OHWOVORIOLE v. DELSU, ABRAKA & ORS
(2020)LCN/15481(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Tuesday, December 01, 2020
CA/AS/241/2008
RATIO
JURISDICTION: THE PRACTICE OF THE COURT ONCE AN ISSUE OF JURISDICTION IS RAISED IN ANY SUIT
It is trite that once an issue of jurisdiction is raised in any suit, the Court must not give an order in the suit affecting the defendant until the issue of jurisdiction is settled. The trial Court obviously made a wrong order in dismissing the application of the appellant based on issues of jurisdiction locus standi of the plaintiff/respondent and Limitation Law. In the case of Petrojessica Enterprises Ltd v. Leventis Technical Co. Ltd. (1992) 5 NWLR (pt. 244) Pg. 675 at page 693, it was held that “jurisdiction is the very basis on which any tribunal tries a case. It is the lifeline of all trials. A trial without jurisdiction is a nullity. This importance of jurisdiction is the reason why it can be raised at any stage of a case be it at trial, on appeal to the Court of Appeal or to this Court (Supreme Court) a fortiori the Court can suo motu raise it. It is desirable that preliminary objection be raised early on the issue of jurisdiction but once it is apparent to any party that the Court may not have jurisdiction, it can be raised even be raised viva voce as in this case. It is always in the interest of justice to raise the issue of jurisdiction so as to save time and costs and to avoid a trial in nullity.”
Furthermore, an objection to jurisdiction can be taken at anytime depending on what materials are available. It would be taken in the following situations –
a. On the basis of the statement of claim or
b. On the basis of the evidence received or
c. By a motion supported by affidavit giving full facts upon which reliance is placed or
d. On the face of the writ of summons, where appropriate as to the capacity in which action was brought or against whom action is brought.
In effect, where there is a challenge to the jurisdiction of a Court, the Court must first assume jurisdiction to consider whether it has or lacks jurisdiction. In this case, the defect in the competence of the trial Court to entertain the suit was fatal, while the entire proceedings before the Court was a nullity no matter how well conducted or decided or the level of industry put into the trial and judgment by the learned counsel for the plaintiff/respondent and the learned trial judge. The absence of jurisdiction is irreparable in law and the only procedural duty of a Court is to strike out the case. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
WORDS AND PHRASES: LOCUS STANDI
It is however trite that where the issue of limitation is raised in defence of an action, it is only proper that the issue should be addressed first as it makes no sense to decide the merit of a matter that is statute-barred. In the event of a successful plea of limitation law against a plaintiff’s right of action, the action becomes extinguished and unmaintainable at law. xxxx
Locus Standi is the legal right of a party to an action to be heard in litigation before a Court of law or tribunal. The term entails the legal capacity of instituting or commencing an action in a competent Court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever.
The guiding principles to determine whether a person has locus standi or not are:
a. He must be able to show that his civil rights and obligations have been or are in danger of being infringed.
b. The fact that a person may not succeed in the action is immaterial.
c. Whether the civil rights and obligations having been infringed depends on the particulars of the case.
d. The Court should not give any unduly restrictive interpretation to the expression locus standi.
The tests for the determination of the locus standi of a person are: –
a. The action must be justiciable.
b. There must be a dispute between the parties.
Locus standi and jurisdiction are interwoven in the sense that locus standi goes to affect the jurisdiction of the Court before which an action is brought. Thus where there is no locus standi to file an action, the Court cannot properly assume jurisdiction to entertain the action. Locus standi being an issue of jurisdiction can be raised at any stage or level of the proceedings in a suit even on appeal at the Court of Appeal by any of the parties without leave of Court or by the Court itself suo motu. The issue can be raised, after the plaintiff has duly filed his pleadings by a motion and or in a statement of defence.
Locus standi to institute proceedings in a Court is not dependent on the success or merits of a case; it is a condition precedent to the determination of a case on the merits. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
PROFESSOR AUGUSTINE E. OHWOVORIOLE APPELANT(S)
And
- DELTA STATE UNIVERSITY, ABRAKA 2. PROFESSOR JOHN OKPAKO ENAOHWO (The Vice-Chancellor, Delta State University, Abraka) 3. THE REGISTRAR, DELTA STATE UNIVERSITY, ABRAKA RESPONDENT(S)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): The appeal is against the ruling delivered on 2/3/2007 by the High Court of Delta State holden at Isiokolo Judicial Division presided over by F.O. Oho, J; (as he then was) and (hereafter to be simply referred to as “the lower Court” and “the learned trial Judge” respectively).
The Appellant as Plaintiff initiated the instant action against the Defendants now Respondents by a writ of summons which issued on 4/7/2006. The claims of the Appellant as indorsed on the writ of summons are: –
“(1) A declaration that by virtue of the letter of request and invitation with Ref No. VC/0.1/ of 2nd January 2004, the letter of appointment dated 4th August, 2004 issued to the Plaintiff by the Defendants and other enabling laws, the plaintiff is the substantive Provost of the College of Health Sciences, Delta State University, Abraka.
(2) A declaration that by virtue of the letter of appointment dated August, 2004 issued to the Plaintiff by the Defendants and other enabling laws, the Plaintiff is entitled to hold the office of the Provost of the College of Health Sciences, Delta State University, Abraka for a period of two (2) years with effect from October 2004.
(3) An order of this Honourable Court directing the Defendants to immediately pay to the plaintiff all the salaries, refunds, allowances and any other benefits and/or entitlements owed the Plaintiff as the Provost College of Health Sciences, Delta State University, Abraka by the Defendants since the Plaintiff’s assumption of duty in the employment of the 1st Defendant from October, 2004 till date which the Defendants have failed refused and/or neglected to pay despite repeated demands by the Plaintiff.
(4) An order of perpetual injunction restraining the Defendants either by themselves or their agents, privies, surrogates from dismissing, removing, terminating the appointment of the Plaintiff as the Provost College of Health Sciences, Delta State University, Abraka or doing anything whatsoever that will in any way adversely jeopardise the tenure of the Plaintiff’s office as the substantive Provost College of Health Sciences, Delta State University, Abraka.
(5) A declaration that by virtue of the letters of request and appointment stated in relief (1) above, the Plaintiff is entitled to a second tenure in office as the Provost College of Health Sciences, Delta State University, Abraka.”
The same reliefs were claimed in paragraph 31 of the statement of claim dated 4/7/2006 and filed before the lower Court on the same date.
The Respondents filed a statement of defence to the statement of claim and the Appellant filed a reply to the said statement of defence. After parties had joined issues by their pleadings, but before hearing commenced, the Respondents brought a motion dated 6/10/2006, before the lower Court. The motion on notice was filed on 9/10/2006. Therein, the Respondents sought for the following: –
“(i) Leave to withdraw the motion dated 11/8/2006 and filed on 21/8/2006 by the Defendants/Applicants in this suit.
(ii) An order of this Honourable Court striking out this suit (i.e. Suit No. HC1/39/2006) inclusive of all pending applications in it on the grounds set out in the schedule hereunder:
SCHEDULE:
1) The suit is spent and futile
2) The suit is only relevant for academic discourse
3) The suit discloses no reasonable and justiciable cause of action
4) The plaintiff lacks locus standi
5) This Honourable Court lacks jurisdiction
6) Such other grounds to be relied on at the hearing of this application.”
See pages 165-168 of the records of appeal (hereafter to be simply referred to as “the records”).
The Appellant filed a counter affidavit to the said motion on notice and the Respondents also filed a reply to counter affidavit of the Appellant. The Respondents’ motion on notice was entertained by the lower Court on 9/11/2006; 23/11/06; 15/12/2006; and 15/1/2007 respectively; and ruling therein was reserved till 6/2/2007. The ruling was eventually delivered on 2/3/07.
In its ruling which spans pages 198-211 of the records, the lower Court stated on pages 207-211 thus: –
“I have carefully considered the application before the Court, its supporting affidavit and counter affidavit. I have also, most importantly considered the statement of claim in this action, as I am required by law to do. The issues for consideration, in my opinion are as follows:
1. Whether the issue of tenure of office of the Plaintiff/Respondent as provost of the College of Health Sciences, which was conferred by the letter of 4th day of August 2004, in the instant case is still a live issue.
