MUTUAL BENEFIT ASSURANCE PLC v. ACCESS BANK PLC (2021)

MUTUAL BENEFIT ASSURANCE PLC v. ACCESS BANK PLC

(2021)LCN/14927(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, January 29, 2021

CA/L/335/2009

RATIO

APPEAL: WHETHER AN APPEAL CAN HEARD WHERE THERE IS NO VALID RECORD OF APPEAL

I am in complete agreement with the apt submissions of the learned counsel for the Respondent that in law an appeal cannot be validly heard by this Court when there is no valid Record of Appeal, since an Appellant cannot place an Appellant’s brief on an invalid Record of Appeal. Indeed such an Appellant’s brief cannot stand since one cannot put something on nothing and still expect it to stand! See Macfoy V. United Africa Company (1962) A.C. 152 @ p. 160. PER GEORGEWILL, J.C.A.
APPLICATION: WHAT DOES THE COURT LOOK AT AND SCRUTINIZE IN AN APPLICATION CHALLENGING A CLAIMANT’S SUIT ON GROUNDS OF LACK OF REASONABLE CAUSE OF ACTION AND OR LACK OF REQUISITE LOCUS STANDI

Thus, primarily and it has been so held over the years in an un-exhaustive long line of decided cases, that since the cause of action as well as the locus standi of a Claimant must be stated in his pleadings and can easily and readily be found in his Writ of Summons and Statement of Claim, it is to these most vital processes that a Court of law would critically look at and scrutinize in an application challenging a Claimant’s Suit on grounds of lack of reasonable cause of action and or lack of requisite locus standi. This would obviate the need for a Defendant to first file his pleadings and or file Affidavit evidence, in both of which he may by way of his defense make strenuous efforts at pleading the Claimant out of his cause of action and locus standi.

I do not think that it would be right ordinarily for a Court to look for the cause of action of a Claimant, and whether it is reasonable or not reasonable as well as his own locus standi in the pleadings and affidavits of the Defendant, his adversary who will be more than willing to plead the Claimant out of his cause of action and or locus standi. Thus, if the Claimant has not disclosed any reasonable cause of action in his own Writ of Summons and Statement of Claim there would, in my view, be absolutely no need to even consider other materials as such a Suit would be liable to be terminated in limine if so asked for by the Defendant. The same scenario should apply, with even more force on the issue of lack of locus standi. I therefore consider the Writ of Summons and the Statement of Claim as the most crucial materials and documents to be considered by the Court in such an application. I cannot but agree completely with the submission of learned counsel for the Respondent that in determination of the issue of lack of reasonable cause of action and or lack of locus standi, as distinct from other species of allegations of lack of jurisdiction, all that the Court consider at the Writ of Summon and the Statement of Claim. See Egbe V. Adefarasin (1987) 1 NWLR (Pt. 47) 1 @ pp. 20- 21; Uwazuruonye V. Gov. Imo State (2013) 8 NWLR (Pt. 1355) 28 @ p. 50.
In Chevron Nig. Ltd V. LD (Nig) Ltd. (2007) 16 NWLR (Pt.1059) 168 @ p. 193, the Supreme Court had, on this vexed issue, stated inter alia thus:
“It is therefore settled that a cause of action constitutes a bundle of facts and circumstances giving rise to the Plaintiff’s enforceable claims against the Defendant. The facts and circumstances have to be as pleaded in the statement of claim. And so, it has to be ascertained by having recourse to the statement of claim.”
My Lords, while not ruling out the possibility, in deserving and peculiar cases, of the Court looking at the Affidavit and or other processes in an application challenging a Claimant’s Suit on grounds of lack of reasonable cause of action and or lack of locus standi, which is not the norm but clearly an exception, the general rule is that in law all that a Court need do to resolve the issue of reasonable cause of action and or locus standi is to carefully look at the endorsements on the Writ of Summons as well as the averments in the Statement of Claim to see if the claim discloses any reasonable cause of action and or the locus standi of the Claimant. See Society Bic SA. V. Charzin Industries Limited (2014) 4 NWLR (Pt. 1398) 497 @ p. 555, where the Supreme Court had reiterated inter alia thus:
“It is now well settled that in determining the cause of action in a suit, the only documents which the Court will look at are the Writ of Summons and the Statement of Claim… It follows that in determining whether the Plaintiff’s cause of action is within its jurisdictional competence, the Court limits itself to the Plaintiff’s Statement of Claim and Writ of Summons. The enquiry does not extend to the Defendant’s pleadings even though same had been filed in compliance with the Rules of Court. I think both the trial Court and the Court of Appeal were right in determining the cause of action in this suit by looking at the Statement of Claim only.”
See also Opia V. INEC (2014) 7 NWLR (Pt. 1407) 431 @ p. 453. PER GEORGEWILL, J.C.A.

LOCUS STANDI: WHAT DETERMINES LOCUS STANDI

The settled position of the law remains the same even in respect of the issue of challenge to locus standi of a Claimant by a Defendant. See Taiwo V. Adegboro (2011) 11 NWLR (Pt. 1259) 562 @ p. 580, where Supreme Court had, in respect of the issue of locus standi, reiterated inter alia thus:

ACTION: MEANING OF CAUSE OF ACTION

In law, cause of action simply put refers to fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person a right to judicial relief. It is constituted of the following elements, namely: (a) a cause of complaint; (b) a civil right or obligation fit for determination by the Court; and (c) a justiciable issue. Thus, once the averments in a Statement of Claim discloses facts showing these essential elements, then such a claim would be said to have disclosed a reasonable cause of action, notwithstanding how weak it may be or how strong the defense put forward by the Defendant might be on the merit. See Egbe V. Adefarasin (1987) 1 NWLR (Pt. 47) 1 @ pp. 20- 21; Uwazuruonye V. Gov. Imo State (2013) 8 NWLR (Pt. 1355) 28 @ p. 50.
In Chevron Nig. Ltd Vs L D (Nig) Ltd. (2007) 16 NWLR (Pt.1059) 168 @ p. 193, the Supreme Court had succinctly stated inter alia thus:
“As can be seen from the definition, the proposition resolves into two crucial factors thus: the Defendant’s wrongful act and the consequential damage to the Plaintiff. These two factors must co-exist to constitute a cause of action before the Court. It does not take account of whether the cause of action will succeed or fail. A cause of action is valid irrespective of the strength or weakness of the Plaintiff’s case.” PER GEORGEWILL, J.C.A.

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Between

MUTUAL BENEFIT ASSURANCE PLC APPELANT(S)

And

ACCESS BANK PLC RESPONDENT(S)

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of Lagos State; Coram: A. O. Opesanwo J., in Suit No: ID/726/2007: Access Bank Plc V. Mutual Benefit Assurance Plc, delivered on 19/1/2009, in which the Appellant’s Preliminary Objection challenging the competence of the Respondent’s Suit on grounds of lack of reasonable cause of action and locus standi was dismissed for lacking in merit.

The Appellant was dissatisfied with the Ruling of the Court below and had appealed against it vide its Notice of Appeal filed on 12/12/2017 on three grounds of appeal. The Record of Appeal was transmitted to this Court on 14/4/2010 but was deemed as properly transmitted on 9/11/2020. The Appellant’s brief was filed on 22/12/2017 but was deemed as properly filed on 9/11/2020. The Respondent’s brief was filed on 26/4/2018 but was deemed as properly filed on 9/11/2020. The Appellant’s Reply brief was filed on23/6/2020 but was deemed properly filed on 9/11/2020.

At the hearing of the Appeal on 7/12/2020, Miss F. R. A. Williams, learned counsel for the Appellant,

appearing with D. O. Adejobi Esq., adopted the Appellant’s brief and Reply brief as their arguments and urged the Court to allow the appeal and set aside the Ruling of the Court below. On his part, Nick Omeye Esq., learned counsel for the Respondent adopted the Respondent’s brief as his arguments and urged the Court to dismiss the appeal for lacking in merit and to affirm the Ruling of the Court below.

By an Amended Writ of Summons and Amended Statement of Claim filed before the Court below, the Respondent as Claimant had claimed against the Appellant as Defendant the following reliefs, to wit;
1. The sum of N25,000,000 being the value of the credit guarantee bond policy No. CRB/02/00534/Z dated 29/3/2006, issued by the Defendant in favor of the Claimant to guarantee the repayment of the facility of N25,000.000 granted A. R. Motors Limited for the financing of L. 0. P. for the supply of Black Oil to Benue Cement Company Gboko which sum A.R. Rasaq Motors Limited has failed and refused to repay.
2. Interest on the sum above at the rate of 20% per annum (being the agreed interest rate) from 31/12/2006, till judgment and

thereafter at the same rate till liquidation of the judgment sum. See pages 514 – 517 in Volume 2 of the Records of Appeal.

BRIEF STATEMENT OF FACTS
The brief facts pertinent to the consideration and determination of this Appeal as can be gleaned from the Record of Appeal is that on 22/1/2008, the Appellant as Defendant had filed before the Court below a Preliminary Objection, alongside its Statement of Defense, challenging the competence of the Respondent’s Suit on the grounds of lack of reasonable cause of action and locus standi. The Preliminary Objection was supported by an Affidavit of 8 paragraphs, annexed to which was Exhibit AJ1, the Insurance Policy issued to one A.R. Rasaq Motors Ltd by the Respondent together with a written address. In opposition, the Respondent had on 25/2/2008 filed a Counter-Affidavit of paragraphs together with a written address. In further response, the Appellant had on 26/2/2008 filed a reply on points of law.

