ACCESS INTERNATIONAL SCHOOLS LTD. & ANOR. V. ACCESS SCHOOLS LTD.
(2011)LCN/4984(CA)
In The Court of Appeal of Nigeria
On Monday, the 12th day of December, 2011
CA/I/M.164/2007
RATIO
INTERPRETATION OF SECTION 2(1) AND (2) OF THE COMPANIES PROCEEDINGS RULES, 2000 HAS ABROGATED THE PROVISIONS OF ORDER 7 RULES 1 AND 3 OF THE FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES, 2000 WITH RESPECT TO THE MANDATORY REQUIREMENT AND FORMAT OF EVERY APPLICATION MADE UNDER THE ACT
The relevant Statutory Provisions that fall for consideration in this appeal are: Section 2(1) and (2) of the Companies Proceedings Rules, 2000 and Order 7 Rules 1 and 3 of the Federal High Court (Civil Procedure) Rules, 2000. The Provisions read:- “Section 2(1) Except in the case of the application mentioned in Rules 5 and 6 of these rules and applications made in proceedings relating to the winding up of companies, every application made under the Act shall be made by originating summons. “Section 2(2) An originating summons under the Rules shall be in FORM 1 specified in the schedule to these Rules.” Order 7 Rule 1 and 3 of the Federal High Court (Civil Procedure) rules, 2000 also read thus: Rule 1 “The provisions of this order shall apply to all originating summons subject to any special provisions relating to originating summonses under any enactment or law. Rule 3 Every originating summons shall include a statement of the questions on which the plaintiff seeks the determination or direction of the court or as the case may be concise statement of the relief or remedy claimed in the proceeding begun by the originating summons with sufficient particulars to identify the cause of or causes of action in respect of which the plaintiff claims that relief or remedy.” Now, considering these provisions, can it be said that section 2(1) and (2) of the Companies Proceedings Rules has abrogated the contents of Order 7 Rule 3 of the Federal High Court (Civil Procedure) Rules, 2000. The key words under order 7 rule 1 of the Federal High Court (Civil Procedure) rules, 2000 is “Subject to.” It is to be noted that the Companies Proceedings Rules contained special provisions relating to originating summons. That means the applicable provision as far as this case is concerned is section 2(1) and (2) of the Companies Proceedings Rules. The Provisions of Order 7 Rule 3 of the Federal High Court (Civil Procedure) Rules will only apply where there are no special provisions relating to originating summons in the Companies Proceedings Rules. Section 2(1) of the Companies Proceedings Rules is a mandatory requirement and the format to be used is as provided in FORM 1 specified in the schedule to the Rules. The provisions of Order 7 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2000 is clear and unambiguous. It does not require any further interpretation as contended by Appellant’s counsel. In the interpretation of statutory provisions, the intendment of the piece of Legislation must at all times be borne in mind. In F.C.S.C. v. Laoye (1989) 2 NWLR (Pt.106) 652 at 686 Nnamani JSC (of blessed memory) had this to say: “It has always been accepted that a statute should be so construed as to achieve the object it was intended to serve.” Section 2(2) of the Companies Proceedings Rules expressly made reference only to originating summons under the Companies Proceedings Rules. The provision clearly states that the originating summons shall be in FORM 1 specified in the schedule to the Rules. In my humble view the format provided satisfies the requirement. If it was intended that the originating summons should contain the details mentioned under Order 7 Rule 3 of the Federal High Court (Civil Procedure) Rules, same would have been clearly spelt out in the Rules. It is my considered view that it would not be correct to say that S.2(1) and (2) of the Companies Proceedings Rules has abrogated the provisions of Order 7 Rule 3 of the Federal High Court (Civil Procedure) Rules, since the provision is still relevant in cases where no special provision relating to originating summons has been provided. The learned trial Judge therefore rightly held that the suit was properly instituted by the respondent. The suit was commenced in the manner set out in the Companies Proceedings Rules. PER ADZIRA GANA MSHELIA, J.C.A.
CAUSE OF ACTION: WHAT A CAUSE OF ACTION ENTAILS
A cause of action is the factual situation which a plaintiff relies upon to support his claim recognized by the law as giving rise to a substantive right capable of being claimed or enforced against the defendant. The factual situation must however, constitute the essential ingredients of an enforceable right as claimed. See Asaboro vs. Pan Ocean Oil (Nig.) Ltd. (2006) 4 NWLR (Pt.971) 595 and Mobil Oil Plc. vs. D.E.N.R. Ltd. (2004) 1 NWLR (Pt.853) 142. PER ADZIRA GANA MSHELIA, J.C.A.
