ALI v. UZOIGWE & ORS CITATION: (2016) LPELR-40972(CA) In the Court of Appeal In the Owerri Judicial Division Holden at Owerri ON FRIDAY, 27TH MAY, 2016 Suit No: CA/OW/249/2011 Before Their Lordships: IGNATIUS IGWE AGUBE Justice, Court of Appeal ITA GEORGE MBABA Justice, Court of Appeal FREDERICK OZIAKPONO OHO Justice, Court of Appeal Between NZE EDWARD ALI - Appellant(s) And 1. ENGR. CORNELIUS CHIKA UZOIGWE 2. MR. SAMUEL OBI 3. NZE NATHANIEL NWANACHIMA 4. RUFUS UKWANDU (For themselves and on behalf of Members of Umuduru Community in Obinnoha Community Excepting the 1st Defendant.) 5. THE EXECUTIVE GOVERNOR OF IMO STATE 6. THE ATTORNEY-GENERAL OF IMO STATE - Respondent(s) RATIO DECIDENDI 1. ACTION - LOCUS STANDI: Nature of the legal concept of locus standi "Finally, on the issue of locus standi, the Supreme Court in numerous cases has also decided on the concept of locus standi. In A.G. Kaduna State V. Hassan (1985) LPELR - 617 (SC) Oputa JSC, of blessed memory opined on the term thus; ???The legal concept of standing or locus standi is predicated on the assumption that no Court is obliged to provide a remedy for a claim in which the Applicant has a remote, hypothetical or no interest.??? The Apex Court in Dr. Augustine Mozie & Ors. V. Chike Mbamalu (2006) LPELR ??? 1922 (SC) Per Tobi, JSC held that the competence of a person to file an action relates to jurisdiction and it can be raised at any stage even at the Supreme Court or any Court suo motu. ???In view of the fundamental importance of locus standi in the adjudicatory process once the Appellant raised it in his pleadings the Court had no other option before than to resolve it before proceeding with any further adjudication."Per AGUBE, J.C.A. (Pp. 63-64, Paras. F-E) - read in context (2016) LPELR-40972(CA)
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ALI v. UZOIGWE & ORS
CITATION: (2016) LPELR-40972(CA)
In the Court of AppealIn the Owerri Judicial Division
Holden at Owerri
ON FRIDAY, 27TH MAY, 2016Suit No: CA/OW/249/2011
Before Their Lordships:
IGNATIUS IGWE AGUBE Justice, Court of AppealITA GEORGE MBABA Justice, Court of AppealFREDERICK OZIAKPONO OHO Justice, Court of Appeal
BetweenNZE EDWARD ALI - Appellant(s)
And1. ENGR. CORNELIUS CHIKA UZOIGWE2. MR. SAMUEL OBI3. NZE NATHANIEL NWANACHIMA4. RUFUS UKWANDU(For themselves and on behalf of Members of UmuduruCommunity in Obinnoha Community Excepting the 1stDefendant.)5. THE EXECUTIVE GOVERNOR OF IMO STATE6. THE ATTORNEY-GENERAL OF IMO STATE
- Respondent(s)
RATIO DECIDENDI1. ACTION - LOCUS STANDI: Nature of the legal concept of locus standi
"Finally, on the issue of locus standi, the Supreme Court in numerous cases has also decided on the concept of locus standi. In A.G.Kaduna State V. Hassan (1985) LPELR - 617 (SC) Oputa JSC, of blessed memory opined on the term thus; ???The legal concept ofstanding or locus standi is predicated on the assumption that no Court is obliged to provide a remedy for a claim in which the Applicanthas a remote, hypothetical or no interest.???The Apex Court in Dr. Augustine Mozie & Ors. V. Chike Mbamalu (2006) LPELR ??? 1922 (SC) Per Tobi, JSC held that the competence of aperson to file an action relates to jurisdiction and it can be raised at any stage even at the Supreme Court or any Court suo motu.???In view of the fundamental importance of locus standi in the adjudicatory process once the Appellant raised it in his pleadings theCourt had no other option before than to resolve it before proceeding with any further adjudication."Per AGUBE, J.C.A. (Pp. 63-64, Paras.F-E) - read in context
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2. CONSTITUTIONAL LAW - BREACH OF RIGHT TO FAIR HEARING: Whether a party who had an opportunity of being heard but did notutilize it can bring an action for breach of fair hearing"The Learned Emeritus Law Lord further posited in line with the authorities of Okoye V. Nigerian Construction and Furniture Co. Ltd(1991) 6 NWLR (Pt. 199) 501, Omo V. Judicial Service Commission Delta State (2000) 12 NWLR (Pt. 682) 444, Ogolo V. Fubara (2003) 11NWLR (Pt. 31) 231 and Ossai V. Wakwah (2005) 4 NWLR (Pt. 959) 208; that the burden is on the party alleging breach of fair hearing in acase to prove the breach and he must do so in the light of the facts of the case (see Maikyo V. Itolo (2007) 7 NWLR (Pt. 1034) 443; butthat the Appellant as in this case cannot complain of fair hearing when he was afforded