OBOT v. AG / PT, AKWA IBOM STATE (2021)

OBOT v. AG / PT, AKWA IBOM STATE

(2021)LCN/15523(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Thursday, May 06, 2021

CA/C/193/2017

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

EKONG OBOT APPELANT(S)

And

THE ADMINISTRATOR GENERAL/PUBLIC TRUSTEE, AKWA IBOM STATE RESPONDENT(S)

 

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Akwa Ibom State High Court, Uyo Judicial Division, sitting at Uyo, delivered by Honourable Justice Pius P. Idiong on 11th July, 2016.

By Notice of Appointment to hear originating summons filed on 31/3/2015, the Appellant as Plaintiff prayed the Court for the determination of the following questions:
1. Whether by the combined effect of the provisions of Section 22(1) Administration of Estates Law Cap. 2, Laws of Akwa Ibom State, 2000, Section 11 of Administrator General Law Cap. 4, Laws of Akwa Ibom State 2000, and Section 14(1) of the Administrator General Law Cap. 4 Laws of Akwa Ibom State 2000, the Defendant has the right to automatically take over the administration of the estate of the deceased Late Knight Macartan Ndarake Udo Ibanga distributed under a Will without recourse to the Court while there is pending appeal in the Court of Appeal Suit No. CA/C/249/2014 arising from the decision of the High Court in an action, Suit No. HU/80/2010 challenging the testator’s Will which include No. 181 Aka Road, Uyo?

2. Whether the Defendant under the Administrator General Law Cap. 4 Laws of Akwa Ibom State, 2000 has the power to administer the estate of a person who is still alive or claim title on behalf of any person?

Appellant also sought the following reliefs:
The Plaintiff shall upon the determination of the issues seek for the following reliefs:
1. A DECLARATION that the Defendant has no right and authority to take over the administration and management of the estate of Late Macartan Ndarake Udo Ibanga without recourse to the Court.
2. A DECLARATION that the Defendant is not the rightful person to issue and serve on the Plaintiff a notice to quit in respect of No. 181 Aka Road, Uyo, Akwa Ibom State not being the landlord or the administrator of the estate.
3. A DECLARATION that the Defendant has no right and authority to take over and manage the estate of a person who is still alive or claim title on behalf of any person.
4. AN ORDER setting aside the purported notice to quit issued and served on the Plaintiff by the Defendant as the Administrator General/Public Trustee of No. 181 Aka Road, Uyo, Akwa Ibom State.
5. AN ORDER of perpetual injunction restraining the Defendant from further issuing the Plaintiff with any quit notice, letter or intermeddling with the property in any way or manner.
6. Award of the sum of N200,000.00 (Two hundred thousand naira) only against the Defendant as cost of this action.

The originating summons was supported by 16 paragraph Affidavit sworn to by the Appellant himself.

The Defendant/Respondent with leave of Court entered conditional appearance out of time and filed a motion on notice on 19/6/2015 to challenge the competence of the action on the ground of locus standi of the Plaintiff (Appellant) to institute and maintain the action.

The learned trial Judge upheld the objection by the Defendant/Respondent in his judgment at page 131 of the record of appeal thus:
“On the whole therefore, I am constrained to agree with the Defendant that in the peculiar circumstances of this case, the Claimant has failed, and woefully so, to prove and establish his locus standi to institute this case against the Defendant. In the absence of the Claimant’s locus to institute and maintain the action against the defendant, this Court has no other option than to agree with the Defendant that this action is not properly and competently constituted. As a result, I hold the view that this Court lacks the requisite jurisdiction to hear and determine the suit on its merits for the said reason. The objection of the defendant is therefore meritorious and I uphold it and strike out this action accordingly.”

In abiding with the resolve of the Court, with consent of counsel to the parties to take the objection along with the substantive matter in the case, the learned trial Judge ended up dismissing the Plaintiff’s/Appellant’s case thus, at page 138 of the records:
“In the end, having resolved the said two issues against the Claimant who, of course, has no locus standi to institute the case in the first place, the view of this Court which I now hold is that this case is without any merit. The Claimant is as a result, not entitled to any of the reliefs claimed by him. The case is consequently liable to be dismissed and I hereby dismiss it accordingly. The Defendant is entitled to costs which I hereby assess at N50,000.00 against the Claimant.”