The parties therefore, joined issues on the Appellant’s Preliminary Objection and on 24/11/2008, they adopted their written addresses at the hearing of the Appellant’s Preliminary

Objection. On 19/1/2009, in its considered Ruling, the Court below dismissed the Appellant’s Preliminary Objection, holding that the Respondent’s Suit disclosed a reasonable cause of action as well as the requisite locus standi of the Respondent to institute the Suit against the Appellant, hence this Appeal. See pages 50 – 55 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s brief, three issues were distilled as arising for determination from the three grounds of appeal, namely:
1. Whether the Court below erred in law and in fact when it held that the Statement of Claim disclosed a reasonable cause of action? (Distilled from Ground 1)
2. Whether the Court below erred in law and in fact when it held that the Respondent had the Locus Standi to sue the Appellant? (Distilled from Ground 2)
3. Whether the Court below erred in law and in fact when it Suo – Moto raised and decided on the issue of whether he need only consider the Writ of Summons and the Statement of Claim of the Respondent in considering the question of jurisdiction without giving counsel the opportunity to address her on said issue? (Distilled from Ground 3)

In the Respondent’s brief, three issues were also distilled as arising for determination in this appeal, namely:
1. Whether the Court below was right in holding that the Respondent’s writ of summons and statement of claim disclosed a cause of action against the Appellant? (Distilled from Ground 1).
2. Whether the Court below was right in holding that the Respondent has the locus standi to maintain an action against the Appellant? (Distilled from Ground 2).
3. Whether the Court below raised any issue suo motu when considering the Appellant’s Motion on Notice of Preliminary Objection? (Distilled from Ground3)

My Lords, I have given due considerations to the surrounding facts, the issues joined by the parties, the circumstances and the grounds of the Respondent’s Preliminary Objection challenging the Respondent’s Suit on grounds of lack of reasonable cause of action and locus standi as well as the submissions of counsel for the parties in the light of the Ruling of the Court below. I am of the view that the three issues for determination as distilled in the Appellant’s brief

best represent the real issues for determination in this appeal. In my view, a consideration of these issues would invariably involve a consideration of the three similar issues as distilled in the Respondent’s brief. However, since these three issues are clearly interwoven, in my view, I shall consider them together and resolved them in one fell swoop.

But first there is a Notice of Preliminary objection incorporated into the Respondent’s brief challenging the competence of this appeal, and which being an issue bordering on competence of the appeal must be determined first one way or the other before if need be the merit of the substantive appeal is considered. Consequently, I hereby proceed anon to consider the Notice of Preliminary Objection of the Respondent.

NOTICE OF PRELIMINARY OBJECTION
By a Notice of Preliminary Objection embedded in the Respondent’s brief, the Respondent is challenging the competence of this Appeal on the ground that there is no Record of Appeal validly compiled and transmitted to this Court to sustain the Notice of Appeal.

RESPONDENT’S COUNSEL SUBMISSIONS
Learned counsel for the

Respondent had submitted that this appeal is incompetent in the absence of any valid Record of Appeal compiled and transmitted by this Appellant in this appeal and contended that in law the Appellant had 90 days within which to compile and transmit the Record of Appeal to this Court, and 45 days from the date of transmission of the Record of Appeal to file the Appellant’s brief, all of which it failed to do and urged the Court to hold that there being no valid Record of Appeal, this Appeal, as well as the Appellant’s brief, is incompetent and should be struck out. Counsel referred to Orders 8 and 19 of the Court of Appeal Rules 2016 and relied on Macfoy V. United Africa Company (1962) A.C. 152 @ 160.

APPELLANT’S COUNSEL SUBMISSIONS
Learned counsel for the Appellant had referred to and relied on the Appellant’s Counter-Affidavit filed on 22/6/2020 and submitted that the Appellant had pursuant to the leave granted by this Court on 22/11/2017 filed its Notice of Appeal on 12/12/2017 and had since filed an application to regularize it’s Record of Appeal and contended that the issue of invalidity of the Record of Appeal as well as

this Appeal was unfounded and urged the Court to hold that this Appeal is competent and to dismiss the Respondent’s Notice of Preliminary Objection for lacking in merit.

RESOLUTION OF THE PRELIMINARY OBJECTION
My Lords, I have taken time to look at the Record of Appeal in relation to its compilation and transmission to this Court in the light of the provisions of Order 8 of the Court of Appeal Rules 2016 which provides for period of ninety days for the Appellant to compile and transmit the Record of Appeal from the date of filing a Notice of Appeal. I have also looked at Order 19 of the Court of Appeal Rules 2016 which requires the Appellant to file the Appellant’s Brief of Argument within forty five days of the receipt of Record of Appeal. I have also taken time to consider the submissions of counsel in their respective briefs as to whether the Record of Appeal was valid and can thus support this appeal or invalid and therefore, rendered this appeal invalid.

Now, it is true that the existence of a valid Record of Appeal, that is one either duly compiled and transmitted to this Court within the time allowed by the Rules of this

Court or deemed as having been properly compiled and transmitted to this Court by an Order of this Court, is a prerequisite for a valid appeal to be heard and determined by this Court. Thus, I am in complete agreement with the apt submissions of the learned counsel for the Respondent that in law an appeal cannot be validly heard by this Court when there is no valid Record of Appeal, since an Appellant cannot place an Appellant’s brief on an invalid Record of Appeal. Indeed such an Appellant’s brief cannot stand since one cannot put something on nothing and still expect it to stand! See Macfoy V. United Africa Company (1962) A.C. 152 @ p. 160.
Having reiterated as above, the pertinent question is this: is the Record of Appeal in this Appeal invalid? Now what are the salient facts for the consideration of the submissions of counsel for the parties in this Preliminary Objection? These are the pertinent facts as can be seen from the Record of Appeal. The Ruling of the Court below appealed against by the Appellant was delivered on 19/1/2009. The Notice of Appeal was filed on 12/12/2017 pursuant to the leave of this Court granted on 22/11/2017.

The Record of Appeal was compiled and transmitted to this Court on 14/4/2010. However, on 9/11/2020, the Record of Appeal, on the face of it, was deemed as properly compiled and transmitted to this Court by an Order of this Court. The Appellant’s brief was filed on 22/12/2017 but was also deemed by an Order of this Court as properly filed on 9/11/2020.
On the state of facts as above, is the Record of Appeal, as well as the Appellant’s brief invalid or valid, and by implication, is this Appeal incompetent or incompetent? It is my view, and I so hold, that the Record of Appeal having been deemed by an Order of this Court made on 9/11/2020 as having been properly compiled and transmitted to this Court, it took away the sail in the Respondent’s Preliminary Objection, which was thereby rendered of no legal consequences and thus lacking in merit. I find that the Record of Appeal, as well as the Appellant’s brief which was also deemed as properly filed and served by this Court on 9/11/2020, is valid and therefore, the Appeal itself is competent, as aptly submitted by the learned counsel for the Appellant, to be heard and determined on the

merit. It follows therefore, that the Respondent’s Notice of Preliminary Objection was dead on arrival and thus liable to be dismissed for lacking in merit. Consequently, the Notice of Preliminary Objection is hereby, and without much ado, dismissed.

ISSUES ONE, TWO AND THREE (TAKEN TOGETHER)
Whether the Court below erred in law and in fact when it held that the Statement of Claim disclosed a reasonable cause of action, AND whether the Court below erred in law and in fact when it held that the Respondent had the Locus Standi to sue the Appellant AND whether the Court below erred in law and in fact when it Suo – Moto raised and decided on the issue of whether he need only consider the Writ of Summons and the Statement of Claim of the Respondent in considering the question of jurisdiction without giving counsel the opportunity to address her on said issue?

APPELLANT’S COUNSEL SUBMISSIONS
On issue one, learned counsel for the Appellant had submitted that a cause of action refers to a combination of facts and circumstances giving rise to the right of action and includes every material fact which is material to be proved to entitle

the Claimant to succeed and contended that for a cause of action to accrue in an action founded on breach of contract, there must be a contract between the parties and urged the Court to hold that there was no contract between the Appellant and the Respondent since the contract of insurance was between simply between the Appellant and a third party, A.R. Rasaq Motors Limited and to allow the appeal and set aside the Ruling of the Court below and strike out the Respondent’s Suit for being incompetent in that it failed to disclose any reasonable cause of action against the Appellant. Counsel relied on AG Bayelsa State V. AG Rivers State (2007)All FWLR (Pt. 349) 1012 @ p. 1052; Shell V. ВР Petroleum (1976) 1 All NLR (Pt. 1) 338; Orient Bank(Nig.) Plc. V. Bilante Int’l Ltd (1997) 8 NWLR (Pt. 515) 37 @ p. 38.

It was also submitted that the Court below was under a duty, which it failed to discharge, to examine the evidence placed before it to ascertain whether in law there is a valid contract between the parties as to the elements of a valid contract; (а) Offer (b) Acceptance (c) Capacity to contract (d) Consensus ad idem (e) Consideration (f) Intention to

create legal relations and contended that from the undisputed facts of this appeal, the only contract of insurance was between the Appellant and a third party as there was never any contractual relationship between the Appellant and the Respondent and urged the Court to hold that what was issued to the third party, A.R. Rasaq Motors Limited, by the Appellant, was not a bank guarantee but an insurance credit guarantee issued for the benefit of the Respondent and thus not amounting to any reasonable cause of action on the part of the Respondent against the Appellant and to allow the appeal and set aside the perverse Ruling of the Court below and strike out the Respondent’s Suit for being incompetent. Counsel referred to Black’s Law Dictionary, 8th Edition @ P. 815; Chitty on Contracts 29th Edition, Vol. 2 on Specific Contracts @ Pp. 1149 – 1150); Section 2 of the Insurance Act 2003 Cap 117 LFN; Section 71(1) of the Companies and Allied Matters Act 1990, and relied on Mobil Prod. (Nig.) Unltd V. Umenweke (2002) 9 NWLR (Pt. 773) 543 @ p. 557; Habib (Nig) Ltd V. Wahab Opomulero (2000) 15 NWLR (Pt. 690) 329 @ p. 330; Nwosu V. Imo State Environmental Sanitation Authority & Ors

(1990)2NWLR (Pt. 135) 688 @ p. 721; Ikono LG. V. De Beacon Fin & Sec Ltd (2002) 4 NWLR (Pt. 756) 128 @ p. 142; Adjekpemovor V. Onafeko (2000) FWLR (Pt. 9) 1425.