DETERMINATION OF CAUSE OF ACTION: WHETHER A COURT CAN TAKE INTO CONSIDERATION THE WEAKNESS OF A PLAINTIFF’S CLAIM BEFORE DETERMINING WHETHER OR NOT A SUIT DISCLOSES A CAUSE OF ACTION
The law is that the court must not take into consideration the weakness of a plaintiff’s claim before determining whether or not a suit discloses a cause of action. What is important is for the court to examine the averments in the pleadings to see if they disclose some cause of action or raise some issues of law of fact calling for determination by the court. Whether the claim will succeed or not should not be an issue at this stage. See Nicon Ins. Corp. vs. Olowofoyeku (2006) 5 NWLR (Pt.973) 244 and Mobil Oil Plc. vs. D.E.N.R. Ltd. (2004) 1 NWLR (Pt.653) 142. The conclusion arrived at by the learned trial judge cannot therefore be faulted. PER ADZIRA GANA MSHELIA, J.C.A.
JUSTICES:
STANLEY SHENKO ALAGOA (OFR) Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
1. ACCESS INTERNATIONAL SCHOOLS LTD.
2. MR. JONATHAN AKPAN – Appellant(s)
AND
ACCESS SCHOOLS LTD. – Respondent(s)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the Ruling of Olatoregun J. of the Federal High Court, Ogun State delivered on the 27th day of June, 2007.
The respondent filed an originating summons dated 15th November, 2006 together with a motion on Notice also dated 15th November, 2006 praying the Honourable Court for an injunction of passing off against her name. Before the hearing of the application, the Appellants entered a conditional appearance and also filed a Notice of Preliminary Objection all on the same date being 30/1/2007.
For clarity the Notice of Preliminary Objection is reproduced here under:-
“TAKE NOTICE that before or at the hearing of the plaintiffs originating summons dated 15th November, 2006 and/or motion on Notice dated 20th December, 2006 and/or any other application(s) the 1st and 2nd defendants/applicant’s shall rely on the following Preliminary Objection, that is to say, that;
i. The suit is grossly and palpably incompetent and hence the Honourable Court lacks jurisdiction to entertain same.
ii. The suit discloses no reasonable cause of action against the 1st and 2nd Defendant/Applicants.
iii. The suit is frivolous, vexatious and an abuse of the judicial process.
GROUNDS OF THE APPLICATION
1. The plaintiff has failed to show what legal right(s) of the plaintiff that has been infringed or is likely to be infringed.
2. The suit is unjusfiable and therefore not maintainable for failure to disclose any genuine legal issue in controversy to be subjected to trial.
AND FURTHER TAKE NOTICE that at the hearing of this application, the 1st and 2nd Defendant/Applicants shall rely on all legal and equitable defences.
RELIEF(S) SOUGHT
An order striking out the originating summons and dismissing the action against the 1st and 2nd Defendants/Applicants.”
The Notice of Preliminary Objection was argued and in a considered ruling delivered on 27th day of June, 2007 the learned trial Judge struck out the Appellants Notice of Preliminary Objection hence this appeal. Appellants filed notice of appeal 10th on July, 2007 containing two grounds of appeal.
In accordance with the practice of this court Appellants filed their brief of argument on 5/5/2008 but same was deemed properly filed on 13/11/2008. Respondent did not file any Respondent’s brief of argument. When the appeal came up for hearing on 19/10/2011 Respondent did not appear in court though served. The court observed as follows:-
“we are satisfied that today’s hearing notice was served on the Respondent through office of Sylvester & Daniel associates on 19/5/2011.”
Appellants were earlier granted leave on 28/4/2010 to argue the appeal on the appellants brief alone. The appeal was therefore argued on appellants’ brief alone. Appellants’ counsel Dolly Akanimo adopted and relied on the appellants’ brief of argument and urged the court to allow the appeal and set aside the ruling of the lower court.
Appellants formulated one issue for determination in this appeal. The issue distilled from ground 1 read thus:-
1. Whether S.2(1) and (2) of the company procedure rules, 2000 (which stipulates the mere form or format of originating summons) has arrogated the provisions of order 7 rule 3 of the Federal High Court (Civil Procedure) rules 2000 (which deals with the contents of originating summons) as to render the formulation of issues or questions for determination in an originating summons unnecessary.