​Dissatisfied with the judgment, the Appellant filed a Notice of Appeal containing two (2) grounds in this Court on 29/7/2016. Appellant’s brief of Argument was filed on 21/7/2017. It is settled by Etim Offiong. Respondent’s brief of Argument was filed on 29/8/2017. It is settled by Abasiubong, Sunday Udo, Ministry of Justice, Uyo.

Learned counsel for the Appellant nominated two (2) issues for the determination of the appeal. They are:
(i) Whether it was proper for the trial Court to proceed to hear and determine the Appellant’s case on the merit after holding that the Appellant has no locus standing to bring the action?
(ii) Whether the affidavit of the Appellant in support of the originating summons did not disclose the interest required by law to establish the locus standi in a matter?

Learned counsel for the Respondent adopted the two issues formulated by the Appellant for the determination of the appeal.

On issue 1, learned counsel for the Appellant submitted that it was not proper for the trial Court to proceed to hear and determine the Appellant’s case on the merit and award cost against the Appellant after holding that it does not have the jurisdiction to hear and determine the case. He referred to the case of OKWU v. UMEH (2016) ALL FWLR (Pt. 825) 232 @ 250 and submitted that the law is that, where a Plaintiff by his pleadings, fails to show that he has a locus to institute an action, no issue in the case can be looked into, not even the question whether or not the statement of claim discloses a cause of action. The only and proper order to make in such circumstances is that of striking out.

It follows, said counsel, that the trial Court did not have the jurisdiction to make any other pronouncement or order in the case. He submitted that where a Court is robbed of the jurisdiction to hear and determine any matter, the Court cannot proceed to make further pronouncements or orders in the case. This, said counsel is so because, such Court is only empowered to declare that it does not have the jurisdiction to hear and determine the case and nothing more.

​That immediately after that pronouncement, the Court is automatically robbed of the jurisdiction to go on with the case because upon the trial of striking out the case, the trial Court becomes functus officio. Any further order becomes a nullity.

He referred to the case of LADO v. C.P.C. (2014) FWLR (Pt. 607) 598 and urged us to hold that it was not proper for the trial Court to proceed to hear and determine the Appellant’s case on the merit after holding that the Appellant has no locus standi to bring the action.

On issue 1, learned counsel for the Respondent submitted that the learned trial Judge was right to have determined the Appellant’s case on merit after holding that the Appellant has no locus standi. He referred to the cases of OSUNBADE v. OYEWUNMI (2007) ALL FWLR (Pt. 368) 1004 @ 1014 and KATTO v. CENTRAL BANK OF NIGERIA (1991) 9 NWLR (Pt. 214) 149 @ 150, (1991) 12 SCNJ 1 for the proposition that, it is advisable for the Court below to express an option on the substantive issue even when it holds that it lacks jurisdiction.

