EAST HORIZON GAS CO. LTD & ORS. v. HIS HIGHNESS ETUBOM ESSIEN E. EFIOK & ORS.
(2010)LCN/4141(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 15th day of December, 2010
CA/C/152/2009
RATIO
PRELIMINARY OBJECTION: WHETHER WHERE A PRELIMINARY OBJECTION HAS BEEN PROPERLY RAISED, IT MUST BE CONSIDERED AND DETERMINED FIRST BY THE APPELLATE COURT AT THAT PRELIMINARY OR INITIAL STAGE, BEFORE DELVING INTO THE MERITS OF THE APPEAL PROPER
It is the law as established by practice that whenever a preliminary objection is properly raised, attacking the competence of an appeal, it should be considered and determined or resolved first by the appellate court at that preliminary or initial stage, before delving into the merits of the appeal proper. see N. N. B. Plc. vs Garrick (2006) 4 NWLR (pt. 969) 69. PER ABDULRAHMAN OREDOLA, J.C.A.
RIGHT OF APPEAL: CIRCUMSTANCES WHERE LEAVE OF THE COURT IS NOT REQUIRED TO FILE AN APPEAL
By virtue of section 241 (1) (a) and (b) of the 1999 Constitution of the Federal Republic of Nigeria, there is an absolute right of appeal in any civil or criminal proceedings, without leave of anybody, where the grounds of appeal involve questions of law alone, whether or not the decision being appealed against is interlocutory or final. see F.C.M.B, Plc. vs. NIMR (2009) 16 NWLR (pt.1168) 468. In Osbimi vs Niger construction Ltd. (2006) 9 NWLR (Pt. 986) 474, the supreme court held that where the issue raised in a ground of appeal is on legal interpretation, implication, import and purport of a document such as a deed, terms of contract, agreement, word or phrase and the inference to be drawn therefrom; the ground is one of law. PER ABDULRAHMAN OREDOLA, J.C.A.
RIGHT OF APPEAL: WHETHER A COURT OF LAW CAN TAKE AWAY OR DENY AN AGGRIEVED PARTY’S RIGHT TO APPEAL
Let it be restated, that right of appeal is either constitutional or statutory. It cannot be taken away from or denied to an aggrieved party in deserving circumstances. Hence, no court of law has the jurisdiction to take away from, deny or deprive an appellant, his conferred constitutional right of appeal. In this regard and on the wings of the authorities cited above and similar ones, this court cannot hijack the appellants’ right of appeal on the basis of the preliminary objection raised by the respondents herein. It is thus my firm viewpoint that the grounds of appeal touch on locus standi and interpretation of document; as a result of which the appellants do not require the leave of any court to appeal. The preliminary objection is misconceived and frivolous. It is accordingly overruled. PER ABDULRAHMAN OREDOLA, J.C.A
LOCUS STANDI: WHAT “LOCUS STANDI” ENTAILS
“Locus standi” or “standing” or “title to sue” has been defined as the right of a party to appear and be heard on the question before any court or tribunal. see senator Abraham Ade Adesanya vs. president of the Federal Republic of Nigeria & Anor. (1981) 5 SC 112. It is thus the law, that locus standi which denote the legal capacity to institute proceedings in a court of law is determined by the claim of the plaintiff as contained in the statement of claim or as in the instant case, in the affidavit in support of the claim. See Adefuru vs Oyesire (1989) 5 NWLR (pt.122) 377; Oduneye vs Efunusa (1990) 7 NWLR (pt. 164) 618. PER ABDULRAHMAN OREDOLA, J.C.A.
LOCUS STANDI : WHAT A PLAINTIFF HAS A DUTY TO SHOW WHERE HIS LOCUS STANDI IN A MATTER IS CHALLENGED
It should be noted that once a party’s standing to sue is challenged, such a party has the onus to establish his entitlement or special and specific interest in the dispute. In this connection, a plaintiff will successfully establish his locus standi in a matter, if he shows that he has sufficient interest in the performance of the duty he seeks to enforce, or still that his interest is likely to be adversely affected. It is obvious, that this must surely vary from case to case. See Owoduni vs Registered Trustees of C.C.C.(2006) 6 SC (Pt.111) 60. PER ABDULRAHMAN OREDOLA, J.C.A.
