USOOIYOL v. AORTYO (2022)

USOOIYOL v. AORTYO

(2022)LCN/16596(CA)

In the Court of Appeal

(MAKURDI JUDICIAL DIVISION)

On Monday, May 09, 2022

CA/MK/208/2018

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Muslim Sule Hassan Justice of the Court of Appeal

Between

SAMUEL USOOIYOL APPELANT(S)

And

FIDELIA TERDOO AORTYO RESPONDENT(S)

RATIO

THE FUNDAMNETAL PRINCIPLE OF JURISDICTION

Jurisdiction is the limit imposed on the power of a validly constituted Court, to hear and determine issues between persons seeking to avail themselves of its process, by reference to the subject matter of the issues, or to the persons between whom the issues are joined, or to the kind of reliefs sought. A.P.G.A. v. Anyanwu (2014) 7 NWLR (Pt. 1407) 541 at 582; Fidelity Bank Plc v. Ogiri (2013) 2 NWLR (Pt. 1337) 182 at 200. It is a term of comprehensive import embracing every kind of judicial action. The term may have different meanings in different context. It is the limits imposed on the power of a validly constituted Court to hear and determine issues between persons seeking to avail themselves of this process by reference to the subject matter of the issues or the persons between whom the issues are joined or the kind of relief sought. Goodwill & Trust Invest. Ltd & Anor v. Witt & Busch Ltd (2011) 2-3 SC (Pt. 1) 176 at 21-212. When used in the sense of proper venue, signifies the limits of the territorial jurisdiction of Court. George v. S.B.N. Plc (2009) 5 NWLR (Pt. 1134) 302 at 320.
To determine the issue of jurisdiction, recourse must necessarily be made to the plaintiff’s claim in his writ of summons and/or statement of claim at the lower Court. Same is also circumscribed by statute. See S.T.B. Plc v. Olusola (2008) 1 NWLR (Pt. 1069) 561 at 591.

THE POSITION OF LAW ON WHEN THE ISSUE OF JURISDICTION CAN BE RAISED

An objection to the jurisdiction of the Court can be raised at any time; even when there are no pleadings filed and the party raising such objection need not bring it under any rule. A.G. Kwara State v. Olawale (1993) 1 NWLR (Pt. 272) 645 at 674-675. It can’t be waived nor can it be conferred by parties consenting to vest Court jurisdiction where none exists nor can any issue of estoppel arise because estoppel can’t enlarge the jurisdiction of a Court of limited jurisdiction. Nigerite Limited v. Dalami (Nig.) Limited (1992) 7 NWLR (Pt. 253) 288 at 297. PER HASSAN, J.C.A.

THE POSITION OF LAW ON LOCUS STANDI

Locus Standi as we all know is the legal capacity of instituting or commencing an action in a competent Court of law or Tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever including the provisions of any existing law. The fundamental aspect of locus standi is that it focuses on the party seeking to get its complaint heard before the Court. Nyame v. F.R.N. (2010) 3 SC (Pt.1) 78 at 132-133.
The rule about the locus standi developed primarily to protect the Courts from being used as a playground by professional litigants, or, and meddlesome interlopers, busy bodies who have no real stake of the litigation. A Plaintiff satisfies the Court that he has locus standi if he can show that his civil rights and obligations have been or is in danger of being infringed. There must be a nexus between the Claimant and the disclose cause of action concerning his right and obligations, and locus standi is determined by examining only the statement of claim. Furthermore in determining whether a party has locus standi the chances that the action may succeed is irrelevant consideration. They are two tests in determining locus standi of a person. They are: (1) The action must be justifiable; (2) There must be a dispute between the parties. Taiwo v. Adegboro & 2 Ors (2011) 5 SC (Pt. II) 179 at 196-197.
An objection to a Plaintiff’s locus standi attacks his competence to sue as to whether he has any legal or equitable interest to protect and this is linked to jurisdiction of the Court as the action would not have been initiated by due process of law. See the case of Nwachukwu v. Nwachukwu & Anor (2018) LPELR-44696 (SC) per Onnoghen, CJN (as he then was) at pages 10-11 stated:
‘’It is now settled law that jurisdiction is the life blood of adjudication in that any decision by a Court that lacks jurisdiction to hear and determine a matter how well conducted See Madukolu v. Nkemdilim (1962) NSCC 374 at 379-380. When can it be said that a Court has jurisdiction to hear and determine a case. As stated earlier, the Supreme Court in the above cited case decided that for a Court to have the requisite jurisdiction to hear a matter:
(a) The Court must be properly constituted as regard numbers and qualifications of members of the bench, and no member is disqualified for one reason or another;
(b) The subject matter of the case is within the jurisdiction of the Court and there is no feature in the case that prevents the Court from exercising its jurisdiction; and
(c) The case comes before the Court initiated by due process of the law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.”
The issue of locus standi legal capacity to institute an action is closely linked to issue of jurisdiction as the Appellant is contending that an incompetent party to a suit by lack of locus standi cannot evoke the jurisdiction of the Court to entertain the suit it follows without saying that issue of jurisdiction can be raised at any stage of the case, be it at the trial, on appeal to the Court of Appeal or to the Supreme Court and a fortiori the Court can suo motu raise it contrary to the submission of learned counsel for the Respondent. On this see Owners of M.V. Arabella v. N.A.I.C. (2008) 11 NWLR (Pt. 1097) 182. Whether the issue of jurisdiction raised by the Appellant will succeed is irrelevant consideration but it can be raised at any stage of the proceedings. PER HASSAN, J.C.A.