While arguing this issue appellants’ counsel Dolly Akanimo contended in the brief of argument that the originating summons in this suit must contain a formulation of the questions or issues for the determination of the Honourable Court, failing which the originating summons is incompetent, destitute of reasonable cause of action and the court lacks jurisdiction to entertain same. That a party such as the respondent in this appeal who has complied with S.2(1) & (2) of the company Procedure Rules 2000, is not relieved of its duty to also comply with the mandatory provisions of order 7 rule 3 of the Federal High Court (Civil Procedure) Rules, 2000. Learned counsel submitted that S.2(1) & (2) of the company Procedure Rules 2000 dealt with the FORM OR FORMAT of originating summons but it does not abrogate the contents of originating summons in order 7 Rule 3 of the Federal High Court (Civil Procedure) Rules, 2000. Counsel contends that the two Rules in this context are to apply unoflatu not being inconsistent with each other whatsoever but rather complimentary and neither of them has abrogated or dispensed with the application of the other. Learned counsel relied on the Supreme Court Practice (The white book) 1999 vol. 1 sweet and Maxwell page 66 and Maxwell on interpretation of statutes 11th Edition page 28 paras. 2. It was further submitted that the failure of the respondent to formulate issues or questions for the determination of the court in accordance with order 7 rule 3 renders the action incompetent. That it amounts to the action not being brought upon the fulfillment of a condition precedent to the institution of the action. That is to say the formulation of questions/issues for determination in the originating summons is the condition precedent in this wise. Reliance was placed on the cases of: Nipol Ltd. vs. Bioku Investment & Property Co. Ltd. (1992) 3 NWLR (Pt.232) 727; Adigun vs. Ayinde (1993) 8 NWLR (Pt.313) 516 and Madukolu vs. Nkemdilim (1962) 1 ANLR 589 at 590. Counsel also contends that lack of competence translates to lack of jurisdiction. See: Green vs. Green (1987) 3 NWLR (Pt.61) 481 Ration 28; Attorney-General Lagos State vs. Dosunmu (1989) ANLR page 504 and Bamgbade vs. Balogun (1994) 1 NWLR (Pt.323) 718 at 739 paras. E – F. Learned counsel submitted that the failure of the respondent to formulate questions in her originating summons robs the entire action with reasonable cause of action. See the cases of Sanda vs. Kukawa Local Govt. (1991) 2 NWLR (Pt.174) 379 and Ogbo vs. Adoga (1994) 3 NWLR (Pt.333) 469 ratio 2. That the failure of the Respondent to formulate issues/questions for determination has deprived the court of sufficient material upon which to exercise its discretion. He urged the court to hold that this is fatal to their case. He finally urged the court to strike out the originating summons dated 15/11/2006 and dismiss this action.
The respondent did not file any brief of argument. In short respondent did not contest this appeal though served with all processes, hearing notices inclusive. Be that as it may the appeal still has to be determined on merit.
The narrow issue for determination is whether S.2(1) and (2) of the Companies Proceedings Rules, 2000 has abrogated the provisions of Order 7 Rule 3 of the Federal High Court (Civil Procedure) rules, 2000.
The relevant Statutory Provisions that fall for consideration in this appeal are: Section 2(1) and (2) of the Companies Proceedings Rules, 2000 and Order 7 Rules 1 and 3 of the Federal High Court (Civil Procedure) Rules, 2000. The Provisions read:-
“Section 2(1)
Except in the case of the application mentioned in Rules 5 and 6 of these rules and applications made in proceedings relating to the winding up of companies, every application made under the Act shall be made by originating summons.
“Section 2(2) An originating summons under the Rules shall be in FORM 1 specified in the schedule to these Rules.”
Order 7 Rule 1 and 3 of the Federal High Court (Civil Procedure) rules, 2000 also read thus:
Rule 1
“The provisions of this order shall apply to all originating summons subject to any special provisions relating to originating summonses under any enactment or law.
Rule 3
Every originating summons shall include a statement of the questions on which the plaintiff seeks the determination or direction of the court or as the case may be concise statement of the relief or remedy claimed in the proceeding begun by the originating summons with sufficient particulars to identify the cause of or causes of action in respect of which the plaintiff claims that relief or remedy.” Now, considering these provisions, can it be said that section 2(1) and (2) of the Companies Proceedings Rules has abrogated the contents of Order 7 Rule 3 of the Federal High Court (Civil Procedure) Rules, 2000. The key words under order 7 rule 1 of the Federal High Court (Civil Procedure) rules, 2000 is “Subject to.” It is to be noted that the Companies Proceedings Rules contained special provisions relating to originating summons. That means the applicable provision as far as this case is concerned is section 2(1) and (2) of the Companies Proceedings Rules. The Provisions of Order 7 Rule 3 of the Federal High Court (Civil Procedure) Rules will only apply where there are no special provisions relating to originating summons in the Companies Proceedings Rules. Section 2(1) of the Companies Proceedings Rules is a mandatory requirement and the format to be used is as provided in FORM 1 specified in the schedule to the Rules.
The provisions of Order 7 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2000 is clear and unambiguous. It does not require any further interpretation as contended by Appellant’s counsel. In the interpretation of statutory provisions, the intendment of the piece of Legislation must at all times be borne in mind. In F.C.S.C. v. Laoye (1989) 2 NWLR (Pt.106) 652 at 686 Nnamani JSC (of blessed memory) had this to say:
“It has always been accepted that a statute should be so construed as to achieve the object it was intended to serve.”
