MR. BODE AKINYEMI & ANOR V. PRINCE M. O. BANJOKO
In The Court of Appeal of Nigeria
On Thursday, the 2nd day of February, 2017
Before Their Lordships
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
1. MR. BODE AKINYEMI
2. MRS. FOLUKE AKINYEMI Appellant(s)
PRINCE M. O. BANJOKO Respondent(s)
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the Ogun State High Court sitting at Otta, delivered by A. A. Babawale, J on the 27th day of April, 2012 in Suit No: HCT/166/2011.The Appellants herein had by their Paragraph 46 of the Statement of Claim dated the 13/5/2011 and filed on the 16/5/2011 claimed against the Respondents as follows:
1. A sum of N5,342,000.00 (Five Million, Three Hundred and Forty-Two Thousand Naira) being special and general damages for diverse acts of trespass committed by the Defendant on the land of the Claimant situate, lying and being at Olambe Village, Ogun State, and which is more specifically shown in Survey Plan No. PSG/101/A of the 4th of April, 1998 prepared by A. O. Morgan, M.O.N. Licensed Surveyor.
2. An Order of perpetual injunction restraining the Defendant, his agents, servants and privies from committing any further act of trespass against the Claimants land at Olambe Village, Ogun State.
Upon being served, the Respondent entered appearance and filed a Statement of Defence denying the Appellants Claims; and also averred in
Paragraphs 59, 60, 61, 62, 63 and 65 of his Statement of Defence dated and filed on the 27/01/2012 as follows:
59. The Defendants avers (sic) that when Oseni family discovered recently that the land in dispute may be part of the large parcel of land acquired by the Ogun State some time ago, it instructed its solicitor to enquire.
60. That at the Bureau of Lands and Survey, Abeokuta, Ogun State, the parcels of land covered by five (5) Certificates of Occupancy which the Claimants said they obtained over the land in dispute and constituting the subject matter of this case was charted and this revealed that the parcels of land covered by the Certificates of Occupancy fall within the AGBADO GLOBAL ACQUISITION published in the Ogun State Gazettes No.5, Volume 23 of 29th January, 1998, No. 27, Volume 24 of 8th July, 1999 and No. 3, Volume 17 of 16th January, 1992.
61. The Defendant states that the foregoing was also contained in the letter of the Bureau of Lands & Survey, Abeokuta, Ogun State, dated 26th of March, 2010 and a Certified True Copy thereof shall be relied.
62. The Defendant Oseni family then realized that by virtue of the said acquisition and facts in Paragraphs 60 and 61 above, title in and possession of the land in dispute vest in the Ogun State Government from the date of the acquisition.
63. The Defendant states that by virtue of the foregoing Paragraphs 60 62, the Claimants cannot maintain this action and indeed have no locus standi to institute this case.
65. The Defendant shall pray the Court to set down the issues of law raised in Paragraphs 60 63 down for Preliminary Objection.
Based on the above pleadings, the Respondent, as Defendant, by a Motion on Notice, dated and filed on the 27/1/2012, prayed the Court for an order(s):
1. Setting down the issue of law raised in Paragraphs 59 63 of the Statement of Defence of the Defendant for determination as Preliminary Point of Law as it affects the jurisdiction of the Court to entertain this case.
2.Striking out this case on the issue of law raised that the Claimants lack the competence to litigate on title to the land in dispute in view of the acquisition of the land by the Ogun State Government.
The Motion which was predicated on Order 22 Rule 2 of the Ogun State High Court (Civil Procedure) Rules, 2008 was supported by an Affidavit of seven (7) paragraphs deposed to by the Defendant/Respondent himself. Accompanying the
application was a Written Address in Support thereof. In opposition to the application, the Plaintiff/Appellant filed a Counter-Affidavit of ten (10) paragraphs deposed to by the 1st Claimant/Appellant. Same was also supported by a Written Address in Support thereof. The Defendant/Respondent then filed a Further Affidavit of eight (8) paragraphs to which were annexed some exhibits marked as C, D, E and F. It was also accompanied by a Written Address in response to points of law raised in the Plaintiffs/Appellants Written Address. The learned trial Judge then heard counsel on the Motion when they adopted their Written Addresses, on the 26/3/2012. In a Ruling delivered on the 27/4/2012, the learned trial Judge agreed with the Defendants/Respondents and therefore granted their application by striking out the suit filed by the Plaintiffs/Appellants. The Plaintiffs, now Appellants, were aggrieved by the said Ruling and thus filed this appeal.
The Notice of Appeal contained in pages 237 241 of the Record of Appeal was dated and filed on the 08/6/2012. It consisted of five (5) Grounds of Appeal. In compliance with the Rules of this Court, the parties filed and exchanged Brief of Arguments settled by O. O. Ojutalayo; Esq (now S.A.N) was dated and filed on the 13/8/2015 but deemed filed on the 6/10/2015. Therein, three issues were distilled for determination as follows:
(I) In view of the position of the law, whether the Learned Trial Judge of the High Court was correct when he relied on the averments contained in the Statement of Defence as the basis for the resolution of the issue oflocus standi against the Appellants.
(II) Whether the Learned Trial Judge correctly considered and evaluated the evidence and submissions of parties before he declined jurisdiction to entertain the Appellants suit and consequently struck out same on the ground of the alleged acquisition of the land in dispute by the Ogun State Government.
[Grounds 1, 4 and 5].
(III) Whether the lower Court was correct when it upheld the objection of the Respondent to the Appellants claim for trespass and injunction on the ground that the land in dispute had been acquired by the Ogun State Government when that objection was in the nature of a plea of jus tertii.