WHETHER OR NOT A PARTY MUST SUCCEED ON THE STRENGHT OF HIS CASE AND NOT THE WEAKNESS OF THE OTHER PARTY

The law is trite that a party succeeds on the strength of his case and not the weakness of the other party. The rules of pleadings for all intents and purposes apply to counter-claim. A counter-claim is an independent action, which enables a Defendant to enforce a claim against a Plaintiff. It is by nature a ‘sword’ and not a ‘shield’. Thus, the rules of pleadings apply with the same force and potency to a counter-claim and a defence to a counter-claim as if they are respectively a Statement of Claim and a Statement of Defence. See Amata v. Omofuma (1997) 2 NWLR (Pt. 485) 93 (CA). A counter-claim is a cross-action, fresh and distinct from the one commenced by the Plaintiff. A counter-claimant is a Plaintiff in his own right though he will still be referred to as Defendant to avoid confusion. See Union Bank Plc v. A. Ishola (2001) 15 NWLR (Pt. 735) 47 CA. A Counter-Claim is different from the Plaintiff’s claim and requires evidence to prove it. Ige v. Farinde (1994) 7 NWLR (Pt. 354) 42.
A Counter-Claim is a claim which must be proved to the satisfaction of the Court as required by law. The onus of proof which lies on the Plaintiff to prove his claim is also on the Defendant to prove the averments in his counter-claim against the Plaintiff or he will fail in his claim. PER HASSAN, J.C.A.

MUSLIM SULE HASSAN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Benue State High Court sitting at Makurdi delivered by Hon. Justice S. O. Itodo in Suit No. MHC/329/2018, on the 5th day of June, 2018, wherein the trial Court dismissed the claims of the Appellant.

The Appellant was the Plaintiff, while the Respondent was the 1st Defendant/Counter Claimant at the trial Court. The Appellant being aggrieved with the decision of the trial Court had appealed against same to this Court.

The Record of Appeal was compiled and transmitted to this Court on the 4th of October, 2018. The Appellant’s brief was filed on the 23rd of February, 2021, while the Respondent’s brief of argument was filed on the 8th of March, 2021. The Appellant upon being served with the Respondent’s brief of argument, filed a reply brief of argument on the 24th December, 2021.

At the hearing of the appeal, counsel to both Appellant and Respondent adopted their respective briefs. The Appellant amended his notice of appeal, and the said amended Notice of Appeal was filed on the 23rd of February, 2021. Appellant equally filed additional grounds of appeal on the 23rd of February, 2021. The Appellant’s amended Notice of Appeal filed on the 23rd of February, 2021, has 3 grounds of appeal distilled by the Appellant, while the additional grounds of appeal contain 2 grounds challenging the judgment of the trial Court.

The Appellant who was Plaintiff at the Trial Court commenced this suit by a writ of summons dated 9th of October, 2012, and filed on the same date, which was issued to the Respondent who was tagged as the 1st defendant at the trial Court. The reliefs sought by the Appellant against the Respondent by paragraph 20 of the Appellant’s statement of claim accompanying the writ are as follows:
a. The total value of the items as per paragraphs 13–19 of the statement of claim at the sum of Fifty-Five Thousand Seven Hundred and Fifty Naira (N55,750.00).
b. Two Hundred Thousand Naira (N200,000.00) for the fence demolished by the Defendants.
c. Total cost and expenses of this suit.
d. Five Hundred Thousand (N500,000.00) as general damages. See page 6 of the Record of Appeal.

The Respondent as the 1st Defendant upon being served with the writ and accompanying documents, filed a counter-claim against the Appellant as first Defendant to counter-claim and Zaki Yina Ala and Simon Ahongba Orban as the 2nd and 3rd Defendants to counter-claim respectively. The Respondent’s Counter claimed in paragraph 3 of his counter-claim as follows:
a. A Declaration that 1st Defendant/Plaintiff is the owner of plot BNB 7142.
b. 5,000,000.00 general damages against the 1st, 2nd, 3rd Defendants jointly and severally in trespass and mischief.
c. N200,000.00 general damages against the 1st Defendant for looting of household property, building materials and destruction of trees on the subject plot.
d. An Order of perpetual injunction restraining the defendants to the counter-claim and their agents and privies from further trespass of plot BNB 7142, and from further harassment, or disturbance of the counter-claimant in respect of plot BNB 7142. See page 22 of the Record of Appeal.

BRIEF STATEMENT OF FACTS
The case of the Appellant against the Respondent and one unknown person at a glance was that the Appellant owns a plot of land at Zaki Yina Ala Settlement Area near Owners’ occupier housing and the plot of land is presently undergoing structural development (building project). That on the 18th day of September, 2012 while Appellant’s workers were working on the land, the Respondent in the company of some group of unknown persons arrived the site and ordered workers on the site to stop work immediately or else they will deal with them.

The Appellant’s case is that the workers then stopped working and the Respondent and the unknown persons collected the workers’ implements/tools, and the Respondent and the unknown persons demolished part of the perimeter fence that was just built by the Appellant. That following the interruption of work by the Respondent and the unknown persons, cement mixed with water and sharp sand could not be used and same solidified without use. The Appellant provided estimates of the mixed cement, two wheel barrows, 3 shovels, 3 trowels, 2 proms, 3 head pans, 300 liters of preserved water and 2 bags of cement all lost or damaged or taken away by the Respondent and the unknown person and the cost in order to establish his claims. See pages 4–6 of the Record of Appeal.

The Respondent’s case which forms the basis of his counter-claim against the Appellant and Defendants to the counter-claim is that the disputed plot of land which the Appellant is developing and he has no title document for same belongs to her late husband Fidelis Aor-tyo who bought it and occupied same before his demise. That her late husband even made one room rectangular building and built 3 round huts on the said land and had started processing title deeds thereof under Application No. BNB 7142 before he died.

The Respondent’s case is that she never attacked the Appellant’s workers neither did she remove any tools or materials on the site in the company of any unknown persons or even caused any structural demolition as alleged by the Appellant, but that she promptly reported the trespass to her land to the Nigeria Police Force, Makurdi.

That the 2nd Defendant to counter-claim who was the person who sold the land to Respondent’s late husband has for several decades being a controversial land speculator who extorted N20,000 from the Respondent, after which he sold part of the land to Michael Kobo and also demolished Appellant’s rectangular and 3 round hut, and destroyed economic trees. That it was when Respondent pleaded with the 2nd Defendant to counter claim to return her looted properties by seeking the intervention of elders that she in June, 2012, discovered that 2nd Defendant to counter claim had sold 100×50 ft to Appellant, who engaged worker to work on the land day and night such that as at 09/10/2012, the structure was at roofing stage.

