT INSURANCE CORPORATION VS. OKEM (2004) 7 NWLR (Pt. 766) 272 at 296 and submitted that even a Motion filed by a defendant, can be considered. The trial judge was therefore right he argued, when he considered the facts and the documents annexed to the 1st respondent’s Motion to dismiss the case of the appellants. He emphasised therefore, that the learned trial judge did not descend into the arena, but had based his findings upon the facts deposed to in the affidavits of the parties and the counter-affidavit.
Learned Senior counsel argued that the contention of the appellants in their brief at paragraphs 3 – 11 of pages 7 – 8, to the effect that no auction took place, is not correct in view of the Deputy Sheriff’s letter (page 161 of the record), the acceptance of offer by 4th respondent (page 162 of the record) and the auction notice (pages 98 – 154 of the record). He also referred to the affidavit of the 27th April 2006 of the Federal Government, admitting that the property in issue does not belong to it. So it could not give what it did not have, he argued. Counsel concluded by submitting that from the affidavit and the counter-affidavits, the property in question does not belong to the appellants and does not belong to the Federal Government and so, the appellants have no locus to challenge the auction. He urged us to dismiss the appeal especially as the finding of the trial court that it would amount to her sitting as an appeal court over the decision of the Federal High Court Kaduna for her to entertain the Suit, stands unchallenged.
For the 4th respondents, their counsel, O. O. Soyebo SAN, submitted on the onset, that the 1st respondent’s objection to the Suit was on three grounds – locus standi, jurisdiction and abuse of process. However, the appellants herein, have by their grounds of appeal, only attacked the issue of locus standi. The two other grounds which have not been appealed against, therefore stand unchallenged, it was argued.
On the statement of claim, learned senior counsel argued that the appellants sought mainly the determination of the ownership of the plot in question, contending that it belongs to the Federal Government. Counsel therefore argued that relief (a) in the statement of claim, is the principal relief upon which the other reliefs hang upon, as ancillary reliefs. BANK OF THE NORTH VS. MAIDAMISA (1997) 10 NWLR (Pt. 525) 408 at 422; PHILIPS VS. EYRE (1870) L.R. 6.Q.B. I and TUKUR VS. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (Pt. 117) 517 at 564 – 565 were relied upon. Counsel argued that the appellants would only have the locus standi to institute the action for the ancillary reliefs, only if they have the locus standi to institute the action for the determination of the ownership of the property in question. To this vein, learned counsel argued, the appellants have to show that they are the right persons to request an adjudication of the issue, citing OGUNMOKUN VS. MIL ADMINISTRATOR OF OSUN STATE (1999) 3 NWLR (Pt. 594) 261 at 286 and EZEAFULUKWE VS. JOHN HOLT LTD (1996) 2 NWLR (Pt. 432) 511 at 526. Learned counsel submitted therefore, that a dispute as to whether the property in question is Federal Government Property or vest in it, and is not the property of the 1st respondent, can only be fought between the Federal Government and the 1st Respondent. The appellants cannot bring such an action as they are only meddlesome interlopers, it was argued, having regards to Section 6(6)(b) of the 1999 Constitution and DARAMOLA VS. A.G. ONDO (2000) 7 NWLR (Pt. 665) 440 at 476. Counsel submitted that the trial court was right when it held that the ‘Kaduna Judgment’ had found the property in question to belong to a judgment debtor and the proper person to complain is the Federal Government.
Learned counsel submitted also, that the trial court did not descend into the substantive Suit but had confined itself to the statement of claim and the Motion on Notice filed by the 1st respondent which was not only predicated upon locus standi but upon jurisdiction and abuse of processes and the court was therefore entitled to look at all the processes filed by the parties, to determine the issue of abuse of process. Counsel argued that even if the trial court had delved into the statement of defence, that was in order because the issues of locus standi and abuse of process, are closely tied to the question of jurisdiction and the court was right in considering the statement of defence. Counsel argued finally, that locus standi is synonymous with jurisdiction and so can be raised at any stage of the proceedings and even at the Supreme Court for the first time and on considering the materials before the court – OREDOYIN VS. AROWOLO (1989) 4 NWLR (Pt. 114) 172 at 187; A.G. ENUGU STATE VS. AVOP (1995) 6 NWLR (Pt. 399) 90 at 112; UNITED VS. NAHMAN (2000) 9 NWLR (Pt. 671) 177 at 188 and NDIC VS. CBN (2004) 7 NWLR (Pt. 766) 272 at 296.
