MR. IFEANYICHUKWU OKONKWO V. NATIONAL UNIVERSITIES COMMISSION
(2013)LCN/5964(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of February, 2013
CA/E/244/2009
RATIO
”The 8th Edition of the Black’s Law Dictionary at page 264 defines “Claim” as: 1. The aggregate of operative facts giving rise to a right enforceable by a court the Plaintiff’s short plain statement about the crash established the claim. Also termed claim for relief. 2. The assertion of an existing right, any right to payment or to an equitable remedy, even if contingent or provisional . . . .3. A demand for money, property, or a legal remedy to which one asserts a right, especially the part of a complaint in a civil action specifying what relief the Plaintiff asks for – pleading -“.” Per OWOADE, J.C.A.
”Second, by virtue of Section 299 of the CAMA, except for the rare exceptions of minority actions under sections 300 – 303 of CAMA, only a Company can sue to remedy a wrong against a company.” Per OWOADE, J.C.A.
”In the case of Owodunni v. Registered Trustees of C.C.C. (supra) at pages 354 – 355, 357, the court held that: “The question whether or not a Plaintiff has a locus standi in a suit, is determined from a totality of all the averments in his statement of claim?.” Per OWOADE, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
MR. IFEANYICHUKWU OKONKWO Appellant(s)
AND
NATIONAL UNIVERSITIES COMMISSION Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This appeal stemmed from the decision of Federal High Court Enugu Judicial Division in suit No. FHC/EN/CS/214/2006, delivered on Wednesday the 4th day of March 2009 by His Lordship, Hon. Justice A. Abdu-Kafarati.
The Appellant as Plaintiff commenced the present action in the court below on 20/12/06 by way of originating summons against the Respondent.
The sole question for determination in the originating summons is:
“Whether having regard to the provisions of the 1999 constitution of the Federal Republic of Nigeria and in purview of Exhibit A, and B, the Defendant has any iota of right to issue Exhibit ‘c’ without the name of Richmond Open University, a tort against the Plaintiff and those whose interest he represents”.
The Appellant as Plaintiff sought the following reliefs:
(a) An order of Declaration that the Defendant’s act of issuing Exhibit ‘C’ without the name of Richmond Open University is unconstitutional, illegal, null and void.
(b) An order of Declaration that the Defendant in purview of Exhibits ‘A’ and ‘B’ was negligent in issuing Exhibit ‘C’ without the name of Richmond Open University.
(c) An order of Declaration that the Defendant’s act vide Exhibit ‘C’ without the name of Richmond Open University is oppressive, arbitrary, high handed and a contempt of the Court order Exhibit ‘A’.
(d) An order of Declaration that the said act of the Defendant in Exhibit ‘C’ is clearly a manifestation of vindictive and malicious act against the Plaintiff, a show of shame, and an act of executive lawlessness.
(e) An order directing the Defendant to pay to the Plaintiff the sum of twenty-five million naira (N25 million) as General Damages.
(f) An order directing the Defendant to pay to the Plaintiff the sum of ten million naira (N10 million) as Exemplary Damages for the oppressive, arbitrary and unconstitutional act, against the plaintiff.
(g) An order setting aside Exhibit ‘C’ issued by the Defendant without the name of Richmond Open University.
(h) An order of perpetual Injunction restraining the Defendant from issuing any other Public Notices regarding Private Universities in Nigeria without the name of Richmond Open University or denying the said Richmond Open University any right to statutory grants, or invitations to any meeting or functions conducted by the Defendant for privately own Universities, or interfering with the rights of the Plaintiff/Richmond Open University except as provided by the law of the land.
The Respondent on 26/02/2007 filed a notice of preliminary objection to the hearing of the originating summons and prayed the court below to strike out the suit on the following grounds, namely:
i. that the plaintiff has no locus standi to institute and maintain the suit.
ii. that the suit cannot be properly determined under the originating summons procedure.
The Appellant filed a motion on notice on 6/3/07 challenging the competence of the counter affidavit and notice of preliminary objection filed by the Respondent.
On 29/3/07 the court below, with the consent of the parties ordered written addresses in respect of the two applications.