The Respondent stated that she reported the 2nd Defendant to counter-claim to the E Division of Makurdi Nigeria Police and he made statement at the police station claiming that he has forgotten the Appellant’s name, the person whom he sold Respondent’s land to. See pages 19–22 of the Record of Appeal.

At the close of hearing, both parties filed and adopted their final written addresses. The Appellant’s final written Address is found at pages 252–258 of the Record of Appeal while the Respondent’s written address is found at pages 245–251 of the Record of Appeal. The trial Court in her considered judgment delivered on the 5th day of June, 2018, found at pages 262–265 of the Records of Appeal entered judgment in favor of the Respondent, hence, this appeal.

ISSUES FOR DETERMINATION
The Appellant for the determination of this appeal distilled two issues for determination as follows:
Whether the trial Court had jurisdiction to adjudicate on the Respondent’s counter-claim before it? Grounds 1 and 2 of Additional Grounds of Appeal.
Whether the Court below properly evaluated the evidence adduced before it? Distilled from grounds 1, 2, and 3 of the amended original grounds of appeal.

The Respondent adopted the two issues formulated by the Appellant and argued same accordingly. I have considered the facts and circumstances of this appeal, the judgment of the Benue State High Court, and the submissions of Counsel in their respective briefs, and since both parties are at idem on the issues arising for determination, I shall adopt the two issues distilled in the Appellant’s brief which was adopted by the Respondent as the proper issues arising for the just determination of this appeal. On that note, I shall proceed to consider and resolve these issues serially commencing with issue one.

ISSUE ONE
Whether the trial Court had jurisdiction to adjudicate on the Respondent’s counter-claim before it?

APPELLANT’S COUNSEL SUBMISSION
The Appellant on this issue submitted that while he filed the instant suit at the trial Court and claimed for damages against the Respondent, the Respondent however counter-claimed for title and injunction. Therefore, from the evidence on records, it is crystal clear that the claim of the Respondent was property subject of inheritance. Appellant referred this Court to paragraphs 2, 3, and 7 of the Respondent’s pleadings at the trial Court.

That from the records as shown above, the counter-claim of the Respondent which the trial Judge found worthy to enter judgment for, rendered the Respondent without locus standi to sue in view of the express provisions of Order 55 Rules 25, 33, 42 and 51 sub-rule (1) of the High Court of Benue State (Civil Procedure) Rules, 2007. According to Appellant’s Counsel, this is so because the instant suit given rise to this appeal was initiated by the Appellant on the 9th day of October, 2012, and the Respondent (the defendant to counter-claimed) filed his defence and counter-claim on 23/11/2012 respectively, which was well after the commencement of the Benue State High Court (Civil Procedure) Rule 2007.

Counsel submitted therefore that the instant counter-claim being property subject of inheritance, the Respondent ought to have obtained the letters of administration before she could sue for title. Having not done so, she is bereft of the required status or standi to sue. And since Respondent lack locus standi to sue for title as done here, the judgment in her favour is null and void.

It is counsel’s submission that Order 55 of the High Court (Civil Procedure) Rules 2007, must be complied with before the action by the Respondent in this appeal at the trial Court will be competent. The Respondent having confessed not to have gotten the letters of administration was consequently, empty of the standing to counter-claim and seek for title.

Counsel while relying on the authorities of Macfoy V. UAC (1961) 3 WLR 1405, submitted that the rules of Court must be obeyed as they are not fanciful but mandatory. Thus, since the Respondent lacks the capacity to counter-claim, she is an incompetent party and the trial Court lacks the jurisdiction to entertain the counter-claim. Counsel submitted that the trial Court ought to have decided the issue of locus standi and jurisdiction before delving into other issues in the judgment. See Ebhodaghe Vs. Okoye (2004) 18 NWLR (Part 905) page 242 at 287.

Counsel further submitted that it is not uncommon to find a case apparently within jurisdiction of the Court, may turn out, upon hearing some evidence, raising serious issues of jurisdiction. It is never too late to raise such issue and never late to decide same before going into the matter. It can even be raised by the Court if the parties do not advert their minds to it or do not raise it. Counsel referred to the case of Oloba Vs. Akereja (1988) 1 NWLR (pt 689) 88, and submitted that if the Court below had considered this, it could have come to a just decision. See also Oloride Vs. Oyebi (1984) 5 SCI.

Counsel emphasized on the fact that jurisdiction is very fundamental to any adjudication, as absence of same in any circumstance is a vice of a fundamental nature and goes to the root and negates any adjudication. That where a Court lacks jurisdiction to try a case, any step taken in relation to the matter is null and void. Once a Court lacks jurisdiction, the only option is to strike out the suit. Counsel referred this Court to the case of Odofin Vs. Agu (1992) UWLR (Pt. 229) at 350 and urged this Court to so hold in this appeal on the point of jurisdiction.

Counsel submitted on the consequence of a Court lacking jurisdiction that since jurisdiction is a threshold issue, where an appellate Court discovers the lower Court had no jurisdiction, (like in the appeal at hand) the proper order the Court should make is to allow the appeal, strike out the case before the lower Court and declare the proceedings thereto a nullity ab-initio. See Wilson Vs. AG Bendel State (1985) 1 NWLR (Pt. 2) 572, Nwosu Vs. Imo State Environmental Authority (1990) 2 NWLR (Pt. 135) 668.

RESPONDENT’S COUNSEL’S SUBMISSION
Counsel to the Respondent on the other hand on the first issue submitted that this issue was not raised in pleadings but counsel’s cross-examination of the Respondent and address which is not a pleaded fact or evidence, and the Court below did not make any pronouncement on it. That the issue of administratorship of the estate of Respondent’s late husband was only raised in cross-examination of the Respondent and counsel’s final address.

Counsel while relying on the case of Kensal Farms Ltd. vs Nigercat Construction Co. (2013) LPELR 20162 on the settled positions of the place of pleadings submitted that the Appellant having not made this an issue in the pleadings, cannot raise it in the course of the trial by way of cross-examination or counsel’s address and make this an issue before this Court.

