Aero Bell Nigeria Limited & Ors V. Fidelity Union Merchant Bank Limited (2005)
LawGlobal-Hub Lead Judgment Report
CLARA-BATA OGUNBIYI, J.C.A.
The application giving rise to the ruling from which this appeal stems is pursuant to a motion on notice filed by the respondent/applicant’s counsel on the 17th May, 2000 seeking for the following prayers:-
“1. AN ORDER of this court striking out or dismissing petitioners petition herein on the ground that the claim herein is frivolous, vexatious and discloses no reasonable cause of action against the Respondent and the petition is a gross abuse of process of this Honourable court.
AND for such further or other order or orders as this Honourable court may deem fit to make in the circumstances.”
The application was brought pursuant to Order 8 Rule 2 (1), Order 24 Rules 2 , 3 and 4 of the Federal High Court (Civil Procedure) Rules, 1999 and the grounds upon which set out are as follows:-
“1. The petitioners’ herein have no locus standi to institute this action.
- The petitioners herein made an outright sale to Fidelity Staff Trust of Petitioners’ Shares in the Respondent Bank inclusive of all attached or accrued rights, all dividends and distributions declared paid or made in respect of the shares aforesaid up to the end of Respondent’s Bank’s financial year in 1998 thereafter.
- It is the primary duty of this Honourable Court to consider the totality of evidence as borne out by all correspondence exchanged in the transaction leading to the action herein so as to determine the position of parties.
- The Petitioners’ claim herein against the Respondent Bank is not bona-fide.”
By the decision contained in the Ruling of the Federal High Court, Lagos, dated 24th July, 2000, delivered by the Honourable Justice E. O. Sanyaolu, the said court below dismissed Respondent/Appellant’s motion on notice and which was dated 17th May, 2000, seeking for the orders on the stipulated reasons stated and reproduced supra.
Aggrieved by the said decision aforesaid, the respondent/appellant herein filed a Notice and grounds of appeal evidenced by Treasury Receipt both shown on pages 212 – 218 of the supplementary Record of appeal. The notice of appeal is dated 31st July, 2000 and filed the same day.
In compliance to the rules of court, both sides filed and exchanged briefs of arguments. While the appellant’s brief was dated and filed on the 5th April, 2001, with the reply brief also dated and filed the 29th September, 2004, that of the respondents was dated 4th and filed on the 5th May, 2004. The respective briefs were all adopted by counsel on the 25th May, 2005, when the appeal was called up for hearing with Chief A. C. Tagbo, representing the appellant while T. E. Williams SAN with J. Okeaya – lnneh (Miss) and E.C. Nicol also (Miss) represented the respondents. On the one hand, and on behalf of the appellant its learned Counsel urged us to allow the appeal and set aside the decision of the court below. Counsel further urged for the dismissal of the respondents’ brief in that court in terms of the appellant’s application dated 17th May, 2000. On the other hand, however, the learned Senior Counsel submitted lack of merit of this appeal and urged that same be dismissed forthwith.
From the five grounds of appeal, the appellant distilled four issues for determination which are as follows:-
a) whether it was competent for the court below not to consider in its Ruling dated 24th July, 2000, the ground specified in the prayer contained in Appellant’s motion on Notice dated 17th May, 2000, as well as other Grounds of the Application aforesaid seeking the order of the court below to strike out or dismiss the petitioner’s action on the ground that the claim therein is “frivolous, vexatious and a gross abuse of process of the court.
b) Whether the court below was right by refraining from considering Appellant’s counsel’s Reply on points of law touching on lack of jurisdiction of the court below to entertain petitioners’ action in respect of “outright sale of shares (inclusive of dividends accrued thereto) by the Petitioners/Respondents to Fidelity Staff Trust” on the ground specified in the prayer contained in Appellant’s motion on Notice dated 17th May, 2000, seeking order of the court below that Petitioner’s action be struck out or dismissed, Petitioner’s claim being “frivolous, vexations and a gross abuse of process” of the court below.
c) whether the court below has an inherent jurisdiction to prevent abuse of its process by frivolous and proceeding having regard to:
i) The ground aforesaid specified in the prayer sought in Appellant’s motion on Notice dated 17th May, 2000 seeking petitioners’ action to struck out or dismissed as being “frivolous, vexations and a gross abuse of process of the court below.
ii) Grounds 2, 3, 4 and 6 of Appellant’s motion on Notice aforesaid and undisputed facts contained in Affidavit in opposition dated 21st October, 1999, forming part of documentary evidence before the court below establishing that Petitioners’ suit is frivolous, vexatious and a gross abuse of process of the court below and to which no Reply was filed by the Petitioners/Respondents herein.
d) whether it was competent for the court below to consider Ground 1 of Appellant’s motion on Notice aforesaid relating to the issue of locus standi without considering Grounds 2, 3, 4 and 6 relating to issue of Estoppel by conduct and ground 5 relating to issue of action not properly constituted being preliminary issues of law touching on jurisdiction of competence of the court below to hear and determine Petitioners’ action.
The brief on behalf of the respondents was prepared by the learned senior counsel Chief F.R.A. Williams, “Timi the Law”, of blessed memory. In his submission he did consider each of the issues raised and responded thereto in the order of formulation by the appellant’s counsel.
