TOYIN ADEGBESAN v. REGISTERED TRUSTEES OF CHURCH OF MERCY GOSPEL MISSION & ORS
(2012)LCN/5208(CA)
In The Court of Appeal of Nigeria
On Monday, the 5th day of March, 2012
CA/L/445/2005
RATIO
ON THE FUNDAMENTAL ASPECT OF LOCUS STANDI
The issue of locus standi has to do with the person or individual instituting an action and not the subject matter of the action itself. In Senator ADESANYA VS. PRESIDENT, FEDERAL REPUBLIC OF NIGERIA & HON. JUSTICE OVIE WHISKY, HIS Lordship OBASEKI, JSC as he then was held thus:- “Locus standi or standing to sue is an aspect of justiciability and as such the problem of locus standi is surrounded by the same complexities and vagaries inherent in justiciability. The fundamental aspect of locus standi is that it focuses on the party seeking to get his complaint before the High Court; not on the issues he wishes to have adjudicated” (at page 390 of the report). See locus standi, criminal law and the rights of the private prosecutor in Nigeria: FAWEHINMI VS. AKILU & TOGUN Revisited. By M. ADEKUNLE OWOADE, PHD, at pages 109 particularly at page 115 of the Nigerian Juridical Review Vol.4, Published by the Faculty of Law, University of Nigeria, Enugu Campus. Locus standi is quite related to jurisdiction, although they are not exactly the same. If a Plaintiff has no locus standi, the court has no jurisdiction. See OLORIODE & ORS. VS. OYEBI & ORS. 1984 5 SC 1 AT 28. MOHAMMED A. DANJUMA, J.C.A.
JURISDICTION: THE POSITION OF THE LAW ON THE ISSUE OF JURISDICTION
In the same token, the issue of jurisdiction once raised must be settled before proceeding further. See AYMAN INT. LTD VS. AKUMA IND. LTD (2003) 44 WRN page 44 at 47 wherein it was held thus:-
“There is also no doubt that the issue of jurisdiction, being the threshold to any action in court, must be looked into firstly because any proceedings of court in the absence of jurisdiction is futile and the whole proceedings rendered a nullity and where as in this appeal the issue of jurisdiction is raised, the court has a duty to consider the issue timeously before taking any further step in the matter.” The law relating to locus standi, and jurisdiction of the court to try a matter and how locus standi is determined has been well settled that it needs no longer task judicial time or litigations in our courts of law. Only recently, the Supreme Court of Nigeria in the case of ADETONA & ANOR VS. ZENITH INT’L BANK LTD (2011) 12 SC 44 held that “to raise the issue of locus standi or standing or title to sue simply means the capacity to sue and that it goes to the competence or capacity to institute the action to be adjudicated upon by the trial court, see GAMIOBA & ORS VS, ESEZI & ORS (1951) 1 ANLR 544 AT 588. Where the locus standi of the Plaintiff cannot be established by the pleadings the action is liable to be dismissed. Tha t is to say without the court been obliged to go into the merit of the case. That 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 the Plaintiff.” PER. MOHAMMED A. DANJUMA, J.C.A.
JUSTICES:
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MOHAMMED A. DANJUMA Justice of The Court of Appeal of Nigeria
Between
TOYIN ADEGBESAN – Appellant(s)
AND
REGISTERED TRUSTEES OF CHURCH OF MERCY GOSPEL MISSION & ORS – Respondent(s)
MOHAMMED A. DANJUMA, J.C.A. (Delivering the Leading Judgment): At the trial court, the 1st Respondent as plaintiffs had claimed that in 1981 – a grant by one Alhaji Moshood Alado Adams (deceased) of property at No.34, Aladelola Street, Ketu Lagos to build a place of worship was made to them; That a worship place and offices/stores were erected thereon and possession since then had been taken. That the plaintiff gave a small portion to 1st Defendant who erected his welding workshop thereon, being a worshiper and member of the plaintiff’s church then.
The 1st Defendant then refused to remove his temporary structure even after ceasing to attend his worship with the plaintiffs.
In 1998, a public Notice by DEBO AKANDE (SAN) that the plaintiff’s property was the family property of T. L. IGINIA Family was posted on the plaintiff’s said property.
Investigations showed that the property had by the judgment in suit No. IK/170/71 MRS H. A. SHITTA & ORS. VS. OLA OLU TAIWO been adjudged as being on the land belonging to the said IGINIA family; whereupon a purchase of same was made by the said plaintiffs after negotiations through their solicitors CHIEF DEBO AKANDE.
The 1st Defendant trespassed thereon, relying on assignment of same property to him in 1993.