DUTY OF THE COURT: WHETHER A COURT OF LAW MUST NOT PRONOUNCE UPON THE SUBSTANTIVE ISSUES IN A CASE WHEN DEALING WITH ISSUES AT THE INTERLOCUTORY STAGE
At this point let me remind myself, that a court of law should be cautious wary and not unwittingly determine the same matter which is yet to be pronounced upon in the substantive case, either before it or before another court, where it is still dealing with an issue or issues at the interlocutory stage. See F. S. B. vs Imano (2000) 11 NWLR (Pt.679) 620. Thus, where the merit of a suit is yet to be determined by the trial court, it then follows that the appellate could should not unduly focus or direct its decision to the merit of that suit. See Nwankwo vs Ononoeze Madu (2005) 4 NWLR (Pt.916) 470. PER ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
1. EAST HORIZON GAS CO. LTD
2. OILSERV LIMITED
3. MJD OILFIELD SERVICE LTD Appellant(s)
AND
1. HIS HIGHNESS ETUBOM ESSIEN E. EFIOK
2. REAR ADM. (RTD) ITAM E. OKPO
3. CHIEF NDEM ETIM NDEM
(For themselves and on behalf of Ukim Ita, Ikot Inyang, Ikot Esu, Iong Inyang Eyonsa & Isu Eyo Nsa Communities of Creek Town, Odukpani L.G.A.) Respondent(s)
ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of Anjor, J. delivered on 14th July, 2009 in suit No. HC/123/2009 wherein the preliminary objection raised by the appellants herein was dismissed. The brief facts of the instant appeal is as follows: The respondents herein were the claimants (plaintiffs) in suit No.HC/123/2009 which was commenced by means of originating summons at the High Court of Cross River State, holden at Calabar. The action was instituted on 7th April, 2009. The appellants were the defendants before the trial court.
At the trial court the respondents sought the following reliefs in the originating summons. They are:
“1. An order of specific performance of the terms of the MEMORANDUM OF UNDERSTANDING executed between the DEFENDANTS and Cross River State Government and dated 20th October, 2010.
2. An order compelling the Defendants to forward the list of all sub-contracts already awarded or yet to be awarded as it affects any subject touching on the construction of the UNICEM GAS PIPELINE project to the claimant for the purpose of awarding all such sub-contracts to the Claimants.
3. An order compelling the Defendants to forward to the claimants a list of required, unskilled labour personnel needed or already employed from 20th October, 2008 to when the construction of the project shall be completed for the purpose of forwarding their indigenes for employment.
4. An order compelling the Defendant to award all subcontracts i.e every contract ancillary to laying of the gas-pipeline to the Claimants
5. General damages of N5,000,000.00 only.”
And they also claimed the following in the alternative:
“1. Payment of the sum of N200,000,000.00 only as damages for breach of the terms of the MEMORANDUM OF UNDERSTANDING.
2. General damages of 5,000,000.00 only.”
They further sought for the determination of the following question.
“Whether the Defendants are in breach of the express provisions of the Memorandum of Understanding of 20th October, 2009, particularly Articles 4:1.1 and 4:1.2 thereof.”
The respondents’ affidavit of 38 paragraphs filed in support of the originating summons fully explains the facts and circumstances relied upon by the respondents. The appellants filed notices of preliminary objection on 29th April, 2009 and 7th May, 2009, challenging the competence of the suit on the grounds that the respondents have no locus standi to institute the action and that the 2nd and 3rd Appellant so being agents of a disclosed principal “should not have been sued”. The lower court took arguments on the written addresses filed by the respective learned counsel for the parties and delivered its ruling thereon on the said 14th July, 2009. The learned trial judge held that the objection was, “grossly lacking in merit” and accordingly dismissed it. That ruling of the lower court was the genesis of the instant appeal, which the appellants filed on 20th July, 2009. The notice of appeal filed by the appellants contained four grounds of appeal and gave particulars of the grounds. Howbeit, at the hearing of this appeal on 26th October, 2010, the learned counsel for the appellants sought leave of this Court to abandon grounds two and three of their grounds of appeal. The said grounds of appeal are hereby struck out, having been withdrawn and or abandoned.
Before this Court and on 19th October, 2009 to be precise, the respondents filed a notice of preliminary objection to the appeal on the ground that it is incompetent. The contentions of the respondents as expressed in the two issues raised for determination of the objection are to the effect, that the ruling of the lower court was not a final decision and the grounds of appeal filed by the appellants involve questions of mixed law and facts.