opportunity to present his case and to alsodefend the Counter-Claim, but failed to avail himself of that opportunity. The Appellant can therefore not blame the trial Court for failureto prosecute his case.Thus, a party who had been given the opportunity to file his statement of Defence, Depositions on Oath and documents sought to berelied on and indeed the Final Address in this case, but failed to utilize the seven years the case had lasted without amending hispleadings only to file the Application for same after the completion of Pre-Trial Conference where of parties agreed to narrow down theissues for resolution subsequent upon which the Court ordered for the Final Written Addresses cannot turn round to complain that hewas denied fair hearing. Omo V. Judicial Service Commission (supra) at 444 and Okoye V. NC & FC Ltd (1991) 6 NWLR (pt. 199) 501 at541 refer."Per AGUBE, J.C.A. (Pp. 52-53, Paras. D-E) - read in context
3. CONSTITUTIONAL LAW - RIGHT TO FAIR HEARING: Test of fairness/fair hearing in proceedings"Guinness Nig. Plc V. Ufot (2008) ALL FWLR (Pt. 412) 1113 at 1138 paras. E ??? F; must have rightly decided that the test of fair hearingis the impression of a reasonable person who was present at the trial would get on whether justice has been done in the case. Besides,the Constitution of the Federal Republic of Nigeria, 1999 (as amended) by Section 36(1) thereof, also provides for the right of everylitigant to be given the opportunity to present his case."Per AGUBE, J.C.A. (Pp. 50-51, Paras. F-B) - read in context
4. CONSTITUTIONAL LAW - RIGHT TO FAIR HEARING: Attributes of the principle of fair hearing"In S & D Construction Company Ltd. V. Chief Bayo Ayoku & Anor. (2011) LPELR ??? 2985 (SC.) per Adekeye, JSC while relying on thecases of Usani v. Duke (2004) 7 NWLR (Pt. 871) 116; Fagbule V. Rodrigues (2002) 14 NWLR (Pt. 765) 188, Adeniran V. NEPA (2002) 14NWLR (Pt. 786) 30; Bamgboye V. UNILORIN (1999) 10 NWLR (Pt. 622) 290 and Awoniyi VS. The Registered Trustees of AMORC (2000) 4SC (Pt. 1) 103; posited that the right to fair hearing is a constitutional right entrenched in Section 36 of the 1999 Constitution which rightis very essential for securing justice.The basic attributes were enumerated to include: (a) That the Court shall hear both sides not only in the case but also on all materialissues in the case before reaching a decision which may be prejudicial to any party in the case; (b) that the Court or tribunal gives equaltreatment, opportunity and consideration to all concerned; (c) That the proceedings be heard in public and all concerned be informed ofand have access to such a place of hearing; (d) That having regard to all the circumstances in every material decision in the case, justicemust not only be done but must be seen to have been done."Per AGUBE, J.C.A. (Pp. 51-52, Paras. D-D) - read in context
5. COURT - DISCRETION OF COURT: How judicial discretion of a court is to be exercised"See again the dictum of Tobi, JSC at page 660 of Akaninwo V. Nsirim (supra) paras. G ??? H; on the way and manner a Court shouldexercise its discretion and the position of the law that:???Where the trial Judge correctly exercised his discretionary power, an Appellate Court cannot interfere. The law does not allow anAppellate Court to change or metamorphose into a Court of trial or take the place of a Court of trial and grant the application foramendment as such Court, if it heard the Application in that capacity. On the contrary, Appellate Court should look at the Applicationgranted or refused from the cold record of Appeal and taken Appellate decision borne out from the Records.???Per AGUBE, J.C.A. (P. 55,Paras. B-F) - read in context
6. COURT - DUTY OF COURT: Duty of Court to pronounce on all issues raised before it"In the resolution of this Issue, I must not hesitate to agree with the Learned Counsel for the Appellant???s statement of the law that aCourt of law particularly Trial Courts as well as penultimate Courts are duty bound to resolve all issues placed before them except in thefew exceptional circumstances recognized by law. There are authorities galore on this position of the law. In Babaginda S.M. Nguroje &Anor V. Hon Ibrahim Tukur Elsudi & Ors. (2012) LPELR ??? 20865 (CA) PP. 119 ??? 20 paras. A ??? E, I had cause to restate the time-honoured principle of our jurisprudence when I reasoned following a similar issue raised in that case by one of the Senior Counsel that:???