REGISTERED TRUSTEES OF EKET COMMERCIAL MOTORCYCLISTS ASSOCIATION v. EKET LOCAL GOVERNMENT COUNCIL & ORS
(2016)LCN/8451(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of October, 2013
CA/C/214/2010
RATIO
WORDS AND PHRASES: MEANING OF A PLAINTIFF IN JUDICIAL PROCEEDINGS
a plaintiff in judicial proceedings can simply be defined as the person who initiates or brings a legal action against another or others in or before a court of law for a judicial relief or remedy. See Ejezie v Anuwu (2008) 6 MJSC, 86. PER MOHAMMED LAWAL GARBA, J.C.A.
ACTION: REQUIREMENT FOR AN ACTION TO BE PROPERLY CONSTITUTED
The law as rightly stated by learned counsel, is that for an action to be properly constituted so as to vest jurisdiction in a court to adjudicate on it, there must be a competent plaintiff and a competent defendant. See Ataguba & Co. v Gum Nig. Ltd. (2005) ALL FWLR (265) 1219, (05) 2 SCNJ, 139. PER MOHAMMED LAWAL GARBA, J.C.A.
EVIDENCE: EFFECTS OF FACTS UNCHALLENGED
The absence of a challenge to the fact means in law that it is deemed to be correct and established. See Lijadu v Lijadu (1991) 1 NWLR (169) 627; Honda Place Ltd. v Globe Motors Holdings Nig. Ltd. (2005) 7 SC (Pt. III) 182. PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICE
MOHAMMED LAWAL GARBA justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI justice of The Court of Appeal of Nigeria
Between
REGISTERED TRUSTEES OF EKET COMMERCIAL MOTORCYCLISTS ASSOCIATIONAppellant(s)
AND
1. EKET LOCAL GOVT. COUNCIL
2. JOSEPH OTU INYANG
3. GODWIN ESSIEN UFOT
4. IFIOK BERNARD AKPADIAHA
5. CHRISTOPHER AKPAN
6. IDONGESIT JOHNNY UDOH
(for themselves & as representing the
Eket Local Government Motorcyclist
Management Committee)Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): The Appellant as plaintiff, had taken an action against the Respondents in Suit No. FHC/UY/CS/45/2008 before the Federal High Court, sitting at Uyo, Akwa Ibom State. Pleadings and statements on oath of witnesses for the parties were filed and hearing commenced on the 3/11/2009 with the adoption of the Plaintiff s witnesses’ statement on oath. The Plaintiffs’ only witness was one Samuel Bassey Peter, a member of its Registered Trustees, who after adopting his statement on oath, filed notice of discontinuance of the action based on a resolution by a majority of the Registered Trustees said to have been passed at an emergency meeting held on the 15/3/2010. Before then, learned counsel for the plaintiff Bassey Akpaetim, Esq., had filed a motion seeking an order to strike out the evidence of Samuel Bassey Peter for the plaintiff and leave to call another witness in his place.
Learned counsel had also filed a notice of preliminary objection in reaction to the notice of discontinuance filed by Mr. S. B. Peter primarily on the ground that he lacked the locus standi to file the notice since he was not a party to the suit.
After consideration of the written addresses by learned counsel for the parties, the Federal High Court (to be called lower court after now) in a ruling delivered on the 13/7/2010, decided that S. B. Peter had the locus standi to file the notice of discontinuance and accordingly stuck out the action for being discontinued.
Being aggrieved by that decision, the Appellant filed this appeal vide a notice of appeal dated the 4/10/2010, containing a lone ground.
In the Appellants’ brief filed on 11/2/11, learned counsel for the Appellant had framed the following issue for decision in the appeal:
“WHETHER IT DID NOT OCCASION A GROSS MISCARRIAGE OF JUSTICE FOR THE LEARNED TRIAL JUDGE TO DISCEND INTO THE ARENA AND ACTED ON THE NOTICE OF DISCONTINUANCE SUO MOTU WHEN IT WAS NEITHER FILED BY A PROPER PARTY TO THE SUIT NOR WAS IT ARGUED?”