The Respondents Brief of Arguments is that dated and filed on 10/12/15 but deemed filed and served on the 7/12/2016. Therein, three (3) issues were also raised for determination as follows:
1. Whether the lower Court was right in considering other materials placed before it in addition to the Statement of Claim in determining the competence of an action raised in the Statement of Defence by Virtue of Order 22 Rule 2 of the High Court (Civil Procedure) (Amendment), Rules 2008 of Ogun State.
2. Whether the lower Court correctly and properly considered the evidence placed before it and counsel submissions thereon before striking out the case of the Appellants.
3. Whether the Preliminary Objection that the Appellants suit was not competent because the subject matter thereof had been acquired by the Ogun State Government was a plea of jus tertii.
I have carefully studied the record of appeal and read the briefs filed herein. I have also studied the issues formulated for determination by the parties thereon. After a careful consideration, I am of the view that, the issue No. 3 distilled by the Appellants will adequately cover the entire issues for determination in this appeal. I shall therefore adopt same but with modification, in the determination of this appeal, as follows:
Whether the learned trial Judge was right when he struck out the Appellants suit on the ground that the Appellants had no justiciable interest and thus, locus standi to institute the action
The above issue, in my view, is wide enough to cover arguments canvassed by counsel on the three issues formulated for the determination of this appeal. I however wish to remind myself that the Appellants filed an Appellants Reply Brief. It was dated and filed on the 14/12/2016.
Now, learned counsel for the Appellant had contended that the Appellants had by Paragraphs 3 14 of the Statement of Claim, pleaded the justiciability of their action as well as the existence of a dispute between them and the Respondent. It was then submitted that, to resolve the issue of the locus standi of the Appellants, the only process that is relevant for consideration is the Statement of Claim. The cases of Ladejobi v. Oguntayo (2004) 18 NWLR (pt. 904) p. 149 at 173 Paragraph G; Adesokan v. Adegborolu (1997) 3 NWLR (pt. 493) p.261 and Taiwo v. Adegboro (2011) 11 NWLR (pt. 1259) p. 562 at 580 Paragraphs A B, were cited in support. That by Paragraphs 3 14 of the Statement of Claim, the Appellants had pleaded gross acts of trespass of the Responded on their land and therefore have shown sufficient interest in the land and the existence of a dispute between them and the Respondent concerning the res which confers locus standi on them to institute the action.
The case of Chijuka v. Maduewesi (2011) 16 NWLR (pt. 1272) p. 181 at 204 Paragraphs B F was further cited to submit that, at the stage of determining whether a party has locus standi or not, the possibility of whether the claim will succeed or not is totally irrelevant. It was thus submitted that, the learned trial Judge erred by prematurely holding that the Appellants lacked locus standi to institute the action on the basis of the alleged acquisition of the land. That, the learned trial Judge therefore erred when he relied on the averments in the Statement of Defence in holding that the Appellants lacked the requisite locus standi to institute the action.
As his issue two, learned counsel for the Appellants contended that, the case of the Respondent at the trial Court was bereft of any credible evidence upon which any reasonable Court of law could uphold the allegation of acquisition. That, the case of the Respondent that the Ogun State Government had acquired the land in dispute was denied by the Appellants. That in order to support their case, the Respondent relied on Exhibit F. That, the Appellants had challenged the veracity of the said Exhibit F and argued that only a full trial could establish its veracity after same has been duly tested in Cross-Examination. That, this is more so as it is the settled law that where there is irreconcilable conflict in the Affidavit evidence, the Court is duly bound to call oral evidence to resolve the conflict. It was therefore submitted that, in view of the denial of the Appellants, the trial Court was duty-bound to call for oral evidence to resolve the issue rather than relying on Exhibit F to deny locus standi on the Appellants to institute the action. The cases of Falobi v. Falobi (1976) 1 N.M.L.R. p. 169 at 178; Akindure v. Iwaku & Ors (1994) 3 NWLR (pt. 330) p. 106 at 116 and Ajani v. Taiwo (2012) 5 NWLR (pt. 1292) p. 141 at 158 159 Paragraphs G C were cited in support.
It was further submitted by learned counsel for the Appellants that, the case of Makeri v. Kafinta (1990) 7 NWLR (pt. 163) p. 411 relied on by the trial Court did not resolve the issue of acquisition without taking oral evidence. That in fact, in the Makeri case (supra), this Court took further oral evidence from the land officer before resolving the issue of acquisition. Furthermore, that the trial Court did not only fail to evaluate the depositions and submissions of the Appellants but also injudiciously held that the Appellants did not present any document to counter Exhibit F, even when the Appellants had denied the alleged acquisition.
Learned Counsel for the Appellants went on to submit that, the learned trial
Judge erred when he held that the case of Ugorji v. Onwu & Ors (1991) 3 NWLR (pt. 178) p. 177 was not applicable to this case because it was decided upon an application for joinder of the Anambra State Government, and not on the issue of acquisition. That, in the Ugorji case (supra) it was held that, since the Respondent therein was not claiming through the Anambra State Government, he could not raise the issue of acquisition on behalf of the State Government, and thus could not bring an application to join the State Government as a party in that suit. That, it would appear therefore, that the trial Court cast its lot with the contradictory submissions or claims of the Respondent who in one breath pleaded that his family own the land in dispute and in another breath contended that the land had been acquired by the Ogun State Government. That, the Respondent cannot claim ownership of the land and turn around to plead that same had been acquired by a third party. Learned Counsel then submitted that the learned trial Judge failed to discern the obvious incongruities in the case of the Respondent and proceeded to agree with him on his allegation of acquisition.