Having regard to the grouse of the appellant’s 1st issue, the same to my mind complains against the failure of the lower court to consider the grounds stated in the prayer of the motion paper as well as other grounds of the application in seeking the dismissal of the petition. I must say I am at a loss in getting the grip of the appellant’s contention on this issue, or what message he seeks to convey. In his argument however, he submitted that the lower court’s ruling delivered on the 24th July, 2000, was perverse having regard to the ground specified in. the prayer of the appellant’s motion on notice dated 17th May, 2000, which sought to strike out or dismiss respondents’ petition dated 12th October, 1999, as being frivolous, vexatious and a gross abuse of process of the court. That the judge also deliberately refused to consider certain grounds of the application in its ruling, the grounds which sought to establish the appellant’s contention that the petitioners/respondents’ are seeking to bring an action on Issues to which they (Petitioners/Respondents) are estoppel by conduct. The learned Counsel highlighted the grounds with the particulars specified as well as the affidavit in support as evidenced on the record which counsel argued were refused consideration by the lower court. That some of the grounds relates to issue of jurisdiction in respect of which the court below lacked judicial powers. That preliminary issues of law are also raised which would be decisive of litigation in this matter.
That having regard to the grounds of the application, the respondents’ petition and also the affidavit in opposition sworn to by Chijioke Ugochukwu (Mrs.) together with exhibits attached thereto, there was an outright sale of petitioners’ shares to Fidelity Staff Trust as evidenced at page 2 of the supplementary record of appeal. Further more that by the Draft Share Transfer form attached to the affidavit in opposition, the Petitioners/Respondents’ counsel made hand written amendments deleting Petitioners/Respondents being entitled to “all ,dividends and distributions declared ‘paid or made in respect of shares up to end of Respondent/Appellant bank’s financial year in 1998.” That these are all evidenced at pages 124 to 133 of the supplementary record of appeal; specific reference was made to the exhibits and in particular 15, 16, 17, 18, 19 and 20 among others.
That the foregoing documentary evidence attests to the truth of the depositions contained in paragraphs 32, 33, 34 and 35 of the affidavit in opposition dated 21st October, 1999, sworn to by Chijioke Ugochukwu (Mrs) establishing that the Petitioners/Respondents herein are not shareholders or members of the Respondent/Appellant Bank having sold their shares in the Respondent/Appellant Bank to the Purchaser (Fidelity Staff Trust) free from all claims or incumberances and are not entitled to the dividends and distribution declared.
That the learned trial judge in the court below deliberately refrained from considering in the aforesaid Ruling of its court, the prayer sought by the Respondent! Appellant in its motion on Notice dated 17th May, 2000, praying for an order striking out or dismissing Petitioners’ action on the ground that it is “frivolous, vexatious and a gross abuse of process of court.” The learned Counsel in support cited the authority in the case of Alhaji Raimi: Yusuf & ors v. Alhaji Akindipe & Ors (2000) 8 NWLR (Pt.669) 376 at 380. Learned Counsel further cited the trite law that an applicant is bound by the prayers in his motion and that a case of party is considered and (granted or refused) on the reliefs claimed or prayers sought. The cases cited in support are: Chief R.A. Okoya & ors v S. Santili & ors (1990) 2 NWLR (pt.131) 172 Pt 183; Commissioner for works Benue State & Anor v. Devcon Development Consultants Ltd v. Anor (1988) 3 NWLR (Pt.83) 407 at 408.
In response to the 1st issue raised the learned Senior Counsel for the respondents submitted that the issue as formulated does not accurately reflect the controversy raised by the appellant against the actual decision of the learned trial judge. Learned senior sought to remind us that this issue which was labelled issue 3 by the court below, in fact arose toward the end of the judgment of the trial court at pages 197 to 198 of the record. The learned Senior Counsel therefore worked out an acceptable formulation of an issue which ought and logically follow from deductive conclusion of issues 1 and 2. This formulation would in due course be contemplated upon. Suffice however, to state for now that the respondents’ Senior Counsel having reformulated an issue based on the lower court’s conclusion arrived at in respect of its issue no 3, determined same against the appellant and so urged us to also hold.
The appellant’s 2nd issue relates to the failure of the court below from considering appellant’s counsel’s reply on points of law on lack of jurisdiction of the trial court to entertain the petitioners action. Production was made of certain portions of the reply in particular the provisions of section 316 of Companies and Allied Matters Act (CAMA) which counsel argued did not apply to the Petitioners who had sold their shares without encumbrances and have therefore severed their connections with the Bank. Learned Counsel submitted that a party can raise the issue of jurisdiction of a court at any state of a proceeding or on appeal and that a party cannot consent, acquiescence or by submission vest jurisdiction in a court if the court does not possess such jurisdiction. Reference in support was made to the decisions in Ijebu-Ode local Govt. v Adedeji Balogun & Co. Ltd. (1991) 1 NWLR (part. 166) 136 at 138 – 139 and Chief Daniel Awodele Oloha v Isaac Olubodun Akereja (1988) 3 NWLR (Pt.84 508) at 510 – 511.