2. Whether the statement of claim discloses a reasonable and justiciable cause of action.
3. Whether the plaintiff/respondent has Locus Standi to institute this action.
ISSUE NO. 1
The contract between the Plaintiff/Respondent and the 1st Defendant/Applicant in this case is the letter of the 4th day of August 2004. It is the letter by which the Plaintiff/Respondent was appointed into the office of Provost of the 1st Defendant/Applicant’s College of Health Sciences. For the avoidance of any doubts, it may be appropriate to reproduce the said letter with Ref. No. DELSU/REG/A/A.175 of the 4th August, 2004 as follows;
“Prof. A.E. Ohwovoriole
Faculty of Basic Medical Science
Delta State University,
Abraka.
APPOINTMENT AS PROVOST COLLEGE OF HEALTH SCIENCES
I am pleased to inform you that the vice-chancellor, Prof. U.A. Igun, has approved your appointment as Acting provost, College of Health Science. The Governing Council at its 54th regular meeting of July 22nd and 23rd 2004 has accordingly ratified your appointment, the appointment which is for a period of two years in the first instance, is with effect from the date you assumed duty. As provost of the college, you are to be responsible to the vice-chancellor for the day to day administration of the college.
I am to add that the process of electing a provost for the college as required in college of medicine in the Nigerian University system will subsequently be put in place. As to your allowances and entitlements the conditions of services of provost of comparable colleges of medicine in the Nigerian University will apply.
By a copy of this letter, the Bursar is being advised to reflect the new status in your pay records, accordingly.
Please accept my congratulation.
J.E. UBOGU
Registrar.”
The contention of the learned counsel to Defendant/Applicant, concerning the tenure of office of the Plaintiff/Respondent is that by the terms or tenor of the said letter of 4th August 2004, the said Plaintiff/Respondent was to remain in office as provost for two years commencing from when he assumed office and no more. Counsel to the defendants further argued, that in view of the reliefs one and two set out in paragraph 31 of the statement of claim, and also, in view of the expiration of the two year tenure conferred on the plaintiff on the 30th day of September 2006, that it would be absurd to keep a suit pending in court, when what sought to be protected by the suit had expired. Although defendants’ counsel conceded the facts that at the time of the commencement of the action, the issue of the tenure of office of the plaintiff was still a live issue, but further contended that the said tenure, which arose from a contractual agreement between the parties and which tenure expired during the pendency of this suit, is now dead issue and a mere academic one at that. For this reason, counsel argued that the Court is entitled to strike out the matter.
Perhaps the question to be asked here is; when could it be said that a pending suit is spent, theoretical academic and of no practical use to either of the parties? In defining what “academic suits” are, learned author R.N. Ukeje J; in her book Nigerian Judicial Lexicon at page 3, has this to say; “A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given it is not related to practical situations of human nature and humanity.” And in connection with this decision, the learned author cited with approval, the case of xxxx
In the instant suit, before Court what is very clear from the ordinary interpretations and construction that could be given to the letter of the 4th day of August 2004 is that the Plaintiff/Respondent was indeed appointed as an “Acting provost” of the college of Health Sciences of the 1st Defendant for a certain period of two years. As rightly argued by the learned counsel to the Defendants even if Court is to decide that the issue of the tenure of Plaintiff/Respondent, based on the letter of the 4th day of August, 2004 is a live issue worthy of determination by judicial process, the best that the Court could only have done would be to give protection to the plaintiff within the ambit of the terms set out in the letter dated 4th August 2004.
Of course, to do otherwise, in the instant case, and especially where it is clear from the wordings of the said letter of the 4th day of August 2004, that the Plaintiff/Respondent was neither appointed “substantive” provost, nor was anything in the semblance of a second tenure created for him by the said letter, would be nothing short of the Court making a fresh contract for the parties before it.
It is trite law, that the business of Court does not include one of having to make contracts for the parties before it or to re-write the one already made (sic) them.
xxx
From the foregoing therefore, I hereby find and do hold that the issue of tenure of office of the Plaintiff/Respondent as provost of the 1st Defendant’s College of Health Sciences, based on the letter dated 4th August 2004 which created a term certain, not exceeding two years, from the date of his resumption of duties, is no longer a live issue.
ISSUE NO. 2
Before a Court can successfully determine an objection to a suit on the ground that it discloses no reasonable or justiceable cause of action, it will of course, be necessary first to understand what a cause of action is.
A cause of action has been defined to mean; “a factual situation, the existence of which entitles one person to obtain a remedy against another person”. It is a fact or combination of facts which, when proved would entitle a plaintiff to a remedy against a defendant. It consists of every fact which would be necessary for the plaintiff to prove if traversed in order to support his right to judgment of the Court. See xxx and a host of other decisions of Court on the subject.
Therefore, a reasonable cause of action is one in which, when only the allegations in the statement of claim are considered, have some chance of success. See xxx. Consequently, what this position portends is that in determining whether the statement of claim has disclosed a reasonable cause of action, what the Court should consider are the contents of the statement of claim.
The operative statement of claim in this suit, is the one dated and filed on the 4th day of July, 2006 and the reliefs claimed by the Plaintiff/Respondent, are contained in paragraph 31 (1) to (6) of the said statement of claim-reproduced earlier on in the preceding section of this judgment.
From the paragraphs of the statement of claim and particularly the paragraphs 31 (1) to (6) the relevant question perhaps to ask here is whether there is disclosed at all, any reasonable or judiciable cause of action, against the Defendant/Applicants in this case? By way of emphasis, a cause of action is any act on the part of the defendants which gives to the plaintiff his cause of complaint.
It will, therefore be safe to conclude after a thorough perusal of the contents of the statement of claim, in this case, that the Plaintiff/Respondent, has not been able to show any such acts on the part of the Defendants/Applicants, with the exception or the paragraph 31 (3), dealing with the issue of un-paid salaries and allowances since the assumption of office of the Plaintiff/Respondent on October 2004.
But, even with the issue of un-paid salaries, the Defendant/Applicants have admitted that they owe and this, on its own, automatically robs the said relief of any iota justifiability. The Defendants/Applicants not only admitted owing, but came to court with a certified Cheque, covering what in their calculations would amount to the Plaintiff/Respondents un-paid salaries and entitlement. If the calculations made by the Defendant/Applicants are inaccurate in this regard, nothing prevented the Plaintiff/Respondents (sic) at this stage from pointing this out. There must of course be a dispute before one could in fact talk of adjudication.
Consequently, the cause of action which hinges on the contents of the letter of the 4th day of August 2004, and which letter formed the basis of the contract between the parties to this action, and as pleaded in the statement of claim has no chance of success against the defendants. Indeed, it has not disclosed any reasonable cause of action.
ISSUE NO. 3
The issue No. 3 deals with the question of Locus Standi. Locus Standi or “standing to sue” is the legal right of a party to an action to be heard in litigation before a Court of law. Locus Standi entails the legal capacity to initiate, institute or commence an action in a competent Court of law or tribunal. Locus Standi is in essence the right of appearance in a Court of justice. See xxx and a host of other decisions on the subject.
The issue of whether a party has or has no locus standi is discoverable from the statement of claim as well. Indeed, a challenged (sic) to the locus standi of the plaintiff, directly raises or obliquely raises a jurisdictional question. See xxx and host of the decisions on the subject.
Making his objection on the ground of lack of Locus Standi on the part of the Plaintiff learned counsel to the Defendants/Applicants, hinged his arguments on the plaintiff’s reliefs 1 and 5 at the paragraph 31 of the statement of claim. He argued that the Court is only in a position to give effect of the contract existing between the parties and cannot draw up any for them. Counsel further submitted that the letter of the 4th of April 2004 (sic), which is the contract between the parties only conveyed an appointment to the position of “Acting provost” on the Plaintiff/Respondent. Counsel further argued, that for the Plaintiff/Respondent to therefore, ask in his Relief 1, that his position be elevated to that of a “substantive” provost, which the contract between the parties did not provide for, is to clearly ask the Court to do an act which the Plaintiff/Respondent lacked the “Locus Standi” to do. It was counsel’s further argument that the Plaintiff/Respondent can only come to Court in his capacity as an “Acting provost” and not in any other capacity; otherwise, he would lack the locus Standi to do so.
I simply could not agree less with the counsel to the Defendants/Applicants. Having asked the Court to go outside the terms of the contract, i.e. the said letter of 4th of August 2004, which binds the parties, is to clearly ask the Court to do on (sic) act which the Court has no jurisdiction to do.
Of course, locus standi and jurisdiction are inter-woven especially when considering justiciability and dispute between the parties. The existence or non- existence of the locus standi of any person suing determines whether or not the person will be allowed to continue the litigation or be given a hearing. See xxx” In view of lack of locus standi by the plaintiff/respondent and lack of jurisdiction by this Court to entertain this action, the action is incompetent and is hereby struck out.”