Parties adopted their written addresses and in a considered Judgment delivered on 4/3/2009, A. Abdu- Kafarati J. held at pages 154 – 155 of the record as follows:-
“A careful perusal of the claim as contained in the originating summons of the Plaintiff dated 20/12/06 will reveal that all the eight reliefs are in favour of Richmond Open University which is not a party to this suit.
The Plaintiff has not shown to the court that he has authority to conduct the case on behalf of the said Richmond Open University. He claimed to be suing in a representative capacity i.e. for himself and on behalf of the University, but there is nothing before the Court to suggest any representative action. He did not sue in a representative capacity. I therefore hold that the Plaintiff on record i.e. Mr. Ifeanyi Okonkwo does not have the locus standi to institute and maintain this action and therefore this court lacks the Jurisdiction to entertain the plaintiff’s suit……….
Having held that this court has no jurisdiction to entertain this suit, the proper order to make is that of striking out the suit. The Plaintiff’s originating summons dated 20/12/2006 is accordingly struck out with N10,000.00 cost to the defendant. Having come to this conclusion, I do not find it necessary to go into the submissions of learned counsel on the merit of the originating summons, same having been struck out.”
Dissatisfied with the judgment, the Appellant filed a Notice of Appeal containing a sole ground of appeal before this court on 22/4/2009.
Appellant’s brief of argument dated 8/2/2009 was filed on the same day. Respondent’s brief of argument dated 27/7/2009 was also filed on the same day.
The Appellant nominated a sole issue for determination to wit:
“Having due regards to the averments in the affidavit and Exhibit ‘B’ Judgment dated 14/7/2006 in suit No. FHC/EN/CS/76/2006 between the parties attached to the originating summons whether the Plaintiff (Appellant) can be rightly said not to have the locus standi to institute and maintain the action?”
Learned counsel for the Respondent similarly formulated a sole issue for determination, that is:
“Whether the trial court was right when it held that the Appellant lacked the locus standi to institute and maintain the suit.”
On the sole issue for determination, the Appellant in person submitted that the foundation upon which the present action is predicated is a positive and subsisting judgment between the parties in Suit No. FHC/EN/CS/76/2006 dated 14/7/2006, attached and marked Exhibit ‘B’ in the originating summons filed by the Appellant in this subsequent proceeding on 20/12/2006.
The Appellant submitted that the document a trial court should consider when deciding the issue of a plaintiff’s Locus Standi is the averments in the statement of claim/or as in the instant case the Appellant’s 18 paragraphs affidavit in support of the originating summons.
On this the Appellant referred to the cases of Tabiowo v. Disu (2008) 7 NWLR (Part 1087) 533,
Ogbo v. Adoga (1994) 3 NWLR (Part 333) 469.
Panache Communication Ltd. v. Aikhomu (1994) 2 NWLR (Part 327) 420.
It is trite law, said the Appellant that wherein as in the instant case, the action is commenced by originating summons, what a court will consider in the determination of whether the Plaintiff has Locus Standi is the affidavit and Exhibits in support of the originating summons and not what the learned trial judge erroneously considered in his judgment dated 4/3/2001, to be.
“A careful perusal of the claim as contained in the originating summons of the Plaintiff dated 20/12/2006 will reveal that all the eight reliefs are in favour of Richmond Open University which is not a party to this suit”.
The Appellant contends that by the facts averred in the affidavit in support of the Originating summons and Exhibit ‘B’ attached to the summons, a judgment in suit No. FHC/EN/CS/76/2006, against the Defendant (National Universities Commission) the present plaintiff, Mr. Ifeanyichukwu Okonkwo in the said Exhibit ‘B’ sued as “Mr. Ifeanyichukwu Okonkwo (suing for himself and on behalf of Richmond Open University”).
Vs.
1. Professor Peter Okebukola
2. National Universities Commission.
3. The Federal Government of Nigeria. DEFENDANTS
4. Inspector General of Police, Nigerian Police Force.)
Appellants argued that the judgment of the court below cannot stand, when viewed against the ratio decidendi in cases such as Fawehinmi v. President, F.R.N. (2007) 14 NWLR (Part 1054) 275, at pages 329 – 331.
