A.A. Dehinsilu V. Mondec Pharmacy Ltd (2008)
LawGlobal-Hub Lead Judgment Report
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
This is an appeal against the Ruling delivered on 15th November, 2004 In Suit No. FCT/HC/CV/918/2001; by U.I. Ndukwe-Anyanwu, J; (as he then was) of the High Court of the Federal Capital Territory, Abuja.
The learned Judge of the lower court having held that the court lacked the jurisdiction to entertain the instant case as the Plaintiff lacked locus standi, struck out the same for lack of merit. The Plaintiff, (who will hereinafter be simply referred to as the “the Appellant”) being dissatisfied with the Ruling of the lower court, has appealed to this Court against the same.
There are two Records of Appeal in this matter. These are the main Record of Appeal and the Supplementary Record of Appeal. The sequence of events in the case as gathered from both Records put briefly are that by a motion ex-parte dated 10/9/2002 and filed on the same day, Glaxo Wellcome Nigeria ltd and A.A. Dehinsilu as Applicants applied for the leave of the lower court to bring the instant action against the Mondec Pharmacy Limited under the Undefended List. The Applicants also sought in the said motion for an order deeming the Writ of Summons attached thereto as having been properly filed. In the Enrolled Order of the lower court, only A.A. Dehinsilu was indicated as the Plaintiff/Applicant; and therein the lower court is shown to have granted the said Applicant leave to file and serve the writ in this case under the Undefended list. All the other processes in the suit were also ordered to be so marked. (See pages 1 – 10 of the main Record).
Upon the service on the Defendant, of the processes filed by the Plaintiffs under the Undefended List, the said Defendant on 17/1/2003 filed a Notice of Intention to Defend the Suit; and Affidavit in support of the said Notice. Various Exhibits were attached thereto. (See pages 11- 16 of the main Record). On 25/4/2003 the Defendant filed a Statement of Defence and Counter-Claim in the case; and an Amended Statement of Defence and Counter-Claim was subsequently filed. (See pages 17-22 and 39-44 respectively of the main Record). A Statement of Claim; and Reply to Statement of Defence and Counter-Claim were equally filed in the case on 26/3/2003 and 20/4/04 respectively. (See pages 31-32 and 45-49 of the main Record). The only party shown as the Plaintiff in these processes is “A.A. Dehinsilu”. The Notice of Preliminary Objection dated 27th September, 2004 and filed on the same day by the Defendant (see pages 71-72 of the main Record), resulted in the Ruling of the lower court now on appeal. In the said Notice of Preliminary Objection, the Respondent gave notice to the Plaintiff that at the hearing of the instant suit, it will urge the Court to dismiss or strike out the same for being incompetent on the grounds that (1) the Plaintiff/Respondent does not have the locus standi to institute or maintain the action; and (ii) the Honourable Court lacks the jurisdiction to entertain the suit. An Affidavit in support of the Notice of Preliminary Objection with Exhibits attached thereto accompanied the Notice of Preliminary Objection. (see pages 73-94 of the main Record). The Ruling of the lower court is at pages 95-99 of the main Record.
The Appellant appealed to this Court against the Ruling of the lower court delivered on 15th November, 2004 vide a Notice of Appeal dated 24th November, 2004 and filed on the same day. The Notice of Appeal contains three grounds of appeal. The grounds of appeal without their respective Particulars read thus: –
” GROUND I
The learned trial judge erred in law by looking at the Statement of Defence and documents exhibited in an affidavit to hold that the Appellant lacks locus standi and that the Plaintiff has no cause of action.
GROUND II
The learned trial judge erred in law when he held as follows:
“The Plaintiff as an agent of Glaxo Welcome Nigerian Limited must have authority to sue on their behalf to recover all debts owed it by their customers. This, the Plaintiff has not been able to show”.
GROUND III
The learned trial judge erred in law when he held that:
“Having failed to show the nexus between Plaintiff, defendant and Glaxo Welcome Nigeria Limited, the court would be right to hold that the Plaintiff lacks the locus standi to maintain the action against the defendant”.
The Appellant by a motion dated 5/10/2006 and filed on the same day before this Court sought for the following orders: –
“(1) Leave of this Honourable Court to amend the Notice of Appeal filed in this matter on the 24/11/04 and Appellant’s Brief of argument dated 23/3/05 and deemed filed on 7th of June, 2006, by adding the Word “LTD” to the Respondent’s name to read “Mondec Pharmacy Ltd”.
(2) To deem as properly filed and served the Amended Notice of Appeal and Appellant’s Brief of Argument attached herein and marked “A” and “B”.
Suffice it to say that the Orders sought in the aforementioned motion and as re-produced above were granted on 7/11/2006 by this Court.