Being aggrieved with the ruling of the lower Court, the Appellant initiated the instant appeal by lodging at the registry of the said Court on 17/4/2007, a notice of appeal dated 28/3/2007. This notice of appeal was amended and further amended by the order of this Court granted on 18/3/2019. By the order in question the further amended notice of appeal filed by the Appellant on 14/3/2019, was deemed to have been properly filed and served on 18/3/2019. The process contains three grounds of appeal. The grounds of appeal with their respective particulars read: –
“GROUNDS OF APPEAL
1. The learned trial Judge misdirected himself in law when he held that the clear issue before the Court is that Plaintiff is appointed for a certain term.
Particulars
a) The issue before the Court went beyond that distilled by the learned trial Judge.
b) The issues before the Court included:
i. whether by virtue of Letter Ref. VC/0.1/of 2nd January, 2004, the letter of appointment dated 4th August, 2004 and other enabling laws, the Plaintiff is the substantive Provost of the College of Health Sciences of 1st Respondent or not.
ii. whether Plaintiff was entitled to an Order directing the Respondents to pay him his salaries, allowances, refunds and remuneration having worked for Respondents from October 204 (sic) till the time of filing the action.
iii. whether the Plaintiff was entitled to an Order of perpetual injunction restraining the Respondents from terminating Plaintiff’s appointment or doing anything that will adversely affect plaintiff’s tenure as Provost of the College of Health Sciences of 1st Respondent.
iv. whether Plaintiff is entitled to a second tenure as Provost of the College of Health Sciences of 1st Respondent.
c) The leaned trial Judge did not adequately distill the issues before the Court and hence came to a wrong conclusion.
2. The learned trial Judge erred in law in holding that the action is incompetent.
Particulars
a) The action herein came before the lower Court initiated by due process of law and upon fulfillment of all conditions precedent to the exercise of jurisdiction.
b) The subject matter of the case is within the jurisdiction of the lower Court and there is no feature in the case which prevented the Court from continuing exercising jurisdiction.
3. The learned trial Judge erred in law in striking out the suit on the application of the Respondents for striking out.
Particulars
a) Plaintiff’s claim for his salaries/remuneration and that he is entitled to a second tenure as Provost of College of Health Science of 1st Respondent are very live issues and are in no way academic
b) The statement of claim disclosed reasonable and justiciable causes of action.
c) The statement of claim disclosed Plaintiff locus to claim the reliefs sought in the statement of claim.”
The reliefs which the Appellant seeks from this Court as contained in the further amended notice of appeal are to the effect that (i) the ruling striking out his case be set aside and the Respondents’ motion dated 6/10/2006, be dismissed; (ii) this Court should exercise its powers under Section 15 of the Court of Appeal Act 2007, and enter judgment for the Appellant in respect of relief 3 of paragraph 31 of the statement of claim; (iii) Suit No. HCI/39/2006: Professor Augustine E. Ohwovoriole v Delta State University, Abraka & 2 Ors. be remitted to the National Industrial Court for hearing and determination as the National Industrial Court now has the jurisdiction to hear and determine the claim in the instant suit.
The appeal was entertained on 14/9/2020. In urging the Court to allow the appeal, learned counsel C.O. Ugwor, adopted and relied on Appellant’s amended brief of argument dated and filed on 14/3/2019, but deemed as having been properly filed and served on 18/3/2019. In the same vein, V.O. Obanya of counsel in urging the Court to dismiss the appeal, adopted and relied on Respondents’ brief of argument dated 27/6/2013 and filed on 5/7/2013, but deemed as properly filed and served on 13/11/2017. Learned counsel stated that the Respondents did not see any need to amend their brief of argument after the Appellant’s amended brief of argument was filed.
The Appellant formulated a lone issue for the determination of the appeal in his amended brief of argument (hereafter to be simply referred to as “Appellant’s brief”). The issue reads: –
“Whether the learned trial Judge was right in law in striking out the Appellants (sic) suit.”
In their brief of argument, the Respondents adopted the lone issue formulated by the Appellant, as stated above.
The Appellant argued the lone issue he formulated from various fronts. Dwelling specifically on the first ground on which the lower Court struck out his case, and which is to the effect that “the issue of the tenure of office of the Appellant as Provost of the 1st Respondent’s College of Health Sciences based on the letter dated 4/8/2004, which letter created a term certain not exceeding 2 years, from the date of his resumption of duties, is no longer a live issue”; the Appellant submitted that the lower Court was in grave error in coming to the conclusion in this regard; and that the said Court completely misconceived the issue. It is the stance of the Appellant that the issue before the lower Court was whether the suit was spent, futile and only relevant for academic discourse, and not the merit of one or more of the claims. It is the position of the Appellant that in considering whether a suit is spent or not, the proper thing to do, is for the Court to look at the nature of the reliefs in the entire case. Citing the case of Plateau State v. A-G Federation (2006) NWLR (Pt. 967) 346 at 391, the Appellant stated that the Supreme Court in coming to the conclusion that the suit was devoid of any live issue, noted the fact that the period of emergency declared by the Federal Government had ceased.
Having re-produced the reliefs being claimed in the instant case, the Appellant submitted that a suit does not necessarily become spent merely because it was heard after the act or conduct which gave rise to the action, has ceased. That where a suit contains actionable reliefs, as in this case, it cannot be said to be spent, academic, speculative or hypothetical. That to hold otherwise would be to miss the declaratory nature of the reliefs and their effects on our adjectival laws. That the merit of his relief 1, was not in issue at the stage the lower Court entertained the motion of the Respondents. That the construction of one or all of the letters referred to in the claim to determine the viability of the claim did not arise at the stage.
Dwelling on his relief 3, it is also the stance of the Appellant that a close look at this relief shows that it is in no way spent, futile or academic. That the lower Court would appear to have conceded this, in its ruling appealed against. That the concession ought to have resulted in a finding that the suit is not spent. That the lower Court however veered off the track by holding to the effect that the admission by the Respondents that they owe the Appellant and came to Court with a certified cheque covering what in their (Respondents) calculation amounted to the Appellant’s unpaid salary and entitlement, automatically robbed the said relief of any iota of justiciability. It is the stance of the Appellant that the lower Court completely missed the point and prematurely proceeded into the substantive issues area, (i) in that the merit of the claim is not what the lower Court should consider at the stage of the Respondents’ motion on notice; (ii) the lower Court should not have looked at the defence at the stage; as it is to consider only the claim; (iii) that having gone out of its way to look at the defence the lower Court should have noticed that the schedule accompanying the cheque exhibit FOA 1 – 2 shows that the payment is for the month of June 2006 only, and not for the entire period he (Appellant) worked for, that is, two years. That if there was an admission by counsel to the Respondents, the position of the law is that the Court should enter judgment for the claim admitted. The cases of NBN Ltd v. Guthrie (Nig) Ltd (1993) 2 NWLR (Pt. 284) 543 and Mosheshe v. NSP Ltd (1987) 4 S.C. 152 at 169 were cited in aid. It is the stance of the Appellant that in the instant case, there was a finding that the Respondents had admitted owing him (Appellant) as claimed in the reliefs; and the proper thing to do, was for the lower Court to have entered judgment for the Appellant in respect of that relief. That unfortunately, the lower Court struck out the entire case in error. The Appellant urged this Court to enter judgment for him in respect of his reliefs 3.
Dwelling on relief 5, dealing with his entitlement to a second tenure in office as the Provost of College of Health Sciences of the 1st Respondent, the Appellant submitted that his appointment took effect in October 2004. That the two terms of two years each would have taken him to October 2008. Therefore, it is clear that as at 2/3/2007, when the instant case was struck out, the period was not spent. The Appellant submitted that the lower Court was in error in picking only one of the letters relied upon by the Appellant and using it to determine the merit of one or two of the claims. That the lower Court was obligated to look at all the reliefs in the statement of claim. That if the lower Court had done this, it would have held that the suit was neither spent nor futile.