On issue two, learned counsel for the Appellant had submitted that the issue of locus standi is fundamental to the adjudication as it touches on the issue of jurisdiction in that in law once it is established that a Claimant has no locus standi to sue it means the Court has no jurisdiction to entertain such an action, which would be liable to be struck out and contented that in determining whether a Claimant has locus standi he must that:(а)His civil rights and obligations has been or is in danger of being violated or infringed and; (b) He has a justiciable dispute with the Defendant and urged the Court to hold that the Respondent is not a proper party to request the adjudication of the claims made against the Appellant and urged the Court to hold that the Respondent having never stated in its pleadings and Counter – Affidavit that it was a party and executed the contract of insurance with the Appellants had no locus standi to institute the action in respect of the contract

of insurance in which it was not a party even if it was made for its benefit and to allow the appeal and set aside the perverse Ruling of the Court below and strike out the Respondent’s Suit for being incompetent. Counsel referred to Section 50 (1) and 69(3) and (4) of the Insurance Act 1990, Laws of the Federation of Nigeria Cap 117 and relied on Sanyinna V. AIB (2001) 4 NWLR (Pt. 703) 355 @ p. 368; Foko V. Foko 1968 NMLR 441; Ordor V. Nwosu (1974) 1 All NLR(Pt. 11) 478; Adejumo V. Ayantegbe (1989) 3 NWLR (Pt. 110) 417 @ p. 444; Liberty Insurance Co. Ltd. V. John (1996) 1 NWLR (Pt. 423) 193 @ p. 201; Chuba Ikpeazu V. African Continental Bank Ltd.(1965) NWLR 374; Tweedle V. Atkingson 30 LJQB265; Dunlop Pneumatic Tyre Co. Ltd V. Selfridge & Co. Ltd (1915) A.C. 847; New India Assurance Company V. Olubanjo (1919) 1 NCLR 363; India Assurance Co. Ltd V. Odubanjo & Ors (1971) 7 NSCC @ pp. 268 – 269; Re: Harrington Motors Co. Ltd (1928) Ch 105.

On issue three, learned counsel for the Appellant had submitted that the Court below erred when it suomoto raised the issue of whether or not it need only confine itself to the Writ of Summons and Statement of

Claim when this issue was never argued by counsel for the parties and contended that whilst the Court below is entitled to raise any issue suo – motu it is under a duty to give opportunity to the parties to address it, which the Court below failed to do and urged the Court to hold that the Court below was wrong to have raised an issue raised suo – motu and without calling on the parties to address it reached a perverse decision in dismissing the Appellant’s Preliminary Objection without considering the avalanche of Affidavit evidence before it while confining itself to only the Writ of Summons and pleadings of the Respondent and to allow the Appeal and set aside the Ruling of the Court below and strike out the Respondent’s Suit for being incompetent. Counsel relied on Adesokan V. Adegorolu (1994) 3 NWLR (Pt. 179) 293 (@ pp. 305-306; AG. Enugu V. Omaba (1998) INWLR (Pt. 532) 83; Yesufu V. Governor Edo State & Ors (2001) 6SC @ p. 56; Nika Fishing Co. Ltd. V. Lavina (2008) 11 MJSC 43 @ pp. 51 – 52; Izenkwe V. Nnadozie (1953) 14 WACA 361; Adeyemi V. Opeyori (1976) 9-10 SC 31; Arjay Ltd V. Airline Management Support Limited (2003) 7NWLR(Pt. 820)

577 @ p. 601; NDIC V. CBN (2002) 7 NWLR (Pt. 766) 296; Usman V. Baba (2005) 5 NWLR (Pt. 917) 113; Adetayo V. Ademola (2010) 15 NWLR (Pt. 1215) 169; Osakwe V. Federal College of Education & Ors (2010) 5 NSCR 114 @ P. 137; Sanyinna V. AIB (2001) 4 NWLR (Pt. 703) 355 @ p. 368; A. -G. Federation V. AG. Abia State & Ors (2002) 6 NWLR (Pt. 763) 264; Yusuf V. Kode (1992) 6NWLR (Pt. 762) 231.

RESPONDENT’S COUNSEL SUBMISSIONS
On his issue one, whether the Court below was right in holding that the Respondent’s writ of summons and statement of claim disclosed a reasonable cause of action against the Appellant, learned counsel for the Respondent had submitted that the Court below was right in holding that the Respondent’s writ of summons and statement of claim disclosed a reasonable cause of action against the Appellant in that a cause of action refers to fact or facts which establish or give rise to a right of action, and is the factual situation which gives a person a right to judicial relief and contended that in law a Claimant would have a cause of action once his pleadings reveal: (a) a cause of complaint; (b) a civil right or obligation fit for determination by

the Court; and (c) the issue must be justiciable and urged the Court to hold that the Respondent showed by its pleadings the wrongful act of the Appellant which gave the Respondent its cause of complaint and the resultant damage from the Appellant’s act as correctly found by the Court below and to dismiss the Appeal and affirm the Ruling of the Court below. Counsel relied on Egbe V. Adefarasin (1987) 1 NWLR (Pt. 47) 1 @ pp. 20 – 21; Uwazuruonye V. Gov. Imo State(2013) 8 NWLR(Pt. 1355) 28 @ p. 50; Chevron Nig. Ltd Vs L D (Nig)Ltd. (2007) 16 NWLR (Pt.1059) 168 @ p. 193.

It was also submitted that from the terms of the Credit Guarantee, the three parties to it are the Lender, the Respondent then known as Intercontinental Bank Plc, the Borrower, A.R. Rasaq Motors Limited, and the Surety, the Appellant, as the Guarantor and contended that the Credit Guarantee was part of the security for the facility of N25,000,000 the Respondent granted to the Borrower, A.R. Rasaq Motors Limited and urged the Court to hold that the Court below was right when it held that by the contract of ‘Credit Guarantee’ between the parties, the Respondent clearly

disclosed a reasonable cause of action to warrant the dismissal of the Appellant’s Preliminary Objection for lacking in merit and to dismiss the Appeal and affirm the Ruling of the Court below. Counsel relied on Fortune International Bank Plc V. Pegasus Trading (Gmbh) (2004) 4 NWLR (Pt. 863) 369 @ p. 389.

It was further submitted that the Court below was correct in not relying on the interpretation accorded to the ‘Credit Guarantee’ in Exhibit AJ1 in the Appellant’s Affidavit as ‘Insurance Policy’ in determining whether the Respondent’s Suit disclosed a cause of action against the Appellant in that it would have amounted to going into the merits of the case of the parties at such an interlocutory stage and contended that in law all that the Court need do to resolve the issue of reasonable cause of action in the Respondent’s Suit is to carefully look at the averments in the Respondent’s Statement of Claim showing clearly a reasonable cause of action against the Appellant and urged the Court to hold that the Court below was right to hold that the Respondent’s Suit disclosed a reasonable cause of action against

the Appellant on the ‘Credit Guarantee’ and to dismiss the Appeal for lacking in merit. Counsel relied on Society Bic S.A. V. Charzin Industries Limited (2014) 4 NWLR (Pt. 1398) 497 @ p. 555; Opia V. INEC (2014) 7 NWLR (Pt. 1407) 431 @p. 453; Shell Petroleum Development Company of Nigeria Limited V. Ajuwa (2015) 14 NWLR (Pt 1480) 403 @ p. 473.

On his issue two, whether the Court below was right in holding that the Respondent has the locus standi to maintain an action against the Appellant, learned counsel for the Respondent had submitted that the Court below was right in holding that the Respondent has the locus standi to maintain an action against the Appellant in that the term locus standi refers to the legal capacity to institute proceedings in a Court of law and contended that all that a Claimant needs do to establish his locus standi is to plead the facts establishing his rights and obligations over the subject matter and urged the Court to hold that in law once the Respondent’s statement of claim established all the key elements of locus standi; violation of civil rights and obligations; sufficient interest in the matter and how the

interest arose; justiciable enforceable action, and the Existence of dispute, the issue of locus standi is settled as rightly found by the Court below and to affirm the correct finding of the Court below and dismiss the Appeal for lacking in merit. Counsel relied on Orogan V. Soremekun (1986) 5 NWLR (Pt. 44) 688; B.B. Apugo & Sons Ltd V. Orthopaedic Hospitals Management Board (2016) 13 NWLR (Pt. 1529) 206@ p. 269; Pacers Multi-Dynamics Ltd V. “M.V. Dancing Sister (2012) 4 NWLR (Pt. 1289) 169 @ p. 189; Jitte V. Okpulor (2016) 2 NWLR (Pt. 1497) 542 @ p. 574; Taiwo V. Adegboro (2011) 11 NWLR (Pt. 1259) 562 @p. 580; Adetona V. Zenith International Bank Plc (2011) 18 NWLR (Pt. 1279) 627 @ p. 644; Eghobamien V. Eghobamien (2013) 3 NWLR (Pt. 1341) 362 @ p. 376; Okonkwo V. Nuc. (2013) 15 NWLR (Pt. 1378) 482 @ p. 501.

It was also submitted that whilst is true in law that a Claimant who has no privity of contract with a Defendant will fail to establish a cause of action for breach of contract as he will not have the locus standi to sue the defendant on the contract and contended that there was privity of contract in the contract of Credit Guarantee in Guarantee

Bond No. CRB/02/2/00534/Z dated 29/3/2006by which the Appellant guaranteed the repayment of the Respondent’s offer of facility of N25,000,000.00 to one A.R. Rasaq Motors Limited in the event of default in the payment of the facility and urged the Court to hold that the simple contract of guarantee between the Respondent and the Appellant grounded locus standi in the Respondent as rightly held by the Court below and to dismiss the Appeal and affirm the correct finding of the Court below. Counsel relied onRebold Industries Limited V. Magreola (2015) 8 NWLR (PT. 1461) 210; Fortune International Bank Plc V. Pegasus Trading (Gmbh) (2004) 4 NWLR (Pt. 863) 369 @ p. 389; Chami V. UBA Plc (2010) 6 NWLR(Pt. 1191) 474 @ p. 501; Dragetanos Construction (Nig) Ltd V. Fab Madis Ventures Ltd (2011) 16 NWLR (Pt. 1273) 308 @ p. 400.

