J. Sunkanmi Dairo & Ors V. The Registered Trustees Of The Anglican Diocese Of Lagos (2017)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

The respondent as plaintiff who instituted the action claimed in its Amended Writ of Summons and Further Amended Statement of Claim dated 17th April, 1989 the following reliefs:-

1. The sum of N11, 000.00 being special and general damages for trespass committed by the defendants on the plaintiffs land lying and situate at Iwaya, Lagos State of Nigeria, which said piece and parcel of land is covered by a Deed of Conveyance dated 30th day of June, 1948 and registered as No 42 at page 42 in Volume 776 of the register of Deeds kept in the Land Registry, Lagos.
2. Injunction restraining the defendants, his (sic) servants and/or agents from committing further acts of trespass on the said land.

In proof of its case, the plaintiff called 3 witnesses while each of the 1st-6th defendants testified and the 7th defendant called 4 witnesses.

In a reserved judgment, the trial Court dismissed the first claim of the plaintiff/respondent but granted the second claim as contained in the aforesaid amended writ of summons. Dissatisfied with the judgment, the appellants appealed to the Court of

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Appeal, Lagos (herein referred to as Court below or lower Court). In its judgment delivered on the 18/3/2002, the Court below allowed the appeal in part by dismissing the second claim of the plaintiff/respondent and in its place granted an order of injunction against the 3rd, 4th, 5th, 6th and 7th defendants/appellants and awarding N1,000.00 as damages against the defendants/appellants. The present appeal is against the judgment of the Court of Appeal delivered on the said 18/3/2002. The Notice of Appeal filed on 17/6/2002 is to be found at pages 878-881 Volume 11 of the records of appeal and contains four grounds of appeal. An amended Notice of Appeal was filed on 20/3/2009 containing five grounds of appeal from which the appellants distilled three issues for determination as follows:-

1. Whether from the facts of this case as contained in the printed record, it can be said that the respondent has the legal capacity to institute this action, and if not, whether the trial Court had the requisite jurisdiction to entertain respondent’s suit and whether the Court of Appeal was right to affirm such jurisdiction – Grounds 1, 4 and 5.
2. Whether the

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appellants admitted the juristic personality of the respondent and if at all whether such admission of the appellants can confer juristic personality on the respondent where none exists – Ground 2.

3. Whether based on the foregoing, the respondents can maintain an action in trespass against the appellants – Ground 3.

The respondent also submitted three issues for determination as follows:-

(a) Whether the appellants can at this stage still raise the issue of the legal capacity of the respondent, when same have been dealt with and rejected by the two lower Courts

b) Whether the appellants have properly joined issues with the respondent as to the juristic personality of the respondent herein

c) Whether the respondent can maintain this action

A person must have the requisite legal capacity to be a party to a law suit See: Fawehinmi v. Nigeria Bar Association (No. 2) (1989) 2 NWLR (Pt. 105) 558; Iga v. Amakiri (1976) 11 SC 1 at 8-9; Kwara Hotels Ltd v. Ishola 2002 9 NWLR (Pt. 773) 604 at 622-623. Learned counsel for the appellants submitted that from the facts adduced at the trial Court and as contained in the printed record, the

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