Pius Nwabueze Umeh V. Edward Ottah (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED L. TSAMIYA, JCA (Delivering the leading Judgment)

This is an appeal from the High Court of Enugu State (herein referred to as the trial court) against the ruling delivered on 9th June 2006 in a motion on notice by the 1st defendant/applicant (herein referred to as appellant) challenging the jurisdiction of the trial court to entertain suit No. E/815/2004 before it, on the ground that the action is incompetent having been initiated by a plaintiff (herein referred to as respondent) lacking locus-standi.

From the record of this appeal, the facts of this case can be summarized as follows:

The appellant purchased the landed property in dispute from the owner one Edward Ottah (now deceased). The counsel who acted for the purchaser was late Barrister G.M.O. Okonkwo and the counsel who acted for owner was Chief G.C. Obiora Onyia. This transaction was concluded in March 1991. The appellant has since then remained in undisturbed possession of the completed property and also collecting of rents from tenants handed over to him by the vendor.

On 8th November, 2004, the respondent filed the said suit against the appellant and one other, claiming title to the property in dispute, revocation of the sale, injunction and Damages.

While the said suit was pending, the appellant filed a motion on notice praying the trial court to dismiss the said suit on the ground that the respondent lacks locus-standi to bring the action (italics mine).

In support of the application is an affidavit of 12 paragraphs with 8 annextures, thereto and marked as exhibits A, B, B1, B2, B3, C, C1 and C2. Also filed by the appellant is a further affidavit of eleven paragraphs with 1 annexture marked exhibit D.

The respondent filed a counter-affidavit of 13 paragraphs opposing the application to dismiss the suit.

After hearing the submissions of both counsel to the parties, the trial court in its Ruling held that:

1. the notice of discontinuance against the 2nd Defendant was valid and proper and the name of the 2nd Defendant be and hereby struck out.

2. on the issue of locus-standi, the respondent has fulfilled the conditions of showing that he has the legal standing to sue for the property in issue, and therefore has locus-standi to sue.

3. on the allegation of forgery raised by the appellant, at this stage is premature.

4. in the circumstances, the court must go into hearing of the court.

5. finally the application fails woefully and is dismissed.