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PHARMACISTS COUNCIL OF NIGERIA v. LAMLEX (PHARMACY) NIGERIA LIMITED & ORS(2019)

PHARMACISTS COUNCIL OF NIGERIA v. LAMLEX (PHARMACY) NIGERIA LIMITED & ORS

(2019)LCN/13316(CA)

In The Court of Appeal of Nigeria

On Friday, the 27th day of April, 2018

CA/E/156/2007

 

Justice

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

Between

Justice

PHARMACISTS COUNCIL OF NIGERIAAppellant(s)

 

AND

1. LAMLEX (PHARMACY) NIGERIA LTD.
2. LIFE FRANKINTAL PHARMACY LTD.
3. ZILIZ (PHARMACY) NIGERIA LTD.
4. NEW MED-MC PHARMACUTICAL LTD.
5. ANTHOMARIA PHARMACY LIMITED
6. VISCO PHARMACY LIMITEDRespondent(s)

RATIO

THE WAYS OR MEANS OF RAISING A PRELIMINARY OBJECTION TO THE COMPETENCE AND HEARING OF AN APPEAL

It is now settled that there are two ways or means of raising a preliminary objection to the competence and hearing of an appeal. These are:
(1) By filing a formal notice of preliminary objection separately. Or
(2) By incorporating the formal notice of objection and the argument in its support in the respondents brief of argument. In addition to raising the preliminary objection formally by employing any of the means or procedure stated above, the respondent must call the attention of the Court to the objection at the oral hearing of the appeal and seek the leave of Court to argue same. Where the respondent fails to move the objection during the oral hearing of the appeal, the objection is deemed abandoned. See RTD. TRUSTEES OF THE AIRLINE OPERATORS OF NIG. V. NAMA (2014) LPELR 22372 (SC), (2014) 8 NWLR (PT. 1408) 1, MMADUAGWU & ANOR.V. IFEANYI & ORS. (2016) LPELR-41012 (CA). Order 10 of the Court of Appeal Rules 2010. OKOROCHA V. PDP & ORS. (2014) 7 NWLR (PT. 1406) 213 . PER BOLAJI-YUSUFF, J.C.A

THE MEANING OF THE TERM “LOCUS STANDI”

The term locus standi is the right or standing or capacity to institute an action in a Court of law or the right to be heard in a given forum. It has long been settled that in determining the locus standi of a plaintiff, it is the averment or the pleadings in the statement of claim that must be considered. The statement of claim must disclose that the civil rights and obligations of the plaintiff have been or are likely to be infringed. See BAKARE & ORS. V. AJOSE-ADEOGUN & ORS. (2014) LPELR 25024 (SC). A.G. KADUNA STATE V. HASSAN (1985) LPELR 617 (SC), (1985) 2 NWLR (PT. 8.) 483 . ODENEYE V. EFUNUGA (1990) LPELR 2208 (SC). B.B. APUGO & SONS LTD. V. OHMB (2016) LPELR 40598 (SC). PER BOLAJI-YUSUFF, J.C.A

THE PURPOSE OF A PRELIMINARY OBJECTION

The purpose of a preliminary objection to the competence or hearing of a suit is to scuttle the hearing of a case in limine. A successful preliminary objection terminates the suit. See ALLANAH & ORS V. KPOLOKWU & ORS. (2016) LPELR 40724 (SC), SAMBO & ORS. V. OKON & ORS. (2013) LPELR 20394 (CA). EXECUTIVE GOVERNOR OF OSUN STATE V. FOLORUNSHO (2014) LPELR- – 23088 (CA). If the preliminary objection succeeds, that is the end of the matter, the Court will not go into the merit of the case. If the objection is raised at the Court of 1st instance like in the instant case, the matter will not proceed to hearing stage and if hearing has commenced, the hearing is terminated at that stage. However, where the objection fails and hearing has not commence or has commenced but not concluded, the matter must proceed to hearing and both parties must be afforded the opportunity of presenting their own side of the story before the matter is decided on merit. See A. G. ANAMBRA STATE & ORS. V. OKEKE & ORS. (2002) 12 NWLR (PT. 782) 575. PER BOLAJI-YUSUFF, J.C.A

DEFINITION OF A “REASONABLE CAUSE OF ACTION”

It is settled that when considering an objection to a suit on the ground that it does not disclose a reasonable cause of action the Court must confine itself to the pleadings in the statement of claim. See YUSUF & ORS. V. AKINDIPE & ORS. (2000) LPELR 3532 (SC), (2000) 8 NWLR (PT. 669) 376. COOKEY V. FOMBO & ANOR. (2005) LPELR 895 (SC), 15 NWLR (PT. 947) 182, OWURU & ANOR. V. ADIGWU & ANOR. (2017) LPELR 42763 (SC). Reasonable cause of action has been defined and explained in a plethora of authorities. See UWAZURUONYE V. THE GOV. OF IMO STATE & ORS. (2012) LPELR 20604 (SC), (2013) 8 NWLR (PT. 1355) 28 AT 51(A) where the Supreme Court held that a reasonable cause of action is a cause of action which, when only the allegation in the statement of claim or originating process, are considered have some chances of success. PER BOLAJI-YUSUFF, J.C.A

