Barrister Ray Nnaji V. Nigerian Football Association & Anor (2010)
LawGlobal-Hub Lead Judgment Report
ABDU ABOKI J.C.A:
This Appeal is against the ruling of the Federal High Court, Abuja Judicial Division delivered on 22nd day of November, 2005 by Hon. Justice A. I. Chikere.
The Brief fact of the case is that the Appellant as Plaintiff had through a Writ of Summons dated and filed on the 24th day of June, 2004 sought for the following reliefs:-
“(a) A declaration that the National Executive of the Nigeria Referees Association is not the proper party to conduct the elections into all the offices of NRA starting from society, council and Association by virtue of their vested interest in the conduct of elections.
(b) A declaration that the electoral committee set up to organize the NRA elections Which is directly responsible to the 3rd Defendant is biased and cannot organize a free and fair election into the executive offices of the 2nd Defendant without an independent supervision.
(c) A mandatory Order compelling the first Defendant to inaugurate a new electoral panel to conduct the elections of the 2nd Defendant
(d) An Order of perpetual injunction restraining the 2nd and 3rd Defendants, their agents, privies from conducting any elections into the executive offices of the 2nd Defendant without the direct supervision of either the 1st or 4th Defendant
(e) An Order of perpetual injunction restraining the Defendants from conducting the National elections in Port Harcourt or the home base of any of the contestants for the post of presidency.”
However, on 14th July, 2004 the 2nd and 3rd Defendants filed a Notice of Preliminary Objection on the grounds that:-
“1. The 2nd Defendant (Nigeria Referees Association) is not a legal entity known to law and not registered under Part C of the Companies and Allied Matters Act, 1990
- The Statutes of the 2nd Defendant forbid the Association, Council or individual from suing or being sued on matters relating to the administration of football Refereeing.”
Similarly, the 2nd Respondent herein being 5th Defendant at the lower Court raised a Preliminary Objection which was argued on 19th October, 2004 on the following grounds:-
“1. That the Appellant lacked the locus to sue the Nigeria Referees Association (NRA) since he has neither been nominated as a candidate nor paid fees in accordance with the 2004 NRA Election Guidelines.
- That a cause of action against the 2nd Defendant (Nigeria Referees Association) has not arisen because the matter relates to the internal affairs of NRA over which the Court lacks jurisdiction.”
On 19th October, 2004 the Plaintiff/Appellant filed a Motion on Notice seeking for:
“1. The leave of the Court to amend his Writ of Summons, Statement of Claim and all other processes filed so far in the suit by suing the 3rd and 5th Defendants in a representative capacity to wit: ‘for and on behalf of all members of the Nigeria Referees Association’ and
- An order striking out the names of the 2nd and 4th Defendants as parties in the suit.”
On 10th May, 2005, the Court granted the application of the Appellant and accordingly struck out the names of the 2nd and 3rd Defendants as parties to the suit and the processes were also amended by suing the 3rd and 5th Defendants for and on behalf of all members of the Nigeria Referees Association. However, the Court in a ruling delivered on 22nd November 2005 struck out the Appellant’s suit on the grounds that:
“1. the Appellant’s suit is incompetent as he lacks the requisite locus standi to institute same;
- no cause of action has arisen; and
- the CAF Statute 2000-2004 has ousted the jurisdiction of the Court to determine the suit.”
Being dissatisfied with the ruling, the Appellant filed a Notice and Grounds of Appeal on 7th December, 2005. From the three Grounds of Appeal, the following two issues were distilled for the determination of this Appeal:-
“1. Whether the alleged non-satisfaction of the pre-action condition for instituting an action against the NRA divests the Appellant of the locus standi to maintain the suit against the other parties to the suit in relation to whom there are no pre-action conditions and Whether having regard to the nature of the preliminary objections raised by the respondents at the lower Court, the appropriate order to make in the circumstances is an order striking out the suit.
- Whether it is not contrary to the established principles of law for the trial judge to have used the case of the defendant and not that of the plaintiff to determine jurisdiction.”
The Appellant filed his Brief of Argument on the 2nd day of October, 2007 and has since served the Respondents with a copy but the Respondents failed to file their Brief within the time allowed by the Rules of this Court. On the 2nd day of June, 2009 this Court, upon the Appellant’s Motion on Notice filed on 26th May, 2009, ordered that this Appeal be set down for hearing on the Appellant’s Brief of Argument alone.
