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SAMSON MURAINA ODUWAIYE & ANOR
IN THE COURT OF APPEAL OF NIGERIA
ON MONDAY, THE 28TH DAY OF JANUARY, 2013
(2013) LPELR-20474 (CA)
BEFORE THEIR LORDSHIPS
CHIDI NWAOMA UWA, JCA
JOSEPH SHAGBAOR IKYEGH, JCA
OBIETONBARA DANIEL-KALIO, JCA
GANIYU OGUNDIPE (for and on behalf of the Ogundipe family of Sagamu) – Appellant(s)
Mr. M. A. Oyajafo – For Appellant
Mr. M. F. Lana – For Respondent
OGUN STATE: High Court
CUSTOMARY LAW – CHIEFTAINCY MATTERS – FILLING OF A VACANCY: Duty on the plaintiff to show the court that he has locus standi in a claim relating to the filling of a vacancy in the Chieftaincy – How satisfied – Whether plaintiff must do more than relying on his membership of the Chieftaincy – What plaintiff must show – Whether in a Ruling House Chieftaincy, the ascension to the throne is that of the whole Ruling House and not that of the individual members – What a member who desires to take benefit of the Right of the Ruling House must aver in his statement of claim and prove by evidence as to his entitlement to the vacant throne
PRACTICE AND PROCEDURE – ACTION – LOCUS STANDI:- How ascertained – Whether depends on the question if the plaintiff has sufficient legal or justiciable interest to file the action, not whether the action was bound to fail, in any event – Effect
PRACTICE AND PROCEDURE – ACTION – LOCUS STANDI:- In determining whether a plaintiff has locus standi or not – Whether the court is obligated to look at the statement of claim
PRACTICE AND PROCEDURE – ACTION – PLEADINGS:- Whether by the rules of pleadings, a party is not required to plead the contents of a document but the effect of the document on the case – Duty of court thereto
PRACTICE AND PROCEDURE – ACTION – WRONG PROCEDURE:- Patently wrong procedure consented to by the parties that causes injustice to one of the parties – Whether would make the proceedings affected by it bad, and where objected to at the court of first instance, as did the appellant in his address (supra), it may vitiate the proceedings
WORDS AND PHRASES – “CONSENT” – “LOCUS STANDI”:- Meaning of
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment):
The appeal questions a Ruling of the High Court of Justice of Ogun State sitting in Sagamu (the court below) in which it struck out the suit of the appellant on ground of non disclosure of the appellant’s locus standing to lodge the suit.
Sketchily, the appellant by his writ of summons and accompanying statement of claim claimed some declaratory reliefs that by custom only descendants of Ademike, Odukan, Gbosi and Ogundipe families to the exclusion of the 1st respondent’s family are entitled to occupy the traditional stool of Olisa of Makun Sagamu Chieftaincy and for an injunctive relief restraining the 2nd respondent from performing the final traditional installation rites of the Olisa of Makun Sagamu on the 1st respondent.
After pleadings were filed, exchanged and delivered, the respondents filed an application for the striking out of the suit on the premise that the appellant did not disclose the standing to sue in the action. The court below heard arguments on the application and upheld the contention of the respondents that the appellant did not establish the standing to file the suit which it struck out in a considered Ruling.
Pursuant to an order for extension of time to appeal against the said Ruling of the court below granted by this court on 14-4-11, the appellant filed a notice of appeal conveying five grounds of appeal on 20-4-11, upon which the appellant’s brief of argument dated and filed on 2-6-11 is based.
Two issues were formulated by the appellant in his brief for determination on the appeal as follows:-
“1. Whether the learned trial Judge was wrong in comparing the statement of claim with the statement of defence using defendant’s exhibits in holding that the plaintiff had no locus standi to institute the action.
In arguing the first issue married to grounds 1 and 2 of the notice of appeal, the appellant’s brief referred to part of the Ruling of the court below on pages 74 -76 of the record of appeal (the record) where the said court used paragraph 6 of the statement of defence and the contents of Exhibit A, a judgment of the High Court, and Exhibit B, a Judgment of the Court of Appeal, attached to the respondents’ counter-affidavit to hold that the appellant lacked the locus standing to institute the action contrary to the decisions in the cases of Bolaji v. Bamgboye (1986) 4 NWLR (pt. 37) 632, Owodunni v. Registered Trustees of Celestial Church of Christ (2000) 10 NWLR (pt.675) 315 at 354-355. In re Ogundahunsi (2008) All FWLR (pt. 420) 671 at 697, Irene Thomas v. Olufosoye (1985) 3 NWLR (pt. 13) 523. 7Up Bottling Co. v. Abiola and Sons Bottling Co. Ltd. (2001) 8 SCM 1 at 11, Shell B.P. v. Onasanya (1976) 6 SC 89 at 94, Basindo Motors Ltd. v. Woermann Line (2009) All FWLR (pt.485) 1634, Ayorinde v. Kuforiji (2007) All FWLR (pt.362) 1966.