That 1st Defendant defaced the wall and posted several defamatory materials on the wall, erected structures and prevented the plaintiffs from using the premises and in such manner and even against police advise; that he was prosecuted at a magistrate court.
2nd and 3rd Defendants denied the claim and by their joint statement of defence at the trial averred that the 1st Defendant had applied for the ratification of his title to the land and relied on purchase receipt and documents of assignment; that the plaintiff who had protested to them in respect of the application produced no proof of ownership as asserted.
The 1st Defendant averred by his amended statement of Defence that the Lagos State High Court at the suit No. ID/2366/98 had on 20th February, 2001 decided that the plaintiff had no locus standi to institute any action in respect thereof. That the plaintiff was, thereby estopped from instituting the suit. See Amended Statement of defence pursuant to the Order of the Court dated 4th February, 2004 contained at page 10 of the record of proceedings.
At the trial, the plaintiff however, insisted that the said land was validly vested in them as the purported defence that the land had been compulsorily acquired by the Government of Lagos State had no basis; That any acquisition if any had failed as it was not for overriding public purpose thus leaving extant their valid title acquired over the land. Before the hearing on the pleadings, the Appellants herein, by motion on notice dated 16th May of September, 2004 and filed on 27/9/04 moved the Honourable trial court in his capacity as 1st Defendant/Applicant for an order striking the suit for lack of locus standi of the claimant and want of jurisdiction of the Honourable Court.
The ground of the application was that “the subject matter of this suit having been acquired by the Lagos State Government by virtue of Notice No. 236 of 14th of October 1959, published in Gazette No. 25 of 24th October 1969 divested the Claimant/Respondent of locus standi and the court of any jurisdiction in respect of the subject claim, and that the suit was an abuse of court process.
After a careful consideration of the supporting affidavit, the counter affidavit and addresses of the respective parties and the said prohibitive legal notice relied upon in the application, the court gave a considered Ruling. The Ruling is found at page 81 of the Record of Appeal.
By the said ruling, the learned trial judge dismissed the application in its entirety, holding the public lands acquisition Act inapplicable to the claim before the court and sanctioning the applicability and pre-eminent status of the right of the claimant to approach the court and the jurisdiction of the trial High Court to adjudicate or entertain exclusively all such claims; and that the merit of the substantive suit will not be delved into at the interlocutory stage based on pleadings alone.
Dissatisfied with the said Ruling, the Applicant/1st Defendant lodged an appeal to this court and upon two grounds of appeal.
The grounds of appeal, with their particulars thereof are as follows:-
‘GROUND ONE
The learned trial judge erred in law and came to a wrong conclusion when he found thus:-
“The issues in this application with reference to state of pleaded cases of the parties is an invitation to the court to look into what it has to decide at a later stage of the proceedings.”
PARTICULARS
1. The competency of the 1st Respondent to institute this action is a preliminary issue to be decided by the court before taking of evidence commences. See PAKAMA MAKERI VS. SHUAIBU KAFINTA (1990) NWLR (Pt 153) page 411 at 420 par. C.
2. There are averments in the pleadings by all the parties to the suit and affidavit evidence that by Lagos State Government Notice 236 of 14th October, 1959 published in Gazette No. 25 volume 2 of 24th October, 1959 under the public lands acquisition law (chapter 105), Lagos State Government in 1969 acquired the land the subject matter of the suit.
3. There is no dispute that the land was acquired by the Lagos State Government.
GROUND TWO
The learned trial judge erred in law and came to the wrong conclusion in law when he failed to consider the ratio in MAKERI VS. KAFINTA (Supra) and thereby dismiss (sic) the 1st Defendant/Appellant’s application.
PARTICULARS
In MAKERI VS. KAFINTA (Supra) it was held thus:-
“No person has competence or locus standi in a claim of ownership over land which has been acquired by the Government for public purposes.”
GROUND THREE-(without the particulars thereof which are a whole sale reproduction of section 31 of the land use act cap. 102, 1978; section 20 of the public lands acquisition (miscellaneous provisions) Act and section 18 (1) states as follows:-
“GROUND THREE
The learned trial judge erred in law when he failed to find in favour of issue No.1 formulated by him thus:
“Whether or not the public Lands Acquisition Act ousts the jurisdiction of this court to entertain the present claims of the plaintiff as confirmed (sic) by section 31 of the land use Act as the application of section 18 of the public Lands Acquisition Act and section 31 of the land use act cap. 202 LFN are not established.”
Having transmitted the records of this appeal by an order of departure from the Rules granted on 9/5/06 (following the Appellant/applicant’s Motion on Notice dated 1st September, 2005 and filed on 2nd September, 2005), the parties herein filed their respective Briefs of Argument.