Learned senior counsel submitted that the failure of the appellants to challenge the findings of the trial court on jurisdiction and abuse of court process, is fatal to the appeal since a decision which is not appeal against, remains binding and subsisting – OLATUNJI VS. BABATUNDE (2000) 2 SC 9 at 15 – 16 and U.B.A. VS. ONAGORUWA (1996) 3 NWLR (Pt. 439) 700 at 709. Since the decision on those issues are subsisting she argued, the trial court remains without jurisdiction and so even if the appeal succeeds on locus standi, the fortune of the appeal will not change. This court should therefore not grant the orders of setting aside the Ruling of the lower court and remitting the Suit to be tried, as that will amount to making an order in vain – IBIDOKUN VS. ADARALODE (2000) 23 WRN 86 at 107 and IWEKA VS. S.C.O.A. (2000) 3 S.C. 21 at 29. She urged us to dismiss the appeal.
The learned counsel for the 2nd and 3rd respondents B. A. Umegbulem also made submissions regarding the locus standi of a party to institute an action in court, in that he must show that he has a legally recognized interest in the subject matter, and that he must show that he is the proper person to request an adjudication on the matter – OJUKWU VS. OJUKWU (2000) 11 NWLR (Pt. 677) 65 at 72, and U.B.A. VS. BTL LTD (2004) 18 NWLR (Pt. 904) 180 at 220. Counsel submitted, that paragraphs 13, 14, 15 and 16 of the statement of claim only show that the appellants were sub tenants of the 1st respondent, without showing that they purchased the property from the 1st respondent or even that the property belongs to the 1st respondent. He argued therefore, that the statement of claim has not established or shown that the appellants have a sufficient interest in the property in question and so do not have the standing to invoke the judicial power of the court, relying on NWANKWO VS. ONONEZE-MADU (2009) 1 NWLR (Pt. 1123) 671 at 677. Counsel cited FAWEHINMI VS. PRESIDENT FRN (2007) 14 NWLR (Pt. 1054) 275 at 333 to submit that the appellants have not shown that they sued on the authority of the 2nd and 3rd respondents who are the parties with the responsibility of disposing off, the property of the Federal Government, and so, they do not have any power to protect the property in question in court.
Learned counsel also submitted that the appellants have not disclosed the existence of a reasonable cause of action against the respondents and so they do not have any locus to institute the action – WILLIAMS VS. WILLIAMS (2008) 10 NWLR (Pt. 1095) 364 at 390; RINCO VS. VEEPEE (2005) 9 NWLR (Pt. 929) 85 at 96 and N.C.C VS. M.T.N (NIG) (2008) 7 NWLR (Pt. 1056) 229 at 263. He urged us to dismiss the appeal.
In a Reply to the 4th respondent’s brief of argument, filed by the appellants on the 18/5/10, it was submitted that the Ruling of the trial court is that the Appellants lack the locus standi to institute the action because the property having been auctioned, it is only the Federal Government via the 1st – 3rd defendants that have the locus standi to sue, thereby subsuming ground 2 of the objection – jurisdiction – under locus standi. He argued that an attack on locus standi in this appeal, is also an attack on the lack of jurisdiction to entertain the Suit, and so ground 2 of the objection had not been abandoned – UNION BANK VS. NKUK (2004) ALL FWLR (Pt. 234) 1985 at 2008.