Counsel further submitted that the Appellant did not raise the issue of the competency of the Respondent not having letters of administration to administer any estate including the estate of her late husband, as He only raised it in the course of trial under cross-examination but without leave of that Court and according to counsel the evidence is inadmissible. Counsel referred to the case of Habu vs Isa (2012) LPELR 15189.

Counsel contended that the parties did not in their pleadings join issues as to whether or not the Respondent had the locus to sue or be sued on the ground of her not obtaining letters of administration.

Indeed, it was the Appellant who sued the Respondent before the Court below and the Respondent only filed a defence to the claim and also counter-claimed, and the Appellant upon being served with the defence and counter-claim, did not raise in his defence to the counter-claim the issue of the competency of the Respondent’s defence and counter-claim but belatedly raised same under cross-examination and final address of counsel.

Counsel further submitted that parties are bound generally by their pleadings and issues join and that address of counsel no matter how brilliant is not evidence and indeed does not form part of the pleadings and issues elicited under cross-examination not being pleaded facts go to no issue. Counsel referred the Court to Oduka vs Kasumu (1968) NMLR 28; Aderemi vs Adedire (1966) NMLR 398 and submitted that the main function of pleadings is to ascertain with as much certainty as possible the various matters actually in dispute among the parties and those in which there is agreement between them.

Counsel reiterated that the issue of administrator ship of the estate was not raised in the parties pleadings but under counsel’s address and cross-examination of the Respondent, therefore, the issue having not been pleaded and no evidence led on it but under cross-examination, the evidence was obviously contrary to the pleadings of the parties and must be expunged from the records. That it will also amount to violation of rule of natural justice audi alterem partem which demands not only that both parties be heard but also that neither of them be allowed to surprise the other by raising unforeseen issues. See Ambiosini vs Tinko (1929) 9 NLR 8; Paul vs George (1959) 4 FSC 198; Ajoke vs Oba (1962) 1 All NLR 73; Adegbenro vs Attorney-General of the Federation (1962) 1 All NLR 431; The National Investment & Properties Co. Ltd. Vs The Thompson Org. Ltd. (1969) NMLR 94; Ogiamien vs Ogiamien (1969) NMLR 245.

Counsel contended that it is not within the competence of the Court or parties to admit by consent evidence whose admission the law forbids as stated in the case of Minister of Lands, Western Nigeria v. Azikiwe (1969) 1 SC 69, however, there was abundant evidence before the trial Court that the Respondent is the personal representative of late Fedilis Aortyo, her husband who purchased the land in dispute, as the legal estate in landed property of a deceased always remained in personal representative of the deceased. See Cappa Ltd v. Ferreira (1966) NSCC 40 at 43, and Pratt v. Heffner (1956) 1 NSCC 66 at 69.

Counsel on that note submitted that the unchallenged evidence of the Respondent on that note before the lower Court was that her late husband purchased the plot from Simon Orban and tendered in evidence EXH 4 the agreement to that effect, and equally tendered documents evidencing her being the successor and personal representative of late Fedelis Aortyo, therefore, the Respondent being personal representative of her late husband and on the authorities of G. Cappa Ltd vs Ferreira (supra) and Pratt vs Haffner (supra), Respondent was right to counter-claim as the legal estate of her late husband remained in her conferring on her the legal capacity to sue and be sued.

Counsel contended that, assuming without conceding that Order 55 of the Benue State High Court is to come into play, and that Respondent ought to have been issued letters of administration before she could counter-claim or defend the action, then, the claim of the Appellant against Respondent was incompetent in the first place and the claim ought to be dismissed by this Court, as it is settled that in matters of administration of an estate, it is only a person issued with letters of administration that is capable to sue and be sued. Counsel referred the Court to the authorities of The Administrator/Executors of the Estate of General Sani Abacha vs Eke-Spiff (2009) All FWLR (Pt. 467) 1 at 31, Mallam vs Mairiga (1991) 5 NWLR (Pt. 189) 114.

Counsel equally relied on the authority of Amadiume v. Ibok (2006) All FWLR (Pt. 321) 1247 at 1260 submitted that assuming Appellant can raise the issue of Respondent capacity to counter-claim as she did before this Court, the instant appeal is incompetent as the proper parties were not properly identified before the Court below and this Court and same should be dismissed.

Counsel while relying on the authority of Ewulu v. Nwankwo (1987) 2 NWLR (Pt. 54) 93 at 100 submitted that for a Court to have jurisdiction, the action of the party must be shown to be justiciable, and that the Respondent has shown that she has an interest in the subject matter and that she is the personal representative of her late husband, thus, counsel urge this Court not to disturb the findings of the trial Court.

ISSUE TWO
Whether the Court below properly evaluated the evidence adduced before it? Distilled from grounds 1, 2, and 3 of the amended original grounds of appeal.

APPELLANT’S COUNSEL SUBMISSION.
On issue two, Counsel started by saying that it is settled law that a party in claim for title shall succeed on the strength of his case and not the weakness of the other party. See Agboola Vs. UBA Plc (2011) Vol. 31 1-184 at page 28 lines 20-26. This applies to a counter-claimant in a bid for Respondent to prove his counter-claim in relation to the Appellant. Counsel submitted that a counter-claim ranks as a separate action, therefore, the first onus on a person claiming for declaration of title is to show with certainty, the identity of the land he claims either by oral or documentary evidence. See Imah V Okogbe (1993) 12 SCNJ page 57 at 73.

Appellant’s counsel submitted that the Respondent herein did not make out clearly the identity of the land he claimed in his counter-claim, as there was nothing to indicate 100ft x 100ft in the deed of conveyance on exhibit 4 before the trial Court. Therefore, from the foregoing, Respondent is the owner of the plot as described in exhibit 4. Worse still, the 100ft x 100ft was severed and half of it was sold to Michael Kobo. By this, it means therefore that what was remaining of Respondent’s plot was 50ft x 50ft as half of 100ft x 100ft had already been sold to Michael Kobo and his mother.

Counsel submitted that the Respondent instead asserted in paragraph 13 of his defence that what was remaining was 100 x 50 which was then sold to the Appellant herein. Counsel contended that if half of Respondent’s 100ft x 100ft was sold to Michael Kobo and his mother, there could not have been left 100 x 50 for sale to the Appellant as sought to be established by the Respondent in the Court below. Curiously, Michael Kobo and the mother were not joined in the Respondent’s counter-claim for issues to be joined.