In the 1st Respondent’s brief filed on the 31/05/12, but deemed on the 24/5/13, the issue for determination in the appeal is said to be:-
“3.1- Whether the learned trial judge was right in discontinuing the suit or not in the face of the Notice of Discontinuance (not opposed by Defendants) filed by Samuel Bassey Peter (a Trustee) which said notice was supported by an affidavit with three Exhibits?”
It is clear that the substance in the two (2) issues formulated by both counsel is the same as to whether the lower court was right in law to have acted on the notice of discontinuance filed in the case as reason for striking it out.
I will consider the submissions by counsel in their respective brief on the issue.
Learned counsel for the Appellant had referred to the definitions of the word, “Plaintiff’ as set out in the cases Ejezie v Anuwu (2008) ALL FWLR (422) 1005 at 1016; Green v Green (1987) 3 NWLR (61) at 480; Ogunsanya v Dada (1990) 6 NWLR (156) 347 and Black’s Law Dictionary 6th Edition, page 1150, and argued that Samuel Bassey Peter, who filed the notice of discontinuance was not a plaintiff in the case. He said the Plaintiff was the registered Trustees which are regulated by part ‘C’ of the Companies and Allied Matters Act (CAMA) under which the Incorporation of Trustees Constitution; Article 7 (3) requires that all documents to be executed by the Trustees shall be signed by the President and any other member and be sealed with the common seal. It was his contention that the resolution of the Trustees of the Appellant on which the lower court relied to find locus standi for Samuel Bassey Peter as plaintiff, was not signed by the President of the Appellant’s Trustees nor sealed with the common seal.
Learned counsel said the resolution was not duly passed and that a member of Trustees or 3 out of 5 Members are not competent to file a notice of discontinuance of an action for and on behalf of the Trustees. Further, that such members are required to produce in court, the Certificate of Incorporation to establish their authority, citing the case of Registered Trustees of the Apostolic Church v Attorney-General. Mid West (1972) 1 ALL NLR (1) 356.
Relying on Jibril Martins v S. Tinubu (1937) 13 NLR; 124 and Noibi v Sule (34-5) 2 WACA, learned counsel argued that it was the three (3) Trustees who disagreed with Board of Trustees and so should move out leaving the name of the Appellant under Section 685 of CAMA. According to him, the 3 trustees acted ultra vires and could not arrogate powers of the Appellant to themselves.
In addition, learned counsel had submitted that the notice of discontinuance was not accompanied by a written address and so was not argued. He said the notice was an interlocutory application regulated under Order 26 of the lower court’s Civil Procedures Rules 2009, which requires that every motion shall be filed along with a written address and since there was no address, the notice of discontinuance was deemed abandoned or withdrawn. The cases of Nwokadaso v Onuoha (2001) FWLR (59) 1326 at 1330 and Esoho v Asuquo (2007) ALL FWLR (359) 1355 at 1357 were cited in support of the submission. We were urged to allow the appeal.
For the 1st Respondent, it was submitted that it was indisputable that 3 out of 5 trustees of the Appellant authorized the filing of the notice of discontinuance and so it was proper under Order 50 (3)(1) of the 2009 Rules and the lower court was right to have acted on it. Learned counsel said where an act/or thing is required to be done or decision taken by a body of persons consisting of less than 3, such act or thing may be done or such decision taken in the name of such body by a majority of those persons. Reference was made to Section 5 of Interpretation Act, Akwa Ibom State, Cap 64, Laws of Akwa Ibom State, 2000 and Adefulu v Oyesile (1989) 5 NWLR (122) 405 and it was argued further that since the Appellant was artificial, it can only act through human agents, in this case, the trustees or majority of them who authorized the discontinuance of the action before the lower court.
Learned counsel then argued that the failure to file a written address along with the notice of discontinuance, was an irregularity cured by Order 51 of the 2009 Rules of the lower court. The court was in summary, urged to dismiss the appeal and affirm the ruling of the lower court.