In deciding issue No. 1, let me first point out that the cases of OSUNBADE V. OYEWUNMI (supra) and KATTO v. CENTRAL BANK OF NIGERIA relied upon by the Respondent were decided by the Supreme Court at a time when the apex Court tenaciously held on to the view that, even if the Court of Appeal (Court below) declines jurisdiction to hear an appeal, it should nevertheless make its view known as to the merit of the appeal for guidance of the apex Court. That is not the position in the instant case.
This is quite apart from the fact that the apex Court is now of the view that when there is a decline of jurisdiction by the intermediate Court – Court of Appeal, it needs not express views on other issues raised in the appeal. See IKECHUKWU v. FRN (2015) NWLR (Pt. 1457) 1 @ 21; BRAITHWAITE v. SKYE BANK PLC. (2013) 5 NWLR (Pt. 1346) 1; ONI v. CADBURY NIG. PLC. (2016) 9 NWLR (Pt. 1516) 80; EKEMEZIE v. IFEANACHO (2019) 6 NWLR (Pt. 1668) 356; APC. v. UMAR (2019) 8 NWLR (Pt. 1675) 564; L.M. ERICSSON NIG. LTD. v. AQUA OIL NIG. LTD.(2011) LPELR – 8807; NPA. v. EYAMBA (2005) 12 NWLR (Pt. 939) 409; UBN. v. SOGUNRO (2006) 16 NWLR (Pt. 1006) 504.
Having upheld the Defendant’s/Respondent’s objection on locus standi, the learned trial Judge ought not to proceed to consider the merit of Plaintiff’s/Appellant’s case.
The law was well stated by the Supreme Court in the case of OKWU v. UMEH (2016) ALL FWLR (Pt. 825) 232 @ 250 thus:
“It is trite that when a Plaintiff has been found not to have the standing to sue or locus standi as in the instant case, the question whether other issues in the case had been properly decided or not does not arise. This is because, the trial Court had no jurisdiction to entertain the claim. The correct position of the law therefore is that, where a plaintiff is held to lack the locus standi to maintain his action, the finding goes to the jurisdiction of the Court and denies its jurisdiction to determine the action. The proper order in such situation therefore, is to strike out the claim.” At page 250 paragraph H.
Indeed, locus standi or legal capacity to institute proceedings in a Court of law is not dependent on the success or merits of a case, it is a condition precedent to a determination of a case on the merits. See OWODUNNI v. REGISTERED TRUSTEES OF C.C.C. (2000) 6 SC (Pt. 111) 60; A-G, AKWA IBOM STATE v. ESSIEN (2004) 7 NWLR (Pt. 872) 288.
​By the same token, locus standi and jurisdiction are interwoven, in the sense that locus standi goes to affect the jurisdiction of the Court before which an action is brought. Thus, where there is no locus standi to file an action in the first place, the Court cannot properly assume jurisdiction to entertain the action. See WAZIRI v. DANBOYI (1999) 4 NWLR (Pt. 598) 239; AYOOLA v. BARUWA (1999) 11 NWLR (Pt. 628) 595.
Still on issue No. 1, learned counsel for the Respondent should be reminded that even in situations when the Court of Appeal followed the admonition of the apex Court in cases such as KATTO v. C.B.N. (supra), the intermediate Court would not decline jurisdiction in one breath and at the same time, dismiss or grant a claim on merit. Such an order would be inconsistent and indeed devoid of jurisdiction. Where an opinion was to be expressed on the merit of a case after a decline of jurisdiction, the intermediate Court would merely say that “the appeal ought to be dismissed” or “the appeal ought to be allowed” but that having declined jurisdiction, “the appeal is struck out”.
In the instant case, the learned trial Judge was in error to have dismissed the Appellant’s case after ruling and upholding the Defendant’s/Respondent’s objection on jurisdiction via locus standi.
​Issue No. 1 is resolved in favour of the Appellant.

On issue 2, learned counsel for the Appellant submitted that the supporting affidavit of the Appellant when considered together with the entire exhibits attached thereto disclosed the Appellant’s locus standi to bring the action contrary to the position of the trial Court. He reasoned that, what is to be considered is the issue of locus standi and not the merit of the Appellant’s case. The issue of locus standi is different from the merit of the case. And, that a plaintiff may have the locus standi to bring an action, but the case may not have merit.

​He submitted that in the instant case, the Appellant in his supporting affidavit stated that he is a tenant in the property in issue and that he has been paying rent to his landlord’s son upon the demise of the original landlord. The Appellant stated further that upon the death of the original landlord, the Will of the deceased landlord was challenged and that as at the time the Respondent wanted to evict him from the property, the issue concerning the administration of the property of the deceased landlord was still pending in the Court of Appeal. The Appellant in that circumstance sought to protect his interest of possession as a tenant and nothing more. He referred to paragraphs 3, 5, 6, 8, 9, 10 and 11 of the Affidavit in Support of the originating summons at pages 5 through 9 of the record of appeal.

He submitted that by those averments in the Appellant’s supporting affidavit and the exhibits attached thereto, the Appellant properly established his locus standi to maintain the action contrary to the position of the trial Court. The facts required to establish the locus standi to bring an action to protect the interest of possession by a tenant cannot be ranked with the same facts required to establish the locus standi to protect title to the property by the landlord or any person entitled to immediate reversionary interest in a rented apartment. That, in the instant case, what the Appellant needed was the facts to establish his locus standi as a tenant to bring the action. It is not in doubt that in doing so, the Appellant clearly stated that he is a tenant in the property and that was not denied nor contested by the Respondent.