That it is the duty of the court below in this case where allegation of abuse of process of court is raised by the Respondent/Appellant to look at the Respondents/Petitioners’ Petition filed on 12th October, 1999, the depositions contained in the affidavit in opposition to petition filed on 21st October, 1999, as well as Exhibits 1 to 26 attached thereto with a view of drawing the correct inference from the documents aforesaid. That there was sufficient facts ex-facie on the records warranting the court to have raised the issue of want of competence or jurisdiction of the court below suo motu. Reference in support was made to the following cases:-
i) 7up Bottling Co Ltd & ors v Abiola & Sons Bottling Company Ltd (1996) 7 NWLR (Pt.463) 714 at 723.
ii) Alhaji Raimi Akanji Yusuf & ors. v Alhaji Akindipe & ors. (2000) 8 NWLR (Pt 669) p.376 at 380
iii) Chief Daniel Awodele Oloba v Isaac Olubodun Akereja (1988) 3 NWLR Pt.84) 508 at 510. Also
iv) Joseph Jideofor Enwezor v Joseph Okwudi Onyejekwe & Anor (1964) 3 N.S.C.C. 9 at 13 per Ademola C.J.N. (as he then was).
That some of the issues raised related to locus standi of Petitioners, Estoppel by conduct against the petitioners, Law relating to action not properly constituted and the law governing unchallenged and undisputed facts on record. The learned counsel therefore opposed the lower court of failing to consider all the related issues raised as could be seen from its ruling at page 209 of the supplementary record of appeal and therefore argued that the only issue considered was that of locus standi.
In response to the said issue raised, the learned Senior Counsel for the respondents related same to the decision of the court below in particular to the portion of the judgment at p. 194, where the submissions by the appellant’s counsel on points of law was discountenanced for not arising from the senior counsel’s submission. That having regard to the appellant’s application, the prayer sought did not strictly follow the words of order 24 rule 4, which was convased under issue (a). The learned senior submitted that there is no way in which a court can reasonably treat this as a valid ground for striking out or dismissing the petition herein on a preliminary objection. Learned Senior restated the trite law that in the determination of such objection, the court only looks at the petition and the affidavit in support thereof. The learned senior counsel urged us to hold therefore that in the context of this appeal, issue (b) does not arise. That all issues raised by the appellant in support of his argument in the court below were duly considered by that court.
The appellant’s 3rd issue raised opposes the lower court in deliberately refraining from considering other issues of law as aforesaid. (i.e. estoppel by conduct, law relating to action not properly constituted and the law governing unchallenged and undisputed facts on record). Reference was specifically made to the related supplementary record as well as the grounds and particulars in respect thereof reproduced by learned counsel. That the depositions contained in paragraphs 3 to 35 of the affidavit in opposition to petition dated 21st October, 1999, and exhibits 1 to 26 attached thereto were deemed admitted by the Petitioners/Respondents who filed no reply affidavit to challenge or controvert same. Reference to buttress the argument was made to Adeyinka Abosede Bodejo [Miss) v. Federal Minister of Education & ors (1996) 8 NWLR (pt.464) 15 at 20.
The learned silk in response to issue no 3 submitted the nonexistence of same because nowhere in the proceedings did either of the parties, argue or did the court below decide that it had no jurisdiction (inherent or otherwise) to prevent abuse’ of process by frivolous and vexatious proceedings. The learned Senior on this premise urged us to so hold and strike out the said issue formulated.
The appellant’s 4th and the last issue complains of the lower court’s failure to consider the appellant’s (a) plea of estoppel by conduct and (b) the plea that the action before the court was not duly constituted. The learned counsel said in substantiation therefore, outlined in great detail the relevant depositions and factual restatements from the supplementary records of appeal and argued the trite law relating to estoppel. In other words, that it prohibits the Petitioners/Respondents from proving anything in the court below which contradicts their previous acts or declarations to the prejudice of the Appellant bank and the purchaser (Fidelity Staff Trust), who, by relying upon, such acts and declarations, have altered their positions. That “Estoppel shuts the mouth of the Petitioners/Respondents.” Reference in support was made to the following authorities:-
i) Anthony Ehidimhen v Ahmadu Musa & Anor (2000 8 NWLR (Pt.669 540 at 542 – 543
ii) Francis Anaeze v Udo Anyaso (1993) 5 NWLR (Pt.29) 1 at 13.
iii) Gregory Obi Ude v. Clement Nwara & Anor (1993) 2 NWLR (Pt.278) 638 p. 649.
That the court below would have struck out petitioner’s action promptly for not being properly constituted when the interest of a party not before the court below (Le. Fidelity Staff-Trust) was raised and challenged, with respect to. the subject matter of the dispute. Learned Counsel in support and among others cited the case of Chief S. A. Dada & ors v. Otunba Adeniran Ogunsanya & Anor (1992) 3 NWLR at 232 p. 754 at 756 to 757.
In response to the said 4th issue raised, the learned Senior Counsel submitted and argued that its not possible or proper for the trial court to make a determination of either of these issues without giving the parties the opportunity to call evidence and cross-examine deponents to the affidavit evidence before the’ court. The learned Senior therefore, urged us to decide this issue against the appellant. Senior Counsel further submitted that the appeal be dismissed and an order should therefore be made directing the trial of the petition to proceed with.
