ICHIE CHUKS MUOMA (OCHIAGHA ORAIFITE) v. CORPORATE AFFAIRS COMMISSION & ORS (2013)

ICHIE CHUKS MUOMA (OCHIAGHA ORAIFITE) v. CORPORATE AFFAIRS COMMISSION & ORS

(2013)LCN/6664(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 18th day of December, 2013

CA/E/102/2004

RATIO

WORDS AND PHRASES: LOCUS STANDI

For a person to have locus standi in an action, he must be able to show that his civil rights and obligations have been or are in danger of being infringed. It is well settled law that the locus standi of a plaintiff is determinable from the totality of all averments in his or her statement of claim since it is the statement of claim that has to be carefully scrutinized with a view to ascertaining whether or not it has disclosed sufficient legal interest and how such interest has arisen in the subject matter of the action. See Owodunmi v. Registered Trustees of Celestial Church of Christ (2000) 10 NWLR (Pt.675) 315; Arowolo v. Akano (2003) 8 NWLR (Pt.873) 451; PVC Ltd. v. Lawal (2005) 3 NWLR (Pt. 911) 121 at 142 and Adesanya v. President of Nigeria (1981) 2 NCLR 338 at 380, 385 and 393. Per ADZIRA GANA MSHELIA, J.C.A

WHETHER THERE IS A DIFFERENCE BETWEEN A FAIR HEARING AND A FAIR TRIAL

It has also been held that a fair hearing must involve a fair trial and a fair trial of a case consist of the whole hearing. There is no difference between the two. See Muhammed v. Kano N.A. (1968) 1 ALL NLR 424 at 426 and Delduwo vs. Okorodudu (1976) Volume 1 N.M.L.R. 238 at 249. The true test of fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done in the case. See Okafor v. A.G. Anambra (1991) 6 NWLR (Pt. 200) 659. Per ADZIRA GANA MSHELIA, J.C.A

WHETHER THE ISSUE OF JURISDICTION CAN BE RAISED AT ANY STAGE OF PROCEEDING

The issue of jurisdiction of a court is dealt with under the inherent jurisdiction of the court and can be raised and disposed of at any stage of the proceedings. That the question whether or not a court has jurisdiction to entertain a suit is a radical and crucial question of competence and when it is raised, it is neater, better, infact imperative to settle that issue one way or the other before proceeding to hear of the case on merits. Reliance was placed on Okoye v. Nigerian Construction and Furniture Co. Ltd. (1991) 6 NWLR (Pt. 198) 501; A.G. Lagos State v. Dosunmu (1989) NWLR (Pt. 111) 552; A.G. Kwara State v. Warch (1995) 7 NWLR (Pt. 405) 120 and A.G. Federation v. Sode (1990) 1 NWLR (Pt.128) 500. Per ADZIRA GANA MSHELIA, J.C.A

CONDITIONS TO ESTABLISH AN ABUSE OF COURT PROCESS

For court process to be abused the subject matter must be the same as well as parties. See C.B.N. v. Ahmed (2001) 11 NWLR (Pt. 724) 369 at 372 – 373. An abuse of court process is a product of facts. When the facts leading to an abuse of court process are not discharged sufficiently, it is difficult for a court or Tribunal to hold that an abuse of court process has been occasioned. The disclosure of such facts before a court is done through affidavit. See. International Bank for West Africa (now Afribank Plc) v. Fola Sasegbon (2007) LPELR – 8246 (CA.). Per ADZIRA GANA MSHELIA, J.C.A

WHEN IS THE DECISION OF A TRIAL COURT SAID TO BE FINAL

That the test the court should apply for determining whether a decision is final or interlocutory is one which looks at the nature of the order made and not the nature of the proceedings.

Where a court orders something to be done without any other reference to itself as did by the trial court, the decision is final. Reliance was placed on Akinsanya vs. M.B.A. Ltd. (1986) 4 NWLR (Pt. 35) at 273. See also Igunbor v. Afolabi (2001) 11 NWLR (Pt. 723) 148; Odutola v. Oderinde (2004) 12 NWLR (Pt.888) 574; Nasco MGT Services. vs. A.N. Amaku Transport Ltd. (2003) 2 NWLR (Pt. 804) at 220 and AIB Ltd. v Packoplast Nigeria Ltd. (2004) 3 NWLR (Pt. 859) 129. Per ADZIRA GANA MSHELIA, J.C.A