​He reasoned that the case of the Appellant at the trial Court was whether the Respondent had the right to commence eviction processes against him in the circumstances of the case. He submitted that the Appellant had the right to approach the trial Court to prevent the Respondent from evicting him from the property. He did not need to ask the landlord to take any legal action since the landlord was not in possession and he was seeking to protect his possessory interest that was affected or about to be affected by the Respondent’s action and the action of the Respondent was targeted at the Appellant and not his landlord.

He submitted that for the Appellant to establish his locus standi, he did not need to state that he is the landlord of the property or the executor of the estate of the deceased Macartan Ndarake Udo Ibanga. All that the Appellant needed was to show his interest in the property as a tenant and that, his interest is injured or is about to be injured or affected by Respondent’s action. The law, he says is that, for the Plaintiff to establish his locus standi, he must state in his statement of claim or supporting affidavit, as in this case, his interest on the property/subject matter or threat of injury he would suffer, which is being sought to be protected. He referred to the case of BAKARE v. AJOSE-ADEOGUN (2014) ALL FWLR (Pt. 737) 611 particularly page 636, paragraphs A-B.

In the instant case said counsel, the Appellant clearly stated that he is a tenant and that the Respondent has started threatening his right to possession. That alone, was enough to establish his locus standi to institute the action. This is so because, the Appellant will be guilty of standing by if he allowed the Respondent to proceed with the eviction processes knowing very well that he will be affected. It was never a matter for the landlord, Joseph Macartan Ibanga as contended by the trial Court. Already, said counsel, Joseph Macartan Ibanga was pursuing his case in the Court of Appeal and he was not in actual possession of the premises that the Respondent sought to evict the Appellant from.

The law, said counsel, is that, once averments disclose the rights and obligation or interest of the plaintiff which has been violated or threatened with violation or infringement, then the suit has disclosed the plaintiff’s locus standi. He referred to the case of UMAR v. WHITE GOLD GINNERY NIG. LTD. ​ (2007) ALL FWLR (Pt. 835) p. 1096 particularly @ 1120 paragraphs E-G.

He concluded that in the instant case, the averments of the Appellant have disclosed the locus standi of the Appellant, as such, the trial Court wrongly arrived at the decision that the affidavit did not disclose the locus standi of the Appellant. He urged us to set aside the decision of the trial Court and hold that the Appellant has the locus standi to bring this action.

On the other hand, learned counsel for the Respondent submitted that the affidavit of the Appellant did not disclose the interest required by law to establish the locus standi in the case. He referred to the cases of TONY ANOZIA v. A.G, LAGOS STATE (2010) 15 NWLR (Pt. 1216) 207 @ 234; A.G DELTA v. ASIN & ORS (2010) 16 NWLR (Pt. 1219) 347 @ 362 and reminded us that locus standi is the legal capacity which a plaintiff must have, to institute an action in Court and for him to be heard by the Court.

Respondent’s counsel further referred to the case of BAKARE v. AJOSE-ADEOGUN (2014) ALL FWLR (Pt. 737) 611 that, once the claimant’s locus standi is challenged, the question which the Court should concern itself with is whether such a party is a proper person to request the Court to adjudicate on a particular issue and not whether the issue in question is justiciable.

Learned counsel to the Respondent in applying the above test came to the conclusion that the affidavit in support filed by the Appellant did not disclose the interest required by law to establish the locus standi in the matter. The only interest of the Claimant in the said property is no more than that of a tenant.

Respondent’s counsel submitted further that the Appellant claim declaratory reliefs without showing specific or particularized legal rights or interest of his own which must be in issue and in need of protection, pursuit, prosecution or defence.

Once again, Respondent’s counsel referred to the decision of the Court of Appeal per Saulawa J.C.A. in the case of TONY ANOZIA v. A.G LAGOS STATE (2010) 15 NWLR (Pt. 1216) 234 to say that in order to determine whether or not a party has locus standi to file an action in a Court of law, the cause of action brought before the Court must be critically examined.

​He concluded that the learned trial Judge was correct when he held that the Appellant has no locus standi to institute the case against the Respondent in the property at No. 181 Aka Road, Uyo, whose estate was surrendered to the Administrator General/Public Trustee, Akwa Ibom State.

In relation to issue 2, a perusal of the Respondent’s affidavit in support of the motion on notice to strike out the Plaintiff’s/Appellant’s originating summons for lack of locus standi and the Appellant’s Counter-Affidavit of 4 paragraphs in opposition on page 101 of the records, reveal that the parties are not in dispute that the only factual basis by which the Appellant sought to maintain the action is the claim of the Appellant that his landlord is Joseph Macartan Ndarake Ibanga and not the Respondent Defendant/Applicant.