On the reply brief by the appellant, the summation of same relate to the failure of the lower court to have considered the main ground of the appellant’s application seeking an order to strike out or dismiss the respondent’s petition as a gross abuse of process of the court below. That the effect of due consideration would have resulted not only in the striking out of the suit, but also an implied in-built connotation that the respondent had no locus standi to institute the suit as well as the petition failing to disclose any cause of action. The learned appellant’s counsel on the totality, had urged us to allow the appeal herein and accordingly set a side the decision of Sanyaolu J. delivered on 24th July, 2000, in suit No.FHC/L/CP/1181/99, leading to this appeal. Learned Counsel had further urged for the dismissal of said same suit No.FHC/L/CP/1181/99 (Aerobell Nigeria Limited and others v. Fidelity Union Merchant Bank Ltd) hefore the Federal High court, Lagos, in terms of the Respondent/Appellant’s application dated 17th May, 2000.
What I have attempted to do to the best of my ability thus, far was to summarise the arguments of both counsel predicated on the issues raised by the appellant. With due regard to the summation arrived at, it is apparent that the grouse of the appellant’s complaints falls within the confines of the lower courts findings at pages 210-211 of the supplementary record of appeal which same reproduced state as follows:-
“For the above reasons coupled with the authorities which I have referred to supra, I hereby rule that the present petition discloses a reasonable cause of action.
Issue 3.
whether the present action should be struck out or dismissed on the ground that the claim therein is frivolous, vexatious and a gross abuse of judicial process.
In considering this issue, I believe this court is bound by the conclusion on which I have arrived at in this Ruling with respect to issue 1 and 2 above as well as any findings on them as applicable to this issue. I am only to add that having so found as above that the petitioners herein have the necessary locus standi to present this petition and further that the petition discloses a reasonable cause of action. In the light of these findings, the present petition cannot be said to be frivolous or vexatious and abuse of judicial process.
For the foregoing reasons, the present application by the Respondent Bank by way of preliminary objection hereby fails in its entirety and is accordingly dismissed.”
It is needful to restate that the application and prayer before the lower court giving rise to the foregoing decision had been reproduced supra. Same cannot be taken out of isolation but within a total holistic components comprising the motion on notice at page 181, the grounds predicating the application and particulars at pages 182 – 183, as well as the affidavit in support at pages 184 – 185 of the supplementary record of appea1. Also of significance is the main petition before the court and affidavit verifying same evidenced at pages 1-4 and 5 – 6 of the same record respectively.
It is relevant to restate that on the formulation of issues, which by law cannot certainly go outside the grounds of appeal, same must also be predicated on the subject matter of consideration before the lower court as the nucleus starting point. Having thus said therefore, it is my humble view that from all indications and taking into consideration the subject matter before the lower court in the light of the decision arrived at, it does not appear to me that the issues formulated by the appellant’s counsel are in the proper perspective with the findings by the learned trial judge. This is, especially taking into account the conclusions of the trial court as reproduced supra. With all sense of humility, I am of the considered opinion that the issues are distorted, confused, repetitive and a complete departure from the subject matter of the application. In other words, the formulation gives a typical type marauders conceptual behaviour devoid of an analytical effectual consequence and contemplation. It is no wonder that even the learned Senior Counsel for the respondents made his reservations on the said formulations. At pages 5 and 6 of the respondents brief for instance, the learned silk submitted the non existence of issues (b) and (c); while issue (a) as forn1ulated does not, he argued, accurately reflect the controversy raised by the appellant against the actual decision of the learned trial judge.
For all intent and purpose of this appeal, I would consider it appropriate and necessary to embark on a formulation of issues different front that raised by the appellant but same which are all encompassing and arising from the grounds of appeal. The issues formulated by the appellant are hereby struck out and in place I therefore formulate the following three issues for the determination of this appeal.
1) whether the learned trial judge erred in failing to strike out the petition on the ground that the petitioners lacked locus standi.
2) whether the learned trial judge erred in failing to strike out the petition for failure to disclose-areasonable cause of action.
3) whether the learned trial judge erred in law in deciding that having arrived at the conclusion, “that the petitioners herein have the necessary locus standi to present this petition and further that the petition discloses a reasonable cause of action” he could not go on to hold that the petition is frivolous, vexatious and an abuse of process.
For purpose of recapitulation, issue no. 3 was previously sought to be put forward as indicated earlier on the submission of the learned senior counsel for the respondents. I would now proceed to consider the three issues’ formulated and same which in my humble view and with due respect to the learned appellant’s counsel, are those which should have properly arisen from the cumulative effect of the notice of appeal filed as it were.
The 1st issue relates to whether or not the petitioners possessed the requisite locus standi to have brought the petition. Blacks’ Law Dictionary fifth Edition at page 848 defined the term “locus standi” as:-
“A place of standing; standing in court. A right of appearance in a court of justice, or before a legislative body, on a given question.”
A relevant authority in point is the celebrated case of Adesanya v. president of the Federal Republic of Nigeria, 1981 5 SC 112 wherein Fatai-Williams CJN, (as he then was) in delivering the lead judgment had this to say at page 128.