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

ICHIE CHUKS MUOMA (OCHIAGHA ORAIFITE) Appellant(s)

AND

1. CORPORATE AFFAIRS COMMISSION
2. THE INCORPORATED TRUSTEES OF ORAIFITE IMPROVEMENT UNION
3. CHIEF MICHAEL OBIUKWU OBAA (OBI EZUMERE-ORAIFITE)
4. GILBERT OKONKWO UDEOJI (OBI UNODU-ORAIFITE)
5. CHIEF J.I. ENEKWEZU (OBI IREFI)
6. CHIEF EMEKA OKONKWO (OBI IFITE-ORAIFITE
7. RICHARD OKONKWO CHAIRMAN, INTERIM MANAGEMENT COMMITTEE, ORAIFITE IMPROVEMENT UNION)
8. JUDE AMAIZU (SECRETARY), INTERIM MANAGEMENT COMMITTEE, ORAIFITE IMPROVEMENT UNION) Respondent(s)

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Hon. C.E. Archibong J. of Federal High Court Enugu delivered on 15th day of November, 2003 wherein he struck out the Plaintiff/Appellant’s Suit in its entirety upon the Preliminary Objection raised by the 2nd – 8th Defendants/Respondents challenging the jurisdiction of the court.

At the Federal High Court, the Plaintiff/Appellant had in paragraph 17(a) – (h) of his statement of claim dated 21st day of October, 2002 at pages 12 – 13 of the record sought for the following reliefs:-
“WHEREOF the Plaintiffs has suffered damages and claims from the Defendants, jointly and severally, as follows:-
(a) A DECLARATION that the 2nd Defendant should not operate or carry on any of the objects or objectives of the Oraifite Improvement Union (O.I.U.) without a valid and subsisting certificate of incorporation issued by the 1st Defendant.
(b) A DECLARATION that the 2nd Defendant is not entitled to carry on or conduct the affairs of the Oraifite Improvement Union unless and until the names of the registered trustees of Oraifite Improvement Union (O.I.U.) are lodge and registered with the 1st Defendant.
(c) A DECLARATION that the two versions of the draft/proposed Constitution being circulated by the 3rd – 8th Defendants for adoption as the new constitution of Oraifite Improvement Union (O.I.U.) constitute a flagrant breach of the provisions of the Companies and Allied Matters Act, Cap. 59, Laws of the Federation of Nigeria, 1990 and the Constitution of the Federal Republic of Nigeria, 1990, and a fortiori UNLAWFUL, NULL, VOID and INOPERATIVE.
(d) A DECLARATION that the amendment of the existing/subsisting Constitution of Oraifite Improvement Union, 1985, or the promotion, promulgation, writing or adoption of a new constitution for Oraifite Improvement Union (O.I.U.) is ULTRA VIRES the powers and functions, if any, of the 7th and 8th Defendants and the illegal interim management committee, so called, headed by them.
(e) A DECLARATION that the unelected “Interim Management Committee” of the Oraifite Improvement Union (O.I.U.) of which the 7th and the 8th Defendants are the “Chairman” and “Secretary”, respectively is ULTRA VIRES and/or inconsistent with the constitution of Oraifite Improvement Union, 1985, the Companies and Allied Matters Act, 1990 and consequently NULL, VOID and INOPERATIVE.
(f) AN INJUNCTION restraining the 1st Defendant, its servants, agents and privies or otherwise howsoever, from accepting from the 2nd-8th Defendants, or any of them and registering any constitution or document purportedly replacing the said constitution of Oraifite Improvement Union 1985.
(g) AN INJUNCTION restraining the 3rd – 8th Defendants, by themselves, their servants, agents privies and successors, or otherwise howsoever, from canvassing, promoting, proffering, or in any other manner, overtly or covertly, whatsoever, the adoption of wither or both versions of the draft/proposed constitution aforesaid in replacement of the existing/subsisting Constitution of Oraifite Improvement Union 1985.
(h) AN INJUNCTION restraining the 3rd – 8th Defendants, by themselves, their servants, agents or privies from convening any meeting of 2nd Defendant or Oraifite Improvement Union in any manner or carrying out the management and control of 2nd Defendant or Oraifite Improvement Union (I.O.U.).