WHETHER OR NOT A PARTY SEEKING A DECLARATORY RELIEF MUST SUCCEED ON THE STRENGHT OF HIS OWN CASE

It is also settled that a party seeking a declaratory relief must succeed on the strength of his own case and not on the weakness of the defendants case. The fact that a defendant fails to defend a claim for declaratory a relief does not relief the claimant of the burden to establish his entitlement to the relief he is seeking by placing or adducing cogent and credible evidence before the cogent. See KWAJAFFA & ORS. V. B. O. N. LTD. (2004) 13 NWLR (PT. 889) 146 AT 172 (D-E). MAJA V. SAMOURIS (2002) 7 NWLR (PT. 765) 78. CHUKWUMAH V. S. P. D. C. (NIG.) LTD. (1993) 4 NWLR (PT. 289) 512, (1993) LPELR 864 (SC) . AKANINWO & ORS. V. NSIRIM & ORS. (2008) LPELR 321 (SC), (2008) 9 NWLR (PT. 1093) 439 AT 464 (A-H). PER BOLAJI-YUSUFF, J.C.A

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): The respondents in this appeal are limited liability companies and registered as such in Nigeria. They all operate pharmacy shops, selling drugs at the premises situate at No. 2B U.N.T.H Road, Enugu in Enugu State. On 21/9/2006, the appellants officials sealed up the shops of the respondents for failure to register their pharmacy shops with the Pharmacists Council of Nigeria as stipulated by Pharmacy Act, Cap. 152, Laws of the Federation of Nigeria (as amended). The respondents then instituted suit No. FHC/EC/CA/174/06 wherein they claimed the following reliefs:
(1) A declaration that the defendants act of forcible sealing and closing of the shops and business premises of the plaintiffs, respectively situate at:
(a) (a) Lamlex (Pharmacy) Nigeria Ltd., 2 U.N.T.H. Road, Enugu, Enugu State, Nigeria.
(b) Life Frankintal Pharmacy Ltd, 3B, U.N.T.H. Road, Enugu, Enugu State, Nigeria.
(c) Ziliz (Parmacy) Nigeria Ltd. 2B U.N.T.H. Road, Enugu, Enugu State, Nigeria.
(d) New Med Mc Pharmaceutical Ltd. 2B U.N.T.H. Road

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Enugu, Enugu State, Nigeria.
(e) ANTHOMARIA Pharmacy Ltd., 2B U. N. T. H. Road, Enugu, Enugu State, Nigeria; and
(f) Visko Pharmacy Ltd 2, U.N.T.H. Road, Enugu, Enugu State, Nigeria is unconstitutional, utra vires wrongful, illegal, null ,void and of no consequence whatsoever.
ii. An order of Court unsealing and opening all the shops and business premises of all the plaintiffs under reference in paragraph 27 (1) (a) (b) (c) (d) (e) and (f) as well as setting aside the defendants letters to the plaintiffs bearing reference number PCN/EN/57/VOL.III/226, dated 21ST September, 2006 in which the plaintiffs shops were prematurely closed down or sealed off arbitrarily;
iii. N65,000,000.00 (Sixty-Five Million Naira Only), being compensatory exemplary special and general damages for the unlawful, arbitrary, forcible and premature closure or sealing of the plaintiffs shops and business premises thereby denying them their legitimate goodwill, means of livelihood or earning, individually and collectively.

The appellant filed a 4 (four) paragraph statement of defence and a motion on notice wherein they

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sought an order dismissing the suit for want of jurisdiction on the grounds that:
(a) The proper defendants are not before the Court.
(b) The 2nd defendant is not a proper party to this suit.
(c) The suit as constituted ex-facie is illegal.
(d) The suit is vexatious, frivolous and an abuse of Court process.
(e) The manner and mode of commencement of the suit by the plaintiff is fundamentally defective, irregular, null and void.
(f) The suit does not disclose a reasonable cause of action.

Parties filed and exchanged written arguments in respect of the objection. In a considered ruling delivered on 23/3/2007 by Honourable Justice A. O. Faji, the Court below dismissed the preliminary objection and entered judgment in favour of the respondents as follows:
1. the defendants act of forcible sealing and closing of the shops and business premises of the plaintiffs respectively situate at:
(a) Lamlex (Pharmacy) Nigeria Ltd., 2 U.N.T.H. Road Enugu, Enugu State, Nigeria.
(b) Life Frankintal Pharmacy Ltd, 3B, U.N.T.H. Road Enugu, Enugu State, Nigeria.

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(c) Ziliz (Parmacy) Nigeria Ltd. 2B U.N.T.H. Road Enugu, Enugu State, Nigeria.
(d) New Med Mc Pharmaceutical Ltd. 2B U.N.T.H. Road Enugu, Enugu State, Nigeria.
(e) Visko Pharmacy Ltd 2, U.N.T.H. Road Enugu, Enugu State, Nigeria is hereby declared to be unconstitutional, ultra vires wrongful, illegal, null and void and of no consequence whatsoever.
ii. The defendant is hereby ordered to forthwith unseal and open all the shops and business premises of the plaintiffs in Orders 1(a) to (f) above. The defendants letters to the plaintiffs bearing reference number
PCN/EN/57/VOL111/226 dated 21st September, 2006 in which plaintiffs shops were prematurely closed down or sealed off arbitrarily is hereby set aside.
Iii The defendant is hereby ordered to pay the sum N500,000.= to each of the plaintiffs (making a total of N3,000,000.=) being general damages for the unlawful, arbitrary, forcible and premature closure or sealing of the plaintiffs shops and business premises thereby denying them their legitimate goodwill, means of livelihood or earning, individually and collectively.