The cases of Adesina v. Ojo (2012) 10 NWLR (pt. 1309) p. 552 at 579 580 Paragraphs G C and Ogundalu v. Macjob (2015) 8 NWLR (pt. 1460) p. 96 at 116 117 were then cited to urge us to resolve the issue in favour of the Appellants.
As his issue three (3), learned counsel for the Appellants contended that the claim of the Appellants was for damages for trespass committed by the Respondent on the land in dispute and for a perpetual injunction. That the Respondent did not deny the allegation of trespass made against him, rather, his defence was that the ownership of the land in dispute was vested in the Ogun State Government who is not a party in the case. Learned Counsel then submitted that, the settled law is that trespass to land is actionable at the suit of the person in possession of the land. That, in that respect, the person sued cannot raise a defence of the interest of a third party unless he (the alleged trespasser) is claiming through the said third party. The case of Amakor v. Obiefuna (1974) 1 All N.L.R. p. 19 at p. 126 was cited in support. The cases of Ugorji & Anor v. Onwu (supra) at p.187 and Isaac Sunday Olufemi Aderinoye v. Legit Global Investment Limited (2014) LPELR 24050 (CA) were further cited to submit that the defence of the Respondent at the Court below that the land in dispute had been acquired by the Ogun State Government was in the nature of the plea of jus tertii, which cannot be raised as a defence unless the Respondent was claiming through the Ogun State Government, which is not the case here. We were accordingly urged to resolve this issue in favour of the Appellants and to allow the appeal.
In response, learned counsel for the Respondent contended that, the Appellants based their arguments on the notion that the trial Court struck out the case on the ground that the Appellants did not have locus standi and that in doing so relied on the Statement of Defence. That this notion is erroneous because the issue raised in the Court below and upon which the Court decided was whether the Appellants could litigate over the parcel of land that had already been acquired by the State Government. That the trial Court appreciated this fact when it held at page 235 of the record that:
The point of law raised by Defendant/Applicant is that the land the subject matter of this suit had been acquired by the State Government and so the Claimants lack competence to litigate on same.
Learned Counsel for the Respondent then submitted that the decision of the trial Court did not turn on whether the Appellants had locus standi or not. That the Ruling of the trial Court is in line with the decision in Makeri v. Kafinta (supra). It was further contended that, the Appellants knew that the case was struck out on the ground that there was no
more lis to litigate upon after the acquisition, and not that the Appellants did not have locus standi.
Learned Counsel for the Respondent went on to submit that the Respondent was permitted by Order 22 Rule 2 of the Ogun State High Court (Civil Procedure) Rules, 2008 to raise the issue of competence of the action as a point of law in his Statement of Defence. That, in the instant case, the Respondent pleaded the traditional history of his family and thus joined issue with the Appellant on the claim of ownership; and proceeded to raise the issue of competence of the action by stating that the Appellants could not maintain the action because the Ogun State Government had acquired the subject matter of the claim. That, the Appellants consented to the issue raised in the Respondents Motion being set down for hearing, when they filed a Counter-Affidavit. It was therefore submitted that, the procedure adopted is permitted by the Rules of the Court below.
It was further submitted by learned counsel for the Respondent that, even though the point of law in question was raised in the Statement of Defence, it was canvassed on the Motion on Notice, Affidavit in Support, Counter-Affidavit and Further Affidavit of the parties. That, the fact that it was not tried on the averments in the Statement of Defence is borne out by the proceeding and ruling of the Court as contained in pages 223 236 of the Record of Appeal. It was accordingly submitted that, the contention of the Appellants that the lower Court based its ruling on the averments in the Statement of Defence is not correct. Furthermore, that the contention of the Appellants that in considering the locus standi of a Claimant the Court must restrict itself to the Statement of Claim is incorrect; as that rule is subject to certain exceptions. The cases of OPIC v. Atunrase Petroleum & Allied Products Ltd (2003) FWLR (pt. 140) p. 1800 at 1816 Paragraphs D G; Owners of M.T. Ventures v. N.N.P.C. (2012) All FWLR (pt. 645) p. 398 at 406 Paragraphs A C; Trade Bank Plc v. Udegbunam (2004) All FWLR (pt. 200) p. 1576 at 1589 Paragraphs E – F; Goldmark Comm. Ltd v. Ibafon (2013) All FWLR (pt. 663) p. 1830 at 1856 and University Press v. Martins Nigeria Ltd (2000) 2 S.C.N.J. p. 224 were then cited to submit that, in determining the locus standi of a Claimant, a Court is entitled to consider the Affidavit, Counter-Affidavit and any other material placed before the Court for that purpose.
Learned Counsel for the Respondent again contended that, the Respondent had averred in Paragraphs 59, 60, 61, 62 and 63 of the Statement of Defence, that the Land in dispute had been acquired by the Ogun State Government long before the Appellants instituted the action. That the Respondent followed up by filing a Motion praying the Court to set down the point of law raised in the Statement of Defence for hearing and to strike out the case on the ground that the land in dispute had been acquired and therefore there was nothing more to litigate upon. Learned Counsel referred to Paragraphs 3, 4, 5, 6 and 7 of the Further Affidavit, which deposed that the land in dispute had been acquired as evidence by Exhibits C, D, E and F. That the Appellants merely made a bare denial of the acquisition in Paragraph 7 of their Counter-Affidavit. The cases of Makeri v. Kafinta (supra); Yusuf v. Oyetunde (supra) and Amao v. Majasan (2004) All FWLR (pt. 227) p. 525 at 538 were they cited in support.