On abuse of court process, learned counsel submitted that the trial court did not make any pronouncement on it and so the appellant could not appeal against it – PETTERS VS. JACKSON (2002) FWLR (Pt. 113) 376 at 378; ATOYEBI VS. GOVERNOR OF OYO STATE (1994) 5 SCNJ 62 at 78 and OREDOYIN VS. AROWOLO (Supra).
Learned counsel also submitted that the issue of principal and ancillary reliefs did not flow from the grounds of appeal and was not pronounced upon by the trial court. It is therefore a fresh issue which can only be raised by the 4th respondent by way of a cross appeal or a respondents notice, or with leave of this court – ANYAFULU VS. AGAZIE (2007) ALL FWLR (Pt. 344) 143 at 153 and STANDARD PUBLISHING CO. LTD VS. N.A.B. LTD (2003) FWLR (Pt. 137) 1097 at 1105. No such leave was obtained, he submitted. He therefore urged us to allow the appeal.
All the parties have made submissions correctly, on the definition of locus standi. The term connotes a legal capacity to commence an action in a competent court of law without hindrance. The plaintiff, for him to have the locus standi, must show that he has a special right or that he has sufficient or special interest in the performance of the duty sought to be enforced or where the interest is or will be adversely affected. See AKINNUBI VS, AKINNUBI (1997) 2 NWLR (Pt. 486) 144; NNUBIA VS. A.G RIVERS (1999) 3 NWLR (Pt. 593) 82; and INAKAJU VS. ADELEKE (2007) 4 NWLR (Pt. 1025) 423.
The issue of locus standi, is a condition precedent and thus fundamental to the determination of any action before a court. It is a threshold issue which goes deeply in to the root of the action vis-a-vis jurisdiction of the court itself – ELERO VS. GOVERNMENT OF OGUN STATE (1990) 2 NWLR (Pt. 133) 420 and WAZIRI VS. DANBOYI (1999) 4 NWLR (Pt. 598) 239 at 246. So if a plaintiff has no legal standing to institute an action, the court will have no jurisdiction to entertain his claims. See DADA VS. OGUNSANYA (1992) 3 NWLR (Pt. 232) 754. The averments in the statement of claim must disclose the rights and obligation or interest of the plaintiff that have been violated or about to be or are in imminent danger of being violated
What documents should a court consider in deciding whether the plaintiff has the locus standi to bring the action or not? Since issue of locus standi is one that really goes to jurisdiction, it can be raised any time and at any stage. See ORODOYIN VS. AROWOLA (Supra) at 187 C per ESO JSC of blessed memory. In ADETONO VS. ZENITH BANK (2011) 12 SCNJ (Pt. 11) 497 at 510 – 511, the Supreme Court per Chukwuma-Eneh held: –
“….. as a general principle the averments in the statement of claim and the writ of summons are mainly the materials required at this stage to ascertain the locus standi of a plaintiff, that it is to say, they are the materials relevant in the consideration for the instant question. See …. SEISMOGRAPH SERVICES VS. OSHIE (2009) 19 NWLR PT. 1168) 158 AND 160 E – F.”
The learned justice of the Supreme Court went on at page 516 of this judgment and held that the principle of law he initiated, is not inflexible as “there are cases in which the question of locus standi could not be resolved on the plaintiff’s statement of claim used alone.” It is not the current law therefore, to submit as the appellant had done at page 8 of the brief, that in considering locus standi of a party, the courts are restricted to the statement of claim and even if a statement of defence is filed, it should be overlooked. ADENUGA VS. DUMELU was decided in (2003). The case cited above – ADETONO VS. ZENITH BANK, was decided in 2011, and is therefore the current law. Furthermore, in 2004, the Supreme Court per Uwaifo JSC decided in NDIC VS. CBN (Supra) at page 296 B – E, that: –
“To say, therefore, as did the court below and as canvassed by the plaintiff/respondent before us in its brief of argument that objection to jurisdiction should only be taken after the statement of claim has been filed is a misconception. It depends upon what materials are available. It could be taken on the basis of the statement of claim. See IZENKWE VS. NNADOZIE (1953) 14 WACA 361 at 363; ADEYEMI VS. OPEYORI (1976) 9 – 10 SC 311; KASIKWU FARMS LTD VS. ATTORNEY-GENERAL OF BENDEL STATE (1986) 1 NWLR (Pt. 19) 695. It could be taken on the basis of the evidence received: See BARCLAYS BANK OF NIGERIA LTD VS. CENTRAL BANK OF NIGERIA (1976) 1 ALL NLR 409; or by a Motion supported by affidavit giving the facts upon which reliance is placed. See NATIONAL BANK (NIGERIA) LTD VS. SHIYOYE (1977) 5 SC 181 AT 194, PER OBASAKI, JSC.” (Emphasis mine).