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Dissatisfied with the ruling, the appellant filed a notice of appeal on 23/3/07, the same day the ruling was delivered. On the records, it appears that the appellant was on 10/6/2009 granted leave to raise additional grounds of appeal and a notice of appeal containing 9 (nine) grounds of appeal is on pages 177-182 of the record of appeal. It is marked Exhibit B. However in its appellants brief and oral argument of the appeal, the appellants counsel relied on the notice of appeal filed on 23/3/2007. Therefore the determination of the appeal shall be based on the notice of appeal filed on 23/3/2007. The five grounds in the said notice are:
1. The learned trial judge erred in law when he held that the defendant admitted the claim of plaintiffs and therefore had no answers to the claims of plaintiffs.
2. The learned trial judge erred in law when he dismissed the objection of points of law and proceeded to enter judgment for the plaintiffs without more.
3. The learned trial judge erred in law when he held that the plaintiffs statement of claim did not disclose ex-facie illegality.
4. The learned trial judge erred in law when he held

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that the Act(s) of the defendant was oppressive and discriminatory and thereby came to an erroneous decision.
5. The learned trial judge erred in law when he awarded general damages against the defendants.

The appellants brief of argument was filed on the 13/7/2009 pursuant to the order of this Court made on 10/6/2009. It was settled by Josiah Daniel-Ebune. The respondents brief of argument was filed on 22/6/16 and deemed properly filed and served on 20/2/2018. It was settled by Dr. G. C. Obiora-Onyia. The appellants reply brief of argument was filed on 26/10/16. It was deemed properly filed and served on 20/2/2018. The briefs were adopted on 20/2/2018.
The appellant raised the following issues for determination:
1. Whether the learned trial judge was right to have dismissed the notice of preliminary objection of the appellant on the grounds that the said objection lacked merit and that it is frivolous. (Grounds 1 and 3 of the Notice of Appeal).
2. Assuming (without conceding) that the decision to dismiss the preliminary objection was right, whether the learned trial judge was correct to have

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entered judgment for the plaintiff without hearing same on the merits. (Ground 1, 2 and 4 of the Notice of Appeal).
3. Whether the learned trial judge was correct to have awarded damages in favour of the respondents as claimed upon declaratory reliefs, not supported by evidence (Ground 5 of the Notice of Appeal).
The respondent adopted the issues raised by the appellants.

I have ignored issue 1(a) formulated by the respondents counsel which is whether the appellant ought to seek and obtain leave to file this appeal because the issue hangs in the air. There is no preliminary objection properly so called to the hearing of the appeal. It is now settled that there are two ways or means of raising a preliminary objection to the competence and hearing of an appeal. These are:
(1) By filing a formal notice of preliminary objection separately. Or
(2) By incorporating the formal notice of objection and the argument in its support in the respondents brief of argument.

In addition to raising the preliminary objection formally by employing any of the means or procedure stated above,

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the respondent must call the attention of the Court to the objection at the oral hearing of the appeal and seek the leave of Court to argue same. Where the respondent fails to move the objection during the oral hearing of the appeal, the objection is deemed abandoned. See RTD. TRUSTEES OF THE AIRLINE OPERATORS OF NIG. V. NAMA (2014) LPELR 22372 (SC), (2014) 8 NWLR (PT. 1408) 1, MMADUAGWU & ANOR.V. IFEANYI & ORS. (2016) LPELR-41012 (CA). Order 10 of the Court of Appeal Rules 2010. OKOROCHA V. PDP & ORS. (2014) 7 NWLR (PT. 1406) 213 . I agree with the appellants counsel that the preliminary objection to this appeal not having been formally raised is incompetent and the argument in support is invalid.

Even if the objection has been properly raised, the objection is totally misconceived and unmeritorious. The ruling delivered by the Court below not only overruled the objection, judgment was also entered in favour of the respondents on all the legs of their claim. It is clear on the face of the ruling that it is in actual fact, not a ruling but a final judgment and that being the situation, the appellant does not need the leave of Court to appeal against the

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judgment, the appeal is as of right. Where an appeal is against a decision which has finally decided or determined the rights of the parties in the proceedings, the appeal is as of right by virtue of Section 241(1)(b) of the 1999 Constitution (as amended). See AULT & WIBORG (NIG.) LTD. V. NIBEL IND. LTD. (2010) LPELR 639 (SC), (2010) 16 NWLR (PT.1220) 486 .

The respondents counsel submitted that the appellant raised many new issues which were not raised at the Court below without seeking the leave of Court to do so. He failed to state the new issues. The submission is therefore at large and without any substance.