(1) without wasting any judicial time I am in complete agreement with the submissions of Learned Senior Counsel for the Appellantthat a Court of law particularly a Court of first instance is duty bound to pronounce on all issues raised before it by the parties and putforward for determination before the Court."The decisions in Nwokedi V. Egbe (2005) 9 NWLR (Pt. 930) at 307 per Galadima, JCA; Uzuda V. Ebijah (2009) 15 NWLR (Pt. 163) 1 at 21??? 23, Okonji V. Njokanma (1991) 7 NWLR (Pt. 202) 131; are quite instructive. The need for Courts to consider all issues joined byparties, was emphasized long ago in the case of Ojogbue V. Nnubia (1972) 6 S.C. 227; Per Coker, JSC; where the Learned JudicialGuru/legend opined: ???A judgment of a Court must demonstrate in full a dispassionate consideration of issues properly raised andheard and must reflect the result of such exercise, but in the present case it cannot be said that the judgment as it stands does this, forthroughout the judgment the trial judge made no clear findings in which he unequivocally upheld, as against the Claims of the plaintiffs,the contention of the Defendants on any major issues, with the result that the basis on which the Plaintiff???s case was dismissed cannotbe seen nor, what is worse the ground on which the trial Court had proceeded to enter judgment for the Defendants. The case isremitted to the High Court for rehearing.???In the above case, I further reasoned and which reason I hereby adopt, that from the dictum of Coker JSC, above cited, it is clear that theemphasis is on proper, relevant issues, that go to the substance or foundation of the case and not peripheral, frivolous, academic andirrelevant issues which must be resolved in the determination of the case. Accordingly, where at the conclusion of the case the materialissue(s) the determination of which is/are likely to affect the outcome of the dispute between the parties, is/are left unattended to orunresolved, the issues between the parties would be deemed not to have been determined. This explains why the Apex Court has heldthat where several issues have been raised by parties which would go a long way in determining the dispute between the parties, suchissues must be resolved one way or the other.???On the other hand, where the issue or issues not relevant in the determination of the case is/are disregarded, the Court owes it aduty to specify the reason(s) why they are so considered irrelevant. The rationale behind this stance of the law is that in all cases whereissues have been joined, the Court is duty bound to state how the issue has been disposed off. See Welle & Anor V. Okechukwu (1985) 6S.C. 132 at 145 ??? 146; Per Karibe ??? Whyte JSC."Per AGUBE, J.C.A. (Pp. 56-59, Paras. B-A) - read in context
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7. COURT - JURISDICTION: Conditions that must be satisfied before a Court is competent to exercise its jurisdiction in respect of anymatter"In the locus classicus of Madukolu V. Nkemdilim (1962) 1 ALL NLR 587 at 595; which has been followed in a plethora of cases, theSupreme Court per Bairamian F.J stated the conditions under which a Court can be seized of jurisdiction to include.1. It is properly constituted as regards members of the Bench and no member is disqualified for one reason or the other;(2) the subject matter is within its jurisdiction;???(3) the case comes properly before the Court initiated by the process and upon fulfillment of a condition precedent to the exercise ofjurisdiction. See, Egharevba V. Eribo & Ors. (2010) 9 NWLR (Pt. 1199) 411 S.C.; Oloba V. Akereja (1988) 3 NWLR (Pt. 84) 508; NwankwoV. Yar???Adua (2010) LPELR ??? 2109 (SC) at B6 paras. D. E. where Ogbuagu, JSC held that; it is firmly settled that where the issue of theCourt???s jurisdiction is raised in any proceedings and at any stage, it must be taken first, immediately, promptly or expeditiously."PerAGUBE, J.C.A. (Pp. 62-63, Paras. D-B) - read in context
8. COURT - JURISDICTION: Effect of trial/proceeding conducted in the absence of jurisdiction of Court"Secondly once an act is without jurisdiction as in the instant case, the proceedings is a nullity no matter how well conducted. Adesola V.Alhaji Abidoye & Anor. (1999) 12 SCNJ 61 at 79 is not correctly cited (it is also reported in (1999) 10 ??? 12 SC 109). This position is notonly trite but it is also well settled. In other words, there is no doubt that a judgment or order made by a Court without jurisdiction is anullity."Per AGUBE, J.C.A. (P. 63, Paras. D-F) - read in context