It was also argued by Learned Counsel for the Respondent that, the contention of the Appellants that oral evidence ought to have been called to resolve the conflicting assertions of the parties on the issue of acquisition is unsupportable in law. That, the trial Court relied on Exhibits C D, E, which are Gazettes of the acquisition and Exhibit F which is the official confirmation that the land in dispute had been acquired. That Exhibits C, D and E are subsidiary Laws and therefore public documents, the contents of which cannot be contradicted
by oral evidence, as stipulated by Section 132 of the Evidence Act of 2004. That in the circumstances, it is meaningless to call oral evidence. The cases of Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (pt. 135) p. 668 at 718; Ebba v. Ogodo (2000) FWLR (pt. 27) p. 2094 and Nuhu v. Fufore L.G.C. (2004) FWLR (pt. 193) p. 277 at 298 were then cited to further submit that, it is not in all cases that once conflict arises in Affidavit of the parties that same must be resolved by calling oral evidence. That, rather, the law is that, where documents are attached to the Affidavit of the parties, same can be used to resolve the conflict(s) in the contending Affidavits.
Learned Counsel for the Respondent went on to submit that, contrary to the contention of the Appellants, the Learned trial Judge actually reviewed the contending Affidavits and submissions of the parties as well as the authorities cited by them before arriving at its decision. That, the learned trial Judge considered and distinguished the facts of Ugorji v. Onwu (supra) from the facts of this case, and proceeded to prefer and follow the case of Makeri v. Kafinta (supra) in deciding the Respondents application.
On the contention of the Appellants that the point of law raised by the Respondent in his defence that the land in dispute had been acquired by the Ogun State Government was a plea of jus ter tii, it was argued by Learned Counsel for the Respondent that, such contention is a total misconception of the defence of the Respondent. That, in Paragraphs 1, 35, 53, 54, 55 and 58 of the Statement of Defence, the Respondent vehemently denied the allegations of trespass leveled against him. That, besides denying the allegation of trespass, the Respondent pleaded that the land in dispute belonged to his family; and that his family was in exclusive possession of the land. He relied on the averments in Paragraphs 1-27 and 30 of the Statement of Defence. That by so pleading, it is clear that the Respondent actually set up a defence on the merit and so did not rely on the title of the Ogun State Government. It was thus submitted that, the name of Ogun State Government merely cropped in with regards to the issue of acquisition of the subject matter and the competence of the trial Court to hear the case having regards to the consequence of acquisition. We were accordingly urged to resolve all the issues against the Appellants and to dismiss the appeal.
As noted earlier on, the Appellants filed a Reply Brief of Arguments. Therein, Learned Counsel for the Appellants began by contending that, it is erroneous for the Respondent to argue that the Appellants consented to setting the point of law raised for determination for the reason that they filed a Counter-Affidavit.
On the issue of whether or not the point raised was on locus standi, learned counsel for the Appellants cited the case of Jitte v. Okpular (2016) 2 NWLR (pt. 1497) p. 542 at 563 – 564 Paragraph. H – B, to submit that, what the trial Court held was that the interest of the Appellants in the land had been extinguished by the acquisition by the Ogun State Government therefore, they had no locus to prosecute the suit.
On the issue of the materials to use in determining the issue of locus standi, it was countered by learned counsel for the Appellant that, even if the Court would have to consider other materials besides the Statement of Claim, the facts deposed to must take their root or source from the
Originating Processes, such as the Writ of Summons, Statement of Claim or Originating Summons, and not the Statement of Defence. That in the instant case, the Writ of Summons and Statement of Claim did not
contain any fact relating to the acquisition of the land in dispute. The case ofGoldmark Comm. Ltd v. Ibafon Co. Ltd (2013) All FWLR (pt. 663) p. 1830 at 1856 Paragraph D was then cited to argue that it is clear that the Respondent set up his defence to frustrate the hearing of the case at the trial Court. The case of Jolabon Investment (Nig) Ltd & Ors v. Oyus Intl Co. (Nig.) Ltd (2015) 18 NWLR (pt. 1490) p. 30 at 43 Paragraph E was also cited in support. Learned Counsel for the Appellant then proceeded to distinguish the cases of Owners of M. T. Ventures v. N.N.P.C (supra); Nonye v. Anyichie (supra) and Goldmark Comm. Ltd v. Ibafon (supra); and to urge us to resolve those issues in favour of the Appellant.
On the evaluation of the evidence, Learned Counsel for the Appellants contended that, the Appellants denied that the land was acquired by the Ogun State Government. That to prove ownership of the land, the Appellants presented Certified True Copies of Certificates of Occupancy in respect of the bundle of land in dispute issued to them by the Ogun State Government. That, it is settled law that the issue of acquisition is a matter of evidence. It was therefore submitted that the Exhibits C, D and E which are Gazettes and Exhibit F do not constitute notice of revocation nor are they conclusive evidence of the revocation. He then cited the case of Olatunji v. Military Governor of Oyo State (1995) 5 NWLR (pt. 397) and Goldmark Comm. Ltd v. Ibafon (supra) at pp. 1873 – 1874 Paragraphs H – B, to submit that the learned trial Judge mis-applied the law when he relied on Exhibits C, D, E and F to hold that the land in dispute had been acquired by the Ogun State Government. We were then urged to hold that the learned trial Judge erroneously evaluated the arguments placed before him when he held that the land in dispute had been acquired by the Ogun State Government.