On his issue three, whether the Court below raised any issue suo motu when considering the Appellant’s Notice of Preliminary Objection, learned counsel for the Respondent had submitted that the Court below did not raise any issue suo motu but had merely considered the two issues arising for determination in the light of the settled

principles of law that in determining issues of reasonable cause of action as well as the issue of locus standi, it is the Statement of Claim that is of paramount consideration and contended that the reiteration and application of this settled principle of law by the Court below did not in any way amount to raising any issue suo – motu as erroneously canvassed by the Appellant in this Appeal and urged the Court to hold that the Court below was perfectly right to refer to and apply relevant settled principles of law on issues of reasonable cause of action and locus standi in determining the Appellant’s Notice of Preliminary Objection and to dismiss the Appeal for lacking in merit and affirm the correct Ruling of the Court below.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In her reply submissions, learned counsel for the Appellant reiterated and virtually rehashed her earlier submissions, which is the purpose of a reply brief, and submitted that the Court below ought to have averted its mind to the Appellant’s Affidavit accompanying the Notice of Preliminary Objection in considering and resolving the issues of reasonable cause of action

and locus standi rather than confining itself to the Writ of Summons and averments in the Respondent’s statement of claim and contended that even on the face of the pleadings of the Respondent alone neither was any reasonable cause of action of locus standi made out by the Respondent and urged the Court to so hold and to allow the Appeal, set aside the Ruling of the Court below and strike out the Respondent’s Suit for being incompetent. Counsel referred to Sections 1, 2 and 50 of the Insurance Act 2003 and relied on Unity Life & Fire Insurance Company Ltd V. Ladega & Ors (1994) LPELR–13916(CA); Andrew O. Ajufo V. Christopher Ajarbor & Ors. (1978) 6-7 SC 39 @ p. 52; Makwe V. Nwukor (2001) 14 NWLR (Pt. 733) SC; Shoreline Liftboats Nigeria Ltd. & Ors V. Premium Insurance Brokers Ltd. & Anor (2012) LPELR-9795(CA); Industrial And General Insurance Company Limited V. Adogu (2009) LPELR-15093(CA).

It was also submitted that at the time the Appellant’s Preliminary Objection was heard before the Court below in 2007 none of the decided cases from 2011 – 2016 now being relied upon in this Appeal had been decided and

contended that the position of the Apex Court as at 2007 was that in determining the issue of reasonable cause of action and or locus standi the Court should consider not only the Claimant’s statement of claim but in addition the affidavit and other processes before the Court and urged Court to hold that had the Court below followed and applied the decisions of the Apex Court, with which it was bound, and considered the Appellant’s Affidavit, it would not have arrived at the perverse finding that the Respondent’s Suit disclosed neither any reasonable cause of action nor locus standi in the Respondent and to allow the Appeal and set aside the Ruling of the Court below and to strike out the Respondent’s Suit. Counsel relied on Yesufu V. Governor of Edo State & Ors (2001) 6 SC 56; Ag. Enugu V. Omaba (1998) 1 NWLR (Pt. 532) 86.

RESOLUTION OF ISSUES ONE, TWO AND THREE
My Lords, the fulcrum of this appeal is whether the Respondent’s Suit disclosed any reasonable cause of action against the Appellant and also whether the Respondent had the requisite locus standi to institute the action against the Appellant.

However, in considering and resolving these crucial issues there are also the issues of whether the Court below was right in considering only the Writ of Summons and the Respondent’s Statement of Claim in deciding the issue of reasonable cause of action and locus standi and whether the Court below raised any issue suo – motu and determined same without calling on the parties, as required of it by law to address it on the issue raised suo – motu.

At the Court below, the Appellant had on 22/1/2008 in reaction to the Respondent’s Suit filed its statement of defense as well as a Notice of Preliminary Objection challenging the competence of the Respondent’s Suit and seeking the following reliefs, to wit:
1. An Order that the above-mentioned action be dismissed or struck out on the grounds that it discloses no cause of action against the Defendant.
2. An Order that the above-mentioned action be dismissed or struck-out on the grounds that the Plaintiff lacks the Locus Standi to bring the above-mentioned action against the Defendant.

The Preliminary Objection was supported by an Affidavit of 8 paragraphs deposed to by one

Mrs. Abimbola Jack, legal practitioner in the Law Firm of the Appellant’s counsel, annexed to which is Exhibit AJI, an Insurance Policy issued to one A.R. Rasaq Motors Ltd. In opposition, the Respondent had on 25/2/2008 filed a Counter-Affidavit deposed to by one Eneje Chris Ifesinachi. Both parties filed written addresses in support of their respective affidavit and counter – affidavit. In response, the Appellant filed a Reply on points of law. On 24/11/2008, the Appellant’s Preliminary Objection was duly heard and on 19/1/2009, the Court below dismissed the Appellant’s Preliminary Objection for lacking in merit.

Now, before considering and resolving the most crucial issues of lack of reasonable cause of action and lack of locus standi of the Respondent, since the parties had made very divergent submissions on whether Court below was right or wrong to have confined its consideration of the issues of lack of reasonable cause of action and locus standi to the Writ of Summons and the Respondent’s Statement of Claim, I deem it pertinent to consider this issue and resolve it one way or the other before proceeding to consider and resolve

the most crucial issues of lack reasonable cause of action and lack of locus standi of the Respondent.

My Lords, whilst it was vehemently contended for the Appellant that in the determination whether a Claimant’s Suit discloses a reasonable cause of action and or locus standi, the Court must consider holistically both the Writ of Summons, Statement of Claim and the Affidavit and documentary Exhibits of the Parties in the application challenging the competence of the Suit, it was equally vehemently contended for the Respondent that the basic materials to consider in the determination of reasonable cause of action and locus standi of a Claimant are the Writ of Summons and the Statement of Claim of the Claimant.

I have, though the position of the law on this issue remains, in my view, fairly well settled, taken time to review the plethora of decided cases relied upon by the parties. It appears to me that the most pertinent thing to consider first in an application challenging a Suit on grounds of lack of reasonable cause of action and or lack of locus standi is what the Claimant, who claims that he has a claim against the Defendant, is relying

upon for his claims. In order words, a Defendant need not file his own Statement of Defense or any other process at all before he could raise the issue of lack of reasonable cause of action and locus standi against the suit of a Claimant.
Thus, primarily and it has been so held over the years in an un-exhaustive long line of decided cases, that since the cause of action as well as the locus standi of a Claimant must be stated in his pleadings and can easily and readily be found in his Writ of Summons and Statement of Claim, it is to these most vital processes that a Court of law would critically look at and scrutinize in an application challenging a Claimant’s Suit on grounds of lack of reasonable cause of action and or lack of requisite locus standi. This would obviate the need for a Defendant to first file his pleadings and or file Affidavit evidence, in both of which he may by way of his defense make strenuous efforts at pleading the Claimant out of his cause of action and locus standi.
I do not think that it would be right ordinarily for a Court to look for the cause of action of a Claimant, and whether it is reasonable or not reasonable

as well as his own locus standi in the pleadings and affidavits of the Defendant, his adversary who will be more than willing to plead the Claimant out of his cause of action and or locus standi. Thus, if the Claimant has not disclosed any reasonable cause of action in his own Writ of Summons and Statement of Claim there would, in my view, be absolutely no need to even consider other materials as such a Suit would be liable to be terminated in limine if so asked for by the Defendant. The same scenario should apply, with even more force on the issue of lack of locus standi. I therefore consider the Writ of Summons and the Statement of Claim as the most crucial materials and documents to be considered by the Court in such an application. I cannot but agree completely with the submission of learned counsel for the Respondent that in determination of the issue of lack of reasonable cause of action and or lack of locus standi, as distinct from other species of allegations of lack of jurisdiction, all that the Court consider at the Writ of Summon and the Statement of Claim. See Egbe V. Adefarasin (1987) 1 NWLR (Pt. 47) 1 @ pp. 20- 21; Uwazuruonye V. Gov. Imo State

(2013) 8 NWLR (Pt. 1355) 28 @ p. 50.
In Chevron Nig. Ltd V. LD (Nig) Ltd. (2007) 16 NWLR (Pt.1059) 168 @ p. 193, the Supreme Court had, on this vexed issue, stated inter alia thus:
“It is therefore settled that a cause of action constitutes a bundle of facts and circumstances giving rise to the Plaintiff’s enforceable claims against the Defendant. The facts and circumstances have to be as pleaded in the statement of claim. And so, it has to be ascertained by having recourse to the statement of claim.”
My Lords, while not ruling out the possibility, in deserving and peculiar cases, of the Court looking at the Affidavit and or other processes in an application challenging a Claimant’s Suit on grounds of lack of reasonable cause of action and or lack of locus standi, which is not the norm but clearly an exception, the general rule is that in law all that a Court need do to resolve the issue of reasonable cause of action and or locus standi is to carefully look at the endorsements on the Writ of Summons as well as the averments in the Statement of Claim to see if the claim discloses any reasonable cause of action and or the locus standi

of the Claimant. See Society Bic SA. V. Charzin Industries Limited (2014) 4 NWLR (Pt. 1398) 497 @ p. 555, where the Supreme Court had reiterated inter alia thus:
“It is now well settled that in determining the cause of action in a suit, the only documents which the Court will look at are the Writ of Summons and the Statement of Claim… It follows that in determining whether the Plaintiff’s cause of action is within its jurisdictional competence, the Court limits itself to the Plaintiff’s Statement of Claim and Writ of Summons. The enquiry does not extend to the Defendant’s pleadings even though same had been filed in compliance with the Rules of Court. I think both the trial Court and the Court of Appeal were right in determining the cause of action in this suit by looking at the Statement of Claim only.”
See also Opia V. INEC (2014) 7 NWLR (Pt. 1407) 431 @ p. 453.
The settled position of the law remains the same even in respect of the issue of challenge to locus standi of a Claimant by a Defendant. See Taiwo V. Adegboro (2011) 11 NWLR (Pt. 1259) 562 @ p. 580, where Supreme Court had, in respect of the issue of locus standi, reiterated inter alia thus:

“Locus standi is determined by examining only the statement of claim. Furthermore, in determining whether a party has locus standi the chances that the action may not succeed is an irrelevant consideration.”
I have no difficulty whatsoever therefore, holding firmly the Court below was perfectly right and fell into no error at all, as was rather erroneously contended by the Appellant in this Appeal, when it confined itself to the averments in the Respondent’s Statement of Claim in determining whether the Respondent’s Suit disclosed any reasonable cause of action as well as the requisite locus standi of the Respondent, but without determining at this stage whether or not the decision of the Court below that the Respondent’s Suit disclosed reasonable cause of action as well as the Respondent’s locus standi was correct or wrong until it is duly and later considered in this judgment. See Jitte V. Okpulor (2016) 2 NWLR (Pt. 1497) 542 @ p. 574. See also Shell Petroleum Development Company of Nigeria Limited V. Ajuwa (2015) 14 NWLR (Pt 1480) 403 @ p. 473; Adetona V. Zenith International Bank Plc (2011) 18 NWLR

(Pt. 1279) 627 @ p. 644; Eghobamien V. Eghobamien (2013) 3 NWLR (Pt. 1341) 362 @ P. 376; Okonkwo V. N.U.C. (2013) 15 NWLR (Pt. 1378) 482 @ p. 501.
I have looked closely at the decision of this Court in AG. Enugu V. Omaba (1998) 1 NWLR (Pt. 532) 83, justifying as it were recourse by Courts to affidavit evidence in the determination of the issues of lack of reasonable cause of action and or locus standi, and I find that this decision seems to be forlorn and is not supported by a long line of other decided cases of both the Supreme Court and this Court. I shall say nothing more on it!