The Appellant’s Brief of Argument was filed on 31/5/06. It is dated 30/5/06.
The 1st Respondent on his part filed the 1st Respondent’s Brief of Argument, but with leave of court regularizing same granted on 1/6/11.
The 1st Respondent’s Brief of Argument filed 28/8/06 but dated 20th August 2006 was therefore deemed filed on 1/6/2011.
The Appellant also filed a reply brief on 3/6/11. The 2nd and 3rd Respondents did not, however, file any brief of argument. It should be stated for the records that this appeal had earlier on 2/12/10 been heard but had to be reopened upon discovery that the 1st Respondents brief was adopted in error having been filed out of time.
The Appellants’ brief of argument which was settled by O. OPANUBI, ESQ. of OLADIPO OPANUBI & CO., was filed within time.
The Appeal is against the Ruling of the Lagos State High Court, Ikeja Judicial Division, delivered by HON. JUSTICE D.I. OKUWOBI, wherein the learned Trial Judge had dismissed the application of the Appellant seeking an order of the Court striking out the suit for lack of locus standi of the claimant and jurisdiction of the trial court; That is to say, that at the trial court, the 1st Defendant/Appellant’s motion to strike out the suit for lack of locus standi and jurisdiction on the part of the claimant and the court, respectively were all dismissed, hence this appeal.
A succinct narration of the facts and the circumstances that led to this appeal will throw more light to the crucial and pertinent issue for determination.
This exercise is the necessary and appropriate approach to adopt, as it appears from the issues formulated and argued on both sides that there appears to be a derail into raising and arguing issues that do not arise from the ratio of the Judgment nor from those grounds of appeal that pertinently arise from the ratio decidendi of the Judgment appealed against.
The first Respondent (claimant) had instituted an action by way of writ of summons and statement of claim dated 21st February, 2001 and 22nd March, 2001 respectively. (See pages 1 – 4 of the record)
The 2nd and 3rd Defendants (who are now 2nd and 3rd Respondents) filed their statement of defence dated 2nd July, 2001 (see pages 5 – 6 of the record).
The 1st Defendant (Appellant herein) filed his amended statement of defence and counter claim dated 9th of February, 2004. (See pages 10 – 14 of the record).
The 1st Respondent filed their reply to the 1st Defendant’s Amended statement of defence and defence to 1st Defendant’s counter claim dated 14th April, 2004 (See pages 15 – 16 of the record). After hearing the parties on the Motion striking out the suit for want of locus standi and jurisdiction and Ruling there or, the Appellant in this appeal, has formulated two (2) issues for the determination of this appeal.
Before delving into the issues, I should point out that the Ruling appealed from is at pages 81 – 90 of the record of appeal; whilst the Notice of appeal is at pages 91-93 of the records of appeal.
The Notice of appeal is dated, 22nd March, 2005 and was filed on 10-4-05.
The two issues formulated by the Appellants are as follows:-
ISSUES FOR DETERMINATION
1. Whether application to the lower court to determine the 1st Respondent’s locus standi and therefore the jurisdiction of the court to hear the suit is an invitation to the court to look into what it has to decide at a later stage of the proceedings.
2. Whether the 1st Respondent have (sic) locus standi to institute this suit thereby giving the lower court jurisdiction to entertain it.
The 1st Respondent who adopted the introduction and facts of the case as narrated by the Appellant, on his part, also formulated 2 (two) issues for determination.
The 1st Respondent’s issues are as follows:-
1. Whether the 1st Respondent has locus standi to institute this suit and thereby giving the lower court jurisdiction to entertain it.
2. Whether on the state of the pleadings the order of the lower court to proceed to trial, was right.
From the issues, it is obvious that the 2nd issue of the Appellant and 1st issue of the Respondent are the same.
The Appellant’s 1st issue can be comfortably subsumed into the 2nd issue of the Appellant and is therefore unnecessary; as it is encapsulated in the 2nd issue of the Appellant and upon which 1st issue, I can effectually determine the appeal.
The 1st Respondent’s 2nd issue is encapsulated in the 1st issue also.
I shall however consider all the issues as argued for a proper appreciation of the respective position of the parties herein but the appeal shall be disposed of on the similar issue formulated, as aforesaid.
Arguing his issue No.1, the Appellant countended that the competence to sue or of the Defendant to be sued is a preliminary issue in any action in court; and that this has to be determined before the taking of evidence commences. PAKAMA MAKERI VS. SHUAIBU KAFINTA (1990) 7 NWLR (Pt.63) pages 411 at 420, paragraph D was cited in support.