Now, as pointed out earlier in the course of this judgment, the claim of the Appellants before the trial High Court was for trespass to the land in dispute and an injunction restraining further acts of trespass by the Respondent. This is clearly pleaded in Paragraph 46(1) and (2) of the Statement of Claim filed on the 16/5/2011. The Respondent, as the Defendant also filed a Statement of Defence, wherein he pleaded in Paragraph 65 thereof, that:
65. The Defendant shall pray the Court to set down the issues of Law raised in Paragraphs 60 – 63 down for preliminary hearing.
Consequent upon the above pleading, the Respondent filed a Motion on Notice dated and filed on the 27/1/2012, wherein he prayed the Court to set down the issue of law so raised in Paragraphs 59 – 63 of the Statement of Defence for determination. He also prayed that the suit be struck out on the issue of law raised, which is that the land in dispute had been acquired by the Ogun State Government. The said application is said to be premised on Order 22 Rule 2 of the Ogun State High Court (Civil Procedure) Rules, 2008. The said Order 22 Rule 2 of the Ogun State High Court (Civil Procedure) Rules (supra), stipulate that:
Any party shall be entitled to raise by his pleading any point of law, and any point of law so raised shall be disposed of by the Judge who tries the cause at or after the trial:
Provided that by consent of the parties, or by order of the Court or a Judge on the application of either party, the same may be set down for hearing and disposed of at any time before trial.”
This provision provides for what is generally referred to as Proceedings in lieu of demurrer. Demurrer is an old English Common law procedure of challenging a pleading on a point of law. The purpose of a demurrer proceeding is to terminate the proceeding in limine; and by that procedure the party raising it, contends that even if all the allegations in the pleadings are true, it still does not in law, disclose a cause of action for the party to answer or proffer a defence to the Plaintiffs claim. Demurrer may be raised by a Defendant to attack the Statement of Claim or by a Plaintiff to
challenge the Statement of Defence. Where a demurrer is raised by a Defendant, which in most cases is the case, he need not file a Statement of Defence. As Galinje, JCA (as he then was) in the case of Diamond Bank Ltd & Anor v. Mr. Adebayo Olaoti Olaleru (2008) LPELR – 8337 (CA) put it:
Demurrer is an allegation of Defendant admitting the matters of fact alleged by complaint to be true but shows that as they are therein set forth, their legal consequences are not such as to put the demurring party to the necessity of answering them.”
See also the case of Mobil Oil Nig Plc v. I.A.L 36 Inc. (2000) 6 NWLR (pt. 659) p. 146 at 167 Paragraphs G – H, wereKaribi-Whyte, JSC said:
A demurrer is a known and well accepted common law procedure which enables a Defendant who contends that even if the allegations of facts as stated in the pleading to which objection is taken are true, yet their legal consequences are not such as to put the Defendant (the demurring party) to the necessity of answering them or proceeding further with the cause. This, concisely stated, is the concept of the rules as formulated. As has often been pointed out in several decided cases including those decided by this Court, the whole basis of a demurrer is in effect to short circuit the action and by a Preliminary Point of Law to show that the action founded on the writ and Statement of Claim cannot be maintained.
It should however be noted that the procedure, i.e. demurrer procedure has been abolished by most High Courts in Nigeria, including the High Court of Ogun State. Thus Order 22 Rule 1 of the Ogun State High Court (Civil Procedure) Rules, 2008, has abolished demurrer. It therefore means that, a Defendant can no longer raise the issue in limine by Motion, without filing a Statement of Defence. Demurrer has therefore been expressly abolished by Order 22 Rule 1 of the Ogun State High Court Rules (supra). It therefore means that for a special defence to be raised and determined as a preliminary issue, it must have been specifically pleaded by the Defendant before he can pray the Court to have same set down for hearing as a Preliminary Point of Law. SeeJuwue v. Dimlong (2003) NWLR (pt. 824) p. 154 at 180 181; F.C.D.A. v. Noibi (1990) 3 NWLR (pt. 138) p. 270 at 281; Okoye v. NCF Co. Ltd (1991) 6 N.W.L.R. (pt. 199) p. 501; and Executive Governor of Osun State v. Barrister N. O. Florunsho (2014) LPELR 23088 (CA).
It should be noted that, there is a difference between demurrer and objection to jurisdiction. Thus, in the case of Dr. Tosin Ajayi v. Princes (Mrs) Olajumoke Adebiyi & Ors (2012) LPELR 7811 (SC), the Supreme Court per Adekeye, JSC said.
In the case of National Deposit Insurance Corporation v. Central Bank of Nigeria (2002) 7 NWLR (pt. 766) p. 272 pages 296 297, this Court identified the difference between demurrer and objection to jurisdiction by holding that: There is a distinction between objection to jurisdiction and demurrer. It is misleading to equate demurrer with jurisdiction. It is a standing principle that in demurrer, the Plaintiff must plead and it is upon that pleading that the Defendant will contend that accepting that all the facts pleaded to be true, the Plaintiff has no cause of action or where appropriate no locus standi. The issue of jurisdiction is not a matter of demurrer proceedings. It is much more fundamental than that and does not entirely depend as such on what a Plaintiff may plead as facts to prove the relief he seeks. What it involves is what will enable the Plaintiff to seek a hearing in Court over his grievance and get it resolved because he is able to show that the Court is empowered to entertain the subject matter. It does not always follow that he must plead first in order to raise the issue of jurisdiction.