“The term “locus standi” denotes legal capacity to institute proceedings in a court of law. It is used interchangeably with terms like “standing” or title to sue.”
Obaseki JSC also in the same decision had this to say at pages 174 and 178:
“Locus Standi or Standing to sue is an aspect of justiceablity and as such the problem of locus standi is surrounded by the same complexities and vagaries inherent in justiceability. The fundamental aspect of locus standi is that it focuses on the party seeking to get his complaint before the High Court not on the issues he wishes to have adjudicated…
It is the cause of action that one has to examine to ascertain whether there is disclosed a locus standi or standing to sue.
Thus, in this instant appeal, one has to look at the claims before the court to ascertain whether the appellants’ locus standi is disclosed.”
For a party to have a right of appearance in a cause or matter, there must be an interest which same stands at risk or stake. Relevant to the question of locus standi is the constitutional provision section 6(6)( b) of our constitution which places great and unfettered emphasis on the civil rights and obligations of the person suing and which states as follows:-
“6(6) The judicial powers vested in accordance with the foregoing provisions of this section…
(b) shall extend to all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”
It may be observed from the said purview of the subsection that it expresses the scope and content of the judicial powers vested by the constitution in the courts. The powers, although appears seemingly to be of a wider spectrum, they are as a matter of fact limited in scope and content to only matters, actions and proceedings “for the determination of any question as to the civil rights and obligations of that person.” From the deductions of the provisional sub-section, locus standing would only ‘be accorded to a plaintiff who shows that his civil rights and obligations have been, or ate in danger of being violated or adversely affected by the act complained of,
Also, in the authority of Thomas v Olufosoye (1986) 1 NWLR (Pt.18) p.669 one of the issues that arose before their Lordships of the apex court was whether the appellants have in their statement of claim disclosed their locus standi or standing to institute the action.
Obaseki JSC again at page 684 had the following to say:-
“In determining the issue of locus standi, the court must constantly bear in mind that its judicial powers is being invoked and the matters in which the – judicial powers can be exercised are by the provisions of section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1979, expressly stated to “extend to all matters between persons or between government or authority and any person in Nigeria and to all actions and proceeding relating thereto, for the determination of any question as to the civil rights and obligations of that person.”
Under the provision of section 6(6)(b) of the constitution supra and as stated earlier therefore, the courts are vested with judicial powers to adjudicate on a justiciable issue touching on the rights and obligations of the person who brings a complaint before it. There is a onerous- duty incumbent on the litigant to show that the act he complains of affects his rights and obligation which must be peculiar or personal to him. In other words, private rights must be shown to have been either infringed or injured or that there is a threat to such infringement or injury.
In another correlated authority in the case of Oloyiode v Oyebi (1984) 5 SC page 1 at 16, Irikefe JSC in delivering the lead judgment and also following the decision in the case of Adesanya supra, arrived at the following deductions:-
“‘A party prosecuting an action would have locus standi where the reliefs claimed would confer some benefit, on such a party.”
Furthermore and also in the case of Adefulu v Oyesile, 1989 5 NWLR (pt.122) 377 at 410. Obaseki JSC had the following to say on the concept of locus standi:
“In ascertaining whether the plaintiffs in an action have a locus standi, the pleadings i.e the statement of claim must disclose a cause of action vested in the plaintiffs. Thomas v Olufosoye (1986) 1 NWLR. (Pt.18) 669 at 685 to 688 para B. The averment in the pleadings will disclose the rights and obligations or interests of the plaintiffs which have been violated. Momoh v Olotu (1970) 1 All NLR 117, Oloriode v Oyebi (1984) 1 SC NLR 390 at 401, 406 and 407.”
The issue of locus standi touches on the jurisdiction of the court which cannot be so properly constituted in the absence of a competent party before it. The case of Oloriode v. Oyebi (supra) is in point. Further still and as a pre-requisite to locus standi, there must be a sufficient interest shown and not vague or speculative. In the case of Makeri v Kafinta (1990) 7 NWLR pt 411 at 420 – 421 Ogundere JCA (as he then) was had the following pronouncements to make:-
“…locus standi relates to the justiciability of the legal right or interest which that party seeks to claim or to defend…………………… In order to establish their locus standi, each must seek to protect his legal right or interest, not a right common to the community at large unless he suffered damages more, than any other person when he could bring a declaratory action…”
In another case of Maradosa v. Governor Oyo State 1986, 3 NWLR (Pt 27) p. 125, at page 136 of the report again, the learned jurists Ogundare JCA (as he then was) quotated with approval the learned editors of the Supreme Court Practice, 1985 at page 765 wherein they said:-
“The term “interest” should perhaps not be given a narrow construction, but should be regarded as including any connection, association or inter- relation between the applicant and the matter to which the application relates.”
The same principle of law substantiating interest as an overriding factor was also restated in the case of Re Ijelu (1992) 2 NWLR (Pt.266) page 414.