It was further submitted that the competency to institute an action is an essential or indeed a factor in deciding the competency of the action itself and if challenged by the Defendant the claimant has the burden of establishing it.
LAWAL & ORS. VS. YOUNAN & SONS CO. (1961) ALL NLR 245 at page 254, and PAKAMA MAKERI VS. SHUAIBU KAFINTA (Supra) page 421 paragraphs A – B referred. That the significance of the issue of jurisdiction is well stated in the cases of UBN PLC. VS. BENUE CEMENT CO. PLC (2003) 51 WAN page 19 at 22; It was, therefore, argued that the trial High Court was, therefore, wrong in finding and/or holding that the Appellant’s application is an invitation to the court to look into what it has to decide at a later stage of the proceedings. I must say straight away that the concept of locus standi concerns the capacity of a person to institute legal proceedings in a court of law or other competent tribunal. See Thro S. M: locus standi and judicial review, 1971 Singapore University Press, P.1.
It operates as a practical limitation on the availability of judicial review since it requires that in order to be able to challenge an action; a person must have an interest which is sufficiently affected by the action.
The issue of locus standi has to do with the person or individual instituting an action and not the subject matter of the action itself. In Senator ADESANYA VS. PRESIDENT, FEDERAL REPUBLIC OF NIGERIA & HON. JUSTICE OVIE WHISKY, HIS Lordship OBASEKI, JSC as he then was held thus:-
“Locus standi or standing to sue is an aspect of justiciability and as such the problem of locus standi is surrounded by the same complexities and vagaries inherent in justiciability. The fundamental aspect of locus standi is that it focuses on the party seeking to get his complaint before the High Court; not on the issues he wishes to have adjudicated” (at page 390 of the report). See locus standi, criminal law and the rights of the private prosecutor in Nigeria: FAWEHINMI VS. AKILU & TOGUN Revisited. By M. ADEKUNLE OWOADE, PHD, at pages 109 particularly at page 115 of the Nigerian Juridical Review Vol.4, Published by the Faculty of Law, University of Nigeria, Enugu Campus. Locus standi is quite related to jurisdiction, although they are not exactly the same. If a Plaintiff has no locus standi, the court has no jurisdiction. See OLORIODE & ORS. VS. OYEBI & ORS. 1984 5 SC 1 AT 28.
The question of locus standi is concerned with the overall concept of justice and hence the constant reference to section 6 (6) (b) of the 1999 Constitution which provides thus:-
Section 6 subsection (6):- “The judicial powers vested in accordance with the foregoing provisions of this section – (b) shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”
It is only under paragraph (6) (6) (d) thereof that the competence of a person to challenge and the jurisdiction of the court to entertain suits challenging the competence of any authority or person to make any law on or after the 15th day of January, 1966 could be made an issue. This subsection, now muted and which, in any case, is not called for determination is not even the basis of the challenge raised in the suit at the trial, nor was it the basis for the 1st Respondent’s claim.
The locus standi and jurisdiction of the 1st Respondent and the court, respectively, are not in doubt at all. Being a threshold issue, locus standi, like jurisdiction has to be determined at the inception of the case and from the pleadings of the Plaintiff.
The invitation to consider the issue of locus standi is, therefore, not an invitation to look into what it has to decide at a later stage of the proceedings. However a resolution of this issue in the circumstance is merely an academic exercise as no miscarriage of justice has been occasioned by the ultimate decision based on locus standi. In any case, the issue No. 1 of the Appellant as it were, only relates to the learned trial Judge’s analysis of the pleadings of the parties, wherein the Plaintiff wanted Judgment based on his pleadings, just as the Defendant also wanted upon his statement of defence. It is in that scenario that the learned trial Judge held that “pleadings are not evidence. They only constitute a guide as to how a party intends to prove his case or defend the adversary’s case.
For the Applicant to raise the issues now presented in this application without any iota of evidence in support of averments and for the claimant to argue extensively on the invalidity of the renovation not forming part of the case they presented in court will be doing a total damage to the suit not yet heard on the merit. It is well established principal (sic) that a court will not at an interlocutory decision give what is to be determined in the substantive action at such interlocutory stage.
The courts are therefore advice (sic) to refrain from discussing issues which will determine the substantive action be it under the guise of jurisdiction or not. See UBA VS. ONOGORUWA (1996) 3 NWIR part 439 page 200 at 709.”
It is after the aforequoted words that the trial Judge made the statements forming the subject of the issue raised. The trial Judge was right, in the circumstance, when he so stated, as complained about. The parties, at the trial, carried on with the case as if it was an action to be proved on affidavit evidence or pleadings. The law is that no declaratory Judgment shall be entered upon pleadings alone, but upon evidence.