Appellant’s counsel submitted that Exhibit A which is a document of sale ipso facto excludes Oral evidence to be taken in respect of the identity of the land sold. He referred the Court to the Supreme Court authorities of Olaloye Vs Balogun 1990 7 SCNJ 205 of 218 and Abiodun & Ors Vs Adehin (1962) 1 All NLR 550, and submitted that however the quantum in Exhibit 4 in this appeal is unknown, which explains the speculative and contradictory pursuit of the Respondent in the Court below. And in any event, Appellant in defence to the counter-claim of the Respondent in the Court below stated that he bought 65f x 55.5ft and 65ft x 60ft, not 100 x 50ft as claimed by the Respondent. Counsel submitted that Appellant further denied that his purchase has no relationship with BNB 7142 or plot belonging to the respondent.

On that note, Counsel contended that the best approach to resolving the seeming contradictions was a site plan or survey plan which was not tendered in evidence and from the records the Court did not conduct a visit to the locus-in quo to determine the actual dimensions and location of the disputed land which was imperative in determining this case. That the finding by the trial Judge that the parties know the land is anchored on the mistaken view that exhibit 1A, B and 4 are related to one location and of the same dimension clearly cannot be found from the records as also borne by the evidence. Worse still from the evidence, the location of Michael Kobo, his mother’s portion of land cannot be deciphered from the claims.

It is the Appellant’s counsel’s contention however that on the other hand, there are other evidence in the case by the Respondent, which the Appellant can rely only on as exception to the general rule that the plaintiff shall rely on the strength of his own case. Counsel referred this Court to pages 128-129, 131-134 of the Record and submitted that if the evidence therein are considered, it will show that the said evidence by the Respondent supports the Appellant’s case, and if the trial Court has properly evaluated same, she could have seen clearly that they supported strongly the appellant case.

Counsel contended that the import of the two documents clearly shows that Respondent’s husband did not have any valid transaction with Ahongba Orban who purportedly sold the land to him. That these evidence on the part of the Respondent is to the advantage of the Appellant which the lower Court did not advert its mind to, and the Appellant is entitled to take advantage of these evidence as support for his case. See Sanusi v. Ameyogun (1992) 4 SCNJ 177 at 187. However, the trial Court did not mention this evidence in his entire evaluation of the evidence before it, and had the Court adverted her mind to those documents it could have also found a different decision in favor of the Appellant.

Counsel submitted that this Court has the power to reverse the findings of the trial Court where same does not reflect a proper assessment of the totality of the evidence before the Court or the judgment turns out to be perverse. And that this Court can also re-evaluate evidence given the incoherent, conflicting, divergent and it irreconcilable evidence presented as to the size and location of the plot, as per pleadings and evidence and other piece of evidence that clearly establish the falsity of the Respondent’s case. Counsel referred the Court to Mini Lodge Vs Ngei Chief Johnson Imah & or Vs Chief Ajowele Okogbe & Anor (1993) 12 SCNJ 57 it page 77 lines 21-25.

Counsel further submitted that this Court should pronounce on the validity of the various documents of title as tendered by the parties in this case in this appeal, since the main issue in this appeal is the determination of who has proved a better title as between the Appellant and Respondent herein. That this Court can do so and indeed have the power even when there is no request from either of the parties asking that the title deeds of either parties be declared void. Counsel on that note referred to the authority of Olaloye Vs Balogun (1990) 7SCNJ page 205 at page 213.

Counsel itemized that a close examination of all the deeds of title in this case on appeal clearly emanated from Chief Yina Ala, and in the statement to the Police, Chief Yina Ala stated that he gave the husband of the Respondent part of his deemed grant to settle not as outright gift or sale. Therefore, Simon Orban, Respondent’s husband in view of the documents above could not have sold without Chief Yina Ala’s consent and a look at exhibit 4 shows no consent, no witness, no description of the area except Yina village area, while a look at the Appellant’s deeds clearly demonstrate due process, and on that note, counsel urge this Court to allow the appeal, and set aside the decision of the lower Court.

RESPONDENT’S COUNSEL SUBMISSION
Counsel on issue two commenced by stating this Court should hold in the affirmative that the trial Court properly evaluated the evidence placed before it. That the Court below entered judgment in favor of the Respondent on the strength of her case as there was no dispute as to the identity and location of the land which the Respondent testified and tendered Exhibit 4 with respect. That the dimension of the land was given as 100ft x l00ft with beacon numbers MKC 786, MKC 799, MKC 785 and MKC 798 situate at Yina Village.

Counsel therefore contended that the submissions of Appellant’s Counsel in paragraphs 2.01-2.03 is neither here nor there, as all that the Respondent narrated was the unlawful interference to the plot by Zaki Yina Ala and Simon Orban. This according to counsel in no way altered the claim of the Respondent as to the size and extent of the plots which was clearly identifiable by the beacon numbers.

In response to paragraphs 2.06 and 2.07 of Appellant’s brief were counsel submitted that there were contradictions as to the extent of the land claimed by the Respondent and the Respondent ought to have produced a site plan or survey plan to resolve, Counsel submitted that there was no issue as to the identity of the land that was in dispute. This was the finding of the lower Court which was borne out of evidence and is therefore not perverse.

According to counsel, this is so because the Respondent’s claim that her late husband bought the property as in Exhibit 4 was not denied. That the trial Court found as of fact that both Appellant and Respondent laid claim to the plot from one source, Simon Orban and that the Respondent purchased the plot fifteen (15) years earlier than the Appellant. As it is not in dispute that both parties have derived title from Simon Orban while the Appellant claimed he bought the property from Simon Orban in an agreement- Exhibit 1B dated 18th August 2012 the other one, Exhibit 1A from Zaki Yina Ala dated 23rd June 2012, the Respondent showed that her late husband bought the land from Simon Orban in 1995.