Again, in 2006, Aloma-Mukhtar JSC then, now CJN decided in DISU VS. AJILOWURA (2006) 7 SC (PT 11) 1 or (2006 14 NWLR (Pt. 1000) 783 that: –
“In a case where the opponent is challenging the capacity of a party to sue i.e. its locus, as in this case, a statement of defence is very necessary. I think even if it is not so provided in the rules of the High Court, common sense dictates, that a statement of defence should be filed in order to assist the court in deciding the competence of the case before it, for the consequence of striking out a Suit may be grave on a plaintiff. See IMADE VS. MILITARY ADMINISTRATOR EDO STATE (2001) 6 NWLR (Pt. 709) 478.”
In view of these authorities therefore, the trial court was right, if it utilised the statement of defence in deciding the issue of the locus standi, in the circumstances of this case. The question infact is, did it really utilise the statement of defence? Throughout the length and breadth of the Ruling of the trial court, contained at pages 218 – 221 of the record, I have not seen where a reference was made to the statement of defence of the 1st respondent. This is a court of record, and so unless matters are contained in the record, this court can not speculate or presume anything. Infact, the learned counsel for the appellants has not referred to any paragraph of the statement of defence, said to have been utilised by the trial court. His assertion in this vein cannot therefore stand.
It is worthwhile to note that a party may have the locus standi to file an action, but the court he instituted the action at, may not have the jurisdiction to entertain it. This may arise where the particular court has no jurisdiction to entertain the subject matter, or that it is not properly constituted, or because a statutory provision has ousted its jurisdiction. But where a party has no locus standi to commence the action, then no court, no matter its status, will have the jurisdiction to entertain that action even if it is properly constituted and the subject matter within its competence.
It is not controverted, that the 1st respondent in its Motion on Notice filed before the trial court on the 15/6/06, pages 151 – 152 of the record, raised objection to the appellants’ Suit in their lack of locus standi, lack of jurisdiction of the court to hear the case and abuse of process of the court.
The position of the appellants is that their right and interest, are signified by their purchase and payment of deposits in respect of the property in question. The auction of the property by the respondents, is what infringed their rights, hence this action. The appellants did not say in their statement of claim that the property in question initially belonged to them. Infact, at paragraph 5 of the statement of claim, the appellants averred that their employer, the 1st plaintiff, rented the property in question from Daniel Nwogbo, and that the 1st defendant had offered to sell the said property to their employer, the 1st plaintiff, but it had declined to purchase it (paragraphs 11 and 12 of the statement of claim). They claimed, and based their interests, on the fact that they are the tenants of the 1st appellant, a Federal Government Agency, which sold the property to them.
The challenge to the locus standi of the appellants came about from the Motion on Notice. The affidavit in support deposed to the facts that (1) the property in question does not belong to any of the respondents but that it belongs to one Daniel Nwogbo, a judgment debtor to the 1st respondent herein by virtue of the judgment of the Federal High Court Kaduna, in Suit No. FHC/KD/CS/93/99; (2) that the said Federal High Court ordered for the attachment and sale of the property in question by a public auction, to satisfy the debt owed by Daniel Nwogbo; (3) the property was auctioned, after the relevant notice, in the presence of the 2nd – 13th appellants, and sold to the 4th respondent herein, who accepted and paid for same; and (4) the 2nd – 13th appellants made the payment deposit on the 31.3.06 and 4/4/06, after the auction of the property, a property which the 2nd and 3rd respondents denied ownership of. Many documents were exhibited in support of the depositions.