By a Notice of Preliminary Objection filed on 6/12/2002 the 2nd – 8th Defendants/Respondents sought for an order of the court striking out the suit for lack of Jurisdiction. The grounds of objection includes:-
“(a) The 2nd Defendant not being a body corporate within the intendment of Section 613 and 679 of the Companies and Allied Matters Act cannot sue or be sued as a body corporate.
(b) The Registered Trustees of Oraifite Improvement Union being registered under the Companies and Allied Matters Act, this court has no jurisdiction over the Defendants and the subject matter or complaint of the Plaintiff under Section 251 of the Constitution of Nigeria 1990 and Section 693 of the Companies and Allied Matters Act 1990.
(c) The Plaintiff has no locus standi to bring this action in respect of the affairs of 2nd Defendant as the Plaintiff has not suffered any injury or loss nor has the Plaintiff shown any injury suffered over and above any other indigene or citizen of Oraifite to give him locus to sue.
(d) That the complaint of the Plaintiff over seniority of the villages or quarters that make up Oraifite does not deal with the administration and operation of the incorporated Trustees so as to vest jurisdiction on this court.
(e) The Plaintiffs complaint on a draft constitution which draft constitution has not been adopted is premature and disclosed no cause of action and save and until the constitution is adopted as the constitution of the 2nd Defendant, the Plaintiff has no cause of action on a draft constitution.

On the 25th day of June, 2003, the learned trial judge heard submissions from counsel to the 2nd – 8th defendants and adjourned to 17th July, for reply by the plaintiff. On the 17th July, 2003, plaintiff’s counsel was not in court to reply, the learned trial judge adjourned to 5th November, 2003 for ruling. On the 5th November, 2003, plaintiff’s counsel informed the court that plaintiff filed two motions, one seeking to amend the statement of claim and the other one seeking for leave to reply to the submission/argument of the 2nd – 8th defendants’ counsel on the preliminary objection raised by the 2nd – 8th defendants against the suit (see Pages 143 – 144 of the record). On the 5th day of November, 2003, the attention of the learned trial judge was drawn to the two pending motions, by plaintiff’s counsel.

The learned trial judge at page 158 of the record stated thus:-

“The Plaintiff was aware of the date for arguments on preliminary objection. He was given ample opportunity to respond. There has been no constriction of his right to fair hearing. I shall give the ruling”.

The learned trial judge proceeded to read the ruling wherein he struck out the suit for want of jurisdiction. At page 160 of the record, the learned trial judge had this to say:-

“We decline jurisdiction to enquire into this matter at this point. The suit is struck out”.

Aggrieved with the ruling, plaintiff/appellant lodged an appeal to this court vide his notice and grounds of appeal filed on 27th day of November, 2003 containing 6 (six) grounds of appeal.

In compliance with the practice of this court parties filed and exchanged briefs of argument. Appellant’s brief of argument settled by Frank A. Chukuka Esq. was dated 7/12/2004 and filed on 9/12/2004. The 1st respondent’s brief of argument dated 8/11/2010, settled by Moses Adaquusu Esq. was filed on 11/11/2010. The 2nd – 8th respondents’ brief of argument settled by Nnadi Esq. was dated 2/06/2005 and filed on 3/06/05. Appellant in response to the briefs filed by the respondents filed a reply brief. The appellant’s reply brief was dated 20/07/2005 and filed same date.

When the appeal came up for hearing, 2nd – 8th respondents’ counsel adopted arguments canvassed in respect of preliminary objection filed challenging the competence of the appeal. The arguments are embedded in their brief of argument. Counsel urged court to strike out the appeal. Counsel responded in the appellant’s reply brief. Counsel adopted the said argument and urged the court to dismiss the preliminary objection. The 1st respondent’s counsel associated his views with that of the 2nd – 8th respondents as regards the preliminary objection. As regards the substantive appeal, Appellant’s counsel Frank A. Chukuka Esq. adopted both briefs and urged the court to allow the appeal. While 1st respondent’s counsel O.S. Imaji Esq. adopted the said brief of argument and urged the court to dismiss the appeal. The 2nd – 8th respondents’ counsel Abazuonu Esq., adopted the said brief of argument and urged the court to dismiss the appeal, in the event this preliminary objection fails.

Appellant formulated two issues for determination as follows:-

1. Whether the learned Trial judge was right when he refused to hear the appellant on the pending motions.
2. Whether the learned trial judge was right in declining jurisdiction considering the appellant’s statement of claim.

As for the 1st respondent, appellant’s second issue was adopted as germane for the consideration of this appeal.