Let me now proceed to consider and resolve issue one as to whether or not the Court below was right when it held that the Respondent’s Suit disclosed a reasonable cause of action against the Appellant. I have already held that the most crucial document to consider in the determination of the issue whether or not the Respondent’s Suit disclosed a reasonable cause of action is the Respondent’s Statement of Claim. In the Respondent’s Statement of Claim, it was averred inter alia as follows:
7. The Claimant avers that in order to ensure that the

repayment of the facility is guaranteed, the Claimant in addition to obtaining an agreement from Benue Cement Company Gboko to domicile the proceeds of the contract sum with the Claimant, requested for an Insurance Credit Guarantee Band to guarantee the repayment of the facility to the Claimant in event of default by A.R. Rasaq Motors Limited.
8. The Claimant avers that the Defendant issued a Credit Guarantee Bond, Policy No. CRB/02/2/00534/Z dated 29/3/2006, to the tune of N25,000, 000 in favour of the Claimant to guarantee there payment of the facility in event of default by A.R. Rasaq Motors Limited in repaying the facility Claimant shall at the trial rely on the Credit Guarantee Bond dated 29/3/2006.
9. The Claimant avers that based on the Credit Guarantee Bond issued by the Defendant in favour of the Claimant guaranteeing there payment of the facility granted to A. R. Rasaq Motors Limited for the sum of low pour fuel oil to Benue Cement Company Gboko, the Claimant disbursed the sum of N25,000,000 to A.R. Rasaq Motors Limited. Claimant shall at the trial rely on the Offer Letter of the facility.
10. The Claimant avers that by the terms

of the Credit Guarantee Bond, the Defendant was to fully satisfy/liquidate any amount outstanding, due to or owed the Claimant by A. R. Rasaq Motors Limited in event that the said A.R. Rasaq Motors Limited fails to liquidate the facility upon maturity.
11. The Claimant avers that Benue Cement Company Plc failed to domicile the payment into A. R. Rasaq Motors Limited’s Account with the Claimant, but instead paid directly to A.R. Rasaq Motors Limited in event that the said A.R. Rasaq Motors Limited who diverted the money lo the company’s account with GT Bank and refused to liquidate the facility.
12. The Claimant avers that the validity period for the Credit Guarantee Bond was 29/9/2006.
13. The Claimant avers that before the expiration of the Bond, the Claimant by a letter dated 22/6/2006, notified the Defendant that the validity period for the repayment of the facility will expire on 29/6/2006, and Benue Cement Company Gboko had not paid while the goods had been supplied. Claimant shall at the trial rely on the letter.
14. The Claimant avers that the Defendant by a letter dated 6th July, 2006, acknowledged the receipt of the Claimant’s

demand letter dated 22nd June, 2006, and by an Addendum dated 7/8/2006, informed the Claimant that Alhaji Rasaq has requested for tenor extension to 30th December, 2006, Claimant shall at the trial rely on the said letter and Addendum dated 7/8/2006.
15.The Claimant further avers that the Claimant by a letter dated 11/9/2006, notified the Defendant of the payment of the sum of N17,500,000 to A.R. Rasaq Motors Limited as part of the proceeds of the contract financed by the Claimant and guaranteed by the Defendant. Claimant shall at the trial rely on the letter.
16. The Claimant avers that by a letter dated 16/10/2006 and 1/11/2006, (after the Claimant has called-in the Bond), the Claimant demanded for the repayment of the facility from the Defendant as A.R. Rasaq Motors Limited had failed and refused to liquidate the facility. Claimant shall at the trial rely on the said letters.
17. The Claimant avers that in response to the Claimant’s demand letters, the Defendant by a letter dated 17/11/2006, admitted owing the Claimant and pleaded for the grant of the extension requested for in the Addendum referred to in paragraph”14″ above.

Claimant shall at the trial rely on the letter dated 17/11/2006.
18. The Claimant avers that in the said letter dated 17/11/2006, the Defendant also undertook to pay the Claimant the guaranteed sum of N25,000,000 before the expiration of the extension period which was 30/12/2006.
19.The Claimant avers that the Claimant’s Solicitors, again wrote a demand letter dated 18th December, 2006, to the Defendant demanding for the payment of the guaranteed sum by the Defendant. Claimant shall at the trial rely on the letter.
20. The Claimant avers that despite repeated demands, the Defendant has failed and refused to honour its obligation under the Credit Guarantee Bond, Policy No: CRB/02/2/00534/Z.

Now, having carefully considered the averments of the Respondent as to why it had instituted the action against the Appellant before the Court below, I have asked myself: Are the facts as pleaded by the Respondent sufficient and did it disclose any reasonable cause of action against the Appellant? In law, cause of action simply put refers to fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person a right

to judicial relief. It is constituted of the following elements, namely: (a) a cause of complaint; (b) a civil right or obligation fit for determination by the Court; and (c) a justiciable issue. Thus, once the averments in a Statement of Claim discloses facts showing these essential elements, then such a claim would be said to have disclosed a reasonable cause of action, notwithstanding how weak it may be or how strong the defense put forward by the Defendant might be on the merit. See Egbe V. Adefarasin (1987) 1 NWLR (Pt. 47) 1 @ pp. 20- 21; Uwazuruonye V. Gov. Imo State (2013) 8 NWLR (Pt. 1355) 28 @ p. 50.
In Chevron Nig. Ltd Vs L D (Nig) Ltd. (2007) 16 NWLR (Pt.1059) 168 @ p. 193, the Supreme Court had succinctly stated inter alia thus:
“As can be seen from the definition, the proposition resolves into two crucial factors thus: the Defendant’s wrongful act and the consequential damage to the Plaintiff. These two factors must co-exist to constitute a cause of action before the Court. It does not take account of whether the cause of action will succeed or fail. A cause of action is valid irrespective of the strength or weakness of the Plaintiff’s case.”

Now, the Respondent had in its pleadings averred to the facts and circumstances of what it considers its grouse with the Appellant leading to the institution of the Suit against the Appellant. These facts include; that the Appellant had issued a Credit Guarantee in favour of the Respondent guaranteeing the repayment of a facility of N25,000,000 granted to one A. R. Rasaq Motors Ltd by the Respondent; that at the expiration of the ‘Credit Guarantee’ bond issued by the Appellant, and upon the default of A. R. Rasaq Motors Ltd., to repay the facility, the Respondent demanded the Appellant to pay the N25,000,000 facility whose repayment was guaranteed by it; the Appellant refused to discharge its obligation under the credit guarantee to the Respondent; the Appellant failed or refused to repay the said sum of N25,000,000 despite repeated demand for payment by the Respondent; the act of refusal by the Appellant to repay the guaranteed facility sum of N25, 000, 000 is the alleged as wrongful.

My Lords, it is pertinent to point it out at once here and now that it is completely immaterial in a Preliminary Objection alleging lack of

reasonable cause of action, whether the facts as averred would lead to a successful prosecution of the claims of the Respondent against the Appellant or that the defense being put forward by the Appellant either in its Statement of Defense or Affidavit evidence were very strong and capable of defeating the claims of the Respondent on the merit at the trial. See Chevron Nig. Ltd Vs L D (Nig) Ltd. (2007) 16 NWLR (Pt.1059) 168 @ P. 193.

Now, in the ‘Credit Guarantee’ Bond No. CRB/02/2/00534/Z, it is provided inter alia thus:
“BY THIS BOND dated 29/3/2006 Mutual Benefits Assurance Plc of 277B Ajose Adeogun Street, Victoria Island, Lagos (hereinafter called the “surety”) is held firmly bound to Intercontinental Bank Plc (herein called the “Lender) in the sum of N25,000,000.00 (Twenty Five Million Naira only) for the payment of which sum to the Lender the Surety binds itself, successors in title and assigns by this Credit Guarantee. WHEREAS by a duly accepted offer letter dated 27h March, 2006 the bank offered A.R. RASAQ MOTORS LIMITED of Plot 15, Alhaji Rasaq Rufai Close, Shasha, Ibadan (herein called “the Borrower”) a facility of

N25,000,000.00 (Twenty Five Million Naira Only) (herein called the “facility”) to finance the supply of LPFO (Black Oil) for Benue Cement Company Gboko upon terms and conditions of the said offer letter (herein called “the Contractor”) (a) As part of the security for the facility, the bank has requested a bond issued in favour of the Bank by an Insurance Company of repute acceptable to the Bank and pursuant to the foregoing, the Bank requested the surety and the Surety has accepted to issue Credit Guarantee in favour of the Bank.“ See pages 6 – 7 of the Record of Appeal