It would appear from the submissions by learned counsel for the parties that there is no dispute that the case before the lower court was initiated by the Appellants for and on behalf of the Eket Commercial Motorcyclists Association for which they were appointed and incorporated vide a Certificate of Incorporation dated the 4th March, 2008 and issued by the Corporate Affairs Commission, Abuja. The Certificate of Incorporation which was attached to the writ of summons and statement of claim, set out names of the incorporated trustees as follows:
1) Comrade Samuel Bassey Peter
2) Mr. Paul Jacob Idiong
3) Mr. Abraham Jacob Tom
4) Bassey Akpaetim, Esq.
5) Edet Bassey Esq.
Article 1 of the Association’s Constitution has the following provisions:-
“ARTICLE 1: NAME AND LOCATION OF THE ORGANISATION:
The Organisation shall be known, called and addressed as EKET COMMERCIALO MOTORCYCLISTS ASSOCIATION hereinafter known as the Organisation and shall be considered as a Corporate Body under the jurisdiction of the Board of Trustees which stands as the highest decision making body of the organization. The National headquarters of the Organisation is located at Eket, Akwa Ibom State.”
From these provisions, the Board of Trustees stands as the highest decision making body of the association.
Article 7 which provides for the registered trustees of the association in sub-article 1, says the trustees shall be “FIVE” and in sub-article 5; that the trustees “shall hold her meetings as many times as the Trustees may decide”.
Undoubtedly therefore, the Appellants had the authority as the highest decision making body of the association to initiate the action before the lower court for and on behalf of the association whenever necessary.
Mr. Samuel Bassey Peter one of the registered trustees, swore to the only witness statement on oath which was filed along with the statement of claim as support for the claims endorsed on the Appellants’ writ against the Respondents in the case before the lower court. Being one of the Appellants, Mr. Peter also adopted the said statement on oath as evidence for the Appellants at the hearing of the case. Apparently therefore, as a registered trustee of the association and the only witness who gave evidence at the hearing of the Appellant’s case, Mr. Peter was a plaintiff who had the authority and the legal standing to initiate and prosecute the case before the lower court. By the various definitions of a plaintiff referred to and relied on by the learned counsel for the Appellants in the cases cited supra, a plaintiff in judicial proceedings can simply be defined as the person who initiates or brings a legal action against another or others in or before a court of law for a judicial relief or remedy. See Ejezie v Anuwu (2008) 6 MJSC, 86.
Mr. Peter as a registered trustee who commenced the action against the Respondents in the lower court for the judicial reliefs set out in the statement of claim, qualifies as a plaintiff in the case. As a plaintiff, he was consequently a proper party in the case even if he was not alone or the only plaintiff. The law as rightly stated by learned counsel, is that for an action to be properly constituted so as to vest jurisdiction in a court to adjudicate on it, there must be a competent plaintiff and a competent defendant. See Ataguba & Co. v Gum Nig. Ltd. (2005) ALL FWLR (265) 1219, (05) 2 SCNJ, 139.
In the present appeal, the learned counsel for the Appellants is not challenging the competence of Mr. Peter as a registered trustee of the association and one of the plaintiffs in the case before the lower court. The challenge is whether or not Mr. Peter was competent to have filed a valid notice of discontinuance of the case. The notice of discontinuance which is at page 61 – 2 of the record of the appeal, was signed by Mr. Peter and accompanied by an affidavit deposed to by him. It is expedient to set out the facts deposed to in the affidavit which are as follows:-
1) That I am the Assistant Secretary to the Plaintiffs’ Board of Trustees.
2) That I have the consent of the Executives and the Trustees of the Plaintiffs to depose to this Affidavit.
3) That I have testified on this matter before this Honourable Court.
4) That on the 29th day of September, 2009, Hon. Commissioner of Ministry of Work and Transport directed all the chairmen of all the Local Governments in Akwa Ibom State to help him in rebuilding and reconstructing motorcyclist operation in Akwa Ibom State. The said memo is hereby annexed as ‘Exh. 1″.