I have considered the grounds of appeal and the issues raised for determination by the parties. In my view, the issues are apt for the consideration and determination of this appeal. Issue 1 is whether the learned trial judge was right to have dismissed the Notice of Preliminary Objection of the appellant. On this issue the appellants counsel submitted that by virtue of Section 11 of Poison and Pharmacy Act, 1990, Pharmacists Council of Nigeria Act, 91 and 1992, Registration of Pharmaceutical Premises

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Regulations, 2005, Inspection, Location and Structure of Pharmaceutical Premises Regulations No. 152 of 2005, the respondents will only have enforceable legal right capable of protection with regard to the nature of their business if the premises are registered within the meaning of the relevant laws. He further submitted that it is a criminal offence to contravene any of the laws and the contravention or breach of the laws are apparent on all the processes before the Court below as the respondents did not deny the fact that the premises where they carry out their trade is not registered under the relevant laws. It is submitted that all that is required of the appellant to sustain its objection before the Court below is to plead the statute that has been contravened and in what regard. Counsel referred to AG. LAGOS STATE V. C.U.S.LTD. (2002)14 NWLR (PT. 786) 105 AT 129. He submitted that where an act or course of conduct fails to meet with the requirements prescribed by law, the non-compliance renders the act or course of conduct devoid of legal effect, no legal consequences flow from such acts or course of conduct.

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He referred to BIOKU V. LIGHT MACHINES (1986) 5 NWLR (PT. 39) 42. He further submitted that the facts contained in the respondents statement of claim did not disclose unconstitutionality of Decree 91 of 1992. He referred to the holden of the Court below that in so far as the plaintiff purported to carry on the practice of pharmacy in Nigeria, they must, in addition to any other State or Local Government requirement, comply with the rules and regulations of the business they are involved in. The plaintiffs are therefore subject to the provisions of the Pharmacists Council of Nigeria Act and all rules and regulations made there under which according to him accords with Section 20(3) of the Poisons and Pharmacy Act. He submitted that the holden shows that the objection had merit and partially succeeded especially as there is no appeal against it.

In response, the respondents counsel submitted that the sealing of the respondents business premises is an infringement on the respondents right to fair hearing entrenched in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the cause of action was properly upheld by the Court below.

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RESOLUTION:
I have perused the grounds of objection, the ruling of the Court below and the argument of the both parties, the sum total of the appellants contention is that the respondents lack the locus standi to institute the action and that the statement of claim does not disclose a reasonable cause of action. On lack of locus standi, the Court below at page 143 of the record held as follows:
That the plaintiffs contend that the defendant has no power to regulate business premises or that they do not recognize such an authority does not make the suit ex-facie illegal. That the plaintiffs are challenging the power of the Federal Government to regulate their business because they felt they are subject to state laws with which they have compiled does not deny them of locus to challenge the applicability of such laws to them. That is not a challenge to the powers of the Federal Government to make laws. The plaintiffs thus have the locus to challenge the actions of the defendants which affects their business interest which is an interest peculiar to the plaintiff over and above the interests of the generality of the public.

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The term locus standi is the right or standing or capacity to institute an action in a Court of law or the right to be heard in a given forum. It has long been settled that in determining the locus standi of a plaintiff, it is the averment or the pleadings in the statement of claim that must be considered. The statement of claim must disclose that the civil rights and obligations of the plaintiff have been or are likely to be infringed. See BAKARE & ORS. V. AJOSE-ADEOGUN & ORS. (2014) LPELR 25024 (SC). A.G. KADUNA STATE V. HASSAN (1985) LPELR 617 (SC), (1985) 2 NWLR (PT. 8.) 483 . ODENEYE V. EFUNUGA (1990) LPELR 2208 (SC). B.B. APUGO & SONS LTD. V. OHMB (2016) LPELR 40598 (SC).
The respondents in their statement of claim pleaded that the appellant through its servants, agents, and/or privies arbitrarily and unilaterally forcibly locked up and sealed their premises without any prior information. They also pleaded that the arbitrary, premature, forcible sealing or closure of their business premises have denied them access to their drugs, money, documents, equipments,

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goodwill and other vital properties including drugs which should be preserved in refrigerators and which are most likely to spoil, perish or waste away within a given period. They further pleaded that they have collectively suffered deprivation, depression, loss and damages. These are the facts which in law the appellants at this stage are deemed to have accepted as correct. See DISU & ORS V. AJILOWURA (2006) LPELR 955 (SC), (2006) 14 NWLR (PT. 1000) 783 AT 813(F-H). The facts pleaded in the statement of claim certainly disclose the interests of the respondents which they have the right to protect. The facts and circumstances pleaded by the respondents clearly give them the standing, the legal capacity and the right to sue as the alleged closure of their business premises clearly affects their right or interest in their business. The Court below was therefore correct when it held that the respondents have the locus standi to challenge the action of the appellant.

On the contention that the suit does not disclose a reasonable cause of action, the Court below held at page 145 of the record of appeal that:

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As stated by defendants counsel in his address, a cause of action means an act or omission by a person or a factual situation which gives another person a right to maintain an action in Court. To my mind the statement of claim is replete with the acts of the defendant which give the plaintiff a right to maintain an action in a Court of law. The plaintiffs have complained about sealing off of their premises without due notice information or compunction. It is for the defendants to justify that action. To say that they acted under the provisions of the Pharmacists Council of Nigeria Act and Regulations made there under does not answer this point of substance. Does that Act give defendant powers to seal off premises and then give reasons later or state what is to be done before the premises can be unsealed? The letter of 21/9/06 contains what the defendant requires plaintiffs to do for their premises to be unsealed. In other words it contains the reasons why the premises were sealed. Is that not an arbitrary exercise of power? Does that constitute notice of intention to seal? Did it give the plaintiffs an opportunity to conform with the requirements of the law before action was taken?