The issue reads:-

“Whether the learned trial Judge was right in declining jurisdiction considering the Appellant’s statement of claim”.

For the 2nd – 8th respondents, two issues were distilled for determination in this appeal. The issues are:-

1. “Was the appellant given the opportunity to reply to the preliminary objection of the 2nd – 8th Defendants/Respondents by the court?
2. Was the trial judge right in declining jurisdiction and the court striking out the suit.”

As earlier stated, the 2nd – 8th defendants/respondents filed a notice of preliminary objection challenging the competence of the appeal pursuant to Order 3 Rule 15 Court of Appeal Rules, 2002.It is trite law that an objection to the hearing of an appeal must be taken first. See Taiye v. Abioye (2003) 4 NWLR (Pt. 810) 397 and Osun State Government vs. Olami (Nig.) Ltd. (2003) 7 NWLR (Pt. 818) 72, NNSPLC vs. Garrick (2006) 4 NWLR (Pt.969) 69 and Elabanjo vs. Dowudu (2006) 15 NWLR (Pt. 1001) 76.

The Notice of Preliminary Objection filed by the 2nd – 8th respondents was predicated on four grounds. The grounds are:-

1. That the appeal is academic and waste of judicial time based on reasons enumerated under paragraph (a) – (e) contained at pages 4 – 5 of the 2nd – 8th Respondents brief of argument.
2. The Appellants appeal is an interlocutory decision, an appeal must be filed within 14 days of the Ruling, pursuant to Section 25(2)(a) of the Court of Appeal Act 1976 in that the Ruling of the court was delivered on 5th of November, 2003 whilst appellant appealed on 27th November, 2003 more then 14 days after the Ruling of 5/11/2003.
3. The question whether the Appellant was given opportunity to be heard is a question of fact as well as seen from the record of proceedings of the court. It is a question of mixed law and fact and no leave of court was obtained to argue same as required by Section 242(1) of the Constitution of the Federal Republic of Nigeria 1999.
4. Ground 4 of the Preliminary Objection is that the issue of jurisdiction could be raised at anytime and this court where no further evidence is required is in a position to entertain the issue of jurisdiction.

As regards the contention of the 2nd – 8th respondents that the appeal is academic, references were made to the relief sought by the plaintiff/appellant. That a new executive of the 2nd defendant emerged after the election passed by members of the 2nd defendant. That the prayer of the appellant based on the two draft or versions of a proposed constitution of the 2nd defendant/respondent is no longer available. It was further argued that the appeal constitutes an abuse of the process of the court in the light of Suit No. FHC/EN/282/2004 and Suit No. FHC/EN/CS/12/2005; Suit No. HN/67/2005 and Suit No. HN/81/2005 filed by the appellant, over the same subject matter.

Reference was made to the cases of NICON v. Power & Industrial Engineering Co. Ltd. (1986) 1 SC Page 1 at 35 and Asata Foods Factory v. Araine Nig. Ltd. (2002) 12 NWLR (Pt. 781) 353 at 358 to emphasize the fact that courts in Nigeria do not entertain academic or hypothetical issues. He urged the court to strike out the appeal, as it would serve no useful purpose.

Counsel also contended that the consequences of an abuse of process of the court is that such a suit and or suits that constitute an abuse of the process of the court will be dismissed. Counsel urged the court to dismiss the appeal. See Arubo v. Aiyeleru (1993) 3 NWLR (Pt.280) 126; Onyebuchi v. INEC (2002) 8 NWLR (Pt. 769) SC page 417 at 441 – 442 and 444, and Minister of Works & Housing v. Tomas Nigeria Ltd. (2000) 2 NWLR (Pt. 752) 740 at 781.

On the second ground of objection, 2nd – 8th respondents’ counsel contended that the appeal being interlocutory must be filed within 14 days of the Ruling pursuant to Section 25(2) of the Court of Appeal Act 1976. The contention of counsel is that the Notice of Appeal was filed 22 days after the delivery of the Ruling on 5th November, 2003. This has rendered the appeal grossly incompetent. That no leave of court was sought for extension of time within which to appeal. In buttressing the point that the decision of the lower court is interlocutory, reliance was placed on Ezenwa v. Kareem (1990) 3 NWLR (Pt. 138) 258 at 266; Ajuta v. Ngene (2002) 1 NWLR (Pt. 748) 278; Nasco Management Services Ltd. v. A.N. Amaku Transport Ltd. (2003) 2 NWLR (Pt. 804) 296 at 312 to 321 and Nireko vs First Bank Nig. Ltd. (2001) 1 NWLR (Pt. 695) 436.