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9. PRACTICE AND PROCEDURE - AMENDMENT OF COURT PROCESSES/PLEADINGS: General principles guiding amendment ofpleadings/court processes"Beginning from Order 24 of the High Court of Imo State (Civil Procedure) Rules 2008, Rule 1 thereof donates to a litigant the right toamend his/her originating process, like pleadings in the following terms:???1. A party may amend his Originating processes, at any time before the close of pre-trial conference and not more than twice duringtrial but before the close of the case.Rules 2, 3, 5 ??? 8 of Order 24 provide as follows:2. Application to amend may be made to a Judge. Such Application shall be supported by an exhibit of the proposed amendment andmay be allowed upon such terms as to costs or otherwise as may be just.3. Where any Originating process, pleading or other process is to be amended a list of any additional witness to be called together withhis Written Statement on oath and a copy of any document to be relied upon consequent on such amendment, shall be filed with theApplication.4. ---------------------------------------------------------------------------------------------------------------------------------------------------------------------5. Whenever any Originating process, pleading or other process is amended, a copy of the document as amended shall be filed in theRegistry and additional copies served on all the parties to the action.6. Whenever any Originating process, pleading or other process is amended, it shall be marked in the following manner:???Amended?????????????????????.day of ??????????????????pursuant to Order of (name of Judge) dated the??????????????????..of???????????????????????????????????????....???7. A Judge may at any time correct clerical mistakes in judgments or Orders, or errors arising there in from any accidental slip oromission upon application without an Appeal being filed; and above all, by Rule8. Subject to the provisions of Rule 1 of this Order, a Judge may at any time and on such terms as to costs or otherwise as may be just,amend any defect or error in any proceedings and all necessary amendments shall be made for the purpose of determining the realquestion of issue raised by or depending on the proceedings.???Apart from the limitations entrenched in Rule 1 to the effect that an amendment by a party may be made ???at any time before theclose of pre-trial conference and not more than twice during the trial but before the close of the case,??? provisions relating toamendment of pleadings and other Originating processes, as made by our erstwhile rules of Court before the introduction of the fast-tracking procedure in almost all current High Court rules of our States and Federal High Court, have been similarly worded and havebeen the subject of avalanche of decisions some which have been unleashed on us here in this Appeal.For instance, see Ogbuli V. Ogbuli (2008) ALL FWLR (Pt. 401) 953 at 967 ??? 968 paras. H ??? A; the celebrated case of Ojah V. Ogboni &Ors. (1976) A NLR 277; Alsthom S.A. V. Chief Dr. Olusola Saraki; (2000) FWLR (Pt. 28) 2267 at 2276 paras. D ??? G. 2282 ??? 83, paras. F??? B, per Achike, JSC; Chief Edmond I. Akaniwo & Ors. V. Chief O. N. Nsirin & Ors. (2008) ALL FWLR (Pt. 410) 610 and the epical andilluminating dissenting opinion of the erudite and emeritus Niki Tobi JSC at pages 645 paras. E-G; 646 paras. A ??? C; 647 paras. A ??? Cand amongst others pages 655 ??? 656 paras. C ??? B; and 658 paras. A ??? G in the last case.???If I may take the liberty to quote this Emeritus jurist who was at his elements in his enunciation of the principles guiding amendmentswhen Order XXXIV of the High Court of Rivers State (Civil Procedure) Rules fell for interpretation thus at page 655 paragraphs D ??? H to656 paras. A ??? D:???This Appeal reopens the old issue of amendment of pleadings. The principles are as old as hale. Let me take them briefly here. First,the omnibus one. Our adjectival law leans heavily in favour of amendments and is generally against the refusal of amendments.Although the pendulum weighs or tilts in favour of granting amendments, Courts of Law are entitled to refuse amendments in deservingcases. Trial Courts must examine the application for