The appeal was entertained on 27/5/2008. Mrs. A.C. Nnadi of counsel for the Appellant in arguing the appeal relied on and adopted the Appellant’s Amended brief of argument dated 5/10/2006 but deemed to have been properly filed and served on 7th November, 2006.
She urged the Court to allow the appeal and remit the case to the lower court for trial before another Judge.
Mrs. Salome Eboh of counsel for the Respondent in urging the Court to dismiss the appeal equally relied on and adopted the Respondent’s brief of argument dated 19th July, 2006 and filed on the same day, learned counsel stressed that the crux of the matter was whether a person who is not a party to a contract can properly bring an action in relation thereto.
The Appellant formulated two Issues for the determination of this appeal in his brief. The Issues are: –
“1. Whether the trial Court Judge can look at the statement of defence and documents exhibited in the affidavit of the defendant to hold that the Appellant lacks Locus Standi and that he has no cause of action to maintain.
- Whether the lower Court Judge can judiciously consider only the pleading and/or an interlocutory application and determine the nexus between parties or a burden placed on a Plaintiff and rule on the same on the merit without taken (sic) or calling for any evidence.”
The Respondent raised a Preliminary Objection challenging the competence of the appeal in its brief of argument. The Preliminary Objection reads: –
“The Appeal is incompetent because it is initiated against “Mondec Pharmacy” a non-juristic person.”
Respondent’s counsel however formulated a sole Issue for determination in the substantive appeal in the event the preliminary objection failed.
The sole Issue which is said to have been formulated having regard to the grounds of appeal reads thus: –
“Whether the trial court was right in holding that the appellant lacked the locus standi to maintain the action?
I am of the firm view that the Issue for determination in this appeal as formulated in the Respondent’s brief encompasses the consideration of the Issues formulated by the Appellant. Accordingly, this appeal in the
final analysis will be resolved in the light of the answer to the Issue formulated by the Respondent even though the Issues formulated by the Appellant would be given specific consideration in the process.
In dwelling on Issue 1 as formulated in the Appellant’s brief, portions of the Ruling of the lower court at pages 97-98 of the main Record considered relevant were re-produced. The lower court was accused of delving into and dealing extensively on the Statement of Defence and exhibits of the Defendant/Respondent in making the findings in the re-produced portions of the Ruling. The lower court by so doing was accused of shutting its eyes to the crux of the matter as presented by the Appellant in the Statement of Claim and attached exhibits which is to the effect that the Defendant/Respondent knew very well that he was not an accredited customer of Glaxo Wellcome Limited and therefore cannot get direct supply of drugs from the company. That the Appellant in the course of his duties normally distributed drugs to non-accredited customers like the Defendant/Respondent and that in that capacity he indeed supplied drugs amounting to N742,140.00 to the Defendant/Respondent on the company’s Order Forms 069011; 069031; and 0073264; respectively. In this regard, reference was made to the Statement of Claim at pages 31-32 of the main Record and paragraphs 2-4; and 11-13 of the Reply to Amended Statement of Defence and Counter-Claim at pages 45-48 of the same Record. Appellant’s counsel further said that it is the case of the Appellant on the pleading that the Defendant/Respondent being aware of the circumstances surrounding the supply of the drugs to it, refused to pay for the same. In order to clear his account with the company (i.e. Giaxo Wellcome Nigeria Ltd), the Appellant paid the money for the drugs which he supplied to the Defendant/Respondent. This the Appellant did vide a receipt dated 18/8/2003 in name of C.O.D. (an accredited customer with the company) and from whose stock the drugs supplied to the Defendant/Respondent were removed. It was submitted that it is trite law that all the trial court is to examine in order to determine whether or not Appellant has locus standi to sue and maintain the instant action is the Statement of Claim and nothing more. That it does not matter whether the Appellant stands a chance of succeeding as all that matters is the disclosure of an actionable claim. The cases of Paharmatex Industries Ltd vs. Trade Bank Nig. Ltd (1997) NWLR PT 514 page 645 at 655; Adesokan vs. Adegorolu (1997) NWLR PT 493 page 268 at 278- 279; Uba vs. Ukachukwu (2004) 10 NWLR PT. 881 page 231; Global Trans Oceanic S.A. vs. Free Ent. (2001) 5 NWLR PT. 706 page 426 at 443; and Daniyan vs. Iyagin (2002) 7 NWLR PT. 766 page 346 at 355 and 375 were cited in aid.
Dwelling on Issue 2 as formulated in the Appellant’s brief, Appellant’s counsel quoted what the lower court said at page 98 of the record which reads: –
“The Plaintiff as an agent of Glaxo Welcome Nigeria Limited, must have authority to sue on their behalf to recover all debts owed it by their customers. This, the Plaintiff has not been able to show.