Arguments on the second issue married to grounds 3, 4, and 5 of the notice of appeal brought in paragraphs 9 – 14 of the statement of claim where a copy of the Report of the Inquiry conducted by Government into the Olisa of Makun chieftaincy dispute was pleaded in compliance with the rule of pleading that a document, not its contents, should be pleaded, therefore the court below was wrong to hold that by not pleading the contents of the said Report the appellant failed to establish the locus standi to institute the action contrary to the decision in the case of Monier Construction Co. v. Azubuike (1990) 3 NWLR (pt.136) 74, upon which the appellant urged the appeal to be allowed.
The respondents’ brief dated 1-6-11 but filed on 4-7-11 identified two issues for determination as follows:-
“1. Whether parties having agreed to settle the issue of locus standi as affected by existing judgments of superior courts on the basis of affidavit evidence, the learned trial Judge was right in deciding that the Appellant lacks locus standi to institute the suit.
The respondents’ brief treated the two issues together to the effect that the appellant had acceded to the application of the respondents at the court below to rely on the previous court judgments in Exhibits A and B attached to their counter-affidavit which entitled the court below to utilize them for the purpose of the application that led to the Ruling striking out the action on ground of lack of locus standing of the appellant to institute the action and; that the appellant having not appealed against the Ruling allowing the respondents to use Exhibits A and B at the hearing of the motion to get rid of the suit on the platform of locus standing, the appellants cannot argue against the use of Exhibits A and B by the court below to resolve the issue of locus standing vide Anyaduba v. N.R.T.C. (1992) 5 NWLR (pt.243) 535 at 553 read with Order 24 Rules 2 and 3 of the Rules of the court below, Black’s Law Dictionary (5th Edition) page 649, A.G. Kwara State v. Olawale (year not supplied) NWLR (pt. 272) 645 at 663, Davies v. Mendies (2007) ALL FWLR (pt. 348) 883 at 901, Ibator v. Barakuro (2007) ALL FWLR (pt.371) 1669 at 1668.
It was also argued that paragraphs 1, 9 – 14 of the statement of claim and sections 4, 5, 6, 7 and 8 (1) (2) of the Chiefs Law of Ogun State did not confer locus standi on the appellant to institute the action, nor did the Report pleaded by the appellant establish the Customary Law of Makun relating to the chieftaincy in question.
It was argued further that the decisions in Exhibits A and B were affirmed by the Supreme Court and reported as Okulate v. Awosanya (2000) FWLR (pt.25) 1666 and the Report pleaded cannot override the decision of the Supreme Court in the matter.
It was finally argued that the court cannot decide the fate of the other families, namely Ademike, Odukan and Gbosi when they are not parties to the suit; and, that the suppression of the previous judgments by the appellant amounted to committing fraud on the court, therefore the appellant’s hands were not clean and should have deprived them of the equitable remedies they sought before the court below vide the cases of Momoh v. Olotu (1970)1 ALL NLR 117, Babatola v. Aladejana (2001) 12 NWLR (pt.728) 597 at 615, Baba-Iya v. Sikeli (2005) ALL FWLR (pt.289) 1230 at 1252, Adeogun v. Fashogbon (2009) ALL FWLR (pt.449) 531 at 547 – 548, upon which the respondents solicited for the dismissal of the appeal.
The appellant’s reply brief dated and filed on 19-9-11 contended that Anyaduba (supra) is irrelevant as the appellant’s counsel opposed the motion of 15-4-03, and consent or no consent by the appellant to the use of Exhibits A and B was unnecessary, as the court below was bound to determine the application by supporting affidavit before the case could proceed to trial; that the court below only commented that the contents of the Report were not before it without making any holding on it; that the court below relied on Exhibits A and B to ground its Ruling; and that it is wrong to accuse the appellant of fraud in not pleading the previous judgments as a party is at liberty to pursue his case the way the party wishes.