The third ground of objection relates to fair hearing. It was contended that the complaint of the appellant under ground one of the Notice of Appeal involves exercise of discretion. The complaint was based on finding of fact as such leave of court is required pursuant to Section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria.

Counsel further argued that the motion on notice and affidavit on which ground one of the Notice of Appeal is based is incompetent. That the motion and affidavit must be sworn to contemporaneously.

The motion was filed on 3/11/2003 while the affidavit was filed on 31/10/2003. That the affidavit cannot be said to have accompanied the motion on notice, since the filing fees were paid at the High Court registry instead of Federal High Court. No fees would be said to have been paid in accordance with Order 53 of the Federal High Court Rules. That non-payment of filing fees renders the process defective and incompetent. See Abia State Transport Corporation (A.S.T.C.) vs.Onorum Consortium Ltd. (2004) 1 NWLR (Pt. 855) 601; Onwugbufor v. Okoye (1999) 1 NWLR (Pt.424) 252; Fada v. Naomi (2002) 4 NWLR (Pt. 757) 318 and Seven-up Bottling Co. Ltd. vs. Yahaya (2004) 4 NWLR (Pt. 702) 47. That there is no competent motion before the court for which the Appellant can complain about.

Furthermore, counsel to the 2nd – 8th respondents submitted that in attacking the competence of ground one of the Notice of Appeal and Issue No.1 of the appellant, it is jurisdictional issue for which Section 16 of the Court of Appeal Act will be invoked as no evidence is required. See Arjay Ltd. v. V.A.M.S Ltd. (2003) 7 NWLR (Pt. 230) 577 at 610 and Bashir v. Audu (1999) 5 NWLR (Pt. 603) 433 at 440 paragraphs B – D.

Furthermore, 2nd – 8th respondents’ counsel contended that the current approach of the Supreme Court is that issue of jurisdiction of competence of a suit or process touching on jurisdiction of the court could be raised for the first time and without leave. See Galadima vs. Fambai (2000) 11 NWLR (Pt. 677) 1 at 15. It was therefore submitted that apart from the incompetence of the appeal filed by the appellant on the ground that the time within which to file appeal had lapsed before the appeal was filed, there is no affidavit in support of the motion on notice of 3/11/2005 to warrant the exercise of the courts’ discretion on 5/11/2005 and the complaint in ground one of the Notice of Appeal.

Appellant responded to the Preliminary Objection in his reply brief dated 20/7/2005. On the point raised by the 2nd – 8th respondents that the appeal is academic, appellant submitted that the appeal is not academic. Appellant’s counsel submitted that the issues raised in paragraphs (a) – (e) and argument proffered in support of those issues be discountenanced on the grounds that the said issues and arguments in support of those issues did not arise from the decision of trial court which appellant is appealing against and it was not part of the proceedings at the trial court. See: Salami v. Mohammed (2000) (Pt. 673) 460; Governor of Kwara State v. Lafiagi (2005) 5 NWLR (Pt.917) 139 and Owie vs. Ighiwi (2005) 5 NWLR (Pt.917) 184. That appellant’s appeal is against the decision of the trial court not against activities of 3rd – 8th respondents.

Counsel also submitted that it is erroneous to submit that this appeal is an abuse of court process on the grounds that there are four suits pending at the Federal High Court Enugu and Nnewi High Court. That the parties, the subject matter and the reliefs in those four suits are not the same with the parties and reliefs sought by the appellant. See C.B.N. vs. Ahmed (2001) 11 NWLR (Pt. 704) 369 at 372 – 373 pages 408 and 410. It was further submitted that the issue of four suits pending was not before the trial judge and there are no materials placed before this court to enable this court determine whether this appeal is an abuse of court process.

On the ground that the appeal is interlocutory appellant’s counsel submitted that this appeal is not an interlocutory appeal since it is an appeal against the final decision of the trial court which must be lodged within 90 days. That interlocutory decisions do not decide the rights of the parties, but are made for the purpose of keeping things in status quo till the rights of the parties can be decided. That the trial court decided the right of the appellant on the ground that the appellant has no locus standi to initiate the suit at the court below as well as declining jurisdiction to hear and determine the suit.