The learned appellant’s counsel relied heavily on the affidavit depositions in opposition to the petition, sworn to by Chijioke Ugochukwu (Mrs.) and dated 21st October, 1999, together with the supporting exhibits. For the determination of whether or not, the petitioners have locus standi the relevant materials for consideration are the statement of claim, and also the affidavits of facts deposed to by them. This I say on the authorities of Thomas v. Olufosoye supra and Elendu v. Ekwoaba (1995) 3 NWLR (Pt. 386) p. 704, wherein regard was held to have only to the statement of claim.
Other relevant authorities in support are Adesanya per Obaseki JSC, supra and Adefulu v. Oyesile also supra. In other words, and contrary to the submission made by the appellant’s counsel, it is not their affidavit that is of significance at this stage, but would only be at the proceedings of the trial. The affidavit therefore has no bearing or relevance on the issues raised.
By the combined effects of paragraphs 5 and 8 of the petition at page 2 of the supplementary record of appeal, the affidavit verifying the petition also at pages 5 and 6 of the same record, and in addition applying the principle of law as enunciated and expounded in .the foregoing legal authorities supra, it is not far fetched a deduction and conclusion that the present petitioners are former Directors and Shareholders of the Respondent Bank.
Therefore, in the determination of whether or not, they have locus standi the provisions of sections 310 (1) and 311(2) (b) of Companies and Allied Matters Act (CAMA) 1990 are relevant. The said sections reproduced state as follows:-
“310(1) An application to the court by petition for an order under section 311 of this Act in relation to a Company may be made by any of the following persons:-
(a) a member of the company;
(b) a director or officer or former director or officer of the company.
(c) a creditor
(d) the Commission; or
(e) any other person who, in the discretion of the court, is the proper person to make an application under section 311 of this Act………………………………………….
311.(1)
(2) An application to the court by petition for an order under this section in relation to a company may be made:-
(a) ………………………………………………
(b) by any of the persons mentioned under paragraphs (b), (c) and (e) of subsection (1) of section 310 of this Act who alleges –
(i) that the affairs of the Company are being conducted in a manner oppressive or unfairly prejudicial to or discriminatory against or in a manner in disregard of the interest of that person,
(ii) that an act or omission, or a proposed act or omission was or would be oppressive or unfairly prejudicial to, or unfairly discriminatory against or which is in a manner in disregard of the interests of that person .”
By the application of the foregoing provision of section 310 of CAMA, subsections (b) and ( c) are relevant to the issue at hand.
This is evidenced in view of the facts substantiating the petitioners petition especially with due consideration to paragraphs 5, 7, 8, 11, and 15 of the petition wherein the petitioners could be accredited as being’ either “former directors or officers of the company” or “creditors” under section 310 of CAMA and whose interests are affected as provided by section 311(2) (b). The reproduction of paragraphs 5, 7, 8, 11 and 15 of the petition may be of significance and state as follows:-
“5. At one of its meetings in or around 5th May, 1998, the Board on the basis of the financial results available to it, decided that a dividend of 60 kobo per share be declared for the financial year ending June, 1998. The managing Director of the company informed members of the Board of Directors that from current position and trend, a profit before tax of between N250 million and N350 Million is achievable for the year ending June 30, 1998.
- The petitioners will contend at the trial of this petition that the act of the company in preparing and presenting the accounts of the company for the fiscal year ending June, 1998, in a manner which reflects a profit before tax of no more than N208,198.00 was unfairly prejudicial to them as members of the company at the material time and such accounts were prepared in disregard of the interests of the petitioners as members of the company.
- At or around the time of the Board decision mentioned in paragraph 5 hereof, unfortunate differences arose between the petitioners herein on the one hand, and the majority of the other members on the other hand….
- The company was fully aware of the facts pleaded in paragraphs 7 & 8 hereof, including the fact that the petitioners were entitled to dividends which had accrued on their shares as at June, 1998, which dividends the Board of Directors had fixed at 60 kobo per share as herein before mentioned.
- Your petitioners therefore pray for an order:-
(i) requiring the company to pay to the petitioners dividends due and payable on the shares held by each of them in the said company as at June, 1998.
(ii) requiring the company to pay such dividends at the rate of 60 kobo per share or at such other rate as the court may determine;
(iii) giving such further or other directions as may be fair and just.”
It is trite law as stated supra that in the determination of whether or not, the plaintiff has sufficient interest to have brought the action, the relevant consideration is the statement of claim. In other words, there must be the rights and obligations or interests of the plaintiff which must have been violated a s pronounced in the authority of Adefulu v. Oyesile, Elendu v. Ekwoaba (supra) as well as the other related authorities having been considered., In the result, the 1st issue is therefore resolved in favour of the respondents and against the appellant. In other words, the respondents have locus standi to institute the petition because their interest have been affected either as “former directors or officers” of the company or “creditors” to the company.
The 2nd issue raised relating to the disclosure of a cause of action is closely related to the 1st issue and greatly interwoven. The concept of “cause of action” has been defined by the Black’s Law Dictionary fifth Edition at page 201 as being:-
“The fact or facts, which give a person a right to judicial relief. The legal effect of an occurrence in terms of redress to a party to the occurrence. A situation or state of facts which would entitle party to sustain action and give him right to seek a judicial remedy in his behalf………….. Fact, or a state of facts, to which law sought to be enforced against a person or thing applies.”
