Ganiyu Ogundipe V. Samson Muraina Oduwaiye & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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.

2. Whether the learned trial Judge was wrong when he concluded that the plaintiff did not show their interest in the action having failed to disclose the contents of the report pleaded in the statement of claim”.

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.

2. Whether from the Appellant’s Pleadings the Appellant has the necessary standing to sue.”

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.