5) That in response to the call by Eket Local Government in respect of the said Memo, we resolve on the 15th day of March, 2010 by a Quorum of 3 members of the 5 Trustees of the Plaintiff that attended the emergency meeting that this matter be withdrawn, the resolution of that meeting is hereby attached as “Exhibit 2” .
6) That on the same 15th day of March, 2010, we resolved as directed by Eket Local Government Chairman to write to the Clerk of this Honourable Court and informing him of our intention to withdraw this matter. The said letter to the Clerk of Court is hereby attached as “Exhibit 3″.
7) That the parties to this suit had met and resolved that this matter be withdrawn and we intended that it shall be so withdrawn.”
A copy of the resolution mentioned in paragraph 5 above is at page 66 of the record of appeal and signed by Comrade Samuel Bassey Peter, Mr. Paul Jacob Idiong and Mr. Abraham Jacob Tom, all registered trustees of the association whose names were set out on the Certificate of Incorporation of the trustees. The people who signed the resolution of the Association which is said to be the basis of the discontinuance of the action are all plaintiffs to the action since they are registered trustees of the association in whose name it was taken. There is no dispute or challenge to this fact or position.
I have elsewhere in this judgment set out the provisions of the Association’s constitution which stated that the number of trustees shall be five (5) and that the body of trustees is the highest decision making organ of the association. I observe that there was no counter affidavit to challenge the averments that there was an emergency meeting of the trustees of the association on the 15th of March, 2010 at which the resolution to discontinue the action was reached.
The absence of a challenge to the fact means in law that it is deemed to be correct and established. See Lijadu v Lijadu (1991) 1 NWLR (169) 627; Honda Place Ltd. v Globe Motors Holdings Nig. Ltd. (2005) 7 SC (Pt. III) 182. The consequence is that the resolution to discontinue or withdraw the case by the Appellants at the lower court was taken or reached at the emergency meeting of the Appellants held on the 15/3/2010.
Order 50, Rules 2(1) and 3(1) of the lower court Rules 2009, cited by learned counsel in their briefs have the following provision for withdrawal and discontinuance of actions before that court.
“Rule 2-1: The Plaintiff in an action may, without the leave of the Court discontinue the action, or withdraw any particular claim made by him therein as against any or all the defendants at any time not later than fourteen days after service of the defence on him or, if there are two or more defendants of the defence last served by serving a notice to that effect on the defendant concerned.
3-(1): Except as provided by rule 2 of this order, a party may not discontinue any action or counter-claim, or withdraw any particular claim made by him therein without leave of the court, and the court hearing an application for the grant of leave may order the action or counter-claim to be discontinued or any particular claim made therein to be stuck out, as against any or all of the parties against whom it is brought or made on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just.”
Since the notice of discontinuance was filed after commencement of hearing, Rule 3(1) above is applicable to it and the action can only properly be discontinued with the leave of the lower court. See Nwokedi v RTA Ltd (2002) 6 NWLR (762) 181; Dalfam Nig. Ltd. v Okaku International Ltd. (2002) FWLR (96) 501 at 525. In re; HRH Igwe Umeonusulu (2002) FWLR (96) 460 at 470.
The complaint by the learned counsel for the Appellants is not that leave of the lower court was not granted for the discontinuance but rather, once again, that Mr. Peter was not competent to file the notice of discontinuance. His main ground for saying so is that by Article 7(3) of the Association’s Constitution, “All documents to be executed by the Trustees shall be signed by the President and any other member of Trustees and sealed with common seal.” He argued that the President of the association did not sign the resolution and it was not sealed with common seal which was in the custody of the President, and so it was not duly passed.
However, the resolution is on the letter headed paper of the association and signed by 3 out of 5 incorporated registered trustees thereof reached as an emergency meeting of the trustees which was not disputed by any of the other 2 trustees.