Adesokan v. Adegorolu (1997) 3 NWLR (Part 493) 261 and Bolaji v. v. Bamgbose (1986) 4 NWLR (Part 37) 632 that:
“In ascertaining whether the Plaintiff in an action has Locus Standi, it is the statement of claim that the court looks at. The Statement of Claim will be examined to see if it discloses a cause of action vested in the Plaintiff. Where the action is commenced by originating summons, it is the affidavit in support of the originating summons that will be considered in determining whether the Plaintiff has Locus standi”. Locus standi, according to the Appellant does not depend on the success or merit of a case, and all that is required of a Plaintiff is to plead and prove facts establishing his rights, interest, and obligation in respect of the subject matter.
Appellant referred again to the case of Fawehinmi v. President F.R.N. (supra) at page 331 and submitted that the learned trial judge was wrong in law when he decided to peruse the claim as contained in the originating summons of the Plaintiff/Appellant.
Appellant referred to his 18 paragraphs supporting affidavit particularly paragraphs 1, 2, 5, 7 , 12 and 13 as well as Exhibit ‘A’ and ‘B’ and submitted that as Plaintiff he discharged the duty cast on him.
He contended that the failure of the learned trial judge to examine and evaluate the Plaintiffs Appellant Exhibits ‘A’ and ‘B’ attached in support of the originating summons is a failure to do justice according to law. It is the law said Appellant that documents placed before a court of law are for the purpose of examination and evaluation and it is the duty of the Judge to ensure that such documents are considered in the interest of justice. That, documentary evidence such as Exhibits ‘A’ and ‘B’ ought to be evaluated and in the course of the evaluation, a judge is expected to closely examine the documents and comment on them.
The Appellant referred to the case of Tangale Traditional Council v. FAWU (2002) F.W.L.R (Part 117) 1137 and urged us to hold that the learned trial judge in the instant case failed in the duty cast upon him to examine and evaluate Exhibits ‘A’ and ‘B’ and that led to a miscarriage of justice.
The Appellant referred to the definition of “parties” by the Supreme Court in the case of Ndulue v. Ibezim (2002) 5 SCNJ 247 at page 210 per IGU JSC that:
“The term “parties” has been defined to include not only those named in the record of proceedings but also those who had direct interest in the subject matter of the dispute and had an opportunity to amend the proceedings and to join as party in the suit but chose not to do so but were content to stand-by and see the battle in which their interest is directly in issue fought by somebody else or let witnesses testify as to their title to or interest in the subject matter of the action”.
Appellant submitted that in view of the above decision, the affidavit and exhibit ‘A’ and ‘B’ attached, all constituting evidence from which the learned trial judge ought to have concluded that both Mr. Ifeanyichukwu Okonkwo (the Appellant) and Richmond Open University are parties in this action.
He said, there is no difficulty for this Honourable Court to find that the suit is brought in a representative capacity from the uncontradicted facts before the trial court as shown in the affidavit evidence of the Plaintiff. Appellant submitted that the learned trial judge missed the gist of the principles settled by the apex court in the cases relied upon in arriving at his perverse conclusion.
On this Appellant referred to the case of Owodunni v. Registered Trustees of C.C.C. (2000) 10 NWLR (Part 675) 315 at Pages 354 – 355, 357 where it was held that:
“The question whether or not a Plaintiff has a locus standi in a suit, is determined from a totality of all the averments in his statement of claim”.
Thus, in dealing with the locus stgndi of a Plaintiff, it is his statement of claim alone that has to be carefully scrutinized with a view to ascertaining whether or not it has disclosed his interest and how such interest has arisen in the subject-matter of the action (Bolaji v. Bamgbose (1986) 4 NWLR (Part 37) 632, Momoh v. Olotu (1970) 1 ALL NLR 177 referred to)”
The learned trial judge, said Appellant deployed the word “Claim” without including what the case decided which is “Statement of Claim”
Appellant submitted that the word “Claim” is not synonymous or interchangeable with the phrase “statement of Claim” considered by the apex court in the case of Owodunni v. Registered Trustees of C.C.C. (supra) and urged us to hold that what the apex court decided in the Owodunni case (supra) is reference to “Statement of Claim” and not “Claim”.
