Mrs. Grace Ayodele Tabiowo V. Reverend Michael Disu & Anor. (2007)

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GALINJE, J.C.A.

By a writ of summons dated 10th day of July, 1997, and a statement of claim dated 22nd September, 2007, the respondents herein instituted an action against the appellant at the Lagos State High Court whereby they claimed among others, a declaration of statutory right of occupancy of the plot of land known as No. 10 Araromi Street, Somolu. The appellant through an application dated the 8th day of November, 1999 challenged the locus standi of the respondents to institute the action aforesaid on the ground that the condition precedent to the commencement of the action has not been complied with. This application was heard and in a considered ruling dated 18th day of January, 2002, the trial Judge dismissed the appellant’s application.

Being dissatisfied and aggrieved with the ruling of the lower court, the appellant lodged this appeal against the said ruling by a notice of appeal dated and filed on the 31st January, 2002. This notice contains two grounds of appeal. These grounds of appeal without their particulars read as follows:-

“1. The learned trial Judge erred in law when he held that evidence must first be led before the court can determine the issue of locus standi of the plaintiffs/respondents to institute the suit.

2. The learned trial Judge erred in law when he dismissed the appellant’s application whereby the locus standi of the plaintiffs/respondents to institute the suit was challenged on the premise that the defendants/appellants have not filed their defence.

In line with the relevant rules of Order 6 of the Court of Appeal Rules, 2002, parties filed and exchanged briefs of argument.

The appellant’s brief of argument is dated 22nd of January, 2004 and filed on the 23rd January, 2004. At pages 1 – 2 paragraph 3 subparagraphs (i) and (ii) of the said brief, two issues for determination of this appeal were formulated by the appellant. These issues are:-

“1. Whether the learned trial Judge was right when he held that evidence must be led before the issue of locus standi of the respondents can be determined.

2. Whether the learned trial Judge was right when he held that the issue of locus standi cannot be raised by the appellant until the statement of defence has been filed.”

In addition, the respondent filed a reply brief on the 15th April, 2004.

The respondents brief is dated 30th March, 2004 and filed on the 2nd April, 2004. The brief has no page numbers. The respondent formulated two issues for determination of this appeal. These issues read thus: –

“1. Whether the appellants could controvert pleadings in the respondents’ statement of claim via affidavit evidence or through statement of defence and oral evidence.

2. Whether it is proper for the appellants to raise the issue of locus standi without first filing their defence in view of the provisions of Order 23 of the High Court of Lagos State (Civil Procedure) Rules, 1994.”

I have carefully read through the two grounds of appeal filed by the appellant in her notice of appeal to this court and I am of the view that the two issues raised in her brief are properly distilled from those grounds of appeal. On the other hand, the first issue formulated by the respondents does not appear me to arise from any of the grounds of appeal. The issue stands to challenge the appellant on whether she could contest the pleadings in the respondents’ statement of claim at the lower court by affidavit evidence or through statement of defence and oral evidence. This is not an issue in the grounds of appeal and since the Respondents have not filed a cross appeal, they cannot formulate an issue independent of the Appellant’s grounds of appeal. I will therefore disregard and discountenance the respondents’ first issue. See Brifina Ltd. v. Intercontinental Bank Ltd. (2003) 5 NWLR (Pt. 814) 540; Takum L.G. v. U.C.B. (Nig.) Ltd. (2003) 16 NWLR (Pt.846) 288; Jatau v. Ahmed (2003) 4 NWLR (Pt. 811) 498 at 508 paragraph E – F.

At this stage therefore the appeal will be decided on the two issues formulated by the appellant and the respondents’ sole issue.

In arguing issue one, Adejuyigbe Esq. of counsel to the appellant set out the definition of locus standi as was determined by the courts in Oloriode v. Oyebi (1984) 1 SCNLR 390; Ezeafulukwu v. John Holt Ltd. (1996) 2 NWLR (Pt. 432) 511; Adenuga v. Odumero (2003) 8 NWLR (Pt. 821) 163; Owodunni v. Reg. Trustees of C.C.C. (2000) 10 NWLR (Pt. 675) 315, and submitted that once the issue of locus standi of a party is challenged, it has to be resolved first before any other consideration of the matter. According to the learned counsel, the issue of locus standi of the respondents herein cannot remain in abeyance until the suit is heard on its merit but must be settled one way or the other since it is intertwined with the jurisdiction of the court. In a further argument, learned counsel referred the court to the dictum of Tobi, J.C.A. (as he then was) in In Re Adetona (1994) 3 NWLR (Pt. 333) 481 at 488 and submitted that the locus standi of the plaintiff is a precondition to the Court assuming jurisdiction.

Continuing in argument, learned counsel quoted paragraph 7 of the affidavit in support of the appellant’s application at the lower Court, dated 8th day of November, 1999 where the following deposition was made thus:-