The respondents to the Motion on Notice (now appellants) filed a counter-affidavit on the 15/8/06. In it, the respondents deposed to the fact that the issue of the ownership of the property in question and the purported auction pursuant to the Order of the Federal High Court Kaduna, is in dispute and will be decided by the trial court. They also deposed to the fact that the 2nd and 3rd respondents did not deny ownership of the property and are still holding their deposits.
It is not only by calling oral evidence that conflicts in affidavits evidence, can be resolved. Where there is authentic documentary evidence in support of one of the affidavits, the court can use that documentary evidence, to resolve the conflict. See ELEGBU VS. FIRST AFRICAN TRUST BANK LTD (1992) 1 NWLR (Pt. 220) 699 at 720.
Page 164 of the record, is the counter-affidavit of Haruna Yunusa, the Head of Data Base and Technical Unit of the Ad-Hoc Committee on Sale of Government Houses in FCT Abuja. He deposed at paragraphs 4(g) and (h), that after the 2nd respondent herein had offered the appellants the property in question, based on information supplied by the appellants, the 1st respondent herein, informed the 2nd respondent, that the appellants had misdirected it, and upon inquiries and investigation, the 2nd respondent discovered that the property in question is not a Federal Government property. Apart from this document, page 120 of the record, is a letter dated 16/1/01 written by the 1st respondent herein, to the Commissioner of Police Kaduna State, informing him that Daniel Nwogbo (the judgment-debtor to the 1st respondent) had refused to refund the sum of N88 Million paid to him for the purchase of a property at Karu and that the 1st respondent, had refused to accept his alternative offer of a property at Wuse Zone 7 (the property in question). That Nwogbo even claimed that the property in question had been purchased by the 1st appellant herein. But on enquiry, the 1st respondent found out that the 1st appellant only rented the property from Nwogbo for two years – November 1999 to November 2001, and not that it had purchased same. Furthermore, at page 116 of the record, is a letter dated 9/10/2000, written by the 1st appellant herein, informing the Assistant Commissioner of Police, Kaduna, that the property in question, was only rented to it for two years from 1/11/99 to 30/11/01, and that it never received any proposal for outright sale of the property or engaged anybody to purchase the said property, thus confirming the position of the 1st respondent at page 120. The 1st appellant had by its own admission, thus, shown that it did not purchase the property in question, and was only a tenant to Nwogbo, for two years. He did not sell it to them. Again, pages 103 – 104, is a letter by the 1st respondent to the Chairman of the Special Committee on sale of Federal Government Houses, dated 30/3/06, informing him that pursuant to a Federal High Court Kaduna Order for sale of the property in question by private entreaty, the property in question had been offered to the 1st appellant herein “for outright purchase” but it had said that it was “not interested in buying” it. These documents support the deposition of the affidavit in support of the Motion on Notice at paragraph 4, that the property in question does not belong to the “1st respondent nor the 2nd or 3rd respondent.” The trial court was entitled, therefore to use them to resolve the conflict in the affidavits in deciding whether the appellants who claimed through these respondents, have a locus to institute the action or not.