The Appellant referred to the case of In RE: Adetona (1994) 3 NWLR (Part 333) 481 where the Supreme Court opined that:
“There are two basic criteria in determining “Sufficient interest” on the part of the Plaintiff to bring the action. One is whether the person could have been joined as a party to the suit in the first instance (See Chief Ojukwu vs. Governor of Lagos State (supra). This is important because, if the law of joinder does not anticipate the Plaintiff, then he is likely to be a busy body in the commencement of the action as he lacks sufficient interest to do so, in the same way he lacks sufficient interest to be joined as a party. The other one is that the Plaintiff will suffer some injury or hardship arising from the result of the litigation and the injury or hardship should be real and tangible and not supposed or self imposed”
The Appellant submitted that from Exhibits ‘A’ and ‘B’ attached to the originating summons in the affidavits (order of interlocutory injunction dated 19/6/2006 and final judgment in suit No. FHC/ENC/CS/76/2006 dated 14/7/2006 the Plaintiff, Appellant in the present case (Mr. Ifeanyichukwu Okonkwo) is clearly a bona fide party with more than sufficient interest in this suit.
He referred to the cases of Ndulue v. Ibezim (2002) 12 NWLR (Part 780) 139. In RE: Eke (1993) 4 NWRL (Part 286) 176, and Ibigbam v. Military Governor, Ekiti State (2004) 4 NWLR (Part 863) 243 at 266 – 277.
In further support of the above submission, Appellant pointed out that a court of law is not only entitled to rely on the documents in its file not tendered as exhibit but can also rely on facts in pleaded exhibits when those facts are not independently averred in pleading.
He referred to the cases of Akinola v. V.C. UNILORIN (2004) 11 NWLR (Part 885) 616.
Ekpe v. Oke (2001) 10 NWLR (Part 721) 341.
Agbaisi v. Ebikerefe (1997) 4 NWLR (Part 502) 630
Agbabomovo v. Eduyegbe (1999) 3 NWLR (Part 594) 170.
Appellant submitted that where the averments in a Plaintiff’s Statement of Claim disclose the rights or interests of the Plaintiff which have been or are in danger of being violated, invaded or adversely affected by the act of the Defendant, the complaint of such a Plaintiff would be deemed to have shown sufficient interest to give him the Locus Standi to litigate the subject matter in issue.
He referred to the cases of Momoh v. Olotu (1970) 1 ALL NLR 117.
Adesanya v. President of the Federal Republic or Nigeria (1981) 5 SC 112.
Eleso v. Government of Ogun State (1990) 2 NWLR (Part 133) 420.
Oloriode v. Oyebi (1984) 1 SCNLR 390.
Appellant submitted that he discharged the onus on him by disclosing his interest in the subject matter of the suit, moreso, that the suit was brought on representative capacity as shown in paragraphs 1, 2, 3, 4, 5, 7, 12, 13, 14 and 17 of the affidavit in support of the originating summons.
He referred to the cases of Attorney General Lagos State v. Eko Hotels Limited (2006) 18 NWLR (Part 1011) 378.
Ojukwu v. Governor Lagos State (1985) 2 NWLR (Part 10) 806.
Appellant submitted that the law is trite that a party whose interest will be directly affected if a relief in the action were not granted is a proper party to a suit. That, once the allegations in the pleadings show real controversy that are capable of leading to the grant of a relief the pleading cannot be rightly said to disclose no reasonable cause of action. That, in the instant case on the averments and exhibits in support of the reliefs sought, the decision of the learned trial judge ought to be set aside.
He referred to the case of Mobil Production Nigeria Unlimited v. LASEPA (2002) 18 NWLR (Part 798) 1.
Finally, the Appellant urged us to hold that the instant case presented the materials constituting special circumstances that will compel the Court of Appeal to reverse the decision/findings of fact made by the learned trial judge.
He referred to the case of Nziwu v. Onuorah (2002) 4 NWLR (Part 756) 22 at pages 26 – 27.
Learned counsel for the Respondent submitted that the subject matter of the Appellant’s originating summons was the exclusion of Richmond Open University from the list of private Universities Exhibit C.