That the test the court should apply for determining whether a decision is final or interlocutory is one which looks at the nature of the order made and not the nature of the proceedings.
Where a court orders something to be done without any other reference to itself as did by the trial court, the decision is final. Reliance was placed on Akinsanya vs. M.B.A. Ltd. (1986) 4 NWLR (Pt. 35) at 273. See also Igunbor v. Afolabi (2001) 11 NWLR (Pt. 723) 148; Odutola v. Oderinde (2004) 12 NWLR (Pt.888) 574; Nasco MGT Services. vs. A.N. Amaku Transport Ltd. (2003) 2 NWLR (Pt. 804) at 220 and AIB Ltd. v Packoplast Nigeria Ltd. (2004) 3 NWLR (Pt. 859) 129.

Learned counsel submitted that the case of Ajuta v. Ngene (supra) cited by the respondents’ counsel is not applicable to this appeal. That the facts are not the same. That in Ajuta v. Ngene’s case (supra), the trial court struck out the suit by virtue of Order 24 Rule 16 of the High Court Rules of Anambra State 1988 for lack of diligent prosecution. While at the court below the trial court struck out the suit on the grounds that the trial court has no jurisdiction to determine the reliefs of the appellant.

It was further submitted that considering the nature of the order made by the court below, there is nothing subsisting in relation to this appeal at the court below. That the provisions of Section 242(1) of the 1999 Constitution and Section 25(2) of Court of Appeal Act Cap 36, Laws of Federation of Nigeria are not applicable to the appellant’s appeal as appellant’s appeal is on final decision of the trial court.

As regards the motion filed and the supporting affidavit, counsel submitted that the case of Abia State Transport Corporation (A.S.T.C) vs. Onorum Consortium Ltd (supra) cited by the respondent’s counsel is not applicable to this suit. That appellant’s affidavit was sworn to at the High Court Registry, Aba but the said affidavit was filed along with the appellant’s motion at the Federal High Court, Enugu and the filing fees for the said motion and affidavit was duly paid at the Federal High Court Registry, Enugu. That the case of Seven-up Bottling Co. Ltd. v. Yahaya (2001) 4 NWLR (Pt. 702) 47 cited by respondents’ counsel supports the appellant’s submission on the grounds that appellant’s affidavit was duly filed at Federal High Court Registry Enugu. He urged the court to hold that appellant’s motion filed on 31/11/2003 is competent.

Counsel contended that it is misleading to submit that issue of jurisdiction which was not raised before the court below can be raised in this court without leave of this court. That the case of Arjay Ltd. v. A.M.S. Ltd. cited (supra) by respondent’s counsel is not applicable. Reliance was however placed on Kwajaffa v. B.O.N. Ltd. (2004) 13 NWLR (Pt.889) 146 at 167 paragraphs E – G. Finally, he urged the court to dismiss the Notice of Preliminary Objection on the grounds that the said Notice is incompetent and lacking in merit.

On behalf of the 1st respondent, Imaji Esq., associated his views with the 2nd – 8th Respondents as regards the preliminary objection.

The argument canvassed by 2nd – 8th respondents’ counsel in support of his first ground of objection is not tenable. No materials have been placed before the court to support the complaint of the 2nd – 8th respondents that the appeal is academic. For court process to be abused the subject matter must be the same as well as parties. See C.B.N. v. Ahmed (2001) 11 NWLR (Pt. 724) 369 at 372 – 373. An abuse of court process is a product of facts. When the facts leading to an abuse of court process are not discharged sufficiently, it is difficult for a court or Tribunal to hold that an abuse of court process has been occasioned. The disclosure of such facts before a court is done through affidavit. See. International Bank for West Africa (now Afribank Plc) v. Fola Sasegbon (2007) LPELR – 8246 (CA.). Apart from the argument proffered in support of the first ground of objection, there are no materials placed before the court to show that the four suits referred to constitutes abuse of court process. In absence of such disclosure, this court has no material to rely upon in determining the complaint. I will accordingly discountenance the first ground of objection.