Having failed to show the nexus between plaintiff, defendant and Glaxo Welcome Nigeria Limited, the Court would be right to hold that the plaintiff lacks the locus standi to maintain the action against the defendant.”
Appellant’s counsel submitted that pleadings and/or application do not tantamount to evidence upon which a Judge can determine a matter on the merit and that evidence must be adduced for a matter to be judiciously and fairly determined on the merit. This, Appellant’s counsel said is particularly so in the instant case where the nexus between the Plaintiff, Defendant, Glaxo Wellcome Nigeria Limited and the sum of money being owed, to whom and how it came to be owed are all in issue. It was submitted that the lower court was wrong to have decided the instant case on an interlocutory application as it did in the Ruling being appealed against. The case of Mogaji vs. Military Administrator of Ekiti State (1998) 2 NWLR PT. 538 page 425 at 439 and the provisions of Sections 135, 136 and 137 of the Evidence Act were relied upon. Appellant’s counsel submitted that the lower court in the interest of fair hearing ought to have restricted itself to the Statement of Claim and allowed the Appellant to prove his case given the averments in the Statement of Claim which showed the state of affairs between him, the defendant and Glaxo Wellcome Nigeria Limited as well as the nexus between them. The nexus is that he (i.e. Appellant), as a sales representative of the company in the course of his business supplied drugs to the Defendant and that the Defendant having refused to pay for the drugs, he personally paid the debt to the company. That it is the money he paid that he now wants the defendant to pay back to him through the Court processes taken out by him.
In dwelling on the sole issue formulated for determination in the Respondent’s brief, Respondent’s counsel pointed out the importance of locus standi to adjudication being a threshold question and as it deprives the court of the jurisdiction to entertain a matter where it is lacking on the part of the plaintiff. The cases of Central Bank of Nigeria vs. Kotoye (1994) 3 NWLR (pt. 330) 66; Thomas vs. Olufosoye (1986) 1 NWLR (pt.18) 669; and Okafor v. Asoh (1999) 3 NWLR (PT. 593) 35 were cited in aid.
Respondent’s counsel said the transaction that gave rise to the case is contractual. Drugs worth N742,140.00 were allegedly supplied to the Respondent by the Appellant. The Appellant was then the Abuja representative of Glaxo Wellcome Nigeria Limited. The supplies were made on the Order Forms of Glaxo Wellcome Nigeria limited. Paragraphs 8 & 9 of the statement of claim at pages 31-32 of the main Record and the Order Forms attached to the Appellant’s affidavit in support of the action under the Undefended list at pages 7-9 of the main Record were referred to. The Order forms according to Respondent’s counsel show that the transaction was between Glaxo Wellcome Nigeria Limited and Mendec Pharmacy i.e. the Respondent.
The sum of N742, 140.00 being claimed by the Appellant in this action is said to be the cumulative value of the drugs supplied vide the three (3) Order Forms. Respondent’s counsel submitted that the Appellant has no legal capacity to maintain the claim as the real issue was whether he has the capacity to claim a debt resulting from the contractual transaction. The settled position of the law was said to be that by the doctrine of privity of contract, only parties thereto can sue thereon. The cases of Dunlop Pneumatic Tyre Co Ltd vs. Selfridge & Co Ltd (1915) A.C. 847; Ikpeazu vs. A.C.B. (1965) NMLR 374; and C.C.B. Ltd vs. Nwokocha (1998) 9 NWLR (pt. 564) 98 were cited in aid. Respondent’s counsel submitted that the Appellant not being a party to the contract as evidenced by the Order Forms cannot sue to enforce any obligation, liability or right there under.
Respondent’s counsel further submitted that the court apart from looking at the Writ of Summons and Statement of Claim in order to determine whether or not a plaintiff has locus standi, was also entitled to look at any other document provided by the plaintiff especially those documents referred to in the Statement of Claim. The case of Attorney-General of Enugu State v. Omaba (1998) 1 NWLR (pt. 532) 83 at page 97 was cited in aid. Respondent’s counsel said that in the instant case, the lower court in arriving at the conclusion that the Appellant lacked the locus standi to maintain the action considered the Writ of Summons, Statement of Claim and the Order Forms (Invoices) referred to in the Statement of Claim and exhibited by the Appellant himself. He submitted that the lower court was right in this approach and that the decision that the plaintiff lacked locus standi is borne out by the pleaded facts and documents exhibited by the Appellant. It was also the submission of Respondent’s counsel that even if the lower court committed an error by referring to the affidavit and exhibits of the Respondent in its Ruling (although he did not concede this), the error in any event did not occasion any miscarriage of justice to the Appellant as the lower court referred to the documents and exhibits in passing only. To buttress the point It was said that it is trite that it is not every error of the lower court that leads to the success of an appeal and the case of Odinaka vs. Moghalu (1992) 4 NWLR (pt. 233) 1, was cited in aid. Respondent’s counsel further said that this Court was in equally good position to consider the Appellant’s Statement of Claim alone or in conjunction with the exhibits provided by the Appellant and come to a conclusion as to whether or not the said process or processes disclosed the Appellant’s locus standi. He submitted that the result of such an exercise would still be the same as that reached by the lower court and which is that the Appellant lacks the necessary capacity or locus standi to maintain the instant action.