Counsel submitted further that the issue as to priority of title when both parties claim title from the same vendor has long been settled by the Court that where there are two equities, the first in time prevails. See Elabanjo vs Ajigbotesho (2012) LPELR 7892. See also Ugbo vs Aburime (1994) 8 NWLR (Pt. 350) 1 at 19 (1994) LPELR 3314 (SC); Okocha vs Irubor (2013) LPELR 20756 CA; Meadows vs Fabanwo (2013) LPELR 22082 CA; Adebiyi vs Adeosola (2012) LPELR 9248 CA; Uzor vs Delta Freeze (Nig) Ltd. (2010) LPELR 9114 CA.

Counsel further submitted that it is this conclusive evidence that all parties have same vendor that the Court relied on to hold that since Respondent’s late husband purchased the property earlier in time to the sale to Appellant, that Respondent’s claim was proved and then dismissed the Appellant’s claim. Therefore, the complaint of the Appellant on the issue that the lower Court did not properly evaluate the evidence before it is not well founded as the trial learned Judge properly evaluated the evidence and rightly found that the title of the Respondent was earlier in time.

Counsel urged the Court to resolve this issue in Respondent’s favor and dismiss this appeal effectively.

RESOLUTION:
As earlier stated the two issues identified by the Appellant which was also adopted by the Respondent will be considered in the determination of the instant appeal

ISSUE ONE
Whether the Court had jurisdiction to adjudicate on the Respondent’s Counter-Claim before it.
Jurisdiction is the limit imposed on the power of a validly constituted Court, to hear and determine issues between persons seeking to avail themselves of its process, by reference to the subject matter of the issues, or to the persons between whom the issues are joined, or to the kind of reliefs sought. A.P.G.A. v. Anyanwu (2014) 7 NWLR (Pt. 1407) 541 at 582; Fidelity Bank Plc v. Ogiri (2013) 2 NWLR (Pt. 1337) 182 at 200. It is a term of comprehensive import embracing every kind of judicial action. The term may have different meanings in different context. It is the limits imposed on the power of a validly constituted Court to hear and determine issues between persons seeking to avail themselves of this process by reference to the subject matter of the issues or the persons between whom the issues are joined or the kind of relief sought. Goodwill & Trust Invest. Ltd & Anor v. Witt & Busch Ltd (2011) 2-3 SC (Pt. 1) 176 at 21-212. When used in the sense of proper venue, signifies the limits of the territorial jurisdiction of Court. George v. S.B.N. Plc (2009) 5 NWLR (Pt. 1134) 302 at 320.
To determine the issue of jurisdiction, recourse must necessarily be made to the plaintiff’s claim in his writ of summons and/or statement of claim at the lower Court. Same is also circumscribed by statute. See S.T.B. Plc v. Olusola (2008) 1 NWLR (Pt. 1069) 561 at 591.

An objection to the jurisdiction of the Court can be raised at any time; even when there are no pleadings filed and the party raising such objection need not bring it under any rule.A.G. Kwara State v. Olawale (1993) 1 NWLR (Pt. 272) 645 at 674-675. It can’t be waived nor can it be conferred by parties consenting to vest Court jurisdiction where none exists nor can any issue of estoppel arise because estoppel can’t enlarge the jurisdiction of a Court of limited jurisdiction. Nigerite Limited v. Dalami (Nig.) Limited (1992) 7 NWLR (Pt. 253) 288 at 297.

The complaint of the Appellant under this issue is that the Respondent has no locus standi to sue since the property in question is subject of inheritance and having not obtained letters of administration she cannot sue for title and an incompetent party to a suit by lack of locus standi cannot evoke the jurisdiction of the Court.

Locus Standi as we all know is the legal capacity of instituting or commencing an action in a competent Court of law or Tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever including the provisions of any existing law. The fundamental aspect of locus standi is that it focuses on the party seeking to get its complaint heard before the Court. Nyame v. F.R.N. (2010) 3 SC (Pt.1) 78 at 132-133.
The rule about the locus standi developed primarily to protect the Courts from being used as a playground by professional litigants, or, and meddlesome interlopers, busy bodies who have no real stake of the litigation. A Plaintiff satisfies the Court that he has locus standi if he can show that his civil rights and obligations have been or is in danger of being infringed. There must be a nexus between the Claimant and the disclose cause of action concerning his right and obligations, and locus standi is determined by examining only the statement of claim. Furthermore in determining whether a party has locus standi the chances that the action may succeed is irrelevant consideration. They are two tests in determining locus standi of a person. They are: (1) The action must be justifiable; (2) There must be a dispute between the parties. Taiwo v. Adegboro & 2 Ors (2011) 5 SC (Pt. II) 179 at 196-197.
An objection to a Plaintiff’s locus standi attacks his competence to sue as to whether he has any legal or equitable interest to protect and this is linked to jurisdiction of the Court as the action would not have been initiated by due process of law. See the case of Nwachukwu v. Nwachukwu & Anor (2018) LPELR-44696 (SC) per Onnoghen, CJN (as he then was) at pages 10-11 stated:
‘’It is now settled law that jurisdiction is the life blood of adjudication in that any decision by a Court that lacks jurisdiction to hear and determine a matter how well conducted See Madukolu v. Nkemdilim (1962) NSCC 374 at 379-380. When can it be said that a Court has jurisdiction to hear and determine a case. As stated earlier, the Supreme Court in the above cited case decided that for a Court to have the requisite jurisdiction to hear a matter:
(a) The Court must be properly constituted as regard numbers and qualifications of members of the bench, and no member is disqualified for one reason or another;
(b) The subject matter of the case is within the jurisdiction of the Court and there is no feature in the case that prevents the Court from exercising its jurisdiction; and
(c) The case comes before the Court initiated by due process of the law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.”
The issue of locus standi legal capacity to institute an action is closely linked to issue of jurisdiction as the Appellant is contending that an incompetent party to a suit by lack of locus standi cannot evoke the jurisdiction of the Court to entertain the suit it follows without saying that issue of jurisdiction can be raised at any stage of the case, be it at the trial, on appeal to the Court of Appeal or to the Supreme Court and a fortiori the Court can suo motu raise it contrary to the submission of learned counsel for the Respondent. On this see Owners of M.V. Arabella v. N.A.I.C. (2008) 11 NWLR (Pt. 1097) 182. Whether the issue of jurisdiction raised by the Appellant will succeed is irrelevant consideration but it can be raised at any stage of the proceedings.