In the celebrated case of Bello v A-G. Oyo State (1986) 5 NWLR (Pt 45) 828 at 876, their Lordships of the apex court per Karibi-Whyte JSC had the following to say on what amounts to a “cause of action”:-
“I think a cause of action is constituted by the bundle or aggregate of facts which the law will recognize as giving the plaintiff a substantive right to make the claim against the relief or remedy being sought. Thus, the factual situation on which the plaintiff relies to support his claim must be recognised by the law as giving rise to a substantive right capable of being claimed or enforced against the Defendant. In other words, the factual situation relied upon must constitute the essential ingredients of an enforceable right or claim……………..any action the part of the defendant which gives to the plaintiff his cause of complaint is a cause of action.” (underlining is for emphasis).
Other relevant and related authorities substantiating the phrase are the cases of Thomas v. Olufoseye (supra). Afolayan v. Ogunrinde (1990) 1 NWLR (Pt.127). 368 and Letang v. Cooper 1965 1 Q.B. 232 at 242. Also, the English decision of Drummond Jackson v. British Medical Association 1970 1 All ELR 1094, wherein their Lordships of the Court of Appeal in England, while defining the phase, per Lord Pearson at p.1101 had the following to say:-
“……..a reasonable cause of action means a cause of action with some chance of success, when…..only the allegations in the pleadings are considered……. It is well settled that a statement of claim should not be struck out and the plaintiff driven from the judgment seat unless the case is unarguable.”
(underlining is mine for emphasis).
Further, at page 1102 the learned Jurist continued and restated and said:-
“That is the basis of rule and practice on which one has to approach the question whether the plaintiffs’ statement of claim in the present case discloses any reasonable cause of action. It is not permissible to anticipate the defence or defences:- possibly some every strong ones which the defendants may plead and be able to prove at the trial, nor anything, which the plaintiff may plead in reply and seek to rely on at the trial.” (underlining is for emphasis.).
In a further related authority of the case of Ogbo v. Lt. Adoga 1994, 3 .NWLR (Pt. 333) 469, Muhammad JCA on the determination of whether a claim discloses a reasonable cause of action had this to say at pages 475 and 479.
“………In order to arrive at a decision the trial judge must consider the pleadings. He can only base his decision on a pleadings since no evidence was adduced…….
To determine whether or not a claim discloses a cause of action, it is the Statement of claim only that must be looked at ……………
Looking at the Statement of claim, I am of the opinion that it has ex facie disclosed a cause of claim.”
With reference to the pleading of the petitioners per the paragraphs of their claim, reproduced supra, it is evident that they are not disputing having sold their shares in September, 1998 and signed -off same in the Respondent Bank. Their grouse in clear terms are well spelt out per reliefs 1 and 2 of their claim at paragraph 15. In other words, that certain dividends have accrued to them in June of the year their shares were sold in September, 1998 and to which they claim to be entitled. The success or not of their claim no (ii) of the dividend at the rate of 60 kobo is however dependant upon and therefore ancillary to the 1st claim. It is relevant to emphasize at this point that the reliance on the Statement of claim to determine a cause of action is not a conclusion, contemplation, deduction, or even an insinuation that the averments in the statement of claim have been established. This is very far from it. There is the onus on the claimants to prove their averments by adducing credible evidence in the normal cause of action as provided under the evidence act to the effect that the burden is on him who asserts to prove if he wants judgment in his favour. In other words, the cumulative effect thus, far is to put the petitioner’s complaint of civil right in issue and also prima facie show that their rights appeared to have been infringed having regard to the disclosure on the face of the petition put forward. Whether or not their claim would be proved is a different matter entirely and which is not the subject now in issue and for consideration.
In the case of Adimora v. Ajufo (1988) 3 NWLR (Pt.80) p.1, the learned jurists Oputa JSC also on what is meant by cause of action had this to say at page 7.
“In its best definition, it consists of every fact which it would be necessary for the plaintiff to prove, if traversed in order to support this right to judgment:……… Thus, the accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action.”
For the above reasons on the determination of issue no.2 therefore, same is also resolved in favour of the respondents and against the appellant. In other words the petition shows that the respondents have a cause of action to institute.
For the consideration of the 3rd issue raised, the final deduction in my opinion becomes obvious in the light of the conclusions arrived at issues 1 and 2. The fact therefore that the outcome of the case was against the appellant should not be seen to vitiate the thorough and well considered decision arrived at by the learned trial judge. It is the duty of a court to ensure proper consideration of issues between parties for purpose of just determination of a dispute between them and not to conduct a proceeding determinately and purposefully favouring a party at the detriment of the other, as the appellants counsel sought to argue on his brief of submission.