As earlier stated, the Respondent raised a preliminary objection challenging the competence of the instant appeal on the ground that it has been initiated against “Mondec Pharmacy” a non-juristic person. The Appellant did not respond to the preliminary objection in his amended brief of argument. Neither did he file a separate Reply thereto. I am aware of the case of THE NIGERIA NAVY & ORS V, LIONEL OKON GARRICK [2007] All FWLR (pt. 315) 45 at 64; where this Court among others held to the effect that an Appellant is deemed to have admitted all issues raised and canvassed in a preliminary objection where he fails to respond to the notice of preliminary objection to his appeal. The decision in this regard would however appear to have been qualified or modified by that of the Supreme Court in the case of MICHAEL ODUNZE & 5 ORS v. NWOSU NWOSU & 4 ORS [2007] All FWLR (pt. 379) 1295 at page 1314. The Supreme Court in the case, said amongst others that default on a party’s part to react to a notice of preliminary objection does not ipso facto imply that the objection has to be sustained without more. It was further said that the court is also not precluded from considering the merit and demerit of the objection, for overruling the purpose for it or sustaining it.
I have earlier mentioned in this Ruling that the Appellant brought a motion dated 5/10/2006 before this Court and the prayers sought therein were also re-produced. As it can be seen, amongst the orders sought in the motion are: (i) leave to amend the Notice of Appeal filed in this matter on 24/11/04 by the addition of the word “Ltd” to the Respondent’s name to read “Mondec Pharmacy Ltd”; and (ii) deeming as properly filed and served the Amended Notice of Appeal attached to the said motion and marked Exhibit “A”. The orders sought in the motion dated 5/10/2006 including the ones relating to the name of the Respondent as shown in the Notice of Appeal were granted. In the circumstances it would appear glaring that the irregularity concerning the name of the Respondent as shown in the original Notice of Appeal had been cured or rectified prior to the hearing of this appeal. An Amended Notice of Appeal relates back to the date on which the Notice of Appeal was originally filed. See the case of UNITY BANK PLC v. BOUARI (2008) 7 NWLR (pt, 1086) 372 at 399.
The preliminary objection raised in Respondent’s brief therefore requires no elaborate consideration save to say that it has now fizzled into nothingness consequent to the Amended Notice of Appeal filed by the Appellant and in which the name of the Respondent was correctly stated as “Mondec Pharmacy Ltd”. The preliminary objection of the Respondent is accordingly overruled.
In resolving Issue 1 as formulated by the Appellant, I will begin by considering what locus standi connotes and the processes which the courts are required to look at or into in determining whether or not a plaintiff in a matter has locus standi and for this purpose I intend to refer to pronouncement” in three cases specifically. The first case I wish to refer to is that of HON. MUYIWA INAKOJU & ORS v. HON. ABRAHAM ADEOLU ADELEKE & ORS (2007) All FWLR (Pt. 353) 3. The lead judgment was delivered by Niki Tobi, JSC. Dwelling on the issue of locus standi therein, His Lordship stated thus at pages 97-98:-
“…………….Locus standi or standing is the legal right of a party to an action to be heard in litigation before a court of law or tribunal.
The term entails the legal capacity of instituting or commencing an action in a competent court of law or tribunal without inhibition, obstruction or hindrance from any person or body whatsoever.
XXXXXXXXXXXXXXXXXXXXXXXXXX
In ascertaining whether the plaintiff in an action has locus standi, the pleadings, that is, the statement of claim, must disclose a cause of action vested in the plaintiff and the rights and obligations or interests of the plaintiff which have been violated.
XXXXXXXXXXXXXXXXXXXXXX
…….. The question as to the competence of a plaintiff to Institute an action is gathered from the statement of claim and not from the evidence that is subsequently led. see Ladejobi vs. Shodipo (1989) 1 NWLR (Pt. 99) 596.
Where the competence of a plaintiff to institute an action is challenged or in issue, the onus would be on him to establish that he is competent to sue as plaintiff………..”
The second case I wish to mention is that of BABATUNDE ADENUGA & ORS v. J.K. ODUMERU & ORS (2003) 4 S.C. (PART I) 1. The Supreme Court per S.O. Uwaifo, JSC; who delivered the leading judgment stated at page 10 thus: –
“….Locus standi denotes the legal capacity, based upon sufficient interest in a subject matter, to institute proceedings in a court of law to pursue a certain cause. In order to ascertain whether a plaintiff has locus standi the statement of claim must be seen to disclose a cause of action vested in the plaintiff and also establish the rights and obligations or interests of the plaintiff which have been or are about to be violated, and in respect of which he ought to be heard upon the reliefs he seek……………….”