He submitted that Locus Standi or “standing” in a case denotes sufficient interest in the subject matter of a dispute.
He referred on this to the cases of Fawehinmi v. President F.R.N. (2007) 14 NWLR (Part 1054) 275 at 329.
Pam v. Mohammed (2008) 16 NWLR (Part 1112)
Adesokan v. Adegorolu (1997) 3 NWLR (Part 493) 261.
Omega Bank Plc v. Governor Ekiti State (2007) 16 NWLR (Part 1061) 445 at 475.
Furthermore, said counsel, the test for Locus Standi is (i) the action must be justiciable, and (ii) there must be a dispute in the matter.
He referred to the cases of Amah v. Nwonkwo (2008) ALL F.W.L.R. (Part 411) 879 at 883, 898.
P.D.P. v. Abubakar (No.2) (2007) ALL FWLR (Part 386) 711 at 737.
Learned counsel for the Respondent submitted that the originating summons did not disclose any dispute between the Appellant and the Respondent since the Appellant was not and did not claim to be a private University. Assuming, there was a dispute between the Respondent and Richmond Open University over Exhibit C, the Respondent submits that the Appellant, not being Richmond Open University, has no sufficient right in the subject matter to complain. Therefore, the Respondent submits that the trial court was right when it held that the Appellant had no locus to institute and maintain the suit.
Counsel submitted that the Appellant in his notice of appeal and brief of argument complained that the trial court misdirected itself and therefore occasioned miscarriage of justice on the Appellant in that the trial court based its decision on the claim of the Appellant rather than the affidavit in support of originating summons. This, complain said Respondent’s counsel is not borne out by the judgment or tenable in law.
The trial court in his judgment said counsel, held as follows:-
“It is trite law that in determining the locus standi of the Plaintiff to institute an action it is the claim of the Plaintiff that is to be looked at….
A careful perusal of the claim as contained in the originating summons of the Plaintiff dated 20/12/06 will reveal that all the eight reliefs are in favour of Richmond Open University which is not a party to this suit”.
Learned counsel for the Respondent submitted that the approach of the trial court was correct and has been recommended by this court and the Supreme Court. That it is the claim of the Plaintiff that determines whether or not the Plaintiff has a locus in a matter. Counsel submitted that the trial court in this case considered the claim of the Appellant as contained in the originating summons. That the affidavit in support of the originating summons attached to the originating summons is one and the same document.
The eight reliefs claimed by the Appellant are stated in both the summons and the affidavit.
Therefore, there is no suggestion in the judgment that the trial court did not consider the affidavit in support of the originating summons.
In any case, said counsel, it is not improper for a trial court to focus on the reliefs (remedy) sought in determining locus.
On this, counsel referred to the case of Ojukwu v. Ojukwu & Anor. (2008) 18 NWLR (Part 1119) 439 at 452.
Learned counsel for the Respondent submitted that the remedy (reliefs) claimed in a matter are relevant in determining locus, and the trial court did not misdirect itself even if it based its decision that the Appellant lacked locus standi to maintain the suit on the reliefs in the originating summons.
Counsel submitted that the Appellant in the originating summons was seeking redress for alleged wrongs against Richmond Open University.
That, in supporting affidavit, the Appellant deposed that he was the beneficiary of a judgment award, that he deposed to the affidavit for himself and on behalf of Richmond Open University and that he and Richmond Open University have a common grievance.
Learned counsel for the Respondent submitted that these assertions are not sufficient to confer locus on the Appellant in that the originating summons was brought in his personal capacity, and there was nothing in the endorsement on the originating summons to show that he was acting in a representative capacity for Richmond Open University.
Respondent’s counsel further submitted that the Appellant in his supporting affidavit clearly established that Richmond Open University is an incorporated Company with a Certificate of incorporation (annexed as Exhibit ‘D’ to the supporting affidavit) thus subject to the provisions of the Companies and Allied Matters Act. Counsel submitted that the fact of Richmond Open University being an incorporated company demolishes and destroys any claim of locus by the Appellant in an action to redress alleged wrongs against Richmond Open University.
The effect of the incorporation of Richmond Open University, as a private company, said counsel, is that it is a separate legal personality capable of suing or being sued in its name.