See MOIR VS. WALLES TENER (1974) 1 ALL ER 400(?). The parties herein, proceeding as they did in submission upon the issues formulated by them at the trial, necessarily warranted the views arrived at and pronounced by the learned trial Judge.
The trial Judge was right; and there was no miscarriage of justice caused to the Defendant, now Appellant.Issue No.1 of the Appellant is resolved against the Appellant and in favour of the Respondent. I shall now proceed to take the determinate issue and that is issue No.2 of the Appellant, which is also issue No.1 of the Respondent.
This issue asks the question whether the 1st Respondent has the locus standi to institute this suit thereby giving the lower court jurisdiction to entertain it.
In arguing this issue, the learned counsel for the Appellant dwelt all through on the argument that the Claimant/1st Respondent had not established his entitlement to the land said to have been acquired by the Government for public purpose. He referred to the case of MAKERI VS. KAFINTA (Supra) and submitted that no person has the competence or locus standi in a claim of ownership over land which has been acquired by the Government for public purposes. Learned counsel for the Appellant, after a prolific reference to the statements of claim and defence, as, well as submissions of counsel at the trial court urged this court to hold that contrary to legislations which he referred to, the Plaintiff/1st Respondent did not have the locus standi to institute the suit.
On his part, the learned counsel for the 1st Respondent submitted that his client had the locus standi to institute the suit (subject of this appeal) and that the trial court therefore had jurisdiction to entertain same.
Submitting, 1st Respondent’s counsel referred this court to the pleadings of the parties, and submitted that the 1st Respondent’s action was in trespass. In this wise he submitted that a person in possession could maintain an action in trespass, as long as he could show exclusive possession; that such a claimant would succeed against any other person including the Appellant herein, except the true owner.
BALOGUN VS. AGBESANYA (2001) 7 NWLR (Pt.741), page 118 at 140 – 141; RICKETTS VS. HASSAN (2002) 2 NWLR (Pt 750) page 94 at 107 paragraphs A – B, page 110, E – F. AMAKOR VS. OBIEFUNA (1974) 1 ALL NLR (Pt 119 referred.
Learned counsel for the Appellant, while drawing from the definition of the phrase “exclusive possession” as stated by OGUNTADE, (JCA) as he then was, in AGBESANWA’S case supra at page 141, paragraph A-B to the effect that “exclusive possession” includes cultivation, erection of buildings, fence and demarcation with pegs at the corners” said the 1st Respondent has averred that it was in possession of the land having erected thereon a place of worship and in their counter affidavit to the Appellant’s application now on appeal had stated that they had an application for interlocutory injunction against the Appellant still pending at the lower court, and also that the Appellant was standing trial at the Magistrate court in MIK/D/331/2001- COMMISSIONER OF POLICE VS. TOYIN ADEGBESAN at the 1st Respondent’s instance, and further that the Appellant had given an undertaking to repair the damages to the 1st Respondent’s building damaged by him. On this basis, it is contended that 1st Respondent has shown that it had the “locus standi,” it been in possession of the land.
Learned counsel submitted that, so long as it was in possession, his possessory title must be protected against all, unless a better title is shown. Its learned counsel contended that the purported ratification of title in favour of the Appellant was being challenged and that the root of title of the 1st Respondent had been pleaded in contradiction of the Appellant’s claims. That the 1st Respondent was entitled to raise the challenge and have whatever ratification of title sought to be conferred on the Respondent stopped or set aside, and his own title affirmed by the court.
Referring to the case of OLORIODE VS. OYEBI, wherein IRIKIFE, JSC (as he then was), stated thus:
“A party prosecuting an action would have locus standi where the relief claimed would confer some benefit on such a party”; ODENEYE VS. EFUNUGA (1990) 7 NWLR (Pt 618 at 639; OWODUNNIYI VS. CCC (2000) 6 SC pt. III p. 60 at 74 lines 21 – 22; SALAMI VS. CHAIRMAN LEDB (1989) 12 SC P. 177 at 190; ATTORNEY GENERAL LAGOS STATE VS. DOSUNMU (1989) 6 SC Pt 11 P. 1 at 8; BLACKS LAW DICTIONARY 5TH EDTION; AJAO vs SOLE ADMINISTRATION for IBADAN CITY COUNCIL (1971) 1 NWIR P. 74, this court was urged to hold that from the pleadings, the 1st Respondent had the locus standi and this court the jurisdiction to entertain the suit.