It therefore follows that in demurrer proceedings, a Defendant is neither permitted to file a Statement of Defence nor rely on it. He is also not permitted to tender evidence; as he is taken to have accepted all the facts stated by the Plaintiff as established but relies on some points of law which defeats the case put forward by the Plaintiff. However, where the objection is predicated on Order 22 Rule 2 of the Ogun State High (Civil Procedure) Rules (supra) and similar rules in other jurisdictions, only points of law may be taken or argued. Thus, evidence in respect of matters of fact or rebuttal of the averments in the Plaintiffs claim as pleaded in the Statement of Claim is neither permitted or allowed. In other words, in a proceeding under Order 22 Rule 2 of the Ogun State High Court Rules (supra), the Court is precluded from looking at any document except the Statement of Claim in determining the objection raised by the Defendant. This is because, as stated earlier, the facts as contained in the Statement of Claim are deemed admitted and the Defendant is not allowed to adduce or resort to any other evidence to establish his objection. See M. V. Mustafa v. Afrom Asian Impex Ltd (2002) 14 NWLR (pt. 787) p. 395 at 406; Horison Fibres Plc v. M. V. Baco Liner 1 (2002) 8 NWLR (pt. 769) p. 466 at 492 493; and Umarco (Nig.) Ltd v. Jofabris & Assoc. Ltd (2004) 6 NWLR (pt. 870) p. 458. Thus, in the case of Boothia Maritime Inc. Fareast Merchantile Co. Ltd (2001) 9 NWLR (pt. 719) p. 572, Ufaifo, JSC said:
It is obviously a misconception to resort to demurrer procedure and then seek to rely on facts which are not available on the face of the averments in the Statement of Claim. The well-known principle in regard to demurrer is that only the facts pleaded in the Statement of Claim should be considered on the assumption that they are accepted as true but that the Defendant upon those facts makes a case to dispose of the Plaintiffs Claim in limine as being unsustainable in law.
As pointed out earlier in the course of this judgment, under the Uniform High Court Rules, which includes the High Court (Civil Procedure) Rules of Ogun State (supra), a party is permitted to in lieu of demurrer, raise in his Statement of Defence a Preliminary Point of Law seeking that the suit be dismissed in limine. The Defendant must have filed a Statement of Defence before raising the point of law. See Nigeria Airways Ltd v. Lapite (1990) 7 NWLR (pt. 163) p. 392 and Okafor v. A.G; Anambra State (2005) 14 NWLR (pt. 945) p.10. As stated in the opening sentence of Order 22 Rules (2) of the Ogun State High Court (Civil Procedure) Rules (supra); Any party shall be entitled to raise by his pleading any point of law, the Defendant who raises the point of law must have pleaded the defence; either legal or equitable in his Statement of Defence.
In the instant case, the Respondent had prayed the Court below to strike out the Appellants Claims on the ground that the Appellants lack the competence to litigate on title to the land in dispute in view of the acquisition of the land by the Ogun State Government. By this contention, the Appellants argue that the Respondent challenges their locus standi to institute the action. The Respondent disagrees, and argues that, he is only contending that, since the land which is the res or subject matter of the Appellants claims had been acquired by the Ogun State Government, the Appellants no more have any title to the land which will entitle them to litigate on it. In determining the issue, the learned trial Judge agreed with the Respondent and therefore held at page 235 lines 13 19 of the Record of Appeal as follows:
The point of law raised by the Defendant/Applicant is that the land the subject matter of this suit had been acquired by the State Government and so the Claimants lack competence to litigate on same. I must state that the Applicant was able to satisfy the Court on the balance of probability that the land had indeed been acquired by the State Government. Exhibit F attached to the Applicants Further Affidavit being the CTC of a letter dated 26th March, 2010 from the Bureau of Lands and Survey, office of the Governor, all the land covered by the Certificates of Occupancy relied upon by the Respondents, copies of which had been front loaded by the Respondents were stated to be within the Agbado Global Acquisition.
The Respondents on the other hand were unable to controvert this fact by any document whatsoever, save the denial of this fact by Paragraph 7 of the Counter Affidavit, I adopt the two issues formulated by the Applicants counsel in the determination of this application. I must state that I am in agreement with the submission of learned counsel to the Applicant in his reply that the argument of the Respondents counsel on the validity or otherwise of the acquisition cannot be determined by the present application.
(Underlining is mine for emphasis).
The learned trial Judge then proceeded to conclude at page 236 lines 10 13 that:
The Applicant herein claims ownership of the land in dispute. I concede that it is only when evidence is adduced that this Court can determine ownership. I am however more persuaded by the case of MAKERI V. KAFINTA (supra) cited by the Applicants counsel
What is of note in this case is that, the Respondent had filed in a Statement of Defence, wherein he pleaded extensively from Paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, that the land claimed by the Appellants is owned by the Oseni family to which he is a member. In other words, he pleaded title to the land in dispute. It is trite law that where a claim for trespass is coupled with a claim for injunction, title is generally put in issue. It therefore means that, the Respondent having challenged the competence of the Appellants to institute the action, it is obvious that the locus standi of the Appellants is being challenged. This is so because, in law, locus standi is the legal capacity of a Plaintiff to institute an action in a Court of law; and once a person has no legal standing to institute an action, the Court will have no jurisdiction to entertain his claims. See Thomas v. Olufosoye (1986) 1 NWLR (pt. 18) p. 669; A.G. Kaduna State v. Hassan (1985) NWLR (pt. 8) p. 483; Yesufu v. Gov; Edo State (2001) 13 NWLR (pt. 731) p. 517; Carew v. Oguntokun & Ors (2011) LPELR 9355 (SC) and A. G. Adamawa State & Ors v. A. G. Federation & Ors (2005) 18 NWLR (pt. 958) p. 851.