He referred to AIB Limited v. Lee and Tee Industries Limited (2003) 7 NWLR (Part 819) 366 at 395.
Counsel submitted that Richmond Open University is separate and distinct form the Appellant and that locus to commence and maintain an action to remedy a wrong against a Company is regulated by Section 299 Companies and Allied Matters Act Cap C20 LFN 2004 which provides that only a Company can sue to remedy a wrong against a company.
He referred to the cases of Williams v. Edu (2002) 3 NWLR (Part 754) 400 at 411.
Erebor v. Major & Co. (Nig.) Limited (2001) 5 NWLR (Part 706) 300 at 309.
Counsel added that there are statutory exceptions in Sections 300 – 303 of the Companies and Allied Matters Act to the general rule in section 299, but the Appellant’s claim in the originating summons did not fall within these exceptions, therefore the exceptions are inapplicable to the Appellant.
Learned counsel for the Respondent submitted that since the subject matter of the originating summons was to redress alleged wrongs against a Company, the only way the Appellant could have locus is if the affidavit in support of the originating summons established any of the exceptions envisaged under section 300 – 303 of the Companies and Allied Matters Act.
He urged the dismissal of the appeal.
The Appellant’s sole issue for determination in this appeal is premised on two misconceptions. The first is the belief of the Appellant that the action was brought in a representative capacity. The second is equally the misunderstanding by the Appellant of the use of the word “Claim of the Plaintiff and the reference to “the Plaintiff s reliefs” which the Appellant construed did not entail the perusal of his supporting affidavit and exhibits to the originating summons.
The learned trial judge was right to have said that the Plaintiff s action was not brought in a representative capacity. In the first place, as rightly pointed out in this appeal by the learned counsel for the Respondent, there is nothing on the face of the originating summons dated and filed on 20/12/2006 which suggests that Richmond Open University is a party to the suit. There is also no endorsement in the body of the summons that the plaintiff, Ifeanyichukwu Okonkwo , took out the summons in a representative capacity for himself and on behalf of the Richmond Open University.
Indeed, at page 2 of the Record, the parties named in the originating summons are:
MR. IFEANYICHUKWU OKONKWO
AND
NATIONAL UNIVERSITIES COMMISSION
and the endorsement on the summons on page 3 of the Record reads thus:
“This originating summons was taken out by the named Plaintiff’s Mr. Ifeanyichukwu Okonkwo whose address of service is:
Mr. Ifeanyichukwu Okonkwo,
Director/Investor
of No . 14 Ishielu Avenue, Independence Layout, Enugu”.
Indeed, both in fact and in law, the Plaintiff Mr. Ifeanyichukwu Okonkwo brought a personal and not a representative action.
The additional reason for this is that it is a legal impossibility for the Appellant to have claimed to sue for himself and on behalf of Richmond Open University an incorporated Limited Liability Company under Nigerian Law and whose activities are governed by the provisions of the Companies and Allied Matters Act (CAMA).
First, a Company is a separate legal personality which is capable of suing or being sued in its name.
See AIB Limited v. Lee & Tee Industries Limited (supra) at 366, 395. Second, by virtue of Section 299 of the CAMA, except for the rare exceptions of minority actions under sections 300 – 303 of CAMA, only a Company can sue to remedy a wrong against a company.
The Appellant also complained that the learned trial judge did not take into consideration his affidavit and supporting exhibits when it held inter alia that”
“.:….A careful perusal of the claim as contained in the originating summons of the Plaintiff dated 20/12/06 will reveal that all the eight reliefs are in favour of Richmond Open University which is not a party to this suit”.
To the contrary, there is no suggestion in the Judgment that the trial court did not consider the affidavit and exhibits in support of the originating summons.
Clearly, the affidavit in support of the originating summons attached to the originating summons is one and the same document. The aggregate of which in legal parlance is referred to as “Claim” just as the writ of summons and the Statement of Claim would properly aggregate as being termed the Plaintiff’s Claims the first being the summons, the other being a statement of facts in support.