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To my mind, the letter of 21/9/06 was a charge after prosecution, conviction, sentence and execution of sentence. That to my mind gives adequate basis for a cause of action. If the instant claim does not disclose a reasonable cause of action, what will? I am therefore not surprised that the defendant had no answer to the claim save for this unnecessary and frivolous objection which obviously lacks merit. I must therefore dismiss this objection which has failed woefully.

It is settled that when considering an objection to a suit on the ground that it does not disclose a reasonable cause of action the Court must confine itself to the pleadings in the statement of claim. See YUSUF & ORS. V. AKINDIPE & ORS. (2000) LPELR 3532 (SC), (2000) 8 NWLR (PT. 669) 376. COOKEY V. FOMBO & ANOR. (2005) LPELR 895 (SC), 15 NWLR (PT. 947) 182, OWURU & ANOR. V. ADIGWU & ANOR. (2017) LPELR 42763 (SC). Reasonable cause of action has been defined and explained in a plethora of authorities. See UWAZURUONYE V. THE GOV. OF IMO STATE & ORS. (2012) LPELR 20604 (SC), (2013) 8 NWLR (PT. 1355) 28 AT 51(A) where the Supreme Court held that

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a reasonable cause of action is a cause of action which, when only the allegation in the statement of claim or originating process, are considered have some chances of success. In the instant case, paragraph 10-26 of the respondents statement of claim are very instructive. Those paragraphs are reproduced:
10. Sometime on 21st September, 2006, the defendants through their agents, servants and or privies arbitrarily, unilaterally and forcibly locked up, sealed off and closed down the respective business premises of all the plaintiffs in this suit hereinbefore named in the preceding paragraph 9 (1) to (iv), without any prior information in that regard.
11. On subsequent inquiry from the Enugu Zonal Office of the defendants situate at 8 Temple Avenue, Enugu, all the plaintiffs were, in retrospect given the letters PCN/EN/57/VOL.III/226, dated 21st September, 2006 and letter under reference shall be founded and relied on during the trial of this suit.
12. This letter dated 21/9/2006 was delivered to the plaintiffs after their respective business premises had been sealed off and close down without prior information and compunction.<br< p=””>

</br<>

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13. This business premises of the plaintiffs had long been recognized/registered by the appropriate organs of the Government of Enugu State of Nigeria to which they regularly pay business premises rate, which receipts are hereby pleaded and shall be founded and relied on during the trial of this suit.
14. In addition to this, all the plaintiffs are limited liability incorporated companies, statutory recognized by the Federal Government of Nigeria. The plaintiffs certificate of incorporation are hereby pleaded and shall be founded and relied on during the trial of this suit.
15. The Ministry of Commerce and Industry Enugu State and Enugu North Local Government Area of Enugu State supervise and collect levies or rates for registered business premises from all the plaintiffs till the date, 21/9/2006, when their respective business premises were sealed off by the defendants and their agents, servants and or privies.
16. The act of the defendants allowing some pharmacy shops within the same vicinity (premises) to remain open, exist and or transact their business … of the plaintiffs were arbitrarily sealed off or closed down on…

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17. The plaintiffs state that it is not the bounden duty of the defendants to control or regulate the ownership or management of shops or business premises in Enugu State under the Constitution of the Federal Government of Nigeria, 1999.
18. It is rather the constitutional responsibility of the states and local governments, under the said 1999 constitution, to control or regulate business premises within their geographical territory or jurisdiction.
19. Consequently, to that extent, Pharmacists Council of Nigeria Act (1992 No. 91) Registration of Pharmaceutical Premises Regulations, 2005, is utra vires, null and void or is rather implemented in breach in this instance.
20. By the arbitrary, premature, forcible sealing or closure of the plaintiffs shop premises the defendants have denied the plaintiff access to their drugs, money, documents, equipments, goodwill and other vital property. Most painful and wasteful is the fact that some of the drugs stored or displayed in the shops in issue should be preserved in refrigerators which are usually sustained through private generation of electricity,

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whenever the public power supply goes off, especially in these days of epileptic electricity power supply.
21. These types of refrigerated drugs are most likely to spoil, perish or waste away within a given period, if the plaintiffs are not allowed access to the drugs expeditiously.
22. Unfortunately, the defendants have been repeatedly announcing the closure of the plaintiffs pharmacy shops on the print and electronic media, without compunction nor regard to the detrimental consequences of such defamation.
23. The plaintiffs contend that the defendants premature, unilateral of arbitrary sealing or closure of the respective pharmacy shops and business premises thereby denying them their legitimate goodwill and means of livelihood is utra vires, unconstitutional, null and void and of no consequence whatever, as it has caused undue hardship and constitute a detrimental restraint in trade to the plaintiffs incorporated limited liability companies, that are duly recognised by extant democratic government of the day.
24. In a rather peculiar circumstance, the pharmacy of the first plaintiff was burgled soon after it was sealed

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off by the defendants and drug/property worth more than N5,000,000.00 were lost to the thieves.
25. By reasons of the foregoing the plaintiffs have collectively suffered some suppression, deprivation, loss and damages.
26. Apart from the first plaintiff who has incurred more loss because his shop was burgled, each of the other plaintiffs has lost upwards of about ten million (N10,000,000.00) as a result of the breach, due to denial of means of livelihood and deliberate wastage of perishable or expiable drugs.