To determine whether or not a Plaintiff has the requisite locus standi to institute the action, the Court will look at the Statement of Claim. It is thus the settled law that, it is the averments in the Statement of Claim that determine whether the rights or interests of the Plaintiff have been or are in danger of being or have been adversely affected by the act of the Defendant. If the averments in the Statement of Claim disclose those facts, then it would be said that he has locus standi to approach the Court for the ventilation of that grievance. See U.B.A. Plc v. BTL Industries Ltd (2006) NWLR (pt. 1013) p.61; Owodunmi v. Regd Trustees of C.C.C. & Ors (2000) 10 NWLR (pt. 675) p. 315 at 355; Inakoju v. Adeleke (2007) 4 NWLR (pt. 1025) p. 423 and Chief Gafaru Arowolo v. Chief Sunday Olowookere & Ors (2011) LPELR 561 (SC). Thus in Adetono & Anor v. Zenith International Bank Plc (2011) LPELR 8237(SC), Chukwumah-Eneh, JSC held that:
I find myself in agreement with the Appellants on the point that as a general principle the averments in the Statement of Claim and the Writ of Summons are mainly the materials required at this stage to ascertain the locus standi of a Plaintiff, that is to say, they are the materials relevant in the consideration of the instant question. See an analogous situation in the decision of this Court in the case of Seismograju Services v. Oshie (2009) 16 NWLR (pt. 1166) 158 at 160 E F.
It therefore means that it is from the Statement of Claim that the Court will determine whether or not it has jurisdiction to entertain the suit. It is clear to me that the point of law raised was on the competence of the Appellants to institute the action. The point of law raised was undoubtedly on the locus standi of the Appellants to institute the action. This fact is perfectly captured by Paragraph 63 of the Statement of Defence, wherein the Respondent pleaded that:
The Defendant states that by virtue of the foregoing Paragraphs 60 62, the Claimants cannot maintain this action and indeed have nolocus standi to institute this case.
This pleading was replicated in Paragraph 63 of the Written Statement of the Respondent. All the other facts pleaded in the Paragraphs 60 65 of the Statement of Defence and the depositions in the Affidavit in Support of the Motion relate to want of locus standi of the Appellants to institute the suit.
Now, since the question whether or not a party has locus standi in a suit is determinable from a totality of all the averments in the Statement of Claim, alone, the facts that constitute the want of locus standi of the Plaintiff is not referable to the Statement of Defence. The Statement of Claim is therefore the final obiter in the determination of the issue of locus standi as a preliminary issue. In the instant case, the Respondent predicated his challenge to the locus standi of the Appellants on the fact that the land in dispute had been acquired by the Ogun State Government. The evidence or facts relied on by the Respondent are not contained in the Statement of Claim but in the Affidavit in Support of the Motion, and Paragraphs 60 65 of the Statement of Defence. Those facts are evidenced by the exhibits annexed to the Affidavit in Support of the Motion. Those documents are C.T.Cs of some Gazettes and a letter from the Bureau of lands purporting to confirm the facts of acquisition of the land. The Appellants have denied the fact of acquisition and gave reasons for the denial. In the circumstances therefore, it was necessary, indeed prudent, for the trial Court to refuse the Preliminary Objection and order for a full trial on the pleadings already filed. That would give opportunity to the Appellants to Cross-Examine on those documents, so as to afford the trial Court the opportunity to apportion the right probative value to those documents.
It is however sad that, instead of ordering for a full trial of the case on the merit, the learned trial Judge short – circuited the trial, thereby terminating in limine the claims of the Appellants. In doing that, the learned trial Judge relied on the letter from the Bureau of Lands dated the 26/3/2010, annexed to the Respondents Affidavit in Support of the Motion as Exhibit F. Surely, the justice of the case required that the maker of the said document be summoned to testify so that the veracity of the document could be tested in Cross-Examination. This is more so when the parties had made conflicting claims of title to the land in dispute.
The matter is made worse when the contention of the Respondent is not that his title to the land is derived from the Ogun State Government who had allegedly acquired the land or that he had the licence of the Ogun State Government to be on the land in dispute. His only defence is that title to the land is in the Ogun State Government who had acquired the land. It should be noted that the Claim of the Appellants is for trespass and injunction. It is trite law that a Claim in trespass is at the instance of the person in possession. Accordingly, where a person is not shown to be the owner of the land, his acts will be those of a trespasser, and it will not be defence for him to Claim that title to the land is in another person who is a third party. See Balogun v. Dada (1988) 2 S.C.N.J. p.104 and Ogbechie v. Onochie (1988) S.C.N.J. p.170.