It is noted by me, that the appellants did not deny in the counter-affidavit to the Motion on Notice, that there was an Order of the Federal High Court Kaduna in Suit No. FHC/KD/CS/93/99 recognising the property in question to be that of the judgment/debtor, Mr. Daniel Nwogbo (the person who, by the admission of the 1st appellant is the one who rented the property to them but did not sell it to them) and an Order to sell it by private treaty, first, and then later by public auction. They have not denied in the counter-affidavit, that at the auction, the property in question was sold to the 4th respondent. These are material points raised by the 1st respondent, to show that the appellants have no locus standi, especially as there is no denial or counter, to the deposition that the appellants paid the deposits, after the auction had taken place, raising the point, that whoever originally owned the property, no longer had it, after the auction. It is a fundamental principle of law, that where depositions in an affidavit are not challenged, they are deemed admitted by the opposing party. See FASORO VS. BAYIOKU (1988) 2 NWLR (Pt. 76) 263; OKORIE VS EJIOFOR (1996) 3 NWLR (Pt. 434) 90 at 104 and EYIBOH VS. ABIA (2012) 16 NWLR (Pt. 1325) 51 at 77. The trial court was therefore entitled to accept as established, the non-challenged deposition in the affidavit in support of the Motion on Notice, apart from the fact that documentary evidence before the court, had helped to establish them.
In A.G. ANAMBRA VS. A.G. FEDERATION (2007) 12 NWLR (Pt. 1047) 4 at 93 – 94, the Supreme Court held: –
“It is only a person in whom it is vested the aggregate of the enforceable right in a case that has the standing to sue. Accordingly, where a person institutes an action to claim a relief, which on the facts of the matter, is enforceable to another person, then the former cannot succeed because of lack of locus standi…..”
Here, the appellants are praying for a declaration, by their relief 27(a), that the property in question, vests entirely on the Federal Republic of Nigeria, because the 1st defendant (1st respondent herein) as an Agency of the Federal Government, had acquired interest in the property. Since there is a dispute on this, it follows that it is only the Federal Government or its agency, such as the respondents herein, who would have the locus standi, to sue to claim the property, and not the appellants, for that step has to be reached, before the rights of the appellants to purchase the property would accrue. At the moment, their alleged rights are too remote to ground the locus standi in them – ADETONA VS. ZENITH BANK LTD (2009) 3 NWLR (Pt. 1129) 577 at 594. The trial court was therefore right when it held that the appellants have no locus standi because the appellants –
“have shown that the dispute ought to be between the 1st – 3rd against the 4th Defendant” and therefore, the “proper person to complain it will appear to be the Federal Government if it is their property via the 1 – 3 Defendants.”
To make matters worse, the documents of the Federal High Court Kaduna in Suit No. FHC/KD.CS/93/99, have shown that a judgment was given against Daniel Nwogbo and the property in question was ordered to be sold by the judgment/creditor (the 1st respondent) to realise the fruit of the judgment against Daniel Nwogbo, showing that the property in question belong to him. There is no appeal against that judgment or the Orders made subsequently. The law is clear. Judgments and orders of a court of competent jurisdiction, remain valid and subsisting and binding on the parties and their privies (which the appellants are) until they are set aside. See NWORA VS. NWABUEZE (2011) 12 SCNJ 67 at 82 and AKINFOLARIN VS. AKINOLA (1994) 4 SCNJ 30 at 46. The trial court and this court are therefore duty-bound to follow and give effect to the judgment and order of the Federal High Court Kaduna aforesaid. Documents abound before us here, that the appellants were aware of the judgments and the Orders.
Furthermore, a declaratory action is discretionary in that a plaintiff goes to court to get a declaration on existing state of affairs in law, in his favour, based on his statement of claim. When he shows his legal right in existence and in the future, he also has to show that the right is contested. Here the appellants have not shown that their right is contested. In other words, nobody is challenging the claim that if the property they are residing in belongs to the Federal Government, they would be entitled to be offered to purchase same. What the judgment of the Federal High Court Kaduna and the admission of the respondents as agencies of the Federal Government show, and this does not amount to deciding the Suit, is that the property does not belong to the Federal Government, and therefore, the appellants do not posses any right in existence and in the future, to be offered the option to purchase same, since they perforce to claim through the agencies of the Federal Government.