The above pleadings clearly disclosed a cause of action and raised serious questions for determination by the Court. The Court below was correct when it held that the statement of claim disclosed a reasonable cause of action. For the above reasons, issue 1 is resolved against the appellant.

Issue 2 is whether the learned trial judge was correct to have entered judgment for the plaintiff without hearing same on the merits. On this issue, the appellants counsel submitted that the procedure adopted by the Court below is very wrong in law and has occassioned a miscarriage of Justice in that issues were joined on the

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pleadings and contrary to the holding of the Court, the appellant has an answer to the respondents claim. He argued that assuming but not conceding that the Court was correct in holding that the appellant has no answer to the respondents claim, the Court is still wrong in proceeding to give judgment in favour of the respondents without a hearing because the respondents were seeking declaratory reliefs and they had a duty to adduce cogent and credible evidence to justify an exercise of the Courts discretion in their favour since declaratory reliefs are not granted on admission in the pleadings. He referred to BELLO V. EWEKA (1981) 1 SC 101. He further submitted that the Court below could not lawfully have proceeded to enter judgment for the plaintiff on failure of preliminary objection when issues have been joined by the parties on many points or facts. He referred to AYENI V. SOWEMIMO (1982) 5 SC 60. A.G. ANAMBRA STATE & ORS. OKEKE & ORS. (2002) 12 NWLR (PT. 782) 575 AT 609 (26). He further submitted that where a wrong procedure is adopted by a Court below which materially affects the merit of the case

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and has occassioned a miscarriage of Justice, the Court of Appeal will intervene. He referred to NDUKWE V. DOMSEY INT. SALES CORP. (1991) 7 NWLR (PT. 206) 680 AT 689 (G H).

In response, the respondents counsel submitted that it is clear from the proceedings of 31/7/2008 that the appellant was given the opportunity to defend the substantive suit but it abandoned the case and proceeded on appeal only to turn around and complain about the decision of the Court below.

In his reply, the appellants counsel urged the Court to discountenance the allegation of the appellants refusal to continue with the substantive suit as there is no suit left to defend on the merit. He also urged the Court to discountenance the exhibits attached to the respondents brief as it is settled law that in the determination of an appeal, the Court considers the record of appeal and in any case, the documents clearly confirmed that the substantive suit has been effectively concluded on 23rd March, 2007.

RESOLUTION:
The purpose of a preliminary objection to the competence or hearing of a suit is to scuttle the hearing of a case in limine.

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A successful preliminary objection terminates the suit. See ALLANAH & ORS V. KPOLOKWU & ORS. (2016) LPELR 40724 (SC), SAMBO & ORS. V. OKON & ORS. (2013) LPELR 20394 (CA). EXECUTIVE GOVERNOR OF OSUN STATE V. FOLORUNSHO (2014) LPELR- – 23088 (CA). If the preliminary objection succeeds, that is the end of the matter, the Court will not go into the merit of the case. If the objection is raised at the Court of 1st instance like in the instant case, the matter will not proceed to hearing stage and if hearing has commenced, the hearing is terminated at that stage. However, where the objection fails and hearing has not commence or has commenced but not concluded, the matter must proceed to hearing and both parties must be afforded the opportunity of presenting their own side of the story before the matter is decided on merit. See A. G. ANAMBRA STATE & ORS. V. OKEKE & ORS. (2002) 12 NWLR (PT. 782) 575

In the instant case, the Court below should have confined itself to the issues raised by the preliminary objection. Unfortunately, the Court did not. The Court proceeded with the determination of the substantive suit without

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hearing any of the parties. To justify the improper procedure adopted by the Court, the Court held that the appellant has no defence to the respondents claim when the appellant has filed its statement of defence to the respondents claim. A trial Court having overruled a preliminary objection to the competence of a suit cannot proceed summarily to consider the substantive claim on merit without hearing any of the parties and without evidence on record in support of pleadings of both parties enter judgment in the case. The Court below seriously erred in law when it proceeded to consider the respondents claim on merit and entered judgment in their favour without giving the parties any opportunity of a hearing. The procedure adopted by the Court below is a gross violation of the appellants right to fair hearing guaranteed by the Constitution.

In addition to the reasons stated above, the law is settled that a declaratory relief is not granted as a matter of course or on admission of the other party. It is a discretionary remedy which can only be granted upon cogent, credible and satisfactory evidence being placed before the Court.

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It is also settled that a party seeking a declaratory relief must succeed on the strength of his own case and not on the weakness of the defendants case. The fact that a defendant fails to defend a claim for declaratory a relief does not relief the claimant of the burden to establish his entitlement to the relief he is seeking by placing or adducing cogent and credible evidence before the cogent. See KWAJAFFA & ORS. V. B. O. N. LTD. (2004) 13 NWLR (PT. 889) 146 AT 172 (D-E). MAJA V. SAMOURIS (2002) 7 NWLR (PT. 765) 78. CHUKWUMAH V. S. P. D. C. (NIG.) LTD. (1993) 4 NWLR (PT. 289) 512, (1993) LPELR 864 (SC) . AKANINWO & ORS. V. NSIRIM & ORS. (2008) LPELR 321 (SC), (2008) 9 NWLR (PT. 1093) 439 AT 464 (A-H). In the instant case, there is no doubt that the reliefs (i) and (ii) sought by the respondents are declaratory reliefs which cannot be granted in default of defence or on admission. They can only be granted after a proper hearing and argument by the parties. For these reasons, issue 2 is resolved in favour of the appellant.