The defence or facts upon which the Respondents Motion was predicated is what is known in Latin as Jus tertii i.e pleading that title is in a third party. It therefore means that a Defendant does not provide an answer or defence to a Claim of a Plaintiff suing in trespass by pleading that the title to the land is in another person. SeeAnukanfi v. Ekwonyeaso (1978) 1 S.C (Reprint) p.27, and Adelakun v. IseogbeKunu (2003) 7 NWLR (pt. 819) p. 295.The learned trial Judge relied on the case of Makeri v. Kafinta (1990) 7 NWLR (pt. 163) p. 411. I have carefully read the case. It should be noted that the case of Makeri v. Kafinta (supra) was heard on the merit and it was found through the testimony of the Principal Land Officer that the land had indeed been acquired by the Government for public purposes and compensation paid thereon. It was then held that, no person has competence or locus standi in a claim over land which has been acquired by the Government for public purposes. However in the instant case, the fact of acquisition was sought to be determined in limine. I had earlier held that the fact of acquisition and the legitimacy of such acquisition are facts which cannot be determined in limine on the facts pleaded or deposed in the Affidavit in Support of the Respondents Motion. In concluding on the issue, I find the dictum of Pats-Acholonu, JSC (of blessed memory) in the case of Ladejobi v. Oguntayo (2004) 18 NWLR (pt. 904) p. 149 at 178, as helpful in elucidating the law on the issue. Therein my Lord said:
I believe that where the Court conceives that a proponent of a matter is somehow connected to a dispute in which he feels that he should exercise his right of access to the Court to protect his own interest or indeed group interest, he should not be shut out as long as it can be discerned from the pleadings that he had a protectable interest of some sort. I view with fear and apprehension any attempt by the Court to shut off someone who can show how he is affected by the dispute and decides to seek for a remedy and the Court with a wave of a hand gives a decision barring him from ready access to the counts on the ground that he has not disclosed sufficient interest to show his connection or what he stands to lose. It is desirable and in fact essential that a party should be given as much latitude as possible the opportunity to canvass his case where the Court would then sieve the wheat from the chaff. Let it not be said that a Plaintiff is chased out peremptorily from the temple of justice because the Court does not feel strongly satisfied that he has shown a strong connection and interest in the matter.
The above dictum is premised on the reasoning that the Court must do everything it legitimately can, to uphold a citizens right of access to the Court; save where there is a commanding or compelling reason not to do so. After all, that a person has approached the Court for the ventilation of his grievance, does not mean that he will or must ultimately succeed.
On the whole therefore, I am of the view that the learned trial Judge erred when he struck out the Appellants case on the ground that the land had been acquired by the Ogun State Government, and therefore the Appellants had no justiciable cause of action. The facts upon which the Motion was determined are such that they needed to be ventilated and tested under Cross-Examination in a substantive trial or hearing. I therefore hold that the procedure applied by the trial Court in relying on Exhibits C, D, E and F to conclude that the land in dispute had been acquired by the Ogun State Government, and thereby striking out the Appellants claims in limine was irregular. It occasioned a miscarriage of justice to the Appellants.
Based on my findings and conclusions above, I am of the view that this appeal has merit. It is accordingly allowed. Consequently, I hereby set aside the Ruling of the Ogun State High Court sitting at Ota, in Suit No: HCT/166/2011 delivered on the 27th day of April, 2012. I hereby order that
the suit be remitted to the Chief Judge of Ogun State, to be heard upon the pleadings on its merits by another Judge other than Hon. Justice A. A. Babawale. Parties are to bear their costs.
CHINWE EUGENIA IYIZOBA, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, HARUNA SIMON TSAMMANI JCA. I agree with his reasoning and conclusions. It is not in doubt that the learned trial judge erred in striking out the Appellants case on the ground that the land had been acquired by Ogun State Government when the issue did not arise from the Statement of Claim and when no evidence had been led in proof of the acquisition. In MAKERI v KAFINTA (1990) 7 NWLR (PT. 163) 411, the case was heard on the merit. Apart from proof that the land had indeed been acquired by Government, compensation had also been paid. Where compensation has not been paid, I doubt if it could be held that no person has competence or locus standi to sue as payment of compensation may depend on ownership. I agree that the appeal is meritorious. I also allow the appeal. I abide by the consequential orders in the lead judgment.
NONYEREM OKORONKWO, J.C.A.: I have had the privilege of reading the draft of the lead judgment by my brother Haruna Simon Tsammani J.C.A.
The suit is founded in trespass to land and damages thereof the possible defences to an action in trespass is to show a better title superior to that of the possessor to deny the trespass altogether. It was never a defence to set up the title of a third party in defence as in this case where an alleged tort-feasor alleges that title resides in the Ogun State Government. This is setting up a jus tertii which is forbidden. The jurisprudence that under lies the laws rejection of jus tertii is expressed thus in Streets The Law of Torts 6 Ed. at page 41 thus:-
In Jeffries v. Great Western By. Co.the defendants wrongfully seized trucks in the possession of the plaintiffs and raised the defence that title to them was in a third party, i.e. they pleaded jus tertii. LORD CAMPBELL., C.J., approving Wilbraham v. Snou said:
(it was) essential for the interests of society, that peaceable possession should not be disturbed by wrong-doers … a person possessed of goods as his property has a good title as against every stranger, and that one who takes them from him, having no title in himself, is a wrong-doer, and cannot defend himself by showing that there was title in some third person: for against a wrong-doer possession is title.
If therefore, the defendant has infringed the plaintiffs possession, he cannot plead the jus tertii unless he defends under the authority of a title paramount.
The Learned trial judge was wrong to have struck out appellants case simply because a defendant sued in trespass said well the land belongs to the Government and not plaintiff. This is no defence. The trial Court was therefore wrong.
My Learned brother was therefore to justified in Law to set aside the judgment of the lower Court and to order for a new trial.
I agree with the lead judgment and endorse the orders made therein.
A.A. Isiolaotan, Esq. For Appellant
Abraham Adeoye, Esq. For Respondent