Article II of the Constitution of the association provides for the principal officers of the association as follows:-
“PRINCIPAL OFFICERS
These shall include President, Vice President, Treasurer, Public Relation Offrcer, Secretary, Financial Secretary, Assistant Secretary, Advisers, Task Force, Patrons and others as may be expanded in the bye-laws.”
However, nowhere in the constitution or other process filed by the Appellants before lower court was any of the five registered trustees who constituted the Board of Trustees of the Association indicated or stated to hold, any of these titles of principal officers. The only process which was filed before the lower court and deposed to by one of the registered trustees who did not sign the resolution for the discontinuance or withdrawal of the action, was the supporting affidavit sworn to on the 30/3/2010 by William Etukudo Wilson in which he averred inter alia, thus:
1. That I am the Chairman of the plaintiff’s Board of Trustees.
2. That I have the consent and the authority of the Vice Chairman, Mr. Godwin Akpan Samuel, the executive and members of the Plaintiff to depose to this affidavit and so I do for myself, and on their behalf.
3. That as the Chairman of the Board of Trustees I am well seised of the facts of this case.
The facts deposed above speak for themselves and are undoubtedly plain and unambiguous. The deponent described himself as “the Chairman of the Plaintiff’s Board of Trustees” and one Mr. Godwin Akpan Samuel, as the “Vice-Chairman”, Mr. G. A. Samuel is also a registered and the 2nd trustee who did not sign the resolution to discontinue the case.
As it has turned out Messers William Etukudo Wilson and Godwin Akpan Samuel who along with the trustees who signed the resolution to discontinue the case, make up the plaintiff/appellants that filed it, did not support the resolution at the emergency meeting and so challenged it by way of a preliminary objection at the lower court. None of the registered trustees can impose his personal view or opinion on the others when issues affecting the association are considered and to be decided, no matter the title he holds in the Board of Trustees. The decision to file the case against the Respondents must have been taken by the Board of Trustees and all of them thereby became plaintiffs without any sign of disagreement between them. However, from the steps now taken by the 3 trustees who signed the resolution for discontinuance on the one hand and by the 2 who did not sign it on the other hand, it is clear that there was disagreement in respect of the withdrawal or discontinuance of the case between the trustees. As plaintiffs, the Appellants were therefore divided over their case, with each of the sides taking conflicting position. Because the case was by all the five (5) registered trustees of the association filed for and to defend and protect its interest, a resolution by a majority of them reached at a meeting of the trustees would be the decision of the trustees that would bind the Board of Trustees including the minority who did not agree with it. The fact that the resolution was not signed by any of the minority trustees, no matter his title, would not affect the validity of the resolution or the decision taken therein by the majority trustees.
Learned counsel for the Appellants it may be recalled, had argued that the 3 majority trustees acted ultra vires for arrogating to themselves the exclusive powers of the association derived under the provisions of section 685 of CAMA which provide thus:-
“685- The powers vested in the trustees by or under this Act shall be exercised subject to the direction of the association, or of the council or governing body appointed under section 684 of this Act as the case may be.”
These provisions are in Section 602 of the CAMA 1990 and simply subject the exercise of the powers of trustees of an association, to the direction by way of Rules, Regulations or Constitution, etc, of the association under which a council or governing body is usually appointed for the association.
For our purpose in this appeal, the Constitution of the association has appointed the five member Board of Trustees as its highest decision making organ in the running of its affairs. It was in the exercise of that power that the Appellants commenced the case before the lower court in unison and later, by a majority resolution, to file a notice of discontinuance of the said case. The trustees therefore in both instances, had exercised the powers in accordance or compliance with the constitution of the association which appointed them as the governing body. The exercise of the power vide the resolution to discontinue the case reached by the majority of the trustees was no more or less than the exercise of the power to commence of file the case in the first instance. The five member Board of Trustees has the requisite power under the constitution of the association to discontinue the case it filed before the lower court either by a unanimous or majority resolution taken or reached at any of its meetings. The resolution of the majority cannot therefore rightly be said to be ultra vires the powers of the trustees on the ground only that any of the minority trustees did not sign it. I do not see the place of the decisions in Jibril Martins v Tinubu and Noibi v Sule (supra) in this appeal since the only disagreement between the majority and minority trustees was in respect of the decision to discontinue an action filed by all them and not in respect of the association.