I shall adopt the two issues as distilled by the Appellant for the determination of this Appeal.
Issue One:-
“Whether the alleged non-satisfaction of the pre-action condition for instituting an action against the NRA divests the Appellant of the locus standi to maintain the suit against the other parties to the suit in relation to whom there are no pre-action conditions and
Whether having regard to the nature of the preliminary objections raised by the respondents at the lower Court, the appropriate order to make in the circumstances is an order striking out the suit”
Learned Counsel for the Appellant Bola Aidi submitted that in reaction to the assertion that NRA is not a legal entity capable of suing and being sued, the Appellant had on 19th October 2004 filed a Motion for leave to amend his processes by suing the 3rd and 5th Defendants for and on behalf of all members of NFA and an order spiking out the names of the 2nd and 4th Defendants from the suit. He maintained that this application was granted by the Court on 10th May 2005.
Bola Aidi, contended that it is certain that the crux of the two Preliminary Objects is that the action could not be maintained against the 2nd Defendant NRA which in other words is that the NRA was misjoined as a party to the suit due to the allegation that the pre-action condition has not, been met or the cause of action against the NRA has not arisen or the Appellant lacks locus to sue NRA not being a candidate in stricto sensu.
He submitted that in a situation like this, the appropriate order for the Court to make where it is convinced of the above argument is that striking out the name of the party who was not properly brought before it and allowing the suit to be continued against the other parties who were properly brought before it.
Learned Counsel argued that instead of holding that the action cannot be maintained against the NRA, its name having earlier been struck out by virtue of the Court’s order of 10th May 2005 and allowing the suit to be continued against the other Defendant, the trial Court curiously struck out the entire suit thereby occasioning great injustice against the Appellant.
He submitted that the other Defendant to the suit i.e. the NFA is a legal person against whom the suit can be validly maintained and/or continued without any pre-action conditions and referred the Court to Section 1(2)(b) of the NFA Decree No. 101 of 1992.
Learned Counsel maintained that it is trite law that where there is more than one Defendant before the Court, if any of them was not properly brought before the Court, the Court can strike out that party’s name and allow the suit to be continued against the other Defendant(s). He referred the Court to the cases of:
Okoye v. N.C. & F. Co. Ltd (1991) 6 NWLR Pt. 199 page 501 at 512;
Badamosi v. UBA Plc (2003)38 WRN 31 at 34;
Peenok investment Ltd. v. Hotel Presidential (1982)12 SC 1;
LSDPC V. Foreign Corp. (1987)1 NWLR Pt, 50 page 413;
Warri Refining & Petrochemical Co. Ltd. v. Onwo (1991) 12 NWLR Pt 630 page 312;
Union Beverages Ltd v. Pepsi Cola International Ltd. (19941 3 NWLR Pt. 330 page 1;
Atuegbu v. Awka South Local Government (2002)15 NWLR Pt. 791 page 636.
Bola Aidi further submitted that the order striking out the Appellant’s suit made by the lower Court is most inappropriate in the circumstances and that the appropriate order should have been the striking out of the party or parties whom no cause of action is disclosed and allowing the action to be continued against the other Defendants.
He urged the Court to so hold and resolve this issue in favour of the Appellants.
It is trite law that no cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties and the Courts are enjoined in every cause or matter to deal with the matter in controversy so far as it regards the rights and interest of the parties actually before it. See Okoye v. Nigerian Construction & Furniture Co. Ltd (1991) 6 NWLR Pt. 199 page 501 at 512;
Peenok Investments Ltd. v. Hotel Presidential (1982)12 SC 1;
Atuegbu v. Awka South Local Government (20021 15 NWLR Pt. 791 page 636 at 653-654 para H-B;
Union Beverages Ltd. v. Pepsi cola Int. Ltd. (19941 3 NWLR Pt. 330 page 16.
I have earlier stated that on 14th July, 2004, the 2nd and 3rd Defendants filed a Notice of Preliminary Objection based on 2 Grounds to which the Plaintiff/Appellant filed a Motion on Notice to amend his Writ of Summons, Statement of Claim and all other processes; and the trial Court granted the application on 10th May, 2005.
The Plaintiff/Appellant having properly places other parties to the suit, in relation to whom there are no pre-action conditions, before the Court, the Court ought not to strike out the Plaintiff/Appellant suit as a result of the misjoinder but ought to have allowed the action to continue against the other Defendants
This issue is resolved in favour of the Plaintiff/Appellant.