Dwelling on the aspects of Appellant’s issue considered above, the Respondents stated that the findings of the lower Court were perfectly in order as same were in line with the content of the letter dated 4/8/2004, upon which the Appellant’s action was predicated. That the gravamen of the Appellant’s suit is for the Court to give effect to the letter of appointment dated 4/8/2004. That this is apparent from Appellant’s reliefs 1 and 2. The Respondents stressed that by the said letter of appointment dated 4/8/2004, the tenure of office of the Appellant as Acting Provost of the College of Health Sciences (hereafter to be simply referred to as “Ag. Provost”) of the 1st Respondent was to last for two (2) years, commencing from the day the Appellant resumed duties as Ag. Provost. Having referred to a counter affidavit filed by the Respondents on 7/7/2006, in opposition to the Appellant’s motion for interlocutory injunction, the Respondents claimed to have brought to the notice of the lower Court that the Appellant gave two different dates of resumption without explaining this. The two different dates were 17/5/2004 and 1/10/2004 respectively. That whichever of the resumption dates that was taken as correct, the two (2) years tenure conferred on the Appellant as Ag. Provost by the Respondents’ letter of appointment dated 4/8/2004, which is the bane of the Appellant’s claim/cause of action (as can be gleaned from paragraphs 8, 12, 13, 19, 20, 21, 22, 23 and 30 of the statement of claim), was to expire on the 30th day of September 2006. It is the stance of the Respondents that while the Appellant’s action disclosed live issues as at 4/7/2006, when the originating processes including the motion on notice for interlocutory injunction were filed, the lower Court could only have protected the Appellant within the scope or ambit of the term or period of appointment contained in the Respondents’ letter of 4/8/2004, as it was a contractual appointment. That the contract between the Appellant and Respondents is the letter dated 4/8/2004. That the intention of the Respondents that the appointment of the Appellant is for a period of two years simpliciter, is crystal clear on the face of the letter and that the Appellant’s 2-year tenure of office expired on the 30/9/2006, while the suit was still pending before the lower Court. The Respondents submitted that the tenure of office of the Appellant having expired during the pendency of the suit, a change of circumstances which made the tenure of office, spent, dead, lifeless, theoretical, academic and of no practical and/or utilitarian value to either of the parties, had occurred. That the case of A-G, Federation v. ANPP (2004) Vol. 114 LRCN 2671 at 2694, makes it clear that a matter that was live when it was filed could cease to have live after litigation has started due to changed circumstances. That in case of an appeal, the appeal may become academic at the time it is due for hearing even through originally there was a living issue between the parties.
Dwelling further on the submissions of the Appellant as they relate to his relief 3, the Respondents submitted that the Appellant was in grave error in his stance that the lower Court ought to have entered judgment in respect of the said relief 3, and also in calling on this Court to exercise its powers under Section 15 of the Court of Appeal Act, 2007, and enter judgment in his favour in respect of said relief 3. Firstly, it is the position of the Respondents that in paragraph 16 of the supporting affidavit of their motion, they deposed copiously to the fact that the Appellant had been paid all his salaries, refunds, allowances, other benefits and entitlements. That though the deposition in the said paragraph 16 was denied by the Appellant in paragraph 5 of his counter affidavit, they (Respondents) in paragraph 4e of their reply to the Appellant’s counter affidavit, reiterated their position and further claimed that it is the Appellant that has refused to collect the cheque issued to him by the 1st Respondent. That documents evidencing the payment were attached thereto and marked as exhibits FDA 1-2. That Exhibit FOA 1-2 is the photocopy of the cheque issued to the Appellant in payment of all his entitlements as well as the payment slip. That though they (Respondents) admitted owing the Appellant and had gone ahead to issue a cheque to cover what was owed, (and this incidentally was on the same date the Appellant filed the instant action but before the processes in the suit were served on the Respondents), the Appellant never contested or protested the inaccuracy or otherwise of the calculation made by the Respondents. In the circumstances, the Respondents submitted that they had paid the Appellant all his entitlements and salaries as shown in exhibit FOA 1-2. That the position of the lower Court in respect of the said relief 3 is therefore right as there was no dispute that should necessitate any adjudication. That the law is that Courts of law are to adjudicate on disputes alone. That the implication of the above situation, is that the lower Court was entitled to have disposed of the instant suit by striking it out forthwith. This Court was urged so to hold.
The second ambit of the submissions of the Respondent on relief 3 claimed by the Appellant, is to the effect that the said relief is vague, nebulous, imprecise and incapable of being granted for the following reasons: (i) the Appellant is claiming for an unspecified and imprecise sum of money as his salaries, refunds, allowance; (ii) the benefits and/or entitlements being claimed by the Appellant are also not specified; (iii) the Appellant did not also state any specific sum of money that he repeatedly demanded from the Respondents; and (iv) there are no facts in the statement of claim to support the said relief. It is the stance of the Respondents that reliefs sought in an action must be rooted in the pleadings. That if reliefs are not rooted in the pleadings; the Court is without jurisdiction to countenance or grant them as one cannot place something on nothing and expect it to stand. That the only paragraph in the pleading touching on the above relief is paragraph 12 of the statement of claim and that the averment therein is at cross purposes with relief 3. The Respondents asked the question as to what order the Appellant is calling on this Court to make in his favour, when there are no materials upon which any order can be made? The Respondents submitted that the position taken by the Appellant that once a defendant admits a claim the Court should enter judgment for the claim admitted, is not obtainable in all circumstances. That the cases of NBN Ltd v. Guthrie Nig. Ltd (1993) NWLR (Pt. 284) at 543 and Mosheshe v. NSP Ltd (1987) 4 S.C. 152 at 169, relied on by the Appellant in support of his stance, decide to the effect that before a Court can enter judgment on admission of the whole or part of a sum being claimed by a party, the claim must be for a definite sum allegedly owed by the defendant. The Respondents therefore submitted that relief 3 being claimed by the Appellant as well as paragraph 12 of the statement of claim, are speculative and imprecise. That the Court does not act on speculation. It is also the position of the Respondents that the law is settled as to the difficulty associated with the invitation of the Appellant to have this Court enter judgment for him in respect of relief 3. That this difficulty is on the respective duties of the plaintiff and the Court with regard to relief sought. That in distinguishing the duties, the Supreme Court in the case of N.P.A. PLC V. Lotus Plastics Ltd (2005) 19 NWLR (Pt. 959) 185 at 201-202, stated that though a plaintiff is at liberty to compose a relief in the way he likes with the aim of obtaining judgment; it is the duty of the Court to determine the plaintiff’s entitlement to the relief in the light of the law and facts of the case. That a Court is bound by the relief a party seeks and the party seeking the relief must swim or sink with the same. That it is not the duty of a Court to recast or re-arrange the relief of a party for the purpose of granting that relief at all cost. The Respondents urged the Court to refuse the Appellant’s invitation to enter judgment for him in respect of relief 3.
The second reason the Appellant identified the lower Court to have given for striking out his case, is to the effect that the cause of action of the Appellant inasmuch as it is based on the contract created by the letter 4/8/2004 as pleaded in the statement of claim had no chance of success against the Respondents and indeed, has not disclosed any reasonable cause of action. The Appellant again submitted that the lower Court was wrong in its holding in this regard. That it is now settled law that in deciding whether a suit disclosed a reasonable cause of action or not, it is the statement of claim that has to be examined. That the lower Court was obligated to look at the statement of claim on the face of it and not to determine the merit of the case based on the said letter of 4/8/2004. That the lower Court allowed itself to be carried away by the letter of 4/8/2004 which it considered in isolation, and the supposed weakness of Appellant’s suit. That paragraphs 7, 8, 13 and 31(3) of the statement of claim clearly disclosed a reasonable cause of action. That the lower Court conceded this much when it held that it was safe for it to conclude after a thorough perusal of the statement of claim that he (Appellant) has not been able to show any act on the part of the Respondents (with the exception of paragraph 31(3) of the statement of claim), which gives to him (Appellant) his cause of complaint. The Appellant submitted that the lower Court having conceded this much, should have set the said claim (i.e. paragraph 31(3) of the statement of claim) down for trial. That instead of doing this, the lower Court went further to say to the effect that the issue of unpaid salaries was robbed of any iota of justiciability as the Respondent came to Court with certified cheque covering what in their calculations would have been due to him (Appellant) as unpaid salaries and entitlement. Having repeated his argument as have been highlighted hereinbefore, and having also referred to paragraphs 13, 16, 18, 19, 20, 21, 22, 25, 27, 28, 31(i), 31(4) and 31(5) as showing that there is a real controversy that is capable of leading to the grant of a relief, the Appellant submitted that the lower Court failed to avert its mind to the fact that the weakness of a plaintiff’s case is not a relevant consideration when the question is whether or not the statement of claim discloses a reasonable cause of action. That the lower Court allowed itself to be carried away by the perceived weakness of his (Appellant’s) suit. The case of Mobil Producing Nig. Unltd v. LASEPA (2003) FWLR (Pt. 137) 1029 at 1056, was cited by the Appellant in arguing this aspect of his lone issue.