In my respectful opinion, the issues for determination formulated by the appellant are apt and the same will be adopted for the discourse.
The notice of motion dated 15-4-03 and filed on 25-4-03 by the respondents as defendants at the court below prayed inter-alia that the respondents be allowed to make use of a previous judgment of a High Court in Exhibit A and a previous judgment of the court of Appeal (Ibadan Division) in Exhibit B in moving the motion for an extension of time to file statement of defence and to deem as properly filed the statement of defence and to set down for hearing and dispose of before the trial of the action the point of law raised in paragraph 6 of the statement of defence.
Page 6 of the record contains the statement of defence. Paragraph 6 thereof averred the point of law thus:-
“6. By virtue of the decision of the court in suit No. HCS/68/81 Gbadamosi Awonuga and 2 Ors and Efuwape Okulate and 4 ors the plaintiff has no locus standi (sic) to institute this action”.
The motion was moved on 29-1-04. In the course of moving the motion at the court below, the respondents as the applicants relied on Exhibits A and B (supra) to urge the court below to strike out the suit on the ground that the appellant as the plaintiff did not disclose the locus standi to sue in the action. (See pages 66 – 67 of the record). A recapitulation of the gist of the respondents’ submission on the issue of locus standi at the court below reads:-
“In view of the evidence in Exhibits A and B to the counter-affidavit of 31/03/03, the plaintiff has no interest to protect in this matter because they are not even members of the Oresolu Olisa family of Makun. Cannot even be called to give evidence on the history or lineage or descendant of Olisa of Makun.
Urges this court to find in favour of Defendants/Applicants and … if need be, to strike out this matter for lack of locus standi.” (See page 67 of the record).
The appellant as the respondent in the motion at the court below urged the court below inter-alia that:-
“Defendants are asking court to allow them use Exhibits attached to their Affidavit in moving this Application.
Despite the fact that the plaintiff did not object on 16/12/03, this court can now refuse to make use of it…
Says court cannot use the said Exhibits in deciding on the issue of locus standi…” (See page 68 of the record).
So, as stated above, the appellant as the respondent in the motion at the court below retracted from the earlier stand that Exhibits A and B be used in resolving the Point of law of locus standi raised in paragraph 6 of the statement of defence (supra) and argued in the motion on notice earlier adverted to.
Consent merely means to agree or to permit someone to do something. (See Oxford Advanced Learner’s Dictionary (7th Edition) at 309). The issue of consenting to a particular procedure at the court below in respect of the motion urging that court to strike out the suit on the premise that Exhibits A and B disclosed the appellant had no locus standing to sue in the action in question did not, therefore, arise. The respondents’ contention that the appellant consented to the said procedure is, accordingly, untenable, as the appellant withdrew the consent at the address stage of the proceedings before the court below ruled on the merits of the motion.
Besides, a patently wrong procedure consented to by the parties that causes injustice to one of the parties would make the proceedings affected by it bad, and where objected to at the court of first instance, as did the appellant in his address (supra), it may vitiate the proceedings. See by analogy Ayanwale v. Atanda (1988) 1 NWLR (pt.68) 22 at 34, Johnson v. Aderemi (1955) 13 WACA 297 at 298, and Noibi v. Fikolati (1987) 1 N.S.C.C. 281.
The court below posed the correct question whether the statement of claim disclosed the locus standing of the appellant to sue in the action, but it resolved the question by referring extensively to the previous judgments in Exhibits A and B that the appellant did not have the standing to sponsor the said action. (See pages 74-77 of the record). The court below proceeded as if the merits or success of the case having regard to the judgments in Exhibits A and B was the pre-requisite for the determination of the issue of locus standi. With deference, the court below was wrong in doing so, as the issue of locus standi depends on whether the plaintiff has sufficient legal or justiciable interest to file the action, not whether the action was bound to fail, in any event see Basinco Motors Limited (B.M.I. Ltd.) v. Woermann Line and Anor. (2009) 13 NWLR (pt.1157) 149 at 199 following Owodunni v. Registered Trustees of C.C.C. and Ors. (2000) 10 NWLR (pt. 675) 315 at 357. See again Ladejobi and ors. V. Oguntayo and Ors. (2004) 18 NWLR (pt.904) 149.