The last case that I wish to dwell on specifically on the issue of locus standi is that of JOSIAH KAYODE OWODUNNI VS. REGISTERED TRUSTEES OF C.C.C. & ORS [2000] 6 SCNJ 399. In the said case the Supreme Court decided amongst others that the term “locus standi” or standing denotes the legal capacity to institute proceedings in a court of law. And that standing to sue is not dependent on the success or merit of a case; that it is a condition precedent to the determination of the case on the merit. In the case under reference, the Supreme Court per Ogundare, JSC; (of blessed memory) made it clear that there was some difference in relation to locus standi in the realm of public law and private law. That in the realm of private law, the question of locus standi is merged with the issue of cause of action.
See also on the issue of what locus standi is and what the courts look into in determining whether or not a plaintiff has locus standi the cases
of HERBERT O. EMEZI v. AKUJOBI DAVID OSUAGWU & ORS [2005] All FWLR (PART 259) 1891; OMEGA BANK PLC & ANOR V. THE GOVERNMENT OF EKITI STATE & ORS [2007] All FWLR (pt. 386) 658; IKEJA HOTELS PLC v. LAGOS STATE BOARD OF INTERNAL REVENUE (2005) All FWLR (PART 279) 1260; and CHIEF AKINPELU IYANDA & ORS v. CHIEF AFOLABI LANIBA II (BAALE OF AWE) & ORS [2002] 33 WRN 40.
It is in my view incontrovertible from what had been stated hereinbefore, that though the instant case was commenced under the Undefended list, it had however ceased to be one being tried pursuant to the Undefended list procedure after it was transferred to the General Cause List and particularly the pleadings had been filed and even completed before the preliminary objection challenging the locus standi of the Plaintiff/Appellant to maintain the action was brought. This being the situation the pertinent question is what process was the lower court enjoined to look at in coming to a decision concerning the locus standi of the Plaintiff/Appellant? The answer to the question in my humble view is glaring from the cases hereinbefore cited; and it is that the only process which the lower court was enjoined to look at and consider is the Statement of Claim before it in the instant case. I have painstakingly read the Ruling of the lower court, and it is glaring there from that the said court looked into documentary evidence pleaded or to be tendered in the proof of averments in the Amended Statement of Defence and Counter-Claim of the Defendant/Respondent in coming to a decision concerning the locus standi of the Appellant. This the lower court did even though it was aware that it was enjoined by law to look into the Statement of Claim only for the purpose. In this regard see page 98 of the main Record where the Court stated thus: –
“The court can only look at the writ and the statement of claim to see whether there is a reasonable cause of action. In this suit the plaintiff has failed to show his locus in this matter. None of the invoices is in his name.
The only names on the invoice is Glaxo Welcome Nigeria Limited as the seller and the defendant as the purchaser. The defendant has also exhibited in his affidavit already in the court’s file that he has had transactions with Glaxo Welcome Nigeria Limited. The defendant has also exhibited Bank Statements showing where he had made judgments to Glaxo Welcome limited.
The Court can only deal with documentary evidence before it and nothing more. The Court cannot find any nexus between the plaintiff, defendant and Glaxo Welcome Nigeria limited. There is no reasonable cause of action against the defendant.
The plaintiff as an agent of Glaxo Welcome Nigeria Limited must have authority to sue on their behalf to recover all debts owed it by their customers. This, the plaintiff has not been able to show.
Having failed to show the nexus between plaintiff, defendant and Glaxo Welcome Nigeria Limited, the Court would be right to hold that the plaintiff lacks the locus standi to maintain the action against the defendant.
This lack of locus standi on the part of the plaintiff robs the court of jurisdiction to entertain this suit as it is constituted.
The Court is also robbed of it (sic) jurisdiction as the plaintiff has not shown to the satisfaction of the Court that there is a reasonable cause of action that the Court could be called upon to entertain.
The Court lacks jurisdiction to entertain this suit as the plaintiff lacks locus standi. The Court will therefore strike out this suit for lack of merit.”
I am of the firm view from the portion of the Ruling of the lower court quoted above, that the said court looked at the case of the defendant as presented in its Amended Statement of Defence and Counter-Claim and the documentary evidence the Defendant/Respondent intended to rely on at the hearing of the case (which documents were attached to the supporting affidavit of the Notice of Preliminary Objection); and actually relied on the same in arriving at its findings. This view is irresistible in view of the declaration by the lower court that: “The Court can only deal with documentary evidence before it and nothing more.” The documentary evidence before the lower court and which by its own showing it acted upon at least included the Bank Statements exhibited by the Respondent to the supporting affidavit of the Notice of Preliminary Objection. The argument of Respondent’s counsel to the effect that the lower court did not do this, and/or that if it did, the documentary evidence referred to, was not the basis for the lower court’s decision is a serious misconception of the Ruling of the lower court. The lower court clearly disclosed its reliance on the exhibits in its Ruling.