Section 2(2) of the Companies Proceedings Rules expressly made reference only to originating summons under the Companies Proceedings Rules. The provision clearly states that the originating summons shall be in FORM 1 specified in the schedule to the Rules. In my humble view the format provided satisfies the requirement. If it was intended that the originating summons should contain the details mentioned under Order 7 Rule 3 of the Federal High Court (Civil Procedure) Rules, same would have been clearly spelt out in the Rules. It is my considered view that it would not be correct to say that S.2(1) and (2) of the Companies Proceedings Rules has abrogated the provisions of Order 7 Rule 3 of the Federal High Court (Civil Procedure) Rules, since the provision is still relevant in cases where no special provision relating to originating summons has been provided. The learned trial Judge therefore rightly held that the suit was properly instituted by the respondent. The suit was commenced in the manner set out in the Companies Proceedings Rules. The contention of Appellants’ counsel that the failure of the respondent to formulate questions in her originating summons robs the entire action with reasonable cause of action cannot hold water. Respondent complied with the requirement of the provisions of S.2(1) and (2) of the Companies Proceedings Rules. The authorities cited by Appellants’ counsel in support of this submission are not helpful. In the case of Agip Nig. Ltd. vs. Agip Petrol International (2010) vol. 1 MJSC (Pt.11) 98 forwarded to court by Appellants’ counsel, the Supreme Court among other things held that accessing the court by an originating summons is the due process of law and condition precedent required to be satisfied by the applicant in a derivative action before a court can exercise jurisdiction in respect of the suit. This authority is also not helpful since respondent complied with the procedural steps provided under the Companies Proceedings Rules.
I have examined the originating summons appearing on pages 6 – 11 of the record. It contained declaratory and injunctive reliefs. For clarity and emphasis the reliefs are as follows:-
“1. A declaration that the name ACCESS INTERNATIONAL SCHOOL LIMITED is identical with and so nearly resembles the name ACCESS SCHOOLS LIMITED which was incorporated first in time with the Corporate Affairs Commission and that such resemblance can be calculated to deceive.”
2. An order directing the 1st and 2nd respondents to cease using the name “ACCESS INTERNATIONAL SCHOOLS” in business as such usage could mislead the minds of the public between ACCESS INTERNATIONAL SCHOOLS LIMITED AND ACCESS SCHOOLS LIMITED.
3. An order directing the 3rd respondent to withdraw the certificate of incorporation of the 1st respondent on account of its name being so closely identical to that of ACCESS SCHOOLS LIMITED.
4. An order of injunction restraining the 1st and 2nd respondent from continuing the use of the name Access International Schools Limited in doing business in whatever manner.”
A cause of action is the factual situation which a plaintiff relies upon to support his claim recognized by the law as giving rise to a substantive right capable of being claimed or enforced against the defendant. The factual situation must however, constitute the essential ingredients of an enforceable right as claimed. See Asaboro vs. Pan Ocean Oil (Nig.) Ltd. (2006) 4 NWLR (Pt.971) 595 and Mobil Oil Plc. vs. D.E.N.R. Ltd. (2004) 1 NWLR (Pt.853) 142. I agree with the learned trial judge that the Plaintiff/Respondent’s claim has disclosed a reasonable cause of action. The law is that the court must not take into consideration the weakness of a plaintiff’s claim before determining whether or not a suit discloses a cause of action. What is important is for the court to examine the averments in the pleadings to see if they disclose some cause of action or raise some issues of law of fact calling for determination by the court. Whether the claim will succeed or not should not be an issue at this stage. See Nicon Ins. Corp. vs. Olowofoyeku (2006) 5 NWLR (Pt.973) 244 and Mobil Oil Plc. vs. D.E.N.R. Ltd. (2004) 1 NWLR (Pt.653) 142. The conclusion arrived at by the learned trial judge cannot therefore be faulted.
In the circumstance, the sole issue raised by the appellant fails and is dismissed.
In the result, I hold that this appeal lacks merit. Appeal is dismissed. I hereby affirm the decision of the lower court delivered on the 27th day of June, 2007. There will be no order has to costs.
STANLEY SHENKO ALAGOA, J.C.A., OFR: I read before now the judgment just delivered by my brother Adzira Gana Mshella (JCA) and I am of the view that the appeal lacks merit and ought to fail. I dismiss same and affirm the decision of the lower court delivered on the 27th June, 2007. I also abide by the order on costs contained in the lead judgment.
MODUPE FASANMI, J.C.A.: I have read before now, the judgment of my learned brother A.G. MSHELIA J.C.A. I agree with his reasoning and conclusion.
The appeal lacks merit and it is accordingly dismissed by me. The decision of the lower court delivered on the 27th of June, 2007 is hereby affirmed. No order as to costs.
Appearances
Mr. Dolly Akanimo For Appellant
AND
Respondent absent (though served.) For Respondent