It is now trite law that the competence of a party to sue is a preliminary issue and must be decided by the court before taking any evidence or further step in the hearing. Once raised it cannot be abandoned by a substitution of the pleadings to ground the answer to the merit of the substantive claim, rather than to answer the objection.
If competence to institute an action is challenged, the claimant has the onus of establishing same. See LAWAL & ORS. VS. YOUNAN & SONS CO. (1961) ALL NLR 245 at 254, PAKAMA MAKAM VS. SHUAIBU KAFINTA (Supra) at page 421 paragraph A-B.
In the same token, the issue of jurisdiction once raised must be settled before proceeding further. See AYMAN INT. LTD VS. AKUMA IND. LTD (2003) 44 WRN page 44 at 47 wherein it was held thus:-
“There is also no doubt that the issue of jurisdiction, being the threshold to any action in court, must be looked into firstly because any proceedings of court in the absence of jurisdiction is futile and the whole proceedings rendered a nullity and where as in this appeal the issue of jurisdiction is raised, the court has a duty to consider the issue timeously before taking any further step in the matter.” The law relating to locus standi, and jurisdiction of the court to try a matter and how locus standi is determined has been well settled that it needs no longer task judicial time or litigations in our courts of law. Only recently, the Supreme Court of Nigeria in the case of ADETONA & ANOR VS. ZENITH INT’L BANK LTD (2011) 12 SC 44 held that “to raise the issue of locus standi or standing or title to sue simply means the capacity to sue and that it goes to the competence or capacity to institute the action to be adjudicated upon by the trial court, see GAMIOBA & ORS VS, ESEZI & ORS (1951) 1 ANLR 544 AT 588. Where the locus standi of the Plaintiff cannot be established by the pleadings the action is liable to be dismissed. That is to say without the court been obliged to go into the merit of the case.
That 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 the Plaintiff.”
The 1st Respondent’s statement of claim speak eloquently of how the 1st Respondent’s interest had been threatened and how he will suffer irreparable damage if not stopped by injunctive reliefs. On the uncontested facts of this case, on the pleadings the 1st Respondent was in possession of land purchased by it, and in respect of which the Appellant claims a ratification of title from 2nd and 3rd Respondents, who have filed no Briefs and whose actions are contested by the 1st Respondent herein.
The question of the merit of 1st Respondent’s claim should not be an issue at this preliminary stage. The 1st Respondent has established sufficient interest in respect of the property in dispute to justify his interference to ask for reliefs to stop the acts of trespass.
In IMADE VS. MILITARY ADMINISTRATOR, EDO STATE (2007) 6 NWLR (Pt.709) 478 CA this court held thus:-
“A person is said to have an interest in a thing when he has rights, advantages, duties, liabilities, losses or the likes, connected with it whether present or future, ascertained or potential, provided that the connection and in the case of potential rights and duties, the possibility is not too remote. The question of remoteness depends upon the purpose which the interest is to serve.”
The aforementioned case aptly captures the degree of the 1st Respondent’s interest or rights vis-a-vis the properly in dispute, the subject matter of this appeal, as pleaded in his statement of claim and defence to counter claim. In fact the counter affidavit to the Application challenging his locus standi and jurisdiction of the court further re-enforces the 1st Respondent, herein. In ADETONA & ANOR VS. ZENITH INT’L BANK PLC (Supra), my Lord CHUKWUMA-ANEH, JSC in his lead Judgment observed as follows:- “Again, having accepted as settled the foregoing, there is the danger in the instant action of one delving too deep into the same aspect of the matter still very live issues to be resolved or settled at the trial of the substantive suit still pending at the lower court. In fact this case has not opened at all since wherefore it has started its journey to this court on account of the instant preliminary objection. In such circumstance, live issues in the matter as here must be left for the substantive trial of the matter. As a matter of principle such live issues should not be pre-empted at the interlocutory stage of hearing an objection.
See with approval MADUBUIKE VS. MADUBUIKE (2001) 9 NWLR (Pt. 719) 698 at 707 at 60 paragraphs 25 -35 and paragraphs 5 – 10 of paragraph 61.”
It is in this respect and on the aforesaid authority that I am in agreement with the trial Judge and the 1st Respondent that the merit of the substantive appeal cannot be delved into at the preliminary stage when the question of locus standi and jurisdiction has been raised. The complaint against the holding or finding in that wise has no legal basis. It fails and the issue challenging that posture by the trial court is resolved against the Appellant accordingly. Having scrutinized the implication of the term, locus standi” vis-a-vis the instant case, it is my view that the 1st Respondent has established substantial interests in the subject matter of this case, and that his interest will be adversely affected if not protected from the immediate alleged wrongful and trespassory acts of the Appellant as enumerated in his statement of claim, Reply or defence to the counter claim and counter affidavit to the application challenging locus standi and jurisdiction of the court. See IMADE VS. MILITARY ADMINISTRATOR, EDO STATE (2007) 6 NWLR (Pt.709) 478 CA. The 1st Respondent by his statement of claim, commenced the suit as follows:-
The plaintiff claims the sum of =N=1m from the 1st Defendant (Appellant) as General Damages for trespass on the plaintiff’s property at No. 34 Aladelola Street Ketu.