To the extent that the court below relied on the previous judgments in Exhibits A and B which were pleaded by the respondents in paragraphs 6 – 8 of the statement of defence (see page 6 of the record) and referred to in paragraphs 8 and 10 of the 1st respondent’s counter-affidavit (see page 11 of the record) instead of only the statement of claim in resolving the issue of locus standi against the appellant to institute the action, the court below, with deference, erred. See Ojukwu v. Ojukwu (2008) 18 NWLR (pt. 1119) 439 at 458 following Oloriode v. Oyebi (1984) 5 SC 1, Adesokun v. Adegorolu (1997) 3 NWLR (pt.493) 261 and B. M.I. Ltd. v. Woermann Line (2009) 13 NWLR (pt.1157) 149 at 199, plus Ironbar v. F.M.F. (2009) 15 NWLR (Pt.1165) 506 at 528.
The matter does not end there. For, in fairness to the court below, it held in the penultimate part of its Ruling on page 77 of the record that:-
“Plaintiff is expected to plead necessary facts from which the court could infer that he has locus standi. What was pleaded in the statement of claim here is that the 1st defendant does not belong to any of the families entitled to the Olisa Chieftaincy. How this has affected their rights as Ogundipe family that is the plaintiffs and which family till today, is said to have no interest in the Olisa Chieftaincy? (sic)
I think, if the plaintiffs have any right/interest at all in the matter of the Olisa of Makun chieftaincy, they have not property revealed same in this action as presently constituted before this court in this case Suit No. HCS/15/2003…”
Be that as it may, the statement of claim upon which the issue of locus standi could solely be determined is in pages 4-5 of the record. And by Section 15 of the Court of Appeal Act, 2004, I am entitled to look at it, on face value, to ascertain whether the appellant as the plaintiff at the court below disclosed his standing to sue for himself and on behalf of the Ogundipe family of Makun Sagamu in respect of the chieftaincy suit. See also Inajoku v. Adeleke (2007) 1 SCNJ 1 at 163 – 164.
The answer does not lie in the appellant’s failure to plead the contents of the Report. Because by the rules of pleadings, a party is not required to plead the contents of a document but the effect of the document on the case. Therefore, the court below was in error in holding that the appellant was obliged to plead the contents of the Report for the purpose of disclosing his locus standi to file the action. See Monier (supra) following Thanni v. Saibu (1977) 2 SC 89. The answer accordingly lies in looking at the face of the statement of claim alone to determine the issue of locus standing of the appellant to institute the action.
Now, the statement of claim pleaded on pages 4-5 of the record thus:-
“1. The Plaintiffs are members of the Ogundipe Family of Makun Sagamu and are in this action represented by Ganiyu Ogundipe.
Whereupon the Plaintiff claims as follows:-
(i) A Declaration that by custom only Descendants of Ademike, Odukan, Gbosi and Ogundipe Families can be made Olisa of Makun Sagamu.
(ii) A Declaration that the 1st Defendant is not qualified by the custom pertaining to the Olisa of Makun Sagamu Chieftaincy title to be made Olisa of Makun Sagamu.
(iii) A Declaration that the purported appointment of the 1st Defendant by the 2nd Defendant as Olisa of Makun Sagamu is contrary to the custom pertaining to the Chieftaincy and therefore null and void.
(iv) An Order restraining the 1st Defendant from parading himself as Olisa of Makun sagamu.
(v) An Order restraining the 2nd Defendant from performing the final traditional installation rites of Olisa of Makun Sagamu on the 1st Defendant.”
Although paragraphs 9 and 10 of the statement of claim pleaded that by the Report of the Inquiry conducted by one Mr. M.A.O. Ojedele Esq. into the Olisa Chieftaincy dispute, only the descendants of Ademike, Odukan, Gbosi and Ogundipe families are qualified to be made Olisa of Makun Sagamu, to the exclusion of the 1st respondent’s family, the statement of claim failed to disclose whether it was the right or turn of Ogundipe family to produce the next Olisa of Makun Sagamu before Ademike, Odukan and Gbosi families of the chieftaincy in question, therefore the appellant did not disclose the locus standing in the pleadings to launch the suit -see Adesanoye and ors. v. Adewole (2006) 14 NWLR (pt. 1000) 242 at 276 thus:-
“Learned senior Advocate took the wider issue of locus standi in chieftaincy matter. He cited some cases. I should take the issue a bit further. In the amended statement of claim, the respondent averred that he is a prince of the Leyo Aroworayi Ruling House. I should say right away that being a prince of a chieftaincy house is by itself not enough to sue in respect of appointment in the chieftaincy house. The Plaintiff has to go further to prove intimacy with the chieftaincy house to the extent and in the sense that he has the right to contest the chieftaincy if and when vacant. He must clearly state the extent of his interest in the chieftaincy and such an interest should be that he is, by his royal blood, entitled to the throne. A trial Judge will not accept a caricature of an interest or a bloated interest which does not flow naturally from and to the chieftaincy. As a matter of fact, courts of law will never encourage a party to force himself to the chieftaincy for recognition; rather, the chieftaincy should naturally embrace the person he is one of its own”. (My Emphasis)
See also Momoh v. Olotu (supra) cited in the respondents’ brief of argument, and Ebongo v. Uwemedimo (1995) 8 NWLR (pt.411) 22 at 45.