In the instant appeal, it is not in dispute that the Respondent is the wife of late Fidelis Aortyo who died intestate. The Respondent is the personal representative of her late husband’s property who have sufficient interest in the subject matter of this case that form the basis of the Appellant’s suit against her. It is settled law that a legal estate in landed property of a deceased always remained in personal representatives of the deceased. See G. Cappa Limited v. Omoniyi Ferreira (1966) LPELR-25298 (SC) Pages 7-8 paragraphs C-A. The Respondent is the wife of the deceased person, she has sufficient interest to protect in the subject matter, the lower Court was right to have dealt with the matter in controversy so far as regards the rights and interest of the party actually before her. A cause of action cannot be defeated by reason of misjoinder or non-joinder of parties. See Chief Goodwill Atiemora-Musa Agboneni v. Chief Fatai Alakiu (2018) LPELR-44807 (CA) Pages 25-27. The issue of letters of Administration raised by the Appellant in his brief is an afterthought and as rightly submitted by the Respondent’s counsel that if the Respondent ought to have been issued letters of Administration before she could counter-claim or defend the action, then, the claim of the Appellant against Respondent was incompetent in the first place and the claim ought to be dismissed. A party cannot approbate and reprobate, it does not make good sense.

In Pratt v. Heffner (1956) 1 NSCC 66 at 69 cited by the Respondent Counsel the Supreme Court held that real estate vested in a person on his death, rest in his personal representatives. From the foregoing issue one is resolved against the Appellant.

ISSUE TWO
Whether the Court below properly evaluated the evidence before it.
Evaluation of evidence means the assessment of evidence to give value or quality to it. Evaluation should involve a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record an indication of how the Court arrived at its conclusion, of preferring one piece of evidence to the other. See Oyekola v. Ajibade (2004) 17 NWLR (Pt.902) 356 at 379.

The law is trite that a party succeeds on the strength of his case and not the weakness of the other party. The rules of pleadings for all intents and purposes apply to counter-claim. A counter-claim is an independent action, which enables a Defendant to enforce a claim against a Plaintiff. It is by nature a ‘sword’ and not a ‘shield’. Thus, the rules of pleadings apply with the same force and potency to a counter-claim and a defence to a counter-claim as if they are respectively a Statement of Claim and a Statement of Defence. See Amata v. Omofuma (1997) 2 NWLR (Pt. 485) 93 (CA). A counter-claim is a cross-action, fresh and distinct from the one commenced by the Plaintiff. A counter-claimant is a Plaintiff in his own right though he will still be referred to as Defendant to avoid confusion. See Union Bank Plc v. A. Ishola (2001) 15 NWLR (Pt. 735) 47 CA. A Counter-Claim is different from the Plaintiff’s claim and requires evidence to prove it.Ige v. Farinde (1994) 7 NWLR (Pt. 354) 42.
A Counter-Claim is a claim which must be proved to the satisfaction of the Court as required by law. The onus of proof which lies on the Plaintiff to prove his claim is also on the Defendant to prove the averments in his counter-claim against the Plaintiff or he will fail in his claim. In the instant appeal, the issue has been narrowed down by the parties, both parties bought the land in dispute from the same source, the learned trial Judge after evaluating the evidence before her, have no difficulty reaching a decision in favour of the Respondent, when she held at pages 263-264 of the records that:
‘’The defendant traced the root of her title to her late husband who derived his title from the vendor of the land and in addition tendered an agreement which is exhibit ‘4’ between her said husband and the vendor. The plaintiff in his defence to the defendant’s counter-claim where his agreement over the land is pleaded equally traced his own title to the land to the same vendor as the defendant. In other words, the parties traced their competing titles to the same vendor, save that whereas the plaintiff pleaded that fact in his defence to the counter-claim, instead of doing so in his statement of claim, the defendant as shown above pleaded that fact in her counter-claim. Proceeding on the above proposition that the plaintiff’s title is rooted on exhibit 1 (a) which is a Deed of Conveyance between him and Simon Ahongba Orban (his vendor) which is dated the 10/8/12 and that the defendant’s title is equally based on an agreement between her late husband and the said Simon Ahongba Orban, dated the 19/8/95, it becomes obvious from a comparison of the period in which the two transactions were made that the defendant’s title predates that of the plaintiff by a period of more than fifteen years. Thus, at the time of the conveyance to the plaintiff the land was no longer available to the said Ahangba Orban as he had long before then divested himself of any interest in same.

The identity of the land which the plaintiff claim to be in dispute is known to the parties contrary to his assertion. His pleading and the evidence adduced by him and his witness clearly show this, and the issue put beyond any dispute by exhibits ‘2’& ‘3’ which are the photographs of portions of the land which the plaintiff claim was destroyed by the defendant. In any case, the evidence of the plaintiff both in direct and cross-examination clearly identified the land and its measurement while the agreement between the defendant’s husband and Ahangba Orban (exhibit ‘4’) show the beacons on the land.’’ As to issue two, it can safely be said that the facts from the pleadings of both parties are interwoven. The Plaintiff having failed to prove his claim the Defendant counter-claim, automatically succeed, thus issue two is hereby resolved against the Appellant.

Having resolved the two issues against the Appellant, it means this appeal must fail, it fails and is hereby dismissed. The judgment of the lower Court, Justice S.O. Itodo of the Benue State High Court of Justice Makurdi division delivered on 5th day of June, 2018 is hereby AFFIRMED.
Parties to bear their costs.

IGNATIUS IGWE AGUBE, J.C.A.: I was privileged to have read in advance, the draft of the lead judgment delivered by my learned brother, MUSLIM SULE HASSAN, JCA, and I am in total agreement with the reasons advanced in concluding as he did that the Appellant’s appeal is unmeritorious and should be dismissed.

Having resolved the two Issues against the Appellant, it means this appeal must fail, same fails and is hereby dismissed.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft, the leading judgment delivered by my learned brother HON. JUSTICE MUSLIM SULE HASSAN, JCA, I entirely agree with the reasoning and conclusion reached therein.