Dwelling on this aspect of Appellant’s issue, the Respondent having cited many cases dealing with cause of action and having set out the constituents of a cause of action, and also conceding that it is the statement of claim that has to be considered in determining the issue of cause of action, submitted that a Court can only adjudicate on a matter when the matter discloses a cause of action. It is the stance of the Respondents that their motion to strike out the Appellant’s action having been filed 6/10/2006, (i.e. 6 days after the expiration of the tenure of the Appellant), the action was spent and no longer disclosed any reasonable or justifiable cause of action against them (Respondents). This is because the determination of the case would not result in anything beneficial to the parties. That the best that the lower Court could have done if the case went into trial was to declare that the Appellant was entitled to a two years term in office as contemplated in the said letter of appointment. The Respondents in commenting on the case of Plateau State v. A-G Federation (supra) relied on by the Appellant in his stance that the instant action was not spent, stated that the facts and circumstances of the said case are diametrically different from the ones in the instant and set out their reasons for holding the view.
It is also the submission of the Respondents that the Appellant’s submission to the effect that the lower Court should not have considered the merit of the claim at the stage of their (Respondents’) motion, is misconceived as there were no longer actionable reliefs as at 30/9/2006, when the tenure of office of the Appellant as Ag. Provost lapsed. It is also the position of the Respondents that the case of Oshoboja v. Amuda (1992) 6 NWLR (Pt. 250) 690 at 704, cited by the Appellant is not relevant to the instant suit. That contrary to what happened in the case under reference, they (Respondents) filed a statement of defence in the instant case. That the lower Court was therefore bound to look at the processes already before it in coming to its conclusion. Therefore, that the lower Court was very much in order when it held to the effect that inasmuch as the case of the Appellant was hinged upon the letter dated 4/8/2004, (i.e. the basis of the contract between the parties), same had no chance of success and that it indeed disclosed no reasonable cause of action.
Dwelling on the third ground upon which the lower Court struck out his (Appellant’s) case – i.e. lack of locus standi on his (Appellant’s) part to have brought the instant action and consequently that the Court lacked the jurisdiction to entertain the action, the Appellant submitted that the lower Court completely, misconceived and or misapplied the doctrine of locus standi. The Appellant submitted that locus standi to institute the instant suit in which he seeks five reliefs, is not the same thing as asking “that his position be elevated to that of a substantive provost”, “or asking the Court to go outside the terms of the contract”. It is the stance of the Appellant that paragraphs 7, 8 and 31(1) of the statement of claim clearly show that at the request of the 1st Respondent he (Appellant) was seconded to the 1st Respondent to help build up its College of Health Sciences. That paragraphs 12, 13, 16, 18 to 22, 25, 27 and 31 show that his interest has been adversely affected. That all the reliefs relate to his engagement by the 1st Respondent. That he came to Court as an aggrieved employee of the 1st Respondent whose interest has been adversely affected; including non payment of salaries and allowances despite working and conferring benefits on the Respondents. Therefore, that he (Appellant) has locus standi to sue. That the fact that one or two of the reliefs is/are perceived to be weak or lacking in merit does not mean that he has no locus to sue.
Dwelling on the issue of locus standi, the Respondents disclosed that they hinged their argument on Appellant’s reliefs 1 and 5 in paragraph 31 of the statement of claim. Having cited many cases on what the term locus standi connotes and how the same is to be determined when raised, the Respondents submitted that for the Appellant to possess the requisite locus standi to institute and/or maintain an action in a Court of law, the statement of claim must disclose a cause of action vested in him (Appellant), his rights, obligations or interests which have been or are likely to be violated and in respect of which he ought to be heard on the reliefs he seeks. That there must, therefore, be a nexus between the averment in the statement of claim and the relief(s) sought.
Having re-produced reliefs as shown in paragraph 31(1) and (5) of the statement of claim, the Respondents submitted that there is nowhere in the Appellant’s letter of appointment wherein the Appellant was appointed as the substantive Provost of College of Health Sciences of the 1st Respondent.
That in emphasizing that the appointment of the Appellant was as Ag. Provost, the second paragraph of the said letter made it abundantly clear that the process for electing a Provost of the College as required in Colleges of Medicine in the Nigerian University system, would be put in place. The Respondents submitted that the Appellant cannot unilaterally, deviate from the content of the said letter and elevate himself to a pedestal or status of substantive Provost not contained or contemplated in the said letter. The Respondents submitted that in reliefs 1 and 5 above the Appellant by his own showing therein unilaterally elevated himself to the status of a substantive Provost of the College of Health Sciences in the 1st Respondent and instituted the action in that capacity. That the contention of the Respondents at the lower Court is that the Appellant having not been appointed as a substantive Provost by the letter dated 4/8/2004, he cannot in law institute the instant action in that capacity and/or claim any relief in that regard as the Appellant has no locus standi to so do. That the Appellant can only come to Court in his capacity as Ag. Provost and not in any other capacity. The Respondents also submitted that the Court cannot accede to the Appellant’s invitation to grant the reliefs above as to do so would amount to making a contract for the parties. That the law does not allow for this. That the issue of locus standi and jurisdiction are interwoven. Hence, where a plaintiff has no locus standi to institute an action, the Court is without jurisdiction to entertain the said action.
It is clear as crystal that the Appellant in arguing the three aspects of the lone issue he formulated for the determination of the appeal and as reviewed hereinbefore, resonated or portrayed the position of the law to be that the lower Court erred in looking at the statement of defence of the Respondents. He even cited the case of MOBIL PRODUCING (NIG) UNLTD V. LASEPA (2002) LPELR-1887(SC) in support of his stance in this regard.
I cannot but say that the Appellant is clearly in complete misapprehension of the principles enunciated by the Supreme Court in the said case. Indeed, I am of the settled view that instead of prohibiting a Court from looking at a statement of defence filed in a case in an interlocutory proceedings for the purpose of determining a jurisdictional issue (and which the issue of locus standi and cause of action undoubtedly are), the decision in the case on the contrary, makes it clear that before a Court can entertain an aspect of a case that challenges its competence or jurisdiction that is based on the ascertainment of facts, such facts must be pleaded in the statement of defence. See in this regard what the Supreme Court said in the case and it goes thus: –
“There seems to have been some confusion in the respondents’ arguments, as well as in the approach of the Court below, with regard to the issue of pre-action notice. Much stress has been placed on the argument that non compliance with provisions such as Section 29(2) of the Act leads to a question of jurisdiction which can be raised at any time and which if resolved against the appellant renders the entire proceedings a nullity. This rather mechanical approach to the issue which tends to ignore the distinction between jurisdictional incompetence which is evident on the face of the proceedings and one which is dependent on ascertainment of facts, leads to error. In my opinion, bearing the distinction in mind, appropriate guidelines could be fashioned out as follows:
(i) Where on the face of the proceedings a superior Court is competent, incompetence should not be presumed.
(ii) Where on the face of the proceedings the Court is incompetent, the Court should of itself take note of its own incompetence and decline to exercise jurisdiction, even if the question had not been raised by the parties. If it does not, the question of its incompetence can be raised at any stage of the proceedings because the fact of its incompetence will always remain on the face of the proceedings.
(iii) Where the competence of the Court is affected by evident procedural defect in the commencement of the proceedings and such defect is not dependent on ascertainment of facts, the Court should regard such incompetence as arising ex facie.
(iv) When the competence of the Court is alleged to be affected by procedural defect in the commencement of the proceedings and the defect is not evident but is dependent on ascertainment of facts the incompetence cannot be said to arise on the face of the pleadings. The fact if properly raised by the party challenging the competence of the Court should be tried first before the Court makes a pronouncement on its own competence.
(v) Where competence is presumed because there is nothing on the face of the proceedings which reveals jurisdictional incompetence of the Court, it is for the party who alleges the Court’s incompetence to raise the issue either in his statement of defence in proceedings commenced by writ or by affidavit in cases commenced by originating summons.
(vi) A judgment given in proceedings which appear ex facie regular is valid.”
See also the case of AJAYI V. ADEBIYI (2012) LPELR-7811(SC).
Indeed, I am also of the considered view that the law is settled that it is perfectly in order for a defendant to file a statement of defence in the bid to have a case terminated before trial and for a trial Court to look into the said statement of defence in appropriate interlocutory proceedings brought in a substantive action. In this regard, see the provisions of Order 22 of the Civil Procedure Rules of the High Court of Delta State 2009, which deals with “Proceedings in lieu of demurrer”. The provisions of the said Order state: –
“Order 22 Rule 1 – Demurrer abolished
No demurrer shall be allowed.