(ii) An order of perpetual injunction restraining the 1st Defendant, his servants, privies, from further trespassing or doing anything in consistent with the plaintiffs rights and enjoyment of No. 34 Aladelola Street, Ketu.
(iii) An order setting aside the purported ratification of the 1st Defendant’s title in respect of No. 34 Aladelola Street, Ketu by the 3rd Defendant (ie 3rd Respondent) and/or the issuance of a certificate of occupancy (sic) by the 3rd Defendant to the 1st Defendant (see pages 1 – 4, 15 – 16 of the records).”
In paragraphs 5, 6 and 7 thereof the 1st Respondent pleads his root of title and superior right and interest in the property in these terms:-
(a) It derives its interest from one IGINIA family who had been adjudged the owner of a vast piece of land in suit No. IK/170/71. SHITTA VS. OLA OLU TAIWO including the land herein, by the High Court of Lagos State in a Judgment delivered in November, 1977.
(b) That the Appellant had been given a small portion of the land to erect a temporary structure to carry on his trade as a welder whilst a member of the 1st Respondent Church.
(c) That the Children of one ALHAJI ALADO ADAMS and the Appellant had committed acts of trespass with the Appellant being prosecuted in a criminal proceedings at the Magistrate Court Ikeja for some of the acts complained herein.
(d) 1st Respondent had built thereon a place of worship at No. 34 Aladelola Street, Ketu.
(e) The Appellant had applied to the 2nd and 3rd Respondents to ratify his interest in the said and whereon 1st Respondent has his place of worship.
By the aforequoted averments, the interest of the 1st Respondent and consequently his locus standi to sue is never in doubt. The 1st Respondent has locus standi to sue. This, issue is accordingly resolved in favour of the 1st Respondent and against the Appellant. Having resolved the two issues considered germane for the determination of this appeal, it is my Judgment that the learned trial judge had the requisite jurisdiction to entertain the suit on the claims as made. There is no express auster of the trial judge’s jurisdiction in this matter in respect of which evidence is yet to be led to clarify jurisdictional ouster claimed. The authority inherent in section 6 (6) of the constitution of the Federal Republic of Nigeria, 1999 and the cases cited earlier in this judgment, including ADESANYA VS. FEDERAL REPUBLIC OF NIGERIA (Supra) imbues the trial court with jurisdiction to hear this suit and confers locus standi.
It is interesting to note that the Appellant, in his reply Brief of Argument fifed on 3/6/11, admits that the 1st Respondent was also in possession of the land in dispute. At paragraph 8.0 thereat of the Brief, he submitted thus: –
“The 1st Respondent does not have exclusive possession of the land in dispute. The Appellant enjoys quiet possession of a larger portion of the land…”
From the aforesaid submissions, it is clear that the Appellant does not seriously contest the fact of the 1st Respondent being in possession, though he claims it is not exclusive. The 1st Respondent’s claim is that the Appellants possession, if any is adverse.
The Appellant in the self same Reply Brief, states at paragraph 9.0 that neither of the contending parties has the locus to institute an action in respect of the land since, according to him the land had been compulsorily acquired for public purposes by the government.
This posture is, to my mind, as self defeating as it is an invitation to anarchy. Why would opposing claimants to possession and title not have, any of them imbued with a locus to sue in protection of his asserted or presumed interest against his opponent? Is it the survival of the fittest that is been sought? Is the Appellant setting up the right of the 2nd and 3rd Respondents, who have filed no briefs in the prosecution of this appeal (to set up a Jus tertii i.e. the right of a third party) as a buffer or defence and in furtherance of a spurious objection? I am not at all impressed by the stand of the Appellant, who paddles around the justice of this appeal as is clearly seen in his Brief of Argument that delved rather into the merit of the appeal which has not been heard; and also dwelt on skirmishes that are peripheral as a buffer. Such objections, as raised in this case, should not be encouraged by learned counsel who are not only attorneys for their clients, but ministers in the Temple of justice and conscience. Counsel owe their greater allegiance to the law and the administration of Justice – not to seek to defeat the cause of justice or seek to delay and make protracted or unduly the hearing and determination of matters in court.