My learned brother has properly in my respected view dealt with all the issues relevant for the determination of the appeal. I agree with him that the appeal is lacking in merit and should be dismissed. I shall make few comments for the sake of emphasis. Particularly on the issue as to whether the trial Court had jurisdiction to adjudicate on the Respondent’s counter-claim before it.

Facts leading to this appeal have been set out in greater details in the leading judgment, and it will amount to unnecessary repetition and pains to set out same here, but it is worthy of note that the main contention of the Appellant seems to be that, the counter-claim of the Respondent which the trial Court found worthy to enter judgment for render the Respondent without locus standi to sue, giving that, the counter-claim being property subject of inheritance, the Respondent ought to have obtained the letters of administration before she could sue for title.

The term “locus standi” denotes the legal capacity of a person to institute proceedings in a Court of law and it is used interchangeably with terms like “standing” or ‘title to sue”. It is the right or competence to initiate proceedings in a Court of law for redress or assertion of a right enforceable at law. See ADEFULU V OYESILE (1989) 5 NWLR (PT.122) 377, LADEJOBI V OGUNTAYO (2004) 18 NWLR (PT. 904) 149 AND OWODUNNI V REGISTERED TRUSTEES OF CCC (2000) 10 NWLR (PT. 678) 315.
The onus is on the plaintiff, in this case, the counter-claimant, to prove his standing if it is called in question and she must show that her civil right and obligation have been violated or are in danger of being violated or adversely affected by the act complained of. The statement of claim must disclose a cause of action vested in the plaintiff. The test to be applied are; (1) that the action must be justiceable. (2) there must be a dispute between the parties. See ADESANYA V PRESIDENT OF FEDERAL REPUBLIC OF NIGERIA (1981) 2 NCLR 358; ATTORNEY OF CROSS-RIVER STATE V FEDERAL REPUBLIC OF NIGERIA (2019) 16 NWLR (PT. 1681) 401.
In land maters as in this instance, where a plaintiff has no legal interest in the land, she lacks standing. See AYORINDE V KUFORIJI (2007) 4 NWLR (PT. 1024) 341.
In the case of AJAYI V ADEBIYI (2012) 11 NWLR (PT. 1310) 137, 176 AND BARBUS & CO. NIG LTD VS. OKAFOR-UDEJI (2018) 11 NWLR (PT. 1630) 298, 311, it was held that the Court ought to adopt a liberal approach in applying the test of locus standi which.

One fact that is not contested in this appeal is that, the Respondent is the wife of Late Aortyo Fidelis. The only contention is, her claim being property subject of inheritance, she ought to have obtained the letters of administration. The Respondent tendered evidence and it was unchallenged that, her late husband purchased the land in dispute from one Simon Orban, she tendered the sale agreement “Exhibit 4” to that effect. She also established that, she is the personal representative of her late husband. I therefore find no difficulty in holding that the Respondent was right to counter-claim as the legal estate of her late husband remained in her, thereby conferring on her the legal capacity to sue and be sued.

I have mentioned earlier that, Courts are enjoined to adopt a liberal approach in applying the test of locus standi, and in that regard, locus standi is determined by looking at the statement of claim only and not evidence led subsequently. See OWODUNNI V REGISTERED TRUSTEES OF CCC SUPRA. 357, ACCORD PARTY V GOVERNOR OF KWARA STATE (2011) ALL FWLR (PT. 555) 220, 283 AND INAKOJU V ADELEKE (2007) 4 NWLR (PT. 1025) 427, 602 where the Supreme Court stated:
“The question as to the competence of a plaintiff to institute an action is gathered from the statement of claim and not from the evidence that is subsequently led”

The main function of pleadings is to ascertain with much certainty and exactitude the various matters actually in dispute among the parties.

In this appeal, parties did not in their pleadings join issues as to whether or not the Respondent had the locus to sue or be sued on the ground of her not obtaining letters of administration. The issue was raised by the Appellant in the course of the trial under cross-examination, and no leave of Court was sought or obtained. The law is trite that, where a new issue is to be introduced and argued afresh, the party introducing it has the duty to apply and obtain for leave to do so from the Court, failure to do so the evidence adduced will obviously run contrary to the pleadings of the parties.
In LAGOS STATE BULK PURCHASE CORPORATION VS. PURIFICATION TECHNIQUES (NIG) LTD (2012) LPELR-20617(SC) wherein the Supreme Court held thusly:
“The trite position in law is that where a new issue is to be introduced and argued afresh, the party introducing it has the duty to apply and obtain for leave to do so from the Court. The appellant, in this case, has not shown that he has asked for and been granted such leave. The issue is therefore a fresh one for which there is no leave to introduce and argue it. It is incompetent and same is hereby discountenanced and struck out.” Per MUHAMMAD, J.S.C.
And the case of OGBA V. ORS V. ONWUZO & ANOR (2005) LPELR-2272(SC) the apex Court held thus:
“Where, therefore, there has been no leave sought and obtained by the party to argue the new issue and there are no special circumstances disclosed to warrant it being entertained, such new issue would be incompetent and liable to be struck out by the appellate Court. See Eliochin (Nig.) Ltd. v. Mbadiwe (1986) 1 NWLR Ltd. (1988) S NWLR (Pt.92) 1 at 24; Lipede v. Sonekan (1995) 1 NWLR (Pt.374) 668 at 685; and Ejowhomu v. Edok-Eter Ltd. (1986) 5 NWLR (Pt. 39) 1 at 16.” Per AKINTAN, J.S.C.

Again assuming that the contention of the Appellant that the Respondent ought to have obtained letters of administration before she could defend the action is anything to go by, then the claim of the Appellant against the Respondent is totally incompetent and the claim ought to have been dismissed, for it has been established that only a person issued with letters of administration is capable to sue and be sued.

It is for these reasons and others elaborately set ought in the leading judgment that I, also find no difficulty reaching the necessary conclusion that the appeal is lacking in merit and must be dismissed. The judgment of the trial Court delivered by HON. JUSTICE S. O. ITODO dated 5th day of June, 2018 is hereby affirmed.