Rule 2 – Points of law may be raised by pleading
Any party shall be entitled to raise by his pleading any point of law, and any point of law so raised shall be disposed of by the Judge who tries the cause at or after the trial:
Provided that by consent of the parties or by order of the Court or a Judge on the application of either party, it may be set down for hearing and disposed of at any time before trial.”
Indeed, the case of AJAYI V. ADEBIYI (supra) in my considered view clearly recognises the wisdom on the part of a Court in terminating a case on an issue or point of law where appropriate, especially when the issue or point of law is jurisdictional in nature. In the case under reference, it was also made very clear that it is not a correct proposition of law that every case or matter in which issues have been joined on issues that are jurisdictional in nature, must proceed to trial or hearing irrespective of whether the material before the Court shows that it will be a waste of time to do this. In this regard, the Supreme Court in the case under reference, dwelling on the issues of “statute-barred actions” and “locus standi” said thus: –
“At the close of the case of the plaintiffs/respondents, the appellant filed summons dated 2nd August 1996 through his new counsel. The appellant’s learned senior counsel raised the issue of lack of jurisdiction of the trial Court as the suit is statute-barred and that the plaintiff has no locus standi to bring the action. These issues of law if properly examined and heard by the trial Court are capable of terminating the proceedings. The learned trial judge’s conception was that the summons dated the 2nd of August 1996 was another delay tactics by the appellant. He dismissed the application and ordered the 3rd defendant to put up his defence to the claim of the plaintiffs/respondents before the Court and that at the end of his defence, he would be allowed to raise any part (sic) of law the learned senior counsel wished to raise. The learned trial judge was ready and willing to entertain the points of law in respect of locus standi and limitation law, only after the appellant would have given evidence in support of his defence to the claim of the plaintiff/respondent.
This to my mind is a grave misconception of the principle of the law in issue. The whole basis of the preliminary point of law was to show the trial Court that the action going by the writ and statement of claim was statute-barred and that the plaintiff/respondent had no locus standi to institute the action.
Under such peculiar circumstance, this Court held in the case of Adigun v. Ayinde (1993) 8 NWLR (pt. 313) pg. 576 that: –
“It is well settled that where a defendant conceives that he has a good legal or equitable defence to an action, he is entitled as a matter of preliminary objection to the action to raise such a defence. Where a preliminary objection is that an action does not lie, it postulates that the action is incompetent and the Court therefore lacks the requisite jurisdiction. Where an action can be decided on a preliminary objection, it is manifestly absurd to suggest that the Court should take evidence.”
The Court of Appeal surprisingly endorsing the grave omission of the learned trial Court held at page 217 lines 8-15 of the record that:
“The respondent and the appellant had joined issues on their pleadings. Nowhere did the appellant plead facts raising issues of Notice of Acquisition and limitation arising from Public Acquisition Law which he now sought to raise in his summons for Direction of 2/8/96. Respondent had closed its case and the 3rd defendant had sought several adjournments but now brought the summons. The summons is definitely misconceived and was merely designed to halt the proceedings of the lower Court.”
At page 216 lines 7-18 the Court of Appeal held that: –
“The determination of the dispute in relation to the land acquired by the government and the issue of validity or otherwise acquired by the Notice of Acquisition based on lack of service are issues that can only be determined after hearing evidence, not on affidavit evidence, as the appellants wanted the Court to rely on in this application. The learned trial Judge was quite right when he upheld the objection of the respondents counsel and directed the defendant to put up his defence and raise the point of law at the conclusion of the trial. So also is the issue of Jurisdiction. It requires evidence. It cannot be easily determined on affidavit evidence.”
Both lower Courts were carried away by the conduct of the case by the appellant that they failed to advert their mind to the preliminary points of law raised in the summons.
It is however trite that where the issue of limitation is raised in defence of an action, it is only proper that the issue should be addressed first as it makes no sense to decide the merit of a matter that is statute-barred. In the event of a successful plea of limitation law against a plaintiff’s right of action, the action becomes extinguished and unmaintainable at law. xxxx
Locus Standi is the legal right of a party to an action to be heard in litigation before a Court of law or tribunal. The term entails the legal capacity of instituting or commencing an action in a competent Court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever.
The guiding principles to determine whether a person has locus standi or not are:
a. He must be able to show that his civil rights and obligations have been or are in danger of being infringed.
b. The fact that a person may not succeed in the action is immaterial.
c. Whether the civil rights and obligations having been infringed depends on the particulars of the case.
d. The Court should not give any unduly restrictive interpretation to the expression locus standi.
The tests for the determination of the locus standi of a person are: –
a. The action must be justiciable.
b. There must be a dispute between the parties.
xxx
Locus standi and jurisdiction are interwoven in the sense that locus standi goes to affect the jurisdiction of the Court before which an action is brought. Thus where there is no locus standi to file an action, the Court cannot properly assume jurisdiction to entertain the action. Locus standi being an issue of jurisdiction can be raised at any stage or level of the proceedings in a suit even on appeal at the Court of Appeal by any of the parties without leave of Court or by the Court itself suo motu. The issue can be raised, after the plaintiff has duly filed his pleadings by a motion and or in a statement of defence.
Locus standi to institute proceedings in a Court is not dependent on the success or merits of a case; it is a condition precedent to the determination of a case on the merits.
xxxx
The two lower Courts fell into grave error in dismissing the summons filed by the appellant to raise the legal points of statute of limitation and locus standi by holding that legal points be raised at the conclusion of evidence on the legal reliefs sought by the plaintiff/respondent. The issue of locus standi is a condition precedent to the determination of a case on merit. Where a plaintiff has no locus standi to bring a suit, the suit becomes incompetent and the Court lacks the jurisdiction to entertain it, the only order the Court can make in the circumstance is that of dismissal. The two lower Courts had obviously put the cart before the horse in their application of the operative principles in respect of the matter before them.
xxxx”
Dwelling further on when the issue of jurisdiction can be raised in a proceeding and how it can be resolved when raised, in the case under reference, the Supreme Court stated thus: –
“xxxx
This Court made a clear distinction between demurrer and jurisdiction going by the case of NDIC v. CBN (2002) 7 NWLR (pt.766) pg. 272 at pages 244. The appellant submitted that objection to jurisdiction can be taken on the basis of statement of claim, writ of summons and on the basis of the evidence received. It was misleading to equate demurrer with objection to jurisdiction as the two lower Courts did. The appellant cited numerous cases in support of his submission on jurisdiction.
Xxxx
The Court of Appeal affirmed the reasoning of the lower Court and relied on Order 22 Rule 2 of the Lagos State High Court Civil Procedure Rules 1994 which stipulates that a party may raise by his pleadings any point of law and unless the Court otherwise orders, any point of law so raised shall be disposed of by the judge who tries the case at or after the trial. The Court went further to hold that it is not open to a party under the rules to isolate certain issues for determination. Consequently the Court of Appeal concluded that the issue of jurisdiction requires evidence as it cannot be determined on affidavit evidence (vide pg. 216 lines 16-17).
The foregoing findings of the two lower Courts are a misconception of the principles of law relating to jurisdiction. The two points of law raised by the appellant’s senior learned counsel in the application dated the 2nd of August 1996 are fundamental issues of jurisdiction. Limitation Law and Locus Standi are both threshold issues which can be raised anytime or for the (sic) in the Court of Appeal or in the Supreme Court. It is not limited to being raised as a special defence and pleading them specifically as required by the Rules of Court under Order 22 Rule 2 of the Lagos State High Court Civil Procedure Rules. It transcends any High Court Rules. It can be raised by preliminary objection at any stage of the proceedings before any Court by any of the parties or even suo motu by the court.
It is therefore noteworthy that an application or preliminary objection seeking for an order to strike out a suit for being incompetent on the ground of absence of jurisdiction is not demurrer and therefore can be filed and taken even before the defendant files his statement of defence or without the defendant filing a statement of defence. The reason being that the issue of jurisdiction can be raised at anytime. In addition the relevant things to be considered by the Court in determining the issue of jurisdiction are the facts as deposed to in affidavits, the writ of summons and the statement of claim where one had to be filed and served. The statement of defence is not one of the relevant materials for that purpose. In the case of National Deposit Insurance Corporation v. Central Bank of Nigeria (2002) 7 NWLR (Pt. 766) pg. 272 pages 296-297, this Court identified the differences between demurrer and objection to jurisdiction by holding that “There is distinction between objection to jurisdiction and demurrer. It is misleading to equate demurrer with objection to jurisdiction. It is a standing principle that in demurrer, the plaintiff must plead and it is upon that pleading that the defendant will contend that accepting all the facts pleaded to be true, the plaintiff has no cause of action or where appropriate no locus standi. The issue of jurisdiction is not a matter for demurrer proceedings. It is much more fundamental than that and does not entirely depend as such on what a plaintiff may plead as facts to prove the relief he seeks. What it involves is what will enable the plaintiff to seek a hearing in Court over his grievance and get it resolved because he is able to show that the Court is empowered to entertain the subject matter. It does not always follow that he must plead first in order to raise the issue of jurisdiction.”