Issue Two:
“Whether it is not contrary to the established principles of law for the trial judge to have used the case of the defendant and not that of the plaintiff to determine jurisdiction.
Bola Aidi, Counsel for the Appellant submitted that it is trite that in deciding the question of jurisdiction, the Court has to restrict itself to the claim of the Plaintiff and not that of the Defendant. He maintained that it is the Claim as endorsed in the Plaintiffs Writ of Summons and Statement of Claim that will determine whether or not the Court has jurisdiction and that it is therefore wrong for the Court to determine jurisdiction on the basis of the case of the Defendant Learned Counsel referred the Court to the cases of:
Abacha v. Fawehinmi (2000) 2 SCNQR Pt. 1 page 489 at 500;
A.G. Anambra v. A.G. Federation (1993) 6 NWLR Pt. 302 page 692.
He maintained that the case that gave rise to this Appeal as contained in the Statement of Claim was that:
(a) the 1st Respondent was the proper party statutorily empowered to conduct elections into offices of the 2nd Respondent.
(b) the 2004 NRA Election Guidelines and the Electoral Committee established thereunder by the 2nd Respondent could not guarantee his right to free and fair election. That there was an inherent bias against the Appellant in the election committee as constituted and also that the election guidelines did not make room for due process and fair hearing in favour of any candidate who would wish to contest the result of the election.
Learned Counsel referred the Court to paragraph 16 of the Electoral Guidelines which provides that the Electoral Committee which shall conduct the election shall also constitute the Electoral Tribunal to which every protest against the election shall be forwarded; paragraph 17 which provides that the decision of the Electoral Committee shall be final and cannot be challenged in any law Court; and also paragraph 22 which provides that all aspirants are required to sign the guidelines as evidence of all conditions stated in the guidelines.
He maintained that the case of the Appellant was therefore that the above provisions contravened the principles of natural justice and fair hearing because they make the Electoral Committee a Judge even in its own cause in breach of the maxim “nemo judex in causa sua”.
Learned Counsel argued that the above is the summary of the case of the Appellant at the lower Court as could be gleaned from the Writ of Summons, Statement of Claim and the Motion on Notice. He maintained that Article 30 of CAF Statute did not form part of the Appellant’s case at the lower Court, that the Appellant neither made any reference to the CAF Statute nor tendered same in evidence and that the CAF Statute was indeed submitted to the lower Court by the Defendants/Respondents on the suo motu invitation of the Court.
Bola Aidi stressed that the said Article 30 of the CAF Statute formed part of the Respondent’s case as Defendants and that it is therefore wrong for the trial Court to have declined jurisdiction on the basis of the CAF Statute when it held at page 234 of the Record of Appeal that “the CAF Statute 2000-2004 has ousted the jurisdiction of Court to determine this suit”, moreso when the CAF and FIFA Statutes were arguments canvassed by Counsel to the original 2nd and 3rd Defendants who were struck out as parties.
He submitted that the approach adopted by the trial Court in deciding the issue of jurisdiction on the basis of the Defendants’ case is not only wrong but incurably wrong.
Learned Counsel further submitted, assuming that the foregoing submission is not acceptable by the Court that Nigeria is a sovereign nation and as such foreign legislations and treaties do not have general application in Nigeria. He maintained that the only two exceptions to this are the Statutes of general application and foreign Statutes domesticated by Nigerian legislation.
Bola Aidi maintained that the CAF Statute is not a Statute of general application and there is no known Nigerian Statute brought before the Court as domesticating same.
He submitted that it was wrong for the trial Court to have placed reliance on the CAF Statute in coming to its decision, moreso, when no evidence was led to show that the 2nd Defendant is an association under CAF.
Counsel for the Appellant further submitted that CAF and FIFA Statutes have the status of foreign treaties and as such unless they are domesticated by a local legislation, they cannot be applicable in Nigeria and the Nigerian Courts are not bound to apply them and referred the Court to Section 12(1) of the 1999 Constitution and the case of:
Abacha v. Fawehinmi (2000) 2 SCNQR Pt. 1 page 489 at 494.
Bola Aidi further maintained that the onus to prove that CAF and FIFA Statutes have been domesticated lies on the Defendants/Respondents who are seeking for their application in Nigeria and that the onus has not been discharged by the Defendants/Respondents.