Issue 3 is whether the learned trial judge was correct to have awarded damages in favour of the respondents

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as claimed upon declaratory reliefs not supported by evidence. The appellants counsel argued that assuming without conceding that the appellant is deemed not to have an answer to the respondents claim, a Court will not enter judgment for an unliquidated damages without taking evidence for the amount of damages as may be proved and assessed. The respondents ought to prove their claim by calling evidence. He referred to NIGERIAN AIRWAYS LTD. V. AHMADU (1991) 6 NWLR (PT. 198) 492 AT 499 500. He further submitted that relief (iii) which is for compensatory exemplary special and general damages is in the nature of loss of earnings which is a claim for special damages and particulars of which must be pleaded with facts to enable the Court calculate as best and accurately as it can, the respondents losses. He referred to OSEYEMON V. OJO (1997) 7 SCNJ 365 AT 385 386, OMOREGIE V. OMIGIE (1990) 2 NWLR (PT. 130) 29 AT39 (B C). He finally submitted that the Court below was in grave error in awarding damages as it did without showing how and upon what oral or documentary evidence it based the award of damages and

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against its clear finding that the respondents are subject to the regulation and control of the appellant. He urged the Court to set aside the damages awarded in favour of the respondents as they were based on wrong principles.

In response, the respondents counsel submitted that it is preposterous for the appellant to urge this Court to set aside the damages awarded in favour of the respondents aimed at ameliorating the loss of earning incurred as a result of their business premises being sealed off arbitrarily by the appellant when the appellant could not prove that the respondents did not incur any loss as a result of the unlawful act of sealing up their business premises for more than 6 (six) months. He further submitted that the issues would have been better thrashed out at the trial Court if the appellant had been humble and patient enough to submit to trial at the Court below after the preliminary objection was overruled, instead the appellant refused to utilise the opportunity to defend the suit.

In his reply, the appellants counsel submitted that the Court below in determining the preliminary objection

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effectively terminated the entire suit by granting the respondents claim and awarding damages in their favour. He referred to MADIF INDUSTRIAL HOLDING S. A. V. WESTERN NIG. DEV. CORP. (1979) 10 CAP 86 AT 108 111. He further submitted that the respondents ought not to take the Court for granted by advancing puerile arguments in support of a manifestly wrong decision which may well have been delivered by mistake owing to human failures. He also submitted that the proper step for the respondents was to boldly concede the points. He referred to ADELU V. STATE (2014) 113 NWLR (PT. 1425) 464 AT 490 491 (G A). He urged the Court to discountenance the exhibits annexed to the respondents brief to show that the suit before the Court below is still pending as it is settled law that in determining an appeal, the Court considers the record of appeal and in any case, the documents clearly confirms that the substantive suit has been effectively determined.

RESOLUTION:
There is no doubt that what was argued before the Court on 12/3/2007 was the appellants preliminary objection raised by the motion on notice filed on 4/12/06 contained on pages 105 -107.

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The Court below in my view got it wrong ab initio even before the objection was argued when it held as follows on page 90 of the record of appeal:
Court: The objection raises the issue of law in the statement of defence which appears to be the defendants defence. There is no dispute as to the facts. I am of the view that either way, a determination of the objection will dispose of the matter. If it succeeds, the defendants could have established a defence. It if fails then there will be no defence to the action. Since the preliminary objection will either way dispose of the matter there is no need to consider the motion on notice for injunction. In view of the circumstances therefore, I will abridge the time for the filing of written addresses on the preliminary objection.

As at 5/2/2007 when the Court made the above pronouncement, the parties had filed and exchanged pleadings. The appellant had filed its statement on defence on 4/12/2006. Considering the nature of the claim, the fact that the suit was commenced by a writ of summons and parties have clearly manifested their intention to contest

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the case on pleadings, it was wrong and premature for the Court to conclude that whether the objection succeeded or failed, a decision on it would finally dispose off the case. It is settled law that pleadings do not constitute evidence and except there is a clear and unequivocal admission on pleadings evidence must be led in support of the pleadings. Even if there is an admission on pleadings, in a claim for declaratory reliefs such as the instant case, it is mandatory for the claimant to lead cogent and credible evidence to establish his entitlement to the declaration (s) sought as it is settled law that a declaratory relief is not granted in default of defence or on admission.

Apart from the fact that reliefs (i) and (ii) are declaratory reliefs, relief (iii) is a claim for special and general damages. The law is trite that special damages must be pleaded with particulars and strictly proved by evidence. See OBASUYI & ANOR. v. BUSINESS VENTURES LTD. (2000) LPELR 2155 (SC), (2000) 5 NWLR (PT. 658) 668. AHMED V. C. B. N. (2012) LPELR 9341 (SC), (2013) 2 NWLR (PT. 1339) 524 . ENEH V. OZOR & ANOR. (2016) LPELR 40830 (SC).