In addition, the learned counsel for the Appellants had contended that the notice of discontinuance was not supported or accompanied by a written address and it was not argued. He relied on Order 26, Rule 3 of the lower court’s 2009 Rules which is as follows:-
“3. Every motion shall be supported by an affidavit setting out the grounds on which the party moving intends to rely and such motion shall be filed along with a written address.
What can easily be noticed in the above provisions is that they deal with “Every Motion” which “such motion shall be filed along with a written address.” For the purpose of judicial proceedings, a motion is a formal application made and filed before a court in accordance with its Rules, seeking for some reliefs in the proceedings from the court. As a general requirement of the Rules of all courts, facts disclosing the reasons and grounds upon which the reliefs are sought and premised, have to be set out in an affidavit in order to give the other party adequate notice thereof and the court to have the necessary materials on which to judiciously and judicially exercise its discretion to either grant or refuse the reliefs sought in the application.
In addition to the affidavit, the provisions above require a written address to be filed along with the application. What was filed before the lower court was not a motion as described above, but a notice of discontinuance/withdrawal which was specifically provided for under Order 50 Rule 3(1) as shown earlier in this judgment.
I am aware that Order 50 Rule 3(2) has made the following provisions:-
“3(2) An application for the grant of leave under this rule may be made by summons or motion on notice.”
These provisions are merely permissive or allow for a discretion where an application for leave where it was required, to be made either by way of summons or motion on notice. Non-compliance with the provisions and indeed all the Rules, depending on the peculiar circumstances and facts of each case, has been taken care of or cured by the Order 51 Rules 1(1) which says:-
“where in beginning or purporting to begin any proceeding or at any stage in the course of or in connection with any proceeding, there has by reason of anything done or left undone, been failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein.”
In the present appeal although leave to discontinue was required because hearing of the case had commenced, the complaint of the Appellants on the absence of a written address is one which had been overtaken by the exercise of the lower court’s discretion based on the facts set out in the affidavit filed in support of the notice of discontinuance. The written address that ought to have been filed along without an application for leave to discontinue the action would not have added any material of substance in the exercise of the lower court’s discretion on the notice of discontinuance. The absence of a written address was purely in the circumstances, an irregularity which was fully cured by the above provisions of Order 51 Rule 1(1).
I am in complete agreement with the learned counsel for the Respondents on the point. Since it was notice that was filed to notify the Respondents and the lower court of the decision by the Appellants to discontinue or withdraw the case and not a motion, there was no need to move or argue it before that court could properly act on it. The cases of Nwokediaso v Onuonsa and Esoho v Asuquo both (supra) cited by the learned counsel which deal with failure by a party to move an application or motion before a court are not apposite in respect of a notice of discontinuance in the case before the lower court. They do not avail the Appellants here.
In the final result, for reasons set out above, I find no merit in this appeal and dismiss it accordingly. The decision by the lower court striking out the Appellants’ case for being discontinued, is affirmed.
Parties to bear their respective costs of the appeal.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Mohammed Lawal Garba, JCA. I join him in dismissing this appeal. I abide by all the other orders contained in the lead judgment.
ONYEKACHI A. OTISI, J.C.A: I have read, in draft form, the Judgment just delivered by my learned Brother, Mohammed Lawal Garba JCA. The issues raised in this appeal have been completely addressed by my learned brother. I am in agreement with his reasoning and conclusion; and, also dismiss the appeal and affirm the decision of the lower court.
I abide by the orders made in the lead Judgment.
>
Appearances
Bassey Akpatim with Peter Ime AkpanFor Appellant
AND
Akon A. Simon (Mrs) for 1st Respondent
2nd – 6th Respondents counsel served but absentFor Respondent