My Lords, even a cursory glance through the “Credit Guarantee Bond”, which to the Appellant was simply an ‘Insurance Policy’, while to the Respondent is a simple ‘Contract of Guarantee’, the terms of the Bond show clearly, but contrary to the vehement contention of the Appellant, the three parties to the Bond, namely: 1. The Lender, the Respondent then known as Intercontinental Bank Plc; 2. The Borrower, A.R. Rasaq Motors Limited, and 3. The Surety, the Appellant, as the Guarantor.
It is not in any dispute whatsoever, even between the parties,

that the Credit Guarantee Bond of the Appellant was part and parcel of the security and thus sine quo non for the granting of the facility of N25, 000, 000 by the Respondent to the Borrower, A.R. Rasaq Motors Limited. The Appellant knew what it was entering into when it issued the Credit Guarantee Bond. It is simply a guarantee that in the event of default by the Borrower to repay the facility of N25,000,000, the Appellant will repay the facility to the Respondent. This, in my finding, was a condition precedent to the granting and disbursement of the facility of N25,000,000 to the Borrower by the Respondent.
I have for whatever it is worth also taken a look at the Affidavit of the Appellant, which had formed the basis for the Appellant’s vehement contentions that had the Court below considered it, it would not have come to the conclusion as it did that the Respondent’s Suit disclosed a reasonable cause of action against the Appellant. In the Affidavit in support of the Appellant’s Preliminary Objection, it was deposed inter alia as follows:
That I am informed by Miss FRA Williams, counsel in charge of this matter and I verily

believe her that, the Defendant/Applicant and A.R. Rasaq Motors Limited entered into a Commercial Insurance Agreement for N25,000,000.00 made in favour of the Claimant/Respondent in the event that A.R. Rasaq Motors Limited was unable to conclude the contract to finance LPO for Benue Cement Company Pl. Now shown to me and marked as Exhibit AJ1 is a copy of the Insurance Policy.
That the said N25,000,000.00 Naira was issued as an Insurance Policy for which A.R. Rasaq Motors Limited paid a non- refundable premium.
That the Defendant/Applicant never at any time concluded any contract of guarantee with the Claimant/Respondent in respect of this transaction, neither did the Claimant/Respondent pay any premium nor consideration to the Defendant/Applicant for this transaction.
That neither A.R. Rasaq Motors Limited nor the Claimant/Respondent ever disclosed at any time the full extent of A.R. Rasaq Motors Limited’s liabilities or the fact that they were already owing the Claimant/Respondent any money.
That if the Defendant/Applicant had at anytime been made aware of the liability they would not have concluded the contract of Insurance with A.R.

Rasaq Motors.” See pages 3 – 4 of the Record of Appeal.
In the Ruling appealed against, the Court below had reviewed the facts as pleaded by the Respondent and came to the finding that the Respondent’s Suit disclosed a reasonable cause of action against the Appellant, while stating and holding inter alia inter alia thus:
“The Claimant is a banker registered in Nigeria. Amongst its customers is a company known as A.R. Abdul Rasaq Motors Limited. The customer was awarded a contract to supply low-pour fuel oil (L.P.F.O.) commonly referred to as Black oil to the Buo Cement Company Gboko. To finance the supply of this product, the said A.R. Abdul Rasaq Motors applied to the Claimant for a loan facility for N25,000,000. The bank, although favorably disposed to granting the loan, insisted on the customer presenting it with a guarantee issued by an insurance company of repute in Nigeria. The guarantee was to be added security for the repayment of the loan. A.R. Motors Limited duly obtained this from the Defendant and the loan facility of N25,000,000 was disbursed accordingly. The customers, A.R. Abdu Rasag Motors Limited has defaulted in honouring

the terms of repayment and the Claimant now seeks to invoke the terms of the guarantee to recover its money from the Defendant who is resisting this….It is apparent to this Court from studying the said Statement of Claim that an undeniable effort was made at establishing a prima facie nexus between the Claimant and the Defendant on one hand and the Claimant’s claim on the other…The key elements of a contract having been duly pleaded by the Claimant, I can see no sustainable or legally justifiable reason to uphold the Defendant’s arguments that the Claimant has failed to show a prima facie cause of action in this suit…..” See pages 50 – 55 of the Record of Appeal.
Now, looking at the entirety of the depositions in the Appellant’s Affidavit, I am unable to see how they, apart from raising possible and perhaps seemingly very strong defenses, could amount to showing lack of reasonable cause of action in the Respondent’s Suit. On the one hand, whilst the Respondent stated that it has a simple contract of guarantee as a form of security for the Appellant to repay the facility of N25,000,000 granted to one A. R. Rasaq

Motors Limited, on the other hand the Appellant stated that it had no contract with the Respondent. In law, this would amount simply to joinder of issues, which proof cannot be the subject of an interlocutory application by way of a Preliminary Objection. The Appellant cannot in law use its possible or likely defenses, no matter how strong to dislodge a reasonable cause of action at such an interlocutory stage.
In Zenith Bank Plc V. Ato Properties Limited (2019) LPELR – 47783 (CA), this Court was faced with the construction of a guarantee bond, an ‘Advance Payment Guarantee’ couched in terms similar to the ‘Credit Guarantee Bond’ in the instant appeal. In its judgment this Court, per Georgewill JCA., had, in construing the terms of the Advance Payment Guarantee, stated inter alia thus:
“There is no gainsaying that where a Bank, such as the Appellant executes a guaranty in favor of the Respondent, it is not and cannot be for the mere fun of it…In law, a contract of guarantee is not to be entered into lightly or feebly but rather one to be entered into with utmost good faith involving the voluntary shouldering of

enormous obligation of trust and security of the party guaranteed in favor of the party in whose favor the guarantee is made. It should only be entered into after careful thought and consideration of its implications on the guarantor in the event of its breach. A guarantor, would therefore, not be let go on flimsy or lame excuses when he is called upon to bear his obligations under a contract of guarantee. Thus, the conditions under which a guarantor can be discharged from or relieved of his liability under a contract of guarantee would include, inter alia, the following, none of which I find operates in favor of the Appellant in the instant appeal, namely: a. where his obligation under the guarantee contract has been satisfied; b. where the principal debt has been extinguished by an act or acts of the parties; c. where a limitation or prescriptive period has elapsed; and d. where a Court applies a presumption which operates to terminate the contract of guarantee. See FBN Plc V. Songonuga (2007) (Pt. 1021) 230 @ pp. 278 – 279.”
My Lords, having taken time to consider the facts and circumstances as copiously pleaded by the Respondent, but without at

this stage deciding whether they may succeed or not at the substantive trial, as well as the Appellant’s Affidavit, and having considered the findings of the Court below in the Ruling appealed against, I am satisfied, and I so firmly hold that, on the facts as copiously pleaded by the Respondent, the Court below was perfectly right when it held that the Respondent’s Statement of Claim disclosed a reasonable cause of action in the alleged wrongful act of the Appellant which gave rise to the filing of the Suit against the Appellant by the Respondent. See Society Bic S.A. V. Charzin Industries Limited (2014) 4 NWLR (Pt. 1398) 497 @ P. 555. See also Opia V. INEC (2014) 7 NWLR (Pt. 1407) 431 @ p. 453; Shell Petroleum Development Company of Nigeria Limited V. Ajuwa (2015) 14 NWLR (Pt 1480) 403 @ p. 473.

Having found that the Court below was correct when it found that the Respondent’s Suit disclosed reasonable cause of action, this Court being an Appellate Court has no business disturbing the correct findings of a trial Court, such as the Court below but is under a duty simply to affirm the same. Indeed an Appellate Court is not so much

concerned with the correctness or wrongness of the reasons adduced by a trial Court for its decisions or conclusions but rather is more concerned with whether the decision reached or conclusion arrived at was correct or wrong. See Alhaji Ndayako & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198. See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46.

Consequently, I hereby affirm as correct the finding of the Court below that the Respondent’s Suit did disclosed reasonable cause of action against the Appellant. In the circumstances therefore, I have no difficulty holding firmly that the Respondent’s Suit did disclosed reasonable cause of action against the Appellant. Consequently, issue one is hereby resolved against the Appellant in favor of the Respondent.

Having held firmly that the Respondent’s Suit disclosed reasonable cause of action against the Appellant, let me now consider issue two, which is whether the Respondent, on the facts as pleaded by it, as well as considering the Affidavit evidence of the Appellant, had the requisite locus standi to institute and maintain

its Suit against the Appellant? In other words, was the Court below right when it held that the Respondent has the locus standi to maintain its action against the Appellant? I have taken time to reproduce in extenso and reviewed the pleadings of the Respondent disclosing its cause of action against the Appellant. I have also set out and reviewed some of the salient Affidavit evidence of the Appellant in support of its Preliminary Objection challenging the competence of the Respondent’s Suit.

Now, whilst on the one hand, it has been vehemently contended for the Appellant that the Respondent was not a party to the ‘Insurance Policy’ and therefore, cannot sue on it even if it was made for its benefit since in law it did not have any privity of contract to enforce it against the Appellant, on the other hand it has also been vehemently contended for the Respondent that the transaction between the parties was a simple ‘Credit Guarantee Bond’ involving a tripartite agreement between the Respondent as the Lender, one A. R. Rasaq Motors Ltd as the Borrower, and the Appellant as the Guarantor and thereby clothing the Respondent with

the requisite locus standi to enforce the contract of guarantee against the Appellant. A plethora of both statutory and decided cases were relied upon by counsel for these divergent contentions and I have taken time to go through the law reports of these cases as well as gone through the provisions of the Statutes referred to by them.

My Lords in law, the term locus standi, though expressed in Latin, simply refers to the legal capacity of a party to institute proceedings in a Court of law. Thus, all that a Claimant or a Counter Claimant as the case may be, need to do to establish his locus standi is to succinctly plead in his pleadings the entire or sufficient facts establishing his rights and obligations, including or showing all the key elements of locus standi, namely: violation of civil rights and obligations, sufficient interest in the matter and how the interest arose; justiciable enforceable action, all culminating into showing the existence of dispute between the parties. Once, these facts are evident or apparent in the pleadings of a Claimant against a Defendant, the issue of locus standi is settled in favor of such a Claimant.