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In the instant case, not only was the amount of special damages not stated, it was also not particularised and no evidence was led in support of the pleadings. It is a grave error to have awarded special damages which was not particularised much less proved.

Before I conclude this judgment, I need to reiterate the cardinal principle that counsel are ministers in the temple of Justice and should therefore ensure that they stay on the side of Justice at all times. It is the duty of counsel to present the case of his client to the best of his ability but the duty and loyalty of counsel does not extend beyond presenting the clients case within the law and rule of professional ethics. Counsel owe a higher duty to the cause of Justice. It is more honourable for a counsel to concede to an appeal when he has nothing to urge in defence of the judgment being appealed against and when it is obvious that a blunder committed by the Court below has occassioned a miscarriage of Justice. It is clear from the records, the judgment of the Court below and the submissions of the respondents counsel that the judgment entered in favour of the respondents without

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taking evidence is wrong in law. It is very wrong for the respondents counsel to insist that the appellant did not utilise the alleged opportunity to present their case when they were not afforded any and when the respondents counsel knew that the substantive suit was determined without affording any of the parties a hearing. It is part of the honour and integrity of counsel to advice his client appropriately on the need to contest or not to contest an appeal and the chances of such contest. The respondents counsel in my view failed in that duty. In the light of the above, issue 3 is resolved in favour of the appellant.

In conclusion, this appeal succeeds in part. Part of the Enugu Judicial Division of the Federal High Courts ruling delivered in suit no FHC/EN/CS/174/2005 on 23/3/2007 by Honourable Justice A. O. Faji which overruled the appellants objection to the suit is affirmed. Part of the said ruling which granted the respondents claim and awarded damages in their favour is hereby set aside. The case shall be remitted back to the Federal High Court, Enugu Judicial Division for trial on merit. Each party shall bear its own costs.

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HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the erudite and exhaustive judgment delivered by my learned brother, MISITURA OMODERE BOLAJI-YUSUFF, JCA. I am persuaded having read the record and the briefs of counsel that the Appeal must be allowed in part. I have to agree that the learned trial Court was wrong to have proceeded to consider the Respondents’ claim on the merit and entered judgment for them without giving the Appellant an opportunity to be heard. Moreso when the claim is for declaratory relief when the Respondent did not discharge the burden of proof on the balance of probabilities as required by law by calling oral evidence. The orders granting the Respondent claim and damages are hereby set aside. The case is hereby remitted to the Federal High Court for trial on the merit before another judge. I abide by the order as to costs.

TOM SHAIBU YAKUBU, J.C.A.: I had a preview of the well crafted judgment, rendered by my Lord, MISITURA OMODERE BOLAJI-YUSUFF, J.C.A., on this appeal. The resolutions of the issues which were thrown up in the appeal, by His Lordship, represent my thoughts and feelings on the appeal.

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Unarguably, the learned trial judge was patently in error when he inexcusably determined the substantive matter at the interlocutory stage when he was determining the appellants preliminary objection. That was clearly wrong.

The law is well settled that a Court, in considering and determining an interlocutory application, must be circumspect and not delve into determining any part of the substantive matter before it. The authorities of Orji v. Zaria Native Industries Ltd. (1992) 1 NWLR (Pt. 216) 124 at page 141; (1992) 1 SCNJ 29, Mobil Oil Plc. V.D.E.N.R. Ltd. (2004) 1 NWLR (Pt. 853) 142 at pages 158 – 159, Total (Nig.) Ltd. v. VIIRA (2004) 37 WRN 65 at page 83. Globe Fishing Ltd. Ltd. v. Coker (1990) 7 NWLR (Pt. 60) 265 at paragraphs 278 279; (1990) 11 SCNJ 56, Obeya Memorial Hospital Ltd. v. A-G., Fed. (2000) 24 WRN 138; (1987) 1 SC. 52; (1987) 2 NSCC 961; (1987) 7 SCNJ 42; (2004) All FWLR (Pt. 232) 1580; (1987) 3 NWLR (Pt. 60) 325. Akpomudje v. Coy., Delta State (2003) 9 NWLR (Pt. 826) 561 at page 588, Ekwomchi v. Ukwu (2002) 1 NWLR (Pt. 749) 590. Seyo v. Tumfure (2007) 8 NWLR (Pt. 1035) 45 at

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page 55. Obiesie v. Obiesie (2007) 6 NWLR (Pt. 1060) 223 at paragraphs 231 232, A.S.N. V. E.T.B. (2001) 34 WRN 123 at page 136, Akuma Ind. Ltd. v. Ayman Ent. Ltd. (1999) 13 NWL.R (Pt. 633) 68, Waldem Ltd. V. Akpainenem (2003) 3 NWLR (Pt. 807) 300, etc, are all apposite.

I too allow the appeal. I adopt the order remitting the case to the Chief Judge Federal High Court, for a reassignment of the same to another judge of that Court for a re-trial on the merits, as mine.
Each side to bear own costs.

 

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Appearances:

Josiah Daniel EbumeFor Appellant(s)

Dr. G. C. Obiora-Onyia with him, C. C. Ude, R. C. Unuakhalu and J. C. NnebeFor Respondent(s)

>

 

Appearances

Josiah Daniel EbumeFor Appellant

 

AND

Dr. G. C. Obiora-Onyia with him, C. C. Ude, R. C. Unuakhalu and J. C. NnebeFor Respondent