Respondent’s counsel has also argued to the effect that the lower court considered the Writ of Summons; Statement of Claim and the order forms (invoices) referred to in the Statement of Claim and exhibited by the Appellant himself in arriving at the conclusion that the Appellant has no locus standi to maintain this action. And relying on the case of Attorney-General of Enugu State vs. Omaba (supra) Respondent’s counsel submitted to the effect that the lower court acted properly in this regard. I do not think Respondent’s counsel actually read the case in-depth. If he did he would have seen that the case never reversed and in any case being a decision of this Court was incapable of reversing the settled position of the law as enunciated in many cases decided by the Supreme Court that only the statement of claim should be looked into or considered in determining the question of locus standi. In the case under reference, Akpabio, JCA; made clear the situation in which exhibits could be used for the purpose of resolving the question of locus standi. What His Lordship said in this regard at page 97 is hereby re-produced: –
“In effect therefore, I am of the considered view that nothing stopped the learned trial Judge Onyia, J., from reading through both the affidavit and counter-affidavit filed by the parties in the objection before him. This was more so, as the counter-affidavit of the plaintiffs (i.e. 1st-5th respondents) was “in pari materia” with the statement of claim already filed by them. It merely exhibited the three documents Exhibits ‘A’, ‘C’ & ‘D’ which were copiously alluded to in their statement of claim.
To put the same principle in other words, a Judge is entitled to look at not only the statement of claim of the plaintiff, but also any other materials brought by him in order to decide whether a plaintiff has “locus standi” or not. To suggest that a Judge should only look at the affidavit of the objector and not at the counter affidavit of the Respondent will clearly be contrary to the natural justice principle of “audi alteram partem”.
This principle propounded in this case even if taken as correct is definitely inapplicable to the instant case. In this regard it is to be noted that the Appellant (who was the Respondent in the preliminary objection before the lower court) did not file any counter-affidavit in the proceeding talk less of his having exhibited any document thereto. The only documentary evidence presented before the lower court at the hearing of the preliminary objection was so presented by the Respondent (who brought the preliminary objection) and it is simply stretching the position of things too far for the Defendant/Respondent to argue that the documents which were attached to the Appellant’s motion ex-parte made to the court for the purpose of prosecuting this action under the Undefended List (and which procedure ceased to be relevant when the case was moved to the General cause List and pleadings filed therein) was placed by him before the lower court for any purpose in the matter of the preliminary objection.
May I also say that the principle enunciated by Akpabio, JCA; in the case of Attorney-General of Enugu State v. Omaba that a Judge is entitled to look at not only the statement of claim of the plaintiff, but also any other materials brought by him (i.e. the plaintiff) in order to decide whether or not he has “locus, standi” would appear to be in direct conflict with decisions in a long line of cases on the issue. I cannot but again refer to the case of the HON. MUYIWA INAKOJU & ORS v. HON. ABRAHAM ADEOLU ADELEKE & ORS [2007] All FWLR (pt. 353) 3. In the said case Niki Tobi, JSC; on the question of locus standi said amongst others that the question as to the competence of a plaintiff to institute an action is gathered from the statement of claim and not from the evidence that is subsequently led and cited Ladejobi vs. Shodipo (1989) 1 NWLR (pt.99) 596 in aid.
It is my view that if the question of locus standi is not to be gathered from evidence subsequently led in a case, a fortiori it cannot be gathered from affidavit placed before the court inasmuch as depositions in an affidavit are by themselves evidence. I am of the settled view that what the lower court should have done even when it was confronted with the “AFFIDAVIT IN SUPPORT OF NOTICE OF PREUMINARY OBJECTION” filed by the Defendant/Respondent was to have resolutely restricted itself to a consideration of the Statement of Claim of the Appellant in resolving the question as to whether or not the Appellant has the locus standi to bring and maintain the action. Issue 1 in the Appellant’s brief must therefore be and is accordingly resolved in the Appellant’s favour as the lower court in its Ruling on appeal glaringly did not restrict itself to a consideration of the Statement of Claim of the Appellant only.
In the last paragraph of the Ruling of the tower court on appeal, the said court stated thus: –
“The Court lacks jurisdiction to entertain this suit as the plaintiff lacks locus standi. The Court will therefore strike out this case for lack of merit.”