See Orogan V. Soremekun (1986) 5 NWLR (Pt. 44) 688.
In B.B. Apugo & Sons Ltd V. Orthopaedic Hospitals Management Board (2016) 13 NWLR (Pt. 1529) 206 @ P. 269, the Supreme Court had reiterated inter alia thus:
“A person has locus standi to sue in an action if he is able to show to the satisfaction of the Court that his civil rights and obligations have been or are in danger of being infringed. There are two tests for determining if a person has locus standi. They are: 1. The action must be justiciable, and, 2. There must be a dispute between the parties…To have locus standi the Plaintiff’s Statement of Claim must disclose sufficient legal interest, and show how such interest arose in the subject matter of the action. It follows that a Plaintiff can only invoke the judicial powers entrenched in Section 6(6)(b) of the Constitution of Nigeria 1999 (as amended) if, he has locus standi. He has locus standi if he can show that he has a stake in the subject matter or outcome of the case, and must be able to establish that what he suffers or the injury to his person was the consequence of the Defendant’s act or conduct. There must be nexus between the

Plaintiff’s action and the Defendant’s actor conduct.”
See also Pacers Multi-Dynamics Ltd V. “M.V. Dancing Sister (2012) 4 NWLR (Pt. 1289) 169 @ p. 189.

In the ruling appealed against, the Court below had, after a thorough review of the averments in the Respondent’s Statement of Claim, came to the conclusions inter alia thus:
“On the issue of the Claimant’s locus standi to file this suit, I must quickly remark that it is that person in whom an enforceable right is vested that enjoys the locus to sue on such night. A justifiable claim must prima facie be shown to exist between the person who makes a claim and the one against whom the claim is made for standing, will only be accorded to a Plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected by the act complained of…In deciding on locus standi, like in determining the existence of a cause of action, the Statement of Claim is of paramount consideration…What the Claimant is required to show are the facts establishing his rights and obligations in respect of the subject matter of the suit…The issue has

nothing whatsoever to do with the success or merit of the case but rather on whether a Claimant has sufficient interest in the subject-matter of the dispute…” See pages 50 – 55 of the Record of Appeal.
My Lords, the above approach of the Court below by confining itself to the Respondent’s Statement of Claim in its consideration of the issue of locus standi of the Respondent had received the trenchant criticisms by the learned counsel for the Appellant. However, having reviewed the majority of decided cases on this issue of locus standi and what processes a Court faced with a challenge to the locus standi of a Claimant should look at, I am satisfied that the approach by the Court below was perfectly in order and therefore, all the lengthy trenchant criticisms by the learned counsel for the Appellant were unguarded, misconceived, unwarranted and therefore lacked substance. See Jitte V. Okpulor (2016) 2 NWLR (Pt. 1497) 542 @ p. 574, where Supreme Court had with brevity but succinctly stated inter alia thus:
“Of course, it is the statement of claim that will show whether the Plaintiff has locus standi to sue or not.”

See also Taiwo V. Adegboro (2011) 11 NWLR (Pt. 1259) 562 @ p. 580, where the Supreme Court had also reiterated inter alia thus:
“Locus standi is determined by examining only the statement of claim. Furthermore, in determining whether a party has locus standi the chances that the action may not succeed is an irrelevant consideration.”
See further Adetona V. Zenith International Bank Plc (2011) 18 NWLR (Pt. 1279) 627 @ p. 644; Eghobamien V. Eghobamien (2013) 3 NWLR (Pt. 1341) 362 @ P. 376; Okonkwo V. N.U.C. (2013) 15 NWLR (Pt. 1378) 482 @ p. 501.
Now, with the exception of the decision of this Court in AG Enugu V. Omaba (1998) 1 NWLR (Pt. 532) 83, none of the plethora of cases relied upon by the parties supports the vehement contentions by the Appellant that a Court in considering the locus standi of a Claimant must consider Affidavit evidence of the parties, particularly the Defendant outside the facts as averred to in the Statement of Claim to determine the locus standi of Claimant. So, what is the case of the Respondent as copiously averred to and pleaded in its Statement of Claim as are necessary to be considered to see whether or not the

Respondent had the requisite locus standi to institute and maintain this action against the Appellant, without necessarily determining at this stage in this Appeal whether the Respondent’s Suit has merit or not?

The Respondent stated that it is a banker registered in Nigeria and having amongst its Customers one A.R. Rasaq Motors Limited, which was awarded a contract to supply ‘Black Oil’ (LPFO) to the Benue Cement Company, Gboko. To finance this supply, it applied to the Respondent for a loan facility of N25,000,000. The Respondent was favourably disposed to granting the said loan but insisted on additional security for repayment of the said loan by way of a guarantee issued by an insurance company of repute in Nigeria. Here, the Appellant stepped in, on the approach by A.R. Rasaq Motors Limited, and issued the guarantee to the Respondent by way of ‘Credit Guarantee Bond’ on behalf of the said Customer as the additional security for the repayment of the said loan. Upon this guarantee and other terms as agreed, the loan amount was then disbursed to A. R. Rasaq Motors Ltd, which had failed or defaulted in repaying the said

loan to the Respondent. The Respondent then demanded from the Appellant the repayment of the said loan as the guarantor to the Debtor but the Appellant had refused and or failed to discharge its obligation under the Credit Guarantee Bond to the Respondent despite repeated demands, hence the Respondent’s Suit to recover the amount of the said loan plus interest from the Appellant as guarantor for the repayment of the said loan.

It is on the strength of the above facts and circumstances as copiously and succinctly pleaded by the Respondent, that the Court below had in its Ruling, but without making any findings on the merit of the claims of the Respondent at that interlocutory stage, held inter alia thus:
“The act complained by the Claimant as being an infringement of his right in the instant case is the refusal of the Defendant to repay the N25,000,000 loan advanced to the A.R. Rasaq Motors Limited and on the strength of the Defendant’s purported guarantee as surety. I believe this is substantial enough reason for locus to appropriate to the Claimant.” See page 55 of the Record of Appeal
Having considered the totality of the facts and

circumstances of this case and having taken time to consider the applicable principles of law in relation to what is up for consideration in a Preliminary Objection challenging locus standi of a Claimant, and not the merit of the claims of the Respondent at this stage, I hold firmly that, on the state of the Respondent’s Statement of Claim as well as the Affidavit evidence of the Appellant, for whatever it is worth in a preliminary objection challenging the locus standi of the Respondent which ought to be determined upon its own pleadings as the Claimant before the Court below, the Respondent has the requisite locus standi to institute and maintain its Suit against the Appellant. I hold further therefore, that the Court below was on firmer ground when it impeccably held that the Respondent had the locus standi to institute its Suit against the Appellant.
Now, it is true in law that a Claimant who has no privity of contract with a Defendant will also fail to establish a reasonable cause of action for breach of contract and thus would not have the locus standi to sue the Defendant on such a contract, yet a contract of guarantee as in the

‘Credit Guarantee Bond’ by which the Appellant voluntarily and consciously guaranteed the repayment of the loan of N25,000, 000 granted by the Respondent to one A. R. Rasaq Motors Ltd, there is indeed a privity of contract in the said contract of Credit Guarantee Bond No. CRB/02/2/00534/Z dated 29/3/2006, thereby clothing the Respondent with the requisite locus standi to enforce the said guarantee contract against the Appellant to make good its guarantee, and whether the Respondent would succeed or fail in the substantive Suit is of no moment and was not up for consideration at the stage of the interlocutory application challenging the competence of the Respondent’s Suit on grounds of lack of locus standi.
In law, a contract of guarantee is an independent contract distinct from the contract between the parties to the original contract. Thus, it can be enforced independently or directly against the Guarantor without the necessity of joining the original obligor or principal debtor. This is why it is not to be entered lightly and or thoughtlessly as envisioned by the Appellant as apparent from its contentions in this appeal. It is rather

a thing of honor and responsibility to present oneself as a surety of one party to the another party in a purely commercial transaction. See Zenith Bank Plc V. Ato Properties Limited (2019) LPELR – 47783(CA), per Georgewill JCA. See also Rebold Industries Limited V. Magreola (2015) 8NWLR (PT. 1461) 210; Fortune International Bank Plc V. Pegasus Trading (Gmbh) (2004) 4 NWLR (Pt. 863) 369 @ P. 389.
In Chami V. UBA Plc (2010) 6 NWLR (Pt. 1191) 474 @ P. 501, the Apex Court had given its imprimatur on this vexed issue of the legal implications of a guarantee when it stated inter alia thus:
“The term ‘Guarantee’ has been defined as a written undertaken made by one person to another to be responsible to that other if a third party fails to perform a certain duty e.g. payment of debt, the Guarantor (or surety as he is sometimes called) becomes liable for the said debt. In the instant case, the Respondent roved by Exhibit 1 the existence of the Contract of Guarantee executed by the Appellant to surety the debt of Rasha Enterprises Limited…. It is settled law that where a person personally guarantees the liability of a third party by entering

into a contract of guarantee or suretyship, a distinct and separate contract from the principal debtor’s is thereby created between the guarantor and the creditor. The contract of guarantee so created can been forced against the guarantor directly or independently without the necessity of joining the principal debtor in the proceedings to enforce same.”
See Dragetanos Construction (Nig) Ltd V. Fab Madis Ventures Ltd (2011) 16 NWLR (Pt. 1273) 308 @ P. 400.
Incredibly, it was even suggested or so it seems apparent from the submission of learned counsel for the Appellant that despite the clear guarantee issued by the Appellant as surety for the repayment of the loan of N25,000, 000 by A. R. Rasaq Motors Ltd to the Respondent in the event of default in the repayment by A. R. Rasaq Motors Ltd, the Respondent ought to have first sued A. R. Rasaq Motors Ltd and obtain judgment and thereafter the Appellant being the ‘Insurer’ would then step in majestically I suppose, to offset the judgment sum since in a law a person who is not the insured cannot maintain an action against the Insurer even if the contract of insurance was entered into for his

benefit. This contention is way off the mark and far from the reality of the facts as pleaded by the Respondent in its Statement of Claim, and which for the purposes of the challenge to the locus standi of the Respondent is the most determinant and dominant document or material to be considered by the Court. Thus, Exhibit AJ1, a ‘Credit Guarantee Bond’ attached to the Appellant’s Affidavit is not a ‘Contract of Insurance’ but rather it is a ‘Contract of Guarantee’ and no amount of legal sophistry can convert it into what it is not!
My Lords, before I sign off on the consideration of issue two, I also recall that it was argued somewhere in this appeal by the Appellant that consideration did not move from the Respondent to the Appellant as required by law to constitute any binding contract between the parties and that at best it was one A. R. Rasaq Motor Ltd that paid premium to the Appellant. I think a little demonstration of how a contract of guarantee works would put this issue to rest. Now, if Mr. A, the Borrower approaches Mr. B, the Lender to take a loan and Mr. B insists on a Guarantor for the repayment of

the loan and Mr. A approaches Mr. C, the Guarantor to be his Guarantor. Then, Mr. A, the borrower would be obliged to furnish consideration to Mr. C as his Guarantor and if Mr. B, the Lender is satisfied with C as the Guarantor, would then grant the loan to Mr. A, the Borrower/Principal Debtor, while Mr. C, would then become the Guarantor. So, in law would the ‘Contract of Guarantee’ thereby created be invalid or inchoate because Mr. B, the Lender did not furnish any consideration to Mr. C, the Guarantor under the principles of law on consideration in Contract? I think not.
There is no law, at least not to my knowledge on this aspect of the law of contract, and I have indeed been involved over a long period of time spanning over thirty years in the research and application of the relevant principles of law on contract, that requires that a Lender should or ought to furnish consideration to a Guarantor to a Borrower for a Contract of Guarantee to be valid in law. Rather, in law, it is the Borrower that is under a duty to furnish consideration to his Guarantor in a ‘Contract of Guarantee.’ In the instant appeal therefore, the