It is trite that once an issue of jurisdiction is raised in any suit, the Court must not give an order in the suit affecting the defendant until the issue of jurisdiction is settled. The trial Court obviously made a wrong order in dismissing the application of the appellant based on issues of jurisdiction locus standi of the plaintiff/respondent and Limitation Law. In the case of Petrojessica Enterprises Ltd v. Leventis Technical Co. Ltd. (1992) 5 NWLR (pt. 244) Pg. 675 at page 693, it was held that “jurisdiction is the very basis on which any tribunal tries a case. It is the lifeline of all trials. A trial without jurisdiction is a nullity. This importance of jurisdiction is the reason why it can be raised at any stage of a case be it at trial, on appeal to the Court of Appeal or to this Court (Supreme Court) a fortiori the Court can suo motu raise it. It is desirable that preliminary objection be raised early on the issue of jurisdiction but once it is apparent to any party that the Court may not have jurisdiction, it can be raised even be raised viva voce as in this case. It is always in the interest of justice to raise the issue of jurisdiction so as to save time and costs and to avoid a trial in nullity.”
xxxx
Furthermore, an objection to jurisdiction can be taken at anytime depending on what materials are available. It would be taken in the following situations –
a. On the basis of the statement of claim or
b. On the basis of the evidence received or
c. By a motion supported by affidavit giving full facts upon which reliance is placed or
d. On the face of the writ of summons, where appropriate as to the capacity in which action was brought or against whom action is brought.
xxxx
In effect, where there is a challenge to the jurisdiction of a Court, the Court must first assume jurisdiction to consider whether it has or lacks jurisdiction. In this case, the defect in the competence of the trial Court to entertain the suit was fatal, while the entire proceedings before the Court was a nullity no matter how well conducted or decided or the level of industry put into the trial and judgment by the learned counsel for the plaintiff/respondent and the learned trial judge. The absence of jurisdiction is irreparable in law and the only procedural duty of a Court is to strike out the case. In view of the fact that the proceedings and judgment of the trial Court was a nullity, the matter ends there. The Court of Appeal has nothing to consider and affirm. The rule in U.A.C. v. Macfoy (1961) WLR pg.1405 becomes operative as you cannot put something on nothing.
xxxx”
In view of the fact that this appeal raised an issue of jurisdiction which is sustained on the first two issues, it will not be necessary to consider the other four issues.
In the final analysis, there is merit in this appeal and it is hereby allowed. The judgment and orders of the two lower Courts are accordingly set aside. xxxxxxxx”
Unlike in the case under reference above, wherein the jurisdictional issues considered by the Supreme Court were those of “statute barred” and “locus standi”, the Appellant has in the instant appeal, challenged the correctness of the decision of the lower Court on “locus standi” and “cause of action” and in doing this the Appellant would appear not to have realised that the issues of “locus standi” and “cause of action” are interwoven jurisdictional issues in certain circumstances. In this regard see the case of OWODUNNI V. REGD TRUSTEES OF CCC (2000) LPELR-2852(SC) wherein the Supreme Court long ago has stated thus: –
“The term ‘locus standi’ (or standing) denotes the legal capacity to institute proceedings in a Court of law. Standing to sue is not dependent on the success or merits of a case, it is a condition precedent to a determination on the merits. It follows therefore, that if the plaintiff has no locus or standing to sue, it is not necessary to consider whether there is a genuine case on the merits; his case must be struck out as being incompetent.
At common law, the position is that, in the realm of public right, for a person to invoke judicial power to determine the constitutionality of legislative or executive action, he must show that either his personal interest will immediately be or has been adversely affected by the action or that he has sustained or is in immediate danger of sustaining an injury to himself, and which interest or injury is over and above that of the general public. In other words, the plaintiff or claimant must show that he has some justiciable interest which may be affected by the action or that he will suffer injury or damage as a result of the action. The question whether there is such a justiciable interest or sufferance of injury or damage depends on the facts and circumstances of each case – See generally, the various judgments delivered by their Lordships of this Court in Senator Adesanya v. President of the Federal Republic of Nigeria & Anor (supra).
xxx
The position appears to be that in private law, the question of locus standi is merged in the issue of cause of action. For instance, a plaintiff who has no privity of contract with the defendant will fail to establish a cause of action for breach of the contract as he will simply not have a locus standi to sue the defendant on the contract. xxx”
See also the case of BARBUS & CO. (NIG) LTD V. OKAFOR-UDEJI (2018) LPELR-44501(SC).
Given the cases referred to hereinbefore and portions of which have been copiously re-produced, I am of the considered view that the Appellant simply deliberately ignored settled positions of the law and decided to give his own slant to the issue, in arguing that he has the locus standi to have instituted and to maintain the instant case; and consequently that his case disclosed a cause of action against the Respondents. The Appellant would appear not to appreciate the fact that the Respondents did not base their attack to his action solely on the originating process and statement of claim filed in the action but also placed affidavit evidence before the lower Court for this purpose and that he (Appellant) not only had every opportunity to controvert the affidavit evidence placed before the lower Court by the Respondents, but that he actually availed himself of the opportunity, by filing a counter affidavit to the affidavit evidence deposed to by the Respondents in support of their motion. Furthermore, it is in my considered view glaring that the Appellant in his stance that the lower Court should not have looked at the letter of 4/8/2004, copiously pleaded in his statement of claim as well as freely referred to in his counter affidavit, at the stage of entertaining the motion of the Respondents, comfortably forgot that the position of the law is that a document pleaded in a pleading is part and parcel of the pleading in question. In this regard see the case of JFS INVESTMENT LTD V. BRAWAL LINE LTD (2010) LPELR-1610(SC) wherein the Supreme Court stated thus:
“On issue one (1), it was seriously contended on behalf of the appellant that the bills of lading attached to the application of the 2nd and 3rd respondents as FAI and FAIA should not have been considered by the trial Court. The appellant felt that such is not permissible under Order 27 Federal High Court (Civil Procedure) Rules, 1976.
With respect to the above stance, I need to go down into the memory lane on this point. In Day v. Williams Hill (Park Lane) Limited (1949) 1 ALL ER 219 at 221 it was held that it should be made clear that if documents are referred to in a pleading they become part of the pleading and it is open and it is open to the Court to look at them without the need of any affidavit exhibiting them.
This pronouncement was duly given a stamp of approval by this Court in the case of SGCC v. C. M. I. S Limited (1962) I All N.L.R. 570 at 511. In Lawal v. G.B. Ollivant (1972) 3 S.C. 124 at 130, this Court held that ‘if an agreement in writing is referred to in a pleading, it becomes part of the pleading and it is open to the Court to give the agreement its true legal effect, irrespective of the terms used in the pleadings to indicate such effect.
The above stance, in my opinion is good law apart from being logical. This has been the position of this Court in the cases of Boothia Maritime Inc. v. Fareast Mercantile Co. Ltd. (2001) 9 NWLR (Pt. 719) 572, Mobil Oil Plc v IAL 36 Inc. (2000) 6 NWLR 6 NWLR (Pt. 659) 146.