Notwithstanding that the court below made wrong use of Exhibits A and B, previous judgments, to decide the issue of locus standi against the appellant, the court below none-the-less came to a correct decision that the appellant did not, by his pleadings, reveal his locus standi to file the chieftaincy action. Consequently, regardless of the fact that wrong reasons were given by the court below in resolving the issue of locus standing, its conclusion that the appellant did not disclose his locus standing to sue in the action is right, and the said conclusion is supported by the statement of claim of the appellant (supra), therefore I cannot disturb the said correct conclusion – see Ukejianya v. Uchendu 13 W.A.C.A. 45 at 46, Taiwo v. Sowemimo (1982) 5 S.C. 60 at 74-75, Ibuluya v. Dikibo (2011) 3 WRN 1 at 23.
Accordingly, I find no merit in the appeal and hereby dismiss it and affirm the Ruling of the court below (Olopade, J.) striking out the suit of the appellant for want of locus standi to maintain the suit. The appellant shall pay N30,000 costs to the respondents.
CHIDI NWAOMA UWA, J.C.A.:
I had the privilege of reading before now the judgment delivered by my learned brother, JOSEPH SHAGBAOR IKYEGH, JCA.
I agree with his Lordship’s reasoning and conclusion arrived at in holding that the appeal lacks merit and the order striking out the suit of the appellant for want of locus standi to maintain the suit.
For the purpose of emphasis I would chip in a few words. Locus standi denotes the legal capacity to institute proceedings in a court of Law and where a plaintiff lacks such capacity or locus standi, his case must be struck out as being incompetent, see OWODUNNI V. REG. TRUSTEES OF C.C.C. (2000) 6 S.C. (PT. 111) 60.
Generally, in order to determine whether a plaintiff has locus standi or not, the court looks at the statement of claim, see ADESOKAN V. ADEGOROLU (1997) 3 NWLR (pt. 493) 261 and PAM & ANOR. V. MOHAMMED & ANOR. (2008) 5-6 S.C. (pt. 1) 83.
In particular, with chieftaincy maters, the plaintiff has a duty to show the court that he has locus standi in a claim relating to the filling of a vacancy in the Chieftaincy, particularly a Ruling House Chieftaincy as in the present case, he must do more than relying on his membership of the Chieftaincy, he must show that:
It is noteworthy that in a Ruling House Chieftaincy, the ascension to the throne is that of the whole Ruling House and not that of the individual members. For this reason, a member who desires to take benefit of the Right of the Ruling House must aver in his statement of claim and prove by evidence his entitlement to the vacant throne thereafter.
From the statement of claim at pages 4-5 of the printed records, the appellant as plaintiff did not disclose in his pleadings his standing to institute the action, see ADEWUNMI V. EKITI STATE (2002) 1 S.C. 47 and the case of INAKOJU V. ADELEKE (2007) 1 SCNJ 1 at 163-164. For the fuller and more detailed reasoning in the lead judgment, I also find no merit in the appeal; I dismiss same and affirm the decision of the trial court striking out the suit. I abide by the order made as to costs.
OBIETONBARA DANIEL-KALIO, J.C.A.:
I have had the privilege of reading in advance the just delivered judgment of my learned brother Joseph Shagbaor Ikyegh J.C.A. I agree with him. The learned trial Judge had no business scrutinizing the contents of Exhibits in order to determine locus standi. As stated in Adesanoye v. Adewole (2006) 14 NWLR part 1000 page 242 “it is elementary law that in order to determine locus standi of the plaintiff, the only court process to look at is the Statement of Claim.”