The 8th Edition of the Black’s Law Dictionary at page 264 defines “Claim” as:
1. The aggregate of operative facts giving rise to a right enforceable by a court the Plaintiff’s short plain statement about the crash established the claim. Also termed claim for relief.
2. The assertion of an existing right, any right to payment or to an equitable remedy, even if contingent or provisional . . . .3. A demand for money, property, or a legal remedy to which one asserts a right, especially the part of a complaint in a civil action specifying what relief the Plaintiff asks for – pleading -“.
By the above explanation of claim, it is clear that the learned trial judge in his above statement and reference to ‘Claim’ and relief in determining that the Appellant does not have locus standi did not in fact derogate from the principles enunciated in those array of cases referred to in the Appellant’s brief of argument which tell us to look for locus from the statement of claim, affidavit or relief of the Plaintiff as the case may be.
See Fawehinmi v. President F.R.N. (supra).
The reality is that any and or all of the affidavit in support of an originating summons, the Plaintiff’s reliefs or the statement of claim would be a guide in providing the leeway for a trial court to determine whether or not a Plaintiff has locus standi.
In the instant case, the learned trial judge was right to have held that the Plaintiff’s action was brought in a personal capacity and not in a representative capacity. And, was equally right when he discovered that all the eight (8) reliefs in the Plaintiff’s originating summons are in favour of Richmond Open University to have held that the Appellant as a person does not have sufficient interest to take the action.
Indeed, if we follow the authorities, even those of them cited by the Appellant himself, it is clear from the reliefs that the Appellant would not have been a necessary party if the suit had been taken out by Richmond Open University and if any, the injury or hardship that the Appellant could claim in the suit as composed or instituted could only be supposed or self imposed and not real or tangible.
In the case of Owodunni v. Registered Trustees of C.C.C. (supra) at pages 354 – 355, 357, the court held that:
“The question whether or not a Plaintiff has a locus standi in a suit, is determined from a totality of all the averments in his statement of claim….”
In the Appellant’s supporting affidavit, the Appellant deposed that he was the beneficiary of a judgment award, that he deposed to the affidavit for himself and on behalf of Richmond Open University and that he and Richmond Open University have a common grievance. In my opinion, the above seems to be the crux of the problem, the Appellant is legally incompetent to have taken out the originating summons on behalf of Richmond Open University which is an incorporated limited liability Company. This, apart from the fact that the Company’s name is neither on the face of the summons or in the endorsement page. There are two basic criteria in determining “sufficient interest” on the part of the Plaintiff to bring the action. One is whether the person could have been joined as a party to the suit in the first instance. The other one is that the Plaintiff will suffer some injury or hardship arising from the result of the litigation and the injury or hardship should be real and tangible and not supposed or self imposed.
In order to have a legal right, the Plaintiff must show that he has sufficient interest which is adversely affected to his detriment and which he has shown.
Locus standi can only arise from a right cognizable and conferred on the Plaintiff by law. Where, &s in the instant case the recognizable rights through the reliefs claimed belong to some other person or entity, the Plaintiff cannot be said to have a standing to commence or institute the action.
See In Re: Adetona (1994) 3 NWLR (Part 333) 481 at 488 – 489. NIKHENA & others v. EGBA & others (1987) 2 NWLR (Part 57 494.
Ojukw v. Ojukwu & Anor (2008) 18 NWLR (Part 111) 439 at 452.
The only issue in this appeal is resolved against the Appellant. The appeal lacks merit and it is accordingly dismissed.
I make no order as to costs.
ISAIAH OLUFEMI AKEJU, J.C.A: I read before now the judgment just delivered by my learned brother, MOJEED ADEKUNLE OWOADE JCA. I agree with the reasoning therein and the conclusion that the appeal lacks merit. I too dismiss the appeal with no order as to costs.
EMMANUEL AKOMAYE AGIM, J.C.A: I had read the draft of the Judgment delivered by my Learned brother MOJEED ADEKUNLE OWOADE JCA. I agree with the reasoning and conclusions in the Judgment. I agree that the appeal lacks merit. I too dismiss the appeal and abide by the consequential orders including the award of costs.
Appearances
Ifeanyichukwu OkonkwoFor Appellant
AND
B.C. UgwuFor Respondent