As Ngwuta, JSC stated in Adetona V. Zenith Int’l Bank Plc supra at page 76 line 25
“in view of the fact that the law does not permit concurrent possession of the same piece of land by two persons who claim adversely to each other, who was in exclusive possession and, ipso facto, entitled to sue for trespass to the property in question at the material time?
It is the person who was in exclusive possession or entitled to the right of possession in respect of the property. The claim of the Respondent was founded on the legal mortgage executed over the property in its favour.
…even if the Respondent is not a mortgagee in possession, it has a right to immediate possession and that right subsists and prevails against all other claims to title and/or possession of the mortgaged property for as long as the debt remains unpaid.
In conclusion, I hold that the Respondent has the locus standi to maintain an action in trespass against the Appellant. I resolve the lone issue in favour of the Respondent.”
The views expressed aforesaid is most apt and applicable to the circumstances and facts of this case on appeal and I so adopt same. My lords, to drive home the point, His Lordship I.T. Muhammed, JSC, in his own contribution at pages 67 – 73 of the report posed the answer to the question of who has locus standi in land related trespass claim thus:-
“I think the fundamental question in relation to the issue under consideration, is: who can maintain an action for trespass in a suit in land matters? Authorities are legion that trespass to land is actionable or maintainable at the suit of a person in exclusive possession of the land or anyone that has a right of possession. See Eleretsu v. Oyebebere (1992) 1 NWLR (pt. 226) 438 at 455.
The simple reason behind this principle is that exclusive possession of the land gives the person in such possession the right to retain it and to undisturbed enjoyment of it against all wrong doers except a person who can establish a better title. See Amakor v. Obiefuna (1974) 3 S.C, 671 (1974) 3 SC (Reprint) 49; 1974 ALL NLR 109; Olagbemi vu. Ajagungbede III (1990) 5 SC pt. 1 61; (1990) 3 NWLR (pt. 196) 37; Adebanjo v. Brown (1990) 6 SC 63; (1990) 3 NWLR (pt. 141) 667; Thompson v. Arowolo (2003) 4 SC (pt II) 108; (2003) 7 NWLR (pt. 578) 163”
Proceeding, my Lord I.T. Muhammad JCS, aptly restated thus at paragraph 35, page 72 of the report:-
“The trite position of the law is that for a person to have locus standi, he must show that his Civil rights and obligations have been or are in danger of been infringed and that he has sufficient legal interest in seeking redress in a court of taw and whether he succeed or not has no bearing on his standing to sue. See ADESANY vs. PRESIDENT FRN (1981) 5 SC 112; (1981) s sc reprint; ODELEYE vs. ADEPEGBA (2001) 6 NWLR (pt.709) 479 C.A.
… I think, the Respondent is pre-eminently qualified to protect the said property.”
In the result, I find no merit in this appeal. It is dismissed.
The Ruling of the lower court is affirmed. The case ie suit ID474/01 pending at the trial High Court shall be proceeded with and heard on the merit before the said trial court. The unwarranted ploy at delaying the hearing of the substantive suit as executed by the Appellant herein, upon a Notice of objection which otherwise has no basis must be deprecated in the circumstances of this case. At the risk of repetition, I affirm the Ruling appealed against and dismiss this appeal for want of merit.
I award as costs the sum of N50, 000 (Fifty thousand Naira only), in favour of the 1st Respondent only and against the Appellant herein.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother MOHAMMED A. DANJUMA, JCA. I agree with his reasoning and conclusion that the appeal against the interlocutory decision of the trial court is wholly unmeritorious and should be dismissed. I will add a few words for emphasis on the issue of locus standi.
There is no doubt that a person who is in possession of land has an interest to protect in the land and can come to court to seek protection of that interest against all except a person with a better title. A person in possession can be said to have rights, advantages, duties, liabilities, losses or the like, connected with the land whether presently or in future. Thus the pivotal issue in this appeal – that is the question of the locus standi of the 1st Respondent to bring the action for possession at the trial court must be resolved in favour of the 1st Respondent. I dismiss the appeal and abide by all the consequential orders.
SIDI DAUDA BAGE, J.C.A.: I have read the judgment just delivered by my learned brother MOHAMMED A. DANJUMA, JCA. I agree with his reasoning and conclusion that the appeal against the interlocutory decision of the trail court is wholly unmeritorious and should be dismissed.
I abide by the order contained in the lead judgment.
Appearances
I. O. ODUGUWA ESQ. For Appellant
AND
B. I. OKAFOR ESQ. (MISS) for the 1st Respondent
N. A. LAYEMI ESQ. for the 2nd and 3rd Respondent For Respondent