These being the case as contended by the learned counsel for the respondents, the prior leave of either the lower court or this Court was required, but the appellants failed or refused to seek and obtain the required leave. The learned respondents’ counsel urged us to strike out the appeal. The learned counsel for the appellants responded to this objection in their reply brief which was filed on 12th May, 2010. He urged therein, that the objection be discountenanced for the reason, that the grounds of appeal raised the issue of locus standi which is an issue of law. He submitted further that leave was not required and that the appeal is competent.
It is the law as established by practice that whenever a preliminary objection is properly raised, attacking the competence of an appeal, it should be considered and determined or resolved first by the appellate court at that preliminary or initial stage, before delving into the merits of the appeal proper. see N. N. B. Plc. vs Garrick (2006) 4 NWLR (pt. 969) 69.
For ease of reference and clarity of exposition, the two remaining grounds of appeal, are reproduced below with their particulars:
“GROUND 1. The learned trial judge erred in law when he held that the plaintiffs (now Respondents) have locus standi to bring the suit.
Particulars
i. The plaintiff/Respondents brought the suit relying on a Memorandum of understanding which they exhibited as Exhibits EN2.
ii. That plaintiff/respondents are not a party to the said Exhibit EN2.
iii. A party cannot sue on a contract to which it is not is party.
GROUND 4: The learned trial judge erred in Law when he held that upon a suit brought in contract the 2nd and 3rd Defendants (now 2nd and 3rd Appellants) agents of a known principal (the 1st defendant now 1st Appellant) can be sued and thereby refused to strike out the names of the said Defendants from the suit.
Particulars
i. Agents of a known principal cannot be sued in a contact.
ii. 2nd and 3rd Defendants/Appellants are not a party to the contract.
iii. It is the principal that will be sued in any contract where he is known.”
By virtue of section 241 (1) (a) and (b) of the 1999 Constitution of the Federal Republic of Nigeria, there is an absolute right of appeal in any civil or criminal proceedings, without leave of anybody, where the grounds of appeal involve questions of law alone, whether or not the decision being appealed against is interlocutory or final. see F.C.M.B, Plc. vs. NIMR (2009) 16 NWLR (pt.1168) 468. In Osbimi vs Niger construction Ltd. (2006) 9 NWLR (Pt. 986) 474, the supreme court held that where the issue raised in a ground of appeal is on legal interpretation, implication, import and purport of a document such as a deed, terms of contract, agreement, word or phrase and the inference to be drawn therefrom; the ground is one of law.
Let it be restated, that right of appeal is either constitutional or statutory. It cannot be taken away from or denied to an aggrieved party in deserving circumstances. Hence, no court of law has the jurisdiction to take away from, deny or deprive an appellant, his conferred constitutional right of appeal. In this regard and on the wings of the authorities cited above and similar ones, this court cannot hijack the appellants’ right of appeal on the basis of the preliminary objection raised by the respondents herein. It is thus my firm viewpoint that the grounds of appeal touch on locus standi and interpretation of document; as a result of which the appellants do not require the leave of any court to appeal. The preliminary objection is misconceived and frivolous. It is accordingly overruled.
On the issue of locus standi which is the bone of contention in this appeal, the learned counsel for the appellants formulated two issues in the appellants’ amended brief of argument which was deemed filed with leave of this Court, sought and granted on 15th March, 2010. They are:
“(1) Whether the respondents have locus standi to initiate the suit at the court below’
(2) Whether 2nd and 3rd appellants being agents of a disclosed principal can be sued.”
The learned appellants’ counsel argued that since the respondents were neither parties nor privies to the agreement “they sought to enforce, they had no locus standi to do so. It was further contended that since there was no privity of contract between the appellants and the respondents, that the latter had no locus standi to institute and maintain this suit. Furthermore, that the onus of proof in this regard is on the respondents.
On his part, the learned counsel for the respondents also raised two issues in the respondents’ amended brief of argument which was filed on 13th April, 2010. They are:
“(1) whether the learned, trial judge was right when he held that the claimants,/respondents had locus standi to commence this suit?
(2) whether the 2nd and 3rd defendants/appellants are necessary parties in this suit?”
He argued that it is the claim of the respondents that will determine whether they had locus standi. He urged this court to find and hold that from the totality of the depositions in the affidavit in support of the claim, that the respondents had sufficient and or special interest in the subject matter of the dispute and therefore the requisite standing to maintain this suit.