Respondent, as Lender was not under any legal obligation or duty to furnish any kind of consideration to the Appellant, the Guarantor to A. R. Rasaq Motors Ltd. the Borrower for the repayment of the loan of N25,000,000 thereby granted to A. R. Rasga Motors Ltd., which repayment to the Respondent was guaranteed by the Appellant. In the light of all I have said and held above, I have no difficulty whatsoever resolving issue two against the Appellant in favor of the Respondent.

I now come to issue three, which to my understanding is actually just a mere restatement of the relevant principles of law in an applications challenging cause of action and locus standi of a Claimant by the Court below but converted into an issue for determination in this appeal by the Appellant. It is true that in law a Court of law, though having the plenitude of powers to raise issues suo – motu, must call on the parties to address it on any issue raised suo – motu by it before reaching any decision on such an issue raised suo – motu. Thus, failure by a Court to do so would result in not only a miscarriage of justice but also a breach of the right of the parties to fair hearing,

with the devastating consequences of rendering any such decision a nullity, liable to be set aside if appealed against by the aggrieved party and decided authorities on this principle of law is legion! See Adebayo Segun Oni V. John Kayode Fayemi & Ors (2019) LPELR – 49299 (SC). See alsoAraka V. Ejeagwu (2000) 15 NWLR (Pt.692) 684; Olatunji V. Adisa (1995) 2 NWLR (Pt. 376)167; Maiyaki V. Maidoya (1988) 3 NWLR (Pt. 81) 226, Leaders of Company Ltd & Anor Vs Maj. Gen Bamaiyi (2010) LPELR – 1771(SC).
However, it is pertinent to state it here and now that in law it is not in all and every circumstances that a Court of law cannot raise and determine an issue suo – motu without calling on the parties to address it on such an issue raised suo – motu. Thus, instances abound where issues touching on or strictly relating to issues of jurisdiction can be raised issue suo – motu and be determined by the Court without necessarily calling on the parties to address it upon such an issue of jurisdiction raised suo- motu. See Adebayo Segun Oni V. John Kayode Fayemi & Ors (2019) LPELR – 49299 (SC), per Amiru Sanusi JSC. See also

Effiom V. Cross River State Independent Electoral Commission (2010) LPELR-1072 (SC) per Tabai JSC; Tukur V. Government of Gongola State (1989) 4 NWLR (Pt.117) 517.

Having reiterated as above, in the instant appeal, the only pertinent question arising for resolution under issue three is whether or not the Court below had in the Ruling appealed against raised any issue suo – motu and proceeded to resolve same without calling upon and hearing from the parties on such an issue raised suo – motu? The vehement contention of the learned counsel for the Appellant under this issue was that the Court below had stated that in the determination of the issue of locus standi of the Respondent, the only relevant document it would consider, and had indeed considered, would be the Respondent’s Writ of Summons and Statement of Claim and contended that such a view amounted to raising and determining an issue suo – motu without the benefit of hearing from the parties as required by law. On the part of the Respondent, it has also been vehemently contended that such a submission by the Appellant was grossly misconceived in that the Court below did not raise and determine any issue suo – motu as

would warrant the challenge on that ground by the Appellant in this appeal.

I have reviewed the entirety of the Ruling of the Court below in the light of the divergent contentions of the parties under this issue three and it is very clear to me and I so hold that the Court below had merely, as required of it by law, considered the issues arising for determination in the light of the settled principles of law that in determining issues of reasonable cause of action as well as issue of locus standi, it is the Statement of Claim that is of paramount consideration. I do not see how the reiteration and application of this settled principle of law by the Court below amounted in any way to raising and determining any issue suo – motu without the benefit of hearing from the parties. Honestly, this issue was indeed not only incongruous but also more importantly, in the circumstances of this appeal, dead on arrival and comatose such that no amount of oxygen administered can resuscitate it.
In my finding therefore, the Court below was perfectly right to have referred to and applied all relevant settled principles of law on the issues of reasonable cause of

action and locus standi in determining the Appellant’s Notice of Preliminary Objection. It neither raised nor determined any issue suo – motu as vehemently but so grossly erroneously canvassed in this Appeal by the Appellant. In the circumstances therefore, issue three is hereby, and without much ado, resolved against the Appellant in favor of the Respondent.

Indeed, the copious Affidavit of the Appellant, in a Preliminary Objection challenging the Respondent’s Suit on grounds of lack of reasonable cause of action and lack of locus standi, were very secondary to the just determination of the issues properly arising in such an application as well settled in an unbroken long line of decided authorities as are replete in our law reports. Therefore, the none consideration of the Appellant’s Affidavit by the Court below would not and indeed did not by itself vitiate the ruling of the Court below, in which it was rightly held, as I had earlier affirmed in this Judgment, that the Respondent’s Suit disclosed a reasonable cause of action as well as the locus standi of the Respondent.

My Lords, having therefore resolved all the three

issues for determination against the Appellant in favour of the Respondent, I hold that this appeal is bereft of any merit and is thus liable to be dismissed. Consequently, I hereby so dismiss it.

In the result, the Ruling of the High Court of Lagos State; Coram: A. O. Opesanwo J., in Suit No: ID/726/2007: Access Bank Plc V. Mutual Benefit Assurance Plc, delivered on 19/1/2009, in which the Appellant’s application challenging the competence of the Respondent’s Suit on grounds of lack of reasonable cause of action and locus standi was dismissed for lacking in merit, is hereby affirmed.
There shall be cost of N200,000 against the Appellant in favour of the Respondent.

JIMI OLUKAYODE BADA, J.C.A.: I read before now the Lead Judgment of my Lord BIOBELE ABRAHAM GEORGEWILL JCA, just delivered.

Having read the Records of Appeal as well as the Briefs of Argument filed on behalf of the Parties, I will also like to emphasize that the phrase “reasonable cause of action was defined by the Supreme Court in – THOMAS VS. OLUFOSOYE (1986) 1, N.W.L.R. PART 18 PAGE 669 as follows:-

“Lord Peason, in Drummond Jackson vs. British Medical Association (1970) 1 WLR PAGE 688; (1970) 1 All E.R. Page 1094 (CA) defined: a reasonable cause of action as meaning a cause of action with some chance of success when only the allegations in the pleading are considered”. The practice is clear, so long as the statement of claim or the particulars disclose some cause of action or raise some question fit to be considered by a Judge or Jury, the mere fact that the case is weak and not likely to succeed is no Ground for striking it out. (MOORE VS. LAWSON 31 TLR 418 (CA), WENLOCK VS. MOLONEY 1965 WLR 1238; (1965) 2 ALL E.R. 871 CA) Where the statement of claim disclose no cause of action and if the Court is satisfied that no amendment, however ingenious will cure the defect, the statement of claim will be struck out and the action will be dismissed where the question of the civil rights and obligations of the Plaintiff is raised for determination, the statement of claim will be struck out and the action will be dismissed. I have searched in vain to discover any question as to the civil rights and obligations of the Plaintiffs raised in the statement of claim. I cannot see how the qualification

of some members of the Archbishop Advisory Committee of the Synod of Lagos Diocese raise any question as to the civil rights and obligations of the Plaintiff”.
Therefore, the question of existence of disclosure of a reasonable cause of action in any matter in a Plaintiff’s Statement of claim is a discovery of facts and circumstances of the transaction between the Parties to the action. And it is at, that stage, immaterial whether or not the claim is strong or weak, so long as the Court is able to decipher that the statement of claim raises some issues which the Court can inquire and find out in order to determine the truth in that claim. See – AMINU IBRAHIM VS. MR. FELIX OSIM (1988) LPELR – 1403 (SC), SHELL PETROLEUM DEV.CO. LTD. VS. X. M. FEDERAL LIMITED & ANOR (2006) LPELR 3047 (SC) at 13 – 14; (2006) 16 N.W.L.R. PART 1004 PAGE 189; RINCO CONSTRUCTION CO. LTD. VS. VEEPEE INDUSTRIES LTD. & ANOR (2005) LPELR – 2949 (SC).”

In view of the foregoing and for the fuller reasons in the lead judgment, I am also of the view that the Respondent’s suit disclosed a reasonable cause of action

as well as the locus standi of the Respondent.

This Appeal in my view lacks merit and it is hereby dismissed.
I abide by the consequential order made in the said lead judgment.

IBRAHIM SHATA BDLIYA, J.C.A.: My learned brother, BIOBELE ABRAHAM GEORGEWILL, JCA, made available to me, a draft copy of the lead judgment, dismissing the appeal.

All the issues formulated for determination in this appeal have been fully addressed by my learned brother. I am in full agreement with the reasoning and conclusion arrived at, that the appeal lacks merit. I adopt my Lord’s reasoning and conclusion as mine, with profound gratitude, and in consequence, dismiss the appeal for lack of merit. The ruling of the High Court of Lagos State in suit No. ID/726/2007, delivered on the 19th day of January, 2009, is hereby affirmed.
I abide with the order made on costs.

Appearances:

Miss F. R. A. Williams, with her, D. O. Adejobi Esq. For Appellant(s)

Nick Omeye Esq. For Respondent(s)