Definitely, the possessory right (if any) of the Appellant as tenant could not in law have granted locus standi to maintain an action with the questions 1 and 2 for determination in the Appellant’s originating summons and at the same time, could not maintain reliefs 1 and 3 in the reliefs purportedly claimed by the Appellant.

This, to my mind is precisely the reason why the learned trial Judge held that on a proper examination of the Plaintiff’s/ Appellant’s cause of action, he could not be said to have the legal right or sufficient interest in the action to be heard by a Court of law.

It was on this premise that the learned trial Judge referred on pages 127-128 of the records to the cases of TONY ANOZIA v. A-G, LAGOS STATE (2010) 15 NWLR (Pt. 1216) 207 @ 234; A-G, DELTA STATE v. ASIN & ORS (2010) 16 NWLR (Pt. 1219) 347 @ 362; SHIBKAU v. A-G, ZAMFARA STATE (2010) 10 NWLR (Pt. 1202) 312 @ 337 and held that in determining whether the claimant has the standing to institute the action and be heard by the Court, the focus is not and should not be on the merit or otherwise of the issues which he seeks to ventilate before the Court. Instead, the Court should focus on the party himself. As a result, once the claimant’s standing or locus is challenged, the question which the Court should concern itself with is, whether such a party is a proper person to request the Court to adjudicate on particular issues and not whether the issue in question is meritorious or justiciable.

Indeed, locus standi or standing to sue is the legal right of a party to an action to be heard in litigation before a Court of law or Tribunal. A person is said to have locus standi if he has shown sufficient interest in the action and that his civil rights and obligations have been or are in danger of being infringed.
Thus, for a person to bring an action in respect of any subject matter, such a person must show that he has a legal right or special interest in that subject matter. See AKINNUBI v. AKINNUBI (1997) 2 NWLR (Pt. 486) 144 SC; A-G, AKWA IBOM STATE v. ESSIEN (2004) 7 NWLR (Pt. 872) 288; INAKOJU v. ADELEKE (2007) 4 NWLR (Pt. 1025) 423 SC; GUDA v. KITTA (1999) 12 NWLR (Pt. 629) 21; AKANNI v. ODEJIDE (2004) 9 NWLR (Pt. 879) 575.
In the instant case, the Plaintiff’s/Appellant’s disclosed legal capacity as a tenant of Joseph Macartan Ndarake Ibanga would not be sufficient to maintain questions 1 and 2 and reliefs 1 and 3 as contained in the Appellant’s originating summons.

​The learned trial Judge was right to have held that the Appellant has no locus standi to maintain the action.

Issue No. 2 is resolved against the Appellant. In this appeal, issue No. 1 was resolved in favour of the Appellant, but issue No. 2 was resolved against the Appellant. In consequence, the appeal is allowed in part.

The portion of the judgment of Pius P. Idiong J. which dismissed the Plaintiff’s/Appellant’s case is hereby set aside.

The learned trial Judge was however right to hold that the Plaintiff/Appellant has no locus standi to maintain the action. In consequence, the learned trial Judge had no jurisdiction to embark on trying the case.

Suit No. HU/51/2015 is incompetent and it is accordingly struck out. Parties to this appeal are to bear their respective costs.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance, in draft, the judgment just delivered by my learned brother, Mojeed Adekunle Owoader J.C.A. and I agree entirely that the Court below having found that the plaintiff lacked the standing to institute the action ought to have struck it out instead of dismissing it.

For the reasons more elaborately stated in the lead judgment, I too allow the appeal in part. Suit No. HU/51/2019 is also struck out by me.

​I abide by all other orders in the lead judgment including the order as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have read in draft the judgment delivered by my learned brother, Mojeed A. Owoade, J.C.A.

My learned brother has painstakingly dealt with all the issues raised and canvassed in this appeal. I agree with his reasoning and conclusion in the appeal.

​I too allow the appeal in part and abide by all the consequential orders.

Appearances:

ETIM OFFIONG, ESQ. For Appellant(s)

ABASIUBONG, SUNDAY UDO For Respondent(s)