amendment very carefully in the light of the peculiar facts of affidavit evidence. Inthe exercise, the Courts will consider the peculiar facts of each case.In the often cited English case of Cropper V. Smith (1884) 26 QBD 700, Bowen LJ said:???Now, I think It is well established principle that the object of Courts is to decide the rights of the parties and not to punish them forthe mistakes which they make in the conduct of their cases????????????????????????. I know of no kind of error or mistake which, if notfraudulent??????.the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake ofdiscipline but for the sake of deciding matters in controversy and I do not regard such amendments as a matter of favour orgrace????????? It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision ofthe real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without prejudice.???The above dictum of Bowen LJ has been cited with approval in a plethora of Nigerian cases amongst which are Okeowo V. Migliore(1979) 11 S.C. 138; Ojah V. Ogboni (1976) 4 S.C.69; ably cited by Learned Counsel for the Appellants.His Lordship went on to cite the dictum of Ademola, CJF (as he then was) in the case of Adeleke V. Awoliyi (1962) 1 ALL NLR 260 at 262;that it is part of the duty of a Judge to see that everything is done to facilitate the hearing of an action pending before him wherever it ispossible to cure an unintentional blunder in the circumstances of a case and in order to expedite the hearing of an action, the Court is toaward costs against any delinquent party rather than dismiss or strike out a case for a fault in the proceedings prior to the hearing of thecase.In the course of his contribution, the Judicial Sage also reflected on the principles enunciated in the English case of Collins V. Vestry ofPaddington (1880) 5 QBD 368; which was followed by our Supreme Court in Alsthom S.A. V. Chief Olusola Saraki (2000) FWLR (Pt. 28)2267, (2000) 14 NWLR (Pt. 687) 415; that in an Application for amendment, the Court will take into consideration a number of factorswhich include:(1) The attitude of the parties in relation to amendment;(2) The nature of the amendment sought in relation to the Suit;(3) The question in controversy and;(4) The time when the amendment is sought.Guided by the above authorities and the dicta of our Learned sages both leaving and aforegone, I was minded to hold (as I do herebyreiterate), in the case of University of Ilorin V. Adesina (2008) ALL FWLR (Pt. 400) 768 at 776 paras. A ??? B that:???All the Rules on amendments seem to be ad idem that the object of amendments is to obviate situations whereby manifest injusticeis done to any in recent litigant on account of the blunders or inadvertence of his counsel particularly nowadays that blunders occur withsuch disturbing irregularity in litigations."I had further held at the same page in paras. B ??? D that:???The Courts have through the years taken a common stand that however negligent or careless may have been the slip, however latethe proposed amendment, it ought to be allowed if this can be done without injustice to the other side, for a step taken to ensure justicecannot at the same time, and in the same breath be used to perpetuate an injustice on the opposite party. The test as to whether theproposed amendment should be allowed is therefore whether the party applying to amend can do so without placing the opposite partyin such a position which cannot be addressed by that panacea which heals every sore in litigation, namely: Costs."Per AGUBE, J.C.A. (Pp.27-34, Paras. E-F) - read in context
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10. PRACTICE AND PROCEDURE - AMENDMENT OF COURT PROCESSES/PLEADINGS: Duty of court in amending court pleadings"In Akaninwo V. Nsirim (supra) SC at 656 ??? 657, Tobi, JSC had advised that in dealing with applications of this nature, the Court shouldconsider the time the application is brought whether it was brought at the earliest opportunity taking also into account whether theApplicant is a man of due diligence and business and ought to have procured the spurious certificates at the earliest opportunity. Goingby the afore-stated admonition, I agree with the Learned Counsel for the Respondents that the Appellant was most indolent.???As the Learned Tobi JSC, rightly held in the above cited case, while it is the position of the law that a party should not be inhibitedfrom presenting his case there is also the other side of the coin which is that a party owes the administration of justice and the judicialprocess a duty to present his case in whole or en-bloc and not by installments. Accordingly, when a Court is considering amendment ofpleadings (as in this case) the judge must also be satisfied with the bona fides of the case or amendment sought."Per AGUBE, J.C.A. (Pp.49-50, Paras. C-A) - read in context