Surely, the law is immutable that a court in deciding an Interlocutory application should not delve into the merit of the case or pre-determine the issues to be tried at the hearing of the case. see MRS. GLORIA NYA v. MADAM EME BASSEY EDEM [2005] All FWLR (pt. 242)576.
The lower court in deciding on the preliminary objection challenging the locus standi of the plaintiff therefore ought to have resisted any invitation made to it by either of the learned counsel in the instant case or both of them, to delve into the merit of the case under whatever guise. The lower court having found the preliminary objection of the Defendant/Respondent to be meritorious or having upheld the same; was duty bound to strike out the case for the lack of locus standi on the part of the Appellant and definitely not to have struck out the case for lack of merit. It would however appear that the lower court struck out the case for lack of merit after it had found the Appellant not to have locus standi to maintain the same, as it had earlier stated in its Ruling that: “The Court can only deal with documentary evidence before it and nothing more”. It is further glaring from the said Ruling that at least some of the documentary evidence which the lower court considered and which clearly influenced its findings are those showing that the Defendant/Respondent has had transactions with Glaxo Wellcome Nigeria Ltd and Bank Statements showing lodgments which the Defendant/Respondent had made to Glaxo Wellcome Nigeria Limited. The Defendant/Respondent pleaded his reliance on these pieces of documentary evidence in support of its case as presented in the Amended Statement of Defence and Counter-Claim. The instant case was not being tried upon affidavit evidence or on the pleadings of the parties at the stage when the challenge to the locus standi of the Appellant was entertained by the lower court. Similarly the said case was definitely not being tried by the calling of witnesses. Indeed the case was not being tried at all at the stage of the challenge to the locus standi of the Appellant to maintain the same. The lower court glaringly contravened the immutable position of the law that a court is not to delve into the merits of a case in the course of an interlocutory proceeding by its own declaration that “The Court can only deal with documentary evidence before it and nothing more” and to have consequently acted at least on some of the documentary evidence which were pleaded by the Defendant/Respondent in the proof of its case on the merit. The lower court was clearly wrong to have done so. Issue 2 in the Appellant’s brief must therefore be resolved in favour of the Appellant and is accordingly so resolved.
The matter however does not end with the resolution of the two Issues raised by the Appellant as the most germane question (and which the Issue formulated by the Defendant/Respondent is all about) is whether the lower court was right in finding the Appellant as lacking the locus standi to maintain the instant action. The appropriateness of the Issue formulated by the Defendant/Respondent is indeed glaring against the backdrop of the position of the law that what an appellate court in considering an appeal before it ought to decide is whether the decision of the lower court was right and not what its reasons were and that a misdirection not occasioning a miscarriage of justice is immaterial, see the cases of HILARY FARMS LTD &. 2 ORS v. M/V “MAHIRA” (Sister Vessel to M/V “Kadrina” & 2 ORS [2007] All FWLR (pt.390) 1417 at 1432; and INTERGRATED TIMBER AND PLYWOOD PRODUCTS LTD v. UNION BANK NIGERIA PLC [2006] All FWLR (pt.324) 1789 at 1804.
It has been stated most clearly before now, that it is settled law that it is the Statement of Claim only, that the court considers when the locus standi of a plaintiff is challenged. It should also be borne in mind that decided cases equally make it clear that the question of locus standi is merged in the issue of cause of action. In this regard I cannot but refer again to the case of OWODUNNI v. REGISTERED TRUSTESS OF CCC (supra) where Ogundare, JSC; brought out the point most
clearly as it relates to contract. His Lordship at page 417 said thus:-
“The position appears to be that in private law, the question of locus standi is merged in the issue of cause of action. For instance, a plaintiff who has no privity of contract with the defendant will fail to establish a cause of action for breach of contract as he will simply not have a locus standi to sue the defendant on the contract.”
May, I also say that it is equally settled law that cause of action means no more than the bundle of facts and circumstances giving rise to the plaintiff’s enforceable claims against the defendant and that It is in the Statement of Claim that these have to be pleaded. In other words, it is settled law that the question as to whether an action discloses a cause of action is determined from the statement of claim. See CHEVRON NIGERIA LIMITED v. LONESTAR DRILLING NIGERIA LIMITED (2007) All FWLR (pt.386) 633 and RINCO CONSTRUCTION CO, LTD V. VEEPEE INDUSTRIES LTD & ANOR (2005) All FWLR (Pt.264) 816.