Learned Counsel stressed that until this onus is discharged, the CAF and FIFA Statutes shall retain the status accorded to foreign treaties and referred the Court again to the case of:
Abacha v. Fawehinmi (supra).
He urged the Court to resolve Issue two in favour of the Appellants, allow the Appeal, set aside the ruling of the lower Court and remit the case to another Judge for trial.
Jurisdiction is the authority a Court has to decide matters before it or take cognizance of matters presented in a formal way for its decision and where a Court exercises jurisdiction which it does not possess, its decision amounts to nothing. See Alamieyeseigha v. Igoniwari (No. 2) (2007) 7 NWLR Pt. 1034 page 524; Obi v. INEC (2007) 11 NWLR Pt. 1046 page 436:
ITF v. NRC (2007) 3 NWLR Pt. 1020 page 28;
Uzoho v. NCP (2007) 10 NWLR Pt 1042 page 320.
It is a fundamental principle of law that in considering whether a Court has jurisdiction to entertain a matter, the Court is guided by the claim before it by critically looking at the Writ of Summons and the Statement of Claim. See Amaechi v. INEC (No. 1) (2007) 18 NWLR Pt. 1065 page 42:
Gafar v. Governement of Kwara State (2007) 4 NWLR Pt. 1024 page 375;
Lufthansa Airlines v. Odiese (2006) 6 NWLR Pt. 978 page 39:
Nkuma v. Odili (2006) 6 NWLR Pt. 977 page 587:
Onuorah v. K. R. P. C. (2005) 6 NWLR Pt. 921 page 393:
Onyenucheya v. Mil. Administrator, Imo State (1997) 1 NWLR Pt. 482 page 429.
Thus, it is the claim of the Plaintiff and not that of the Defendant that determines the jurisdiction of a Court. In the present case, the trial Court ought not to have premised the determination of whether or not it has jurisdiction on the claim of the Defendants and further on the provisions of Article 30 CAF Statute 2000-2004 thereby striking out the suit of the Plaintiff/Appellant.
I must state here that the CAF Statute 2000-2004 is a Foreign Statute which has the same status as International Treaties. It is pertinent to note that the position of our law with regard to International Treaties is that they do not become binding on citizens of this Country until enacted into law by the National Assembly. It follows therefore that before their enactment into law by the National Assembly, it has no force of law as to make any of their provisions justiciable in our Courts. See Abacha v, Fawehinmi (2000) 6 NWLR Pt. 660 page 228 at 288;
This is also embodied in Section 12 (1) of the 1999 Constitution of the Federal Republic of Nigeria which states as follows:
“No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly.”
In interpreting the above provision of the Constitution, the Supreme Court in Abacha v, Fawehinmi (supra) at page 247 per Ejiwunmi, J.S.C. said thus:
“It is therefore manifest that no matter how beneficial to the country or the citizenry, an international treaty to which Nigeria has become a signatory may be, it remains unenforceable, if it is not enacted into the law of the country by the National Assembly.
This position is generally in accord with the practice in other countries. In the recent case of Higgs & anor. v. Minister of National Security & Ors. The times December 23,1999 the Privy Council held that:-
‘In the law of England and the Bahamas, the right to enter into treaties was one of the surviving prerogative powers of the crown. Treaties formed no part of domestic law unless enacted by the legislature.
Domestic courts had no jurisdiction to construe or apply a treaty, nor could unincorporated treaties change the law of the land. They had no effect upon citizens’ rights and duties in common or statute law. They might have an indirect effect upon the construction of statutes or might give rise to a legitimate expectation by citizens that the Government, in its acts affecting them, would observe the terms of the treaty.’
I think the above ought to be accepted as representing the position of our law with regard to International Treaties entered into by the Federal Government of Nigeria. If such a treaty is not incorporated into the municipal law, our domestic courts would have no jurisdiction to construe or apply it. Its provisions cannot therefore have any effect upon citizens’ rights and duties……..” In the present case, the trial Court erred in relying on the provision of the CAF Statute 2000-2004 which has not been domesticated into our municipal law to decline jurisdiction to entertain the plaintiff/Appellant’s suit.
This second issue is alone resolved in favour of the Plaintiff/Appellant. This Appeal is meritorious and succeeds. It is hereby ordered that the case be remitted to the trial Court to be ressigned by the Chief Judge of the Federal High Court to another Judge who should determine it on the merit.
There shall be no order as to cost.
Other Citations: (2010)LCN/3528(CA)