11. PRACTICE AND PROCEDURE - ISSUE OF JURISDICTION: When the issue of jurisdiction can be raised"In his words At page 39 paras. C ??? G: ???Secondly, as stated earlier being a jurisdictional issue, it could or can be raised at any stageof the proceedings on Appeal. See Amadi V. NNPC (2006) SCNJ page 11."Per AGUBE, J.C.A. (P. 63, Para. C) - read in context
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IGNATIUS IGWE AGUBE, J.C.A. (Delivering the
Leading Judgment): In the High Court of Justice, Imo
State in the Mbaitoli/Ikeduru Judicial Division, Holden at
Iho in Suit No.HMI/2/2004, the 1st-4th Respondents (as
Plaintiffs) claimed against the Appellant (then as 1st
Defendant) and the 5th and 6th Respondents (as 2nd and
3rd Defendants) in both their Writ of Summons and
Statement of Claim dated 8th January, 2004, 5th day of
January, 2004, 10th day of March, 2004 and filed on the 8th
January and 11th March, 2004 respectively, the following
Reliefs:
1. Declaration that the purported recognition of the
1st Defendant by the 2nd Defendant as the
Traditional Ruler of Obinnoha Autonomous
Community, in Mbaitoli Local Government Area of
Imo State was not in accordance with the agreed
method of the people of Obinnoha Autonomous
Community and is therefore illegal, null and void and
of no effect whatsoever.
2. Order of Court setting aside the purported
recognition of the 1st Defendant by the 2nd
Defendant as it was not done in accordance with the
custom and agreed method or formular adopted by
the people of Obinnoha Autonomous Community for
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choosing a Traditional Ruler which favoured the
Plaintiff.
3. Declaration that the 1st plaintiff and not the 1st
Defendant is the proper person entitled or qualified
for recognition by the 2nd Defendant as the
Traditional Ruler of Obinnoha Autonomous
Community in the Mbaitoli Local Government Area of
Imo State having been duly identified, selected,
presented, and traditionally installed as one, in
accordance with the resolution of the Umuduru
Community, which was mandated by the people of
Obinnoha Autonomous Community, to produce the
first Traditional Ruler.
4. Perpetual Injunction, restraining the First
Defendant from holding out himself or parading
himself in any manner whatsoever as the Traditional
Ruler of Obinnoha Autonomous Community in the
Mbaitoli Local Government Area of Imo State having
not been recognized in accordance with the agreed
formula chosen by the entire people of Obinnoha and
the Applicable Law, which method favoured the 1st
Plaintiff.�
Upon being served with the Originating processes, the
In the locus classicus of Madukolu V. Nkemdilim (1962)
1 ALL NLR 587 at 595; which has been followed in a
plethora of cases, the Supreme Court per Bairamian F.J
stated the conditions under which a Court can be seized of
jurisdiction to include.
1. It is properly constituted as regards members of the
Bench and no member is disqualified for one reason or the
other;
(2) the subject matter is within its jurisdiction;
(3) the case comes properly before the Court initiated by
the process and upon fulfillment of a condition precedent to
the exercise of
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jurisdiction. See, Egharevba V. Eribo & Ors. (2010) 9
NWLR (Pt. 1199) 411 S.C.; Oloba V. Akereja (1988) 3
NWLR (Pt. 84) 508; Nwankwo V. Yar’Adua (2010)
LPELR – 2109 (SC) at B6 paras. D. E. where Ogbuagu,
JSC held that; it is firmly settled that where the issue
of the Court’s jurisdiction is raised in any proceedings
and at any stage, it must be taken first, immediately,
promptly or expeditiously.”
In his words At page 39 paras. C – G: “Secondly, as stated
earlier being a jurisdictional issue, it could or can be raised
at any stage of the proceedings on Appeal. See Amadi V.
NNPC (2006) SCNJ page 11.
Secondly once an act is without jurisdiction as in the
instant case, the proceedings is a nullity no matter how
well conducted. Adesola V. Alhaji Abidoye & Anor.