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I am therefore, of the considered view that all the lower Court did in countenancing and reproducing the letter of 4/8/2004, which as earlier stated was copiously pleaded by the Appellant himself as the document he founded his action on, at the stage of entertaining the motion of the Respondents, was a clear display by the said Court of its appreciation of the position of the law that the said letter is part of the pleading of the Appellant which the said Court must be seen as limiting itself to. Indeed, it is my considered view that the lower Court was very right to have looked at the letter of 4/8/2004, copiously pleaded in the statement of claim of the Appellant and which was also exhibited to various affidavits filed in different motions brought by the Appellant in the instant action and indeed in the Appellant’s counter affidavit whether or not the Respondents exhibited the said letter to the affidavit in support of their motion. This is because the position of the law as enunciated in many decided cases is to the effect that a Court is entitled to look at the documents in its file or record. See the cases of NUHU V. OGELE (2003) LPELR-2077(SC) and ABIODUN V. FRN (2018) LPELR-43838(SC). It would also appear that a Court is entitled to look at a document in its record even if it was not tendered as an exhibit or was not exhibited to an affidavit in an interlocutory proceeding. However, a Court has no power to take and rely on facts disclosed in a supporting affidavit to a motion which is abandoned. This is because documents in the Court file can only be utilized to support already established facts. Any other facts, especially those in interlocutory applications that were eventually abandoned, cannot justifiably be used by a trial Court to arrive at findings. See the case of OJONYE V. ONU (2018) LPELR-44212(CA). The question of the Appellant having ever abandoned any of the motions he filed in the instant action (and some of which had exhibited to them the letter of 4/8/2004), cannot be said to be the case in the instant action. This is because it is very clear from the motion of the Respondents which the lower Court entertained that the motion(s) filed by the Appellant and to which the letter of 4/8/2004 was exhibited, were still subsisting to the extent that the Respondents as Applicants in the motion entertained by the lower Court sought for the “striking out of the instant case inclusive of all pending applications”. And in any event, I am of the considered view that the Respondents by seeking for the striking out of all pending applications in the instant action can comfortably be said to have incorporated by reference into their motion entertained by the lower Court, the various application in question and everything attached thereto; and that the lower Court in the circumstances was eminently in order to have countenanced and relied on the letter of 4/8/2004 which the Appellant undoubtedly pleaded as the contract document that brought into existence his relationship with the 1st Respondent in respect of the College of Health Sciences of the said 1st Respondent.
Flowing from all that has been stated is that the lower Court having re-produced the content of the letter dated 4/8/2004, in my considered view was eminently correct in finding that the Appellant’s cause of action is hinged on the contents of the letter of the 4th day of August 2004, and that the said letter formed the basis of the contract between the parties to this action as pleaded in the statement of claim.
The Appellant in arguing that he has the locus standi to have initiated the instant action has asserted that his locus standi lies in the fact that he is challenging some wrong actions meted to him by the Respondents, as an employee of the 1st Respondent. Suffice, it to say that I do not see how the Appellant who was never employed by the letter dated 4/8/2004, as the Provost of the College of Health Sciences of the 1st Respondent, but Ag. Provost, can find/found his locus standi to have instituted the instant action in which he is ventilating his grievances against the Respondents as an employee of the 1st Respondent that was appointed as a Provost of the College of Health Sciences of the 1st Respondent and to have predicated his grievances in this regard, on the letter of 4/8/2004, and in which he was appointed as an Ag. Provost of the said 1st Respondent. The letter of 4/8/2004 was re-produced by the lower Court in its decision now on appeal. I am of the considered view that the Appellant clearly from the letter dated 4/8/2004 which appointed him as an Ag. Provost, cannot or does not have the capacity to sue as a Provost without first showing in his statement of claim when he became the Provost of the College of Health Sciences of the 1st Respondent. The lower Court in my considered view was therefore very correct when it held that the Appellant has no locus standi to have brought the instant action. It has already been demonstrated that in the realm of private law, (and the instant case which is predicated on a contract, is in the realm of private law) the issue of locus standi is merged in the issue of cause of action. This being the position of the law, the Appellant who was never appointed to the post of Provost of the College of Health Sciences of the 1st Respondent also cannot have any cause of action against the Respondents in respect of a position to which he was never appointed by the Respondents.
Flowing from all that has been stated is that the lower Court was not only right in its findings that the Appellant has no locus standi to have initiated the instant action but also right that the Appellant has no cause of action against the Respondents. Having also demonstrated hereinbefore that matters of locus standi and cause of action are jurisdictional in nature, it also follows that the lower Court was right in striking out the Appellant’s action for incompetence on either of its findings in respect of locus standi or lack of cause of action, or on the basis of the two findings.
Given the conclusions I have reached hereinbefore that the case of the Appellant was correctly struck out as he has no locus standi to have brought the same and that he has no cause of action against the Respondents, it in my considered view becomes obvious that there is no proper basis for the consideration of the issue as to the correctness of the striking out of the said case by the lower Court on the ground that the Appellant’s case had become spent. The question as to whether or not an action is spent at any stage of the proceeding can only properly arise in respect of an action initiated by a plaintiff who is not lacking in locus standi and/or who has a cause of action against the defendant(s). In other words, if the lower Court had first resolved the issue of locus standi and cause of action in the instant case, it would have seen that the question of the Appellant’s case being spent could not have properly arisen for determination or resolution after it had found that the Appellant has no locus standi to have brought the instant action and/or any cause of action against the Respondents. Now that I have before now resolved the aspects of the Appellant’s lone issue in respect of locus standi and cause of action against the Appellant, and thereby finding that the lower Court was correct in striking out the Appellant’s case on either of these grounds or on both grounds, and that the lower Court was duty bound to strike out the Appellant’s action therefore, I do not see the usefulness of delving into the issue of whether the action of the Appellant was spent. It is only an action initiated by a plaintiff who has locus standi to bring the action and pursuant to a cause of action against the defendant(s) therein, that can be spent. In this regard, see the case of MAIGARI V. MALLE (2019) LPELR-49374(SC) wherein the Supreme Court dwelling on cause of action stated thus: –
“Now, when we speak of “cause of action,” we mean the factual base or a factual situation, a combination of which, makes the matter in litigation an enforceable right or an actionable wrong, xxx;
that is, the factual situation which gives a person a right to a judicial relief, xxxxx,
Simply put, Cause of action means the factual situation, which if substantiated, entitles a plaintiff to a remedy against a defendant, xxx
Now, the appellant, on the evolution of his cause of action, that is, the factual situation which gave him a right to a judicial relief, against the first respondent on October 18, 2018, proceeded to the trial Court on October 31, 2018 to ventilate his grievance and seek relief thereon.
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It is important, however, to note that what the statute bars is the action and not the cause of action. This important distinction is not often understood. Whereas the cause of action, as shown above, refers to the facts or combination of facts which the plaintiff must adduce to be entitled to any relief, the action itself is the medium which affords him the opportunity to ventilate his bundle of facts, xxxxxx
Put differently, a plaintiffs right of action eventuates from the existence of a cause of action, xxx.
In the context of this distinction, what emerges is that whereas the plaintiffs cause of action remains intact, although in a vacuous and bare form, a statute of limitation denudes him (the plaintiff) of his action, that is, his right of enforcement; the right to judicial relief. To be able, therefore, to enjoy the dividends which recourse to the judicial process affords, such a plaintiff must commence his action within the period stipulated by statute. In other words, it is a mandatory requirement. Thus, legal proceedings cannot be validly instituted after the expiration of the prescribed period.
Flowing from all that has been stated is that if the lower Court had properly appreciated that inherent in the attack as to whether or not a suit has been spent, is that the said suit was competent in the first place, it should have simply struck out that head of attack/challenge in the Respondents’ motion. In any case, the issue as to whether or not the lower Court was right in holding that the Appellant’s case was spent, not being the only basis of challenge to the correctness of the ruling of the lower Court that struck out his (Appellants) suit, and this Court having found that the lower Court very correct in striking out the Appellant’s case on grounds of either lack of locus standi or lack of cause of action or both of them, I must and hereby resolve the lone issue formulated by the Appellant against him; and in favour of the Respondents.
In the final analysis, the instant appeal is unmeritorious and it fails. It is hereby dismissed. The decision of the lower Court striking out the instant case as being incompetent, given the conclusion hereinbefore stated that: (i) the Appellant lacked the locus standi to have initiated the instant action; and (ii) that the instant case disclosed no cause of action against the Respondents, is hereby affirmed.
I make no order as to costs.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have been availed the benefit of reading in draft the lead judgment just rendered in respect of this Appeal and concur with His Lordship, Ayobode Olujimi Lokulo-Sodipe, JCA, that the Appeal has no merit. A perusal of the record of Appeal and the Briefs argued, clearly shows that there was no cause of action disclosed by the Plaintiff/Appellant at the trial Court. This is aside the absence of locus standi to ground the authority to commence the suit.
The trial Court rightly struck out the suit. The argument as to the suit being spent was a non sequitur, which merited only a disregard/discountenance or dismissal of same.
Appeal is dismissed.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to read in advance the lead Judgment of my learned brother, AYOBODE OLUJIMI LOKULO-SODIPE, JCA, and I am in agreement with reasoning and conclusion reached in the Judgment therein.
Appearances:
C. O. Ugwor For Appellant(s)
V. O. Obanya For Respondent(s)