“Locus standi” or “standing” or “title to sue” has been defined as the right of a party to appear and be heard on the question before any court or tribunal. see senator Abraham Ade Adesanya vs. president of the Federal Republic of Nigeria & Anor. (1981) 5 SC 112. It is thus the law, that locus standi which denote the legal capacity to institute proceedings in a court of law is determined by the claim of the plaintiff as contained in the statement of claim or as in the instant case, in the affidavit in support of the claim. See Adefuru vs Oyesire (1989) 5 NWLR (pt.122) 377; Oduneye vs Efunusa (1990) 7 NWLR (pt. 164) 618.
It should be noted that once a party’s standing to sue is challenged, such a party has the onus to establish his entitlement or special and specific interest in the dispute. In this connection, a plaintiff will successfully establish his locus standi in a matter, if he shows that he has sufficient interest in the performance of the duty he seeks to enforce, or still that his interest is likely to be adversely affected. It is obvious, that this must surely vary from case to case. See Owoduni vs Registered Trustees of C.C.C.(2006) 6 SC (Pt.111) 60.
Again, the principle or doctrine of incorporation by reference is frequently applied in the construction of documents including agreements, where it is clear that it was within contemplation and comprehension of both parties that by necessary implication, other parties are capable of being absorbed, assimilated, incorporated or subsumed into the agreement entered into by the parties.
In the instant case, the respondents are undisputably the clan Head and principal members of various communities they represent in their claim or cause of action. Those communities are obviously the beneficiaries of the agreement between the Government of cross River state of Nigeria and the 1st Appellant, which said agreement is Exhibit EN2 annexed to the affidavit in support of the claim. If as argued by the learned counsel for the appellants that they do not have locus standi as they are mere beneficiaries, the poser will be, what is the import and purport of clause 5 or Exhibit EN2 the memorandum of understanding, which reads thus:
“5. SPECIAL PROVISION:
The HOST COMMUNITIES herein enumerated shall have the right either as a body or individually, to seek a judicial enforcement of the provision of this MEMORANDUM.”
Without much ado and without mincing words, under the laws of Nigeria, “Judicial enforcement” can only be sought and obtained in the courts. In Akin Adejumo & Ors. vs Ajani Yusuf Ayantegbe (1989) 6 SCNJ (Pt.1) 76/85, Nnaemka- Agu, JSC referred to smith and snipes Hat Farm vs River Douglas Catchment Board (1949) 2 K. B. 500/517. Drive yourserf Hire Co. (London) Ltd. vs. Strutt (1954) 1 Q. B. 250/271 – 275, and enunciated thus:
“There is authority for the proposition that a person who can take advantage of a contract can sue on it, even if no consideration has moved from him.”
In my view, the respondents have more than a passing interest in this matter. Indeed, they have sufficient interest in the subject matter covered by Exhibit EN2. Additionally, they have been expressly granted the requisite locus to seek judicial enforcement of that agreement in unambiguous terms. What is more, the said document, that is Exhibit EN2 was voluntarily entered into and willingly signed by the 1st Appellant herein, who is consequently bound by the provisions contained therein.
At this point let me remind myself, that a court of law should be cautious wary and not unwittingly determine the same matter which is yet to be pronounced upon in the substantive case, either before it or before another court, where it is still dealing with an issue or issues at the interlocutory stage. See F. S. B. vs Imano (2000) 11 NWLR (Pt.679) 620. Thus, where the merit of a suit is yet to be determined by the trial court, it then follows that the appellate could should not unduly focus or direct its decision to the merit of that suit. See Nwankwo vs Ononoeze Madu (2005) 4 NWLR (Pt.916) 470.
Guided by the above stated established position and on the issue of agency, I do not intend to belabour the issue. It suffices for me to observe and state, that I do not accept the proposition propounded by the learned counsel for the appellants that any of the appellants can be regarded, taken or considered as the agent of the other, since they carry on business in their individual respective capacity.
On the whole and in the premise, this appeal fails and it is accordingly dismissed. Parties are to bear their respective costs.
KUMAI BAYANG AKAAHS, J.C.A.: I agree.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, M. A. Oredola JCA gave me the privilege of reading the draft of the lead judgment he has just delivered in this appeal. I agree with the reasoning and conclusion of my learned brother. I too find no merit in this appeal and I dismiss it without any cost.
Appearances
Frank A. Chukuka EsqFor Appellant
AND
E. N. EKPO ESQ., with him D. I. Koofreh Esq., Lewis Archibong Esq. and Kingsley Effiong Esq.For Respondent