(1999) 12 SCNJ 61 at 79 is not correctly cited (it is also
reported in (1999) 10 – 12 SC 109). This position is not
only trite but it is also well settled. In other words,
there is no doubt that a judgment or order made by a
Court without jurisdiction is a nullity.”
Finally, on the issue of locus standi, the Supreme Court in
numerous cases
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has also decided on the concept of locus standi. In A.G.
Kaduna State V. Hassan (1985) LPELR - 617 (SC)
Oputa JSC, of blessed memory opined on the term thus;
“The legal concept of standing or locus standi is
predicated on the assumption that no Court is obliged
to provide a remedy for a claim in which the Applicant
has a remote, hypothetical or no interest.”
The Apex Court in Dr. Augustine Mozie & Ors. V. Chike
Mbamalu (2006) LPELR – 1922 (SC) Per Tobi, JSC held
that the competence of a person to file an action relates to
jurisdiction and it can be raised at any stage even at the
Supreme Court or any Court suo motu.
In view of the fundamental importance of locus standi in
the adjudicatory process once the Appellant raised it in his
pleadings the Court had no other option before than to
resolve it before proceeding with any further adjudication.
The Appellant not only pleaded the jurisdictional
competence of the Trial Judge on the ground of locus standi
of the 1st – 4th Respondents but he also raised it as an
ancillary issue for determination. Accordingly, the Court
below could not therefore, seriously have contended as the
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Learned Counsel has also submitted, that the Appellant’s
Issue does not logically follow from the claim of the
Plaintiffs and that if the Appellant wanted to make it an
issue, he ought to have brought a cross-action.
With the greatest respect to both the Learned Trial Judge
and Counsel to the Respondents, the issue raised by the
Appellant went to the foundation of the case for if the Court
had no jurisdiction at the onset, then the entire trial was an
exercise in futility and a complete nullity, no matter how
brilliantly or well conducted as settled by motley
authorities. In respect of the authorities of Badmus V.
Abegunde (supra) and Usikaro v. Itsekiri Land
Trustees (supra) cited by the Learned Counsel for the
Respondents, I had the privilege of a perusal of those cases
and I am afraid that they were cited out of context as there
were two Issues for determination as adopted by the
Learned Counsel for the parties even though the 1st
Respondent and Court tried to trivialize the importance of
the issue identified by the Appellant.
Not having considered that very salient issue as raised by
the Learned Counsel for the Appellant, I adopt the
authorities
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of Guinness (Nig.) Plc. V. Ufot (2008) TFWLR (Pt.
412) 1113 at 1138 (paras. E – F); Akaninwo V. Nsirim
(supra) at 671 paras. F – G; Tsokwa Motors (Nig) Ltd.
V. UBA (Nig)PLC (supra), N.I.I.T ZARIA V. DANGE
(supra) Adamu V. Akukalia (2008) FWLR (pt. 428)
352 at 405; and Ali V. Albashir (supra); to hold that the
Appellant was denied fair hearing which occasioned him
miscarriage of justice. Accordingly, this Issue is again
resolved in favour of the Appellant.
ISSUE NUMBER FOUR:
I adopt my reasoning on Issues 1 and 2 having agreed that
parties fought their cases on Issues of law and ordinarily
since the Court below did not place any premium on the
certificate pleaded in the course of the Application for
Amendment; it ought to be right to have declared in favour
of the 1st Respondent. But since by our stance on Issue
Number 3 that the Court ought to have determined the
locus standi and competence of the 1st Respondent not
only as the proper person to be recognized as the Eze not
to talk of initiating proceedings, the Court was wrong to
have granted the Declaratory Relief. I resolve Issue
Number 4 against the Respondent and in favour of the
Appellant.
On the
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whole, the Judgment of the Lower Court cannot stand and
it is hereby set aside. I make an order remitting the case to
the Chief Judge of Imo State for reassignment to another
Judge for hearing de novo. No order as to Costs.
ITA GEORGE MBABA, J.C.A.: I agree
FREDERICK OZIAKPONO OHO, J.C.A.: I have read thejudgment of my learned brother, IGNATIUS IGWE AGUBE,JCA and I am in agreement with the reasoning andconclusions in resolving this Appeal in favour of theAppellant. I also abide by the consequential orders made bythe Court.
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Appearances:
F. A. Onuzuruike, Esq. For Appellant(s)
A. C. Ibekaeme, Esq. for 1st - 4th RespondentsFor Respondent(s)