The case of the Appellant as Appellant’s counsel considered it to have been presented in the Statement of Claim (and which is set out in paragraph 3.3-3.4 of the Appellant’s brief) has earlier been highlighted in this Ruling. It was this case as presented in the said paragraphs that the Appellant accused the lower court of having shut its eyes to. It is amazing that Appellant’s counsel who submitted and correctly too that what the lower court needed or ought to have looked at in determining whether the plaintiff has locus standi, is the Statement of Claim, in stating the Appellant’s case in the Appellant’s brief however referred to averments in Appellant’s Reply to Statement of Defence and Counter-
Claim as well as a receipt dated 18/8/2003 made in the name of C.O.D. Chemist (an accredited customer with Glaxo Wellcome Nigeria limited from whose stock the drugs he (i.e. Appellant) supplied to the Defendant/Respondent came). The receipt made in the name of C.O.D. Chemist was referred to in the Appellant’s brief in order to show that the Appellant paid or has paid the sum he is now claiming from the Defendant/Respondent from his own purse or pocket and that he is now claiming the said sum in the instant action as a debt from the Defendant/Respondent. I have painstakingly perused the Statement of Claim at pages 31-32 and I am in no doubt that there is no averment therein that remotely discloses the fact that the Appellant personally paid to Glaxo Wellcome Nigeria Limited the money for the drugs supplied to the Defendant/Respondent and for which the said Defendant/Respondent refused to pay; and that he (i.e. Appellant) having paid the said money personally is suing for the same as a debt owned him by the Defendant/Respondent. What the averments in the Statement of Claim glaringly disclose is that the Appellant is suing for the money of the drugs supplied to the Defendant/Respondent in the sum of N742,140.00 plus interest at 21% from the date of the filing of the suit till judgment; and 10% interest from date of judgment till it is finally liquidated; as it is his (i.e. Appellant’s) responsibility as the Sales Representative who supplied the Defendant/Respondent with the drugs to remit the sums for drugs released to him after sales to the company.
In other words, there is nothing in the Statement of Claim that has disclosed that the sum of N742,140.00 being claimed by the Appellant personally in the instant case belongs to him or is in respect of goods belonging to him and which he supplied to the Defendant/Respondent.
The question then is, whether the Appellant has disclosed a cause of action against the Defendant/Respondent in respect of the money he claims by the instant action for the drugs of Glaxo Wellcome Nigeria Limited which the said Appellant has shown that he supplied the Defendant/Respondent as a Sales Representative of the said Glaxo Wellcome Nigeria Limited. What the term “cause of action” means has earlier been stated in this Judgment. Given the meaning of the term, I am in no doubt that the Appellant on the averments in his Statement of Claim has not shown at all any cause of action against the Defendant/Respondent in respect of the sum of N742,140.00 he claims personally in this action. In the Statement of claim the Appellant clearly portrayed himself as having entered into the drug supply transaction as a Sales Representative of Glaxo Wellcome Nigeria Limited. It is settled law that a contract entered into by an agent of a disclosed principal is that of the principal and that it is the principal and not the agent that can properly sue to enforce right and obligation under the said contract.
See ATAGUBA AND COMPANY v. GURA NIGERIA LIMITED (2005) All FWLR (Pt. 256) 1219.
I believe that it was in realization of the position of the law in this regard that Appellant’s counsel in the Appellant’s brief introduced into the Appellant’s case the fact that the Appellant had paid for the drugs supplied from his own pocket and that he was now claiming the said sum as a debt from the Defendant/Respondent and in this regard relied on averments in the Reply to Statement of Defence and Counter-Claim. The Appellant definitely cannot shop for facts giving him locus standi from any other material or process apart from his statement of claim. Having said before now that the case of the Appellant in his Statement of Claim is that he entered into the drug supply transaction with the Defendant/Respondent as an agent of Glaxo Wellcome Nigeria Limited (and this makes Glaxo Wellcome Nigeria Limited a disclosed principal), he (i.e. Appellant) in the circumstances has not disclosed any cause of action against the Defendant/Respondent entitling him to claim personally, the money in respect of the drugs supplied, and consequently he lacks the locus standi to sue and maintain the instant suit against the said Defendant/Respondent for the money due or outstanding in respect of the drugs.
From all that has been said It is obvious that the lower court arrived at the right decision by finding that the Appellant did not have locus standi to maintain the instant action against the Defendant/Respondent even though it looked at documentary evidence attached to the supporting affidavit of the Notice of Preliminary Objection filed by the said Defendant/Respondent. It is settled law that when the plaintiff in an action is found not to have locus standi, the said action must be struck out as possession of locus standi by a plaintiff is a condition precedent to the determination of the case on the merit.
The lower court was therefore right to have struck out the instant case given its finding.
In conclusion the Issue for determination in this appeal as formulated in the Respondent’s brief and which as earlier stated encompasses the consideration of the Issues formulated by the Appellant is resolved in the affirmative. This being my conclusion, I hold that the lower court was right in striking out the instant case.
This appeal therefore fails and it is hereby dismissed. Costs in the sum of N15,000.00 is awarded in favour of the Respondent and against the Appellant.
Other Citations: (2008)LCN/3077(CA)