In determining whether the appeal is competent or not, I find it necessary to first of all resolve the issue as to whether the decision appealed against is final or interlocutory. It is well settled that in the task of making a clear distinction between an interlocutory and final decision, what is to be considered is whether the judgment or order has finally disposed of the rights of the parties. If it does, then the order is a final order. If it does not, it is interlocutory. See Nwabueze v. Nwora (2005) 8 NWLR (Pt. 926) 1; Owoh vs. Asuk (2008) Vol. 9 WRN 1- 195; Akinsanya v. U.B.A. Ltd. (1986) 4 NWLR (Pt. 35) at 273; Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458; Assambos vs Okposin & Ors. (2000) 10 NWLR (Pt.676) and Universal Trust Bank Plc. & Ors. v. Odofin (2001) 8 NWLR (Pt.715) 216 at 301.

In the instant case, a careful reading of the ruling of the court below appearing at pages 159 – 160 of the record clearly showed that the suit was struck out on the ground that appellant has no locus standi to institute the action and the court declining jurisdiction to hear and determine the suit. The test applicable in the circumstances of this case is one which looks at the nature of the order made and not the nature of the proceedings. It cannot therefore be said looking at the order made that the decision is interlocutory. The question is would the rights of the parties be finally determined if the trial court had no jurisdiction to deal with the rights? In other words, if a court is incompetent to deal with a matter before it, are the rights of the parties in the matter still subsisting? It is my humble view that since the lower court had declared that it had no jurisdiction to determine the rights of the parties, that order is final and not interlocutory. I agree with the submission of appellant’s counsel that the provisions of S.242(1) of the 1999 Constitution and Section 25(2) now Section 24(2)(a) of the Court of Appeal Act are inapplicable to the appellant’s appeal as appellant’s appeal is on final decision of the trial court.

Appellant is entitled to three months to file his notice and grounds of appeal against the decision of the trial court. In the case at hand the ruling was delivered on 5/11/2003 and the Notice of Appeal was filed on 27/11/2003. The appeal was therefore filed within the prescribed period as such it is competent.

I have examined the motion on notice filed on 3/11/2003 and affidavit appearing on pages 143 – 148 of the record. As rightly observed by appellant’s counsel, the affidavit was sworn to at High Court registry Aba but the filing fees for both the motion and affidavit was paid at Federal High Court Enugu. The registrar or cashier endorsed the receipt number on the motion paper. I agree with appellant’s counsel that the case of Seven up Bottling Co. Ltd. vs. Yahaya cited supra by 2nd – 8th respondents’ counsel is not applicable to his submission rather it is applicable to appellant’s submission since the affidavit was duly filed at Federal High Court Registry Enugu. The fact that the affidavit was sworn to at High Court Registry Aba would not affect the competency of the motion paper. See Section 80 of the Evidence Act Cap. 14 Laws of the Federation of Nigeria 1990 as amended. I therefore hold that the motion on notice filed on 3/11/2003 is competent.

Contrary to the submission of appellant’s counsel issue of jurisdiction can be raised at any stage of the proceedings without leave of court. It can be raised even for the first time on appeal. See Agbiti vs. Nigerian Navy (2011) 14 NWLR 175; Gaji v. Pave (2003)1 NWLR (Pt.823) 583; Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410; Pharma Deko Plc & Anor v. Nigeria Social Insurance Trust Funds Management Board (2010) LPELR – 4849 (CA) and Oke vs. Oke (2006) 17 NWLR (Pt. 1008) 224.
Finally, I hold that the preliminary objection lacks merit and same is accordingly dismissed.

I will now consider the merit of the appeal. The issues raised by the appellant are apt as such I will adopt same in determining this appeal. I wish to note that at page 6 of appellant’s brief of argument, he indicated that he had abandoned grounds 5 and 6 of his grounds of appeal. Grounds 5 and 6 are hereby struck out.

Issue one is whether the learned trial judge was right when he refused to hear the appellant on the pending motion. Same is distilled from grounds 1, 2 and 3.

While arguing this issue, learned counsel for the appellant submitted that the learned trial judge erred in law when he held as follows:-

“The Plaintiff was aware of the date for argument on Preliminary Objection. He was given ample opportunity to respond”. (See page 158 of record).