Justice must be even handed and the conception may not necessarily be as perceived by a party especially the one against whose favour it is given; thus justifying the legal principle that “justice should be of the law and not of man.” Needless to restate that the ruling of the court below was the subject of complaint by the appellant at page 13 of its brief of arguments. Same is also all encompassing and comprehensive of the kernel issues raised by the very application of the appellant at the lower court. The appellant, as its own architect should not therefore be heard to castigate that which emanated from its very making. The question whether or not the action was frivolous, vexatious and a gross abuse of process of court was dependant upon the 1st and 2nd issues raised from the application, as rightly determined by the learned trial judge. With the 1st and 2nd issues having been upheld in favour of the petitioners/respondents therefore, the answer to the 3rd issue was only obvious. For the lower court to have held otherwise, as contemplated by the appellant’s counsel, it would have amounted to an absurdity and a dire contradiction on the part of the learned trial judge. I would in this light again restate my earlier observation on the confused and unco-ordinated nature of the appellant’s issues and submissions thereon. “Timi” the Law, of blessed memory, did also remark on the improper formulation of the appellant issues and same is well taken.
The learned appellant’s counsel in furtherance of his submission cited the authority in the case of Alhaji Raimi Akanji Yusuf & ors v. Alhaji Akindipe & ors (2000) 8 NWLR (Pt.669) 376 at 380 and in particular pages 387 – 388 per Ogwuegbu JSC.
With all sense of humility, the said authority though would have been appropriate in a proper and applicable perspective, is however not operative in favour of the” appellant’s case, in the present contextual circumstance. It is, though elementary, but rightly submitted by the appellant’s counsel, the trite and settled law that an applicant is bound by the prayers in his motion and that a case of a party is considered and (granted or refused) on the reliefs claimed or prayers sought. The relevant authorities in substantiation of the proposition are:- Chief R. A. Okoya & Ors v. S. Santili & Ors (1990) 2 NWLR (pt. 131) 172 page 183; Commissioner for Works Benne State & Anor v. Devcon Development Consultants Ltd & Anor (1988) 3 NWLR (Pt. 83) 407 at 408. On the issue of failure to consider appellant’s reply on points of law relating to question of jurisdiction and submitted upon by the appellant’s counsel, the learned trial judge, in my humble view, stood in a better position to determine whether the submission dwelt upon by the said counsel, was worth considering or not. This is especially having regard to the fact that replies on points of law are restrictive and not at large. Contrary to the notion conceived by the learned counsel therefore, the failure if any to have considered all arguments on points of law did not, per se, operate to affect, negatively, the just determination of the matter at the lower court. The court however was not constrained from sifting relevant from irrelevant submissions.
On the further submission relating to an open door policy wherein an issue of jurisdiction can be raised at any stage of proceedings, learned appellant’s counsel re-iterated the extent of the wide floodgate restricting also that a party cannot by consent, acquiescence, or submission vest jurisdiction in a court if it did not possess such in the first place. The authorities to buttress in substantiation are:- Ijebu-Ode Local Government v. Adedeji Balogun & Co. Ltd. (1991) 1 NWLR (Pt. 166) 136 at 138 -139; and Chief Daniel Awodele Oloba v. Isaac Olubodun Akereja (1988) 3 NWLR (Pt. 84) 508 at 510 – 511. Contrary to the submission by the learned appellant’s counsel, therefore, the entire consideration of the application relates to whether or not the court below had jurisdiction having regard to the issues raised. In his further submission, the learned appellant’s counsel cited the authority in the case of Joseph Jideofor Enwezor v. Joseph Okwudi Onyejekwe & Anor (1964) 3 N.S.C.C. 9 at 13 wherein Ademola C.J.N. (as he then was) in delivering the judgment of the apex court and dismissing the appeal had the following to say:
“It seems to us that where it is obvious to the court from the circumstances of the case, or from the material before it, that no further proceedings would help the case, but merely cause unnecessary delay, there is inherent jurisdiction in the court to refuse an order for pleadings and strike out the claim on submissions made to it.”
(underlining is mine for emphasis).
I would wish to refer to the phrase underlined on the pronouncement by his Lordship supra wherein for the situation to be relevant and operate in favour of the appellant, there must be the deduction by the lower court of the “obvious” from the circumstances of the case or from the material before it. The decision whether or not the situation is obvious is a prerogative that vests in the lower court and the determination which must be a question of fact based on the prevailing circumstance. The use of the word “obvious” is to see clearly without question, or that which is apparent and needs no further explanation. The material before the lower court on the petition was obvious and glaring on the face value that same did not operate in favour of the. appellant and consequent to which the authority by their Lordships in the case of Enwezor v. Onyejekwe & Ors supra does not help the appellant’s case, contrary to the counsel’s submission. Rather, by the disclosure of the respondents’ Statement of claim (petition) the cumulative deduction is in their favour to the effect that they have locus standi which is grossly and knitly inter-related to the cause of action, which they have also shown to have had. The operative effect obviously would as a consequence also work favourably in negating issue no 3 wherein the action cannot be frivolous, vexatious or an abuse of the process of court.
On the totality of that before us therefore and with the three issues raised having been resolved against the appellant and in favour of the respondents, the appeal lacks merit arid is accordingly dismissed. The Ruling of the lower court per Hon. Justice E. O. Sanyaolu delivered on the 24th day of July, 2000, in suit No. FHC/L/CP/1181/99 is hereby affirmed and upheld. An order is therefore made that the said suit No.FHC/L/CP/1181/99 should proceed to trial before another judge. With cost following event, I would further make an order of N10,000 in favour of the respondents against the appellants.
Other Citations: (2005)LCN/1813(CA)