On issue of jurisdiction, the trial court had found that the Federal High Court Kaduna had determined the owner of the property and so the issue could not be re-litigated in a fresh suit before it, relying on AFRICAN INSURANCE CO. VS TDP LTD (2003) 13 NWLR (Pt. 838) 609. The trial court therefore showed that it had no jurisdiction to entertain the suit. I have not seen any ground of appeal attacking this holding of the trial court. It therefore subsists.
However, if the understanding of the appellants is that their appeal includes this aspect, then I hold that it must fail because the trial court had no jurisdiction to entertain the issues already decided and pronounced upon by the Federal High Court Kaduna. The trial court was right that it could not grant the reliefs sought by the appellants/plaintiffs, since they bear directly on the judgment and Orders of the Federal High Court, Kaduna. Furthermore, to grant the reliefs sought by the appellants/plaintiffs, would amount to the trial court sitting on appeal and reversing the judgment of the Federal High Court Kaduna. That would be wrong because a court of co-ordinate jurisdiction, cannot sit on appeal over its counterpart. The trial court had no jurisdiction to entertain the Suit of the appellants. Also tied to this, is the fact that in law, any interest based on a challenge (not appeal) of a decision of a competent court which has not been appealed against, cannot be a valid interest enough, to ground locus standi. It was a wooly contention on the part of the appellants to ground locus standi, despite the unchallenged judgments and Orders of the High Court Kaduna.
The submissions as to whether the argument on principal and ancillary reliefs are in order or are fresh issues which could not be canvassed because there was no cross-appeal, respondent’s notice or leave of court, are really of no moment. This is so because the issue of locus standi and the jurisdiction to entertain the suit can, and had been resolved without the necessity to touch on that aspect. It is therefore of no moment.
From all of the above, I am of the firm view, that the appellants did not disclose sufficient interest, a locus standi, to enable them institute the action before the trial court, and on that basis they could not invoke the jurisdiction of the trial court, to entertain their Suit. However, even if they have the locus standi, the issues raised in the Suit, had been pronounced upon by a court of competent jurisdiction to their knowledge, and since there is no appeal from those decisions, the trial court lacks the jurisdiction to entertain same or sit on appeal over them. The lone issue for determination is thus resolved in favour of the respondents, and against the appellants.
In the result, this appeal lacks merit and it is dismissed, with N30,000 costs to each respondent.
ZAINAB A. BULKACHUWA, J.C.A.: I have read before now the draft of the judgment just delivered by my learned brother A. D. Yahaya, (JCA).
All issues relied in the appeal were admirably considered and I have nothing more to add.
I adopt the reasoning and the conclusions reached therein in dismissing the appeal. I abide by the consequential orders.
REGINA OBIAGELI NWODO, J.C.A.: I had the privilege to read in draft the judgment of my learned brother YAHAYA JCA, just delivered. I agree with the reasoning contained therein and the conclusion arrived thereat dismissing the appeal.
The issue of locus standi is fundamental to the determination of any action before a court. If a plaintiff does not have the legal standing to institute an action, the Court will have no jurisdiction to entertain his claim.
It is only a person in which aggregate enforceable right in a matter is vested that has the right to institute an action to claim a relief.
The Appellant has failed to disclose sufficient interest to enable them institute the action before the trial court. Furthermore, when issue raised in as suit had been earlier pronounced upon by a court of competent jurisdiction on ownership of the property on the same subject matter in issue before the trial Court the later Court lacks jurisdiction to relitigate on the matter unless the Appellate Court so orders. The learned trial judge was correct in his decision that he lacked jurisdiction to adjudicate over the claim.
For the above and the fuller reasoning in the lead judgment which I adopt, hold this appeal lacks merit and is dismissed. I abide by the order as to cost.
Appearances
E. Y. KurahFor Appellant
AND
J. J. Usman, and H. Hassan, S. O. Jimoh, for the 1st Respondent
Betty A. Umegbulem for 2nd & 3rd Respondents
A. M. Kayode and Olabisi O. Soyebo (Mrs.) SAN with M. K. Olayiwole (Mrs.) and Uche Ozoagho for the 4th Respondents.For Respondent