Counsel’s contention is that since one of the reliefs on the motion dated 30th day of October, 2003 and filed on 3rd day of November, 2003, is for order granting leave to the Plaintiff/Appellant to amend his statement of claim, the learned trial judge ought to have heard the motion before delivering the ruling. It is trite law that court will always assist an applicant who has a genuine application, which is capable of breathing life into an incompetent process. Reliance was placed on B.C.E.
Consulting Eng. v. NNPC (2004) 3 NWLR (Pt. 859) 1 at 4; Nalsa & Team Associates vs. NNPC (1991) 8 NWLR (Pt. 212) 652 and Long John v. Black (1998) 5 SCNJ 68 at 91. It was argued that had the learned trial judge determined that motion for amendment of plaintiff/applicant’s Statement of Claim, the learned trial Judge would have been in a position to determine whether the amendment would cure the defect in plaintiff’s suit which would confer jurisdiction on the court to hear and determine the plaintiff’s suit. Counsel contended that, it is elementary and fundamental principle of administration of justice that a court must hear all the motions or application properly brought before it. Reliance was placed on Essien v. Edet (2004) 5 NWLR (Pt. 867) 519 at 521; Mobile Prod. Nig Ltd. vs. Monokpo (2003) 18 NWLR (Pt. 852) 346 at 43 paras. B – F and Okoro v. Okoro (1998) 3 NWLR (Pt.540) 65. That appellant acted properly in taking steps to amend and/or correct errors in the process already filed by him at the trial court. See Tsokwa Oil Marketing Co. Nig Ltd. vs. Bank of the North (2000) 5 SCNJ 176 at 191. The learned trial Judge made a statement that appellant’s right to fair hearing was not breached hence the delivery of the ruling. Appellant’s counsel contended that this conclusion is in fundamental breach of the doctrine of fair hearing. That the learned trial judge did not give the appellant equal treatment and opportunity. Reliance was place d on Anthony Ehidioriehem v. Ahmadu Musa (2000) 2 SCNQR, Part 1357 at 388. See also Section 36(1) of the 1999 Constitution. That the principle of natural justice enshrined in Section 36(1) of the 1999 Constitution conferring the right to fair hearing on citizen of Nigeria is unrestricted. A breach of such right nullifies the hearing of a case. Learned counsel submitted that the issue before the court is whether the appellant was given an opportunity at the lower court to move his motion. It was argued that the learned trial judge did not advert his mind to the hearing of the motion but adverted his mind to not allowing appellant’s counsel to reply to the 2nd – 8th respondent’s submission on their Notice of Preliminary Objection.
Learned counsel concluded that there was breach of appellant’s right to fair hearing and the remedy can be found in Akulega v. B.S.C.S.C. (2001) 12 NWLR (Pt. 723) 524. See also Adigun v. A.G. Oyo State (1987) 1 NWLR (Pt. 53) 678. He urged the court to resolve issue 1 in favour of the appellant.

In response, learned counsel for the 1st respondent contended that appellant was in court when a date was slated for arguments on the preliminary objection being 5th May, 2003.

On the 25th June, 2003 when the respondents’ argument was taken, the case was adjourned to 17th July, 2003 for reply. That appellant stayed away from court on the day he was to reply to the arguments on the preliminary objection. That even on 5th November, 2003, when appellant’s counsel showed up in court, he failed to take advantage to exercise his right to fair hearing by answering the argument on the preliminary objection. That this is an attempt at technical justice and equity will frown at such. That it is a well known principle of law that equity favours the vigilant and not the indolent. Counsel urged the court not to allow the appellant to turn the process of litigation to game of tricks and traps. See NBCI v. Integrated Gas (Nig) Limited (2005) 4 NWLR (Pt. 916) 67 at 655 D – G.

As to the argument of the appellant that the motion on notice for amendment of its pleadings should have been heard first, counsel contended that it is the nature and tenor of the preliminary objection that determines whether it should be heard first. That the notice of preliminary objection filed by the 2nd – 8th respondents prima facie challenged the jurisdiction of the court. It was submitted that jurisdiction being the body and soul of every judicial proceedings, when challenged it must be decided first. Reliance was placed on A.G. Anambra v. A.G. Federation (1993) 3 NWLR (Pt. 302) 692; Madukolu v. Nkemdilim (1962) All NLR 581; Matari v. Dangaladima (1993) 3 NWLR (Pt. 261) 266; Lagos State vs. Dosunmu (1989) 2 NWLR (Pt.111) 552 and State v. Onagoruwa (1992) 2 NWLR (Pt. 221) 33. Counsel submitted further that appellant was not denied his right of fair hearing instead it was the appellant that denied himself the right after failing and refusing despite several adjournments to reply to the arguments on the Preliminary Objection of the 2nd – 8th respondents.

On behalf of the 2nd – 8th respondents, Learned counsel submitted that appellant was given opportunity to reply to the submission of the 2nd – 8th respondents in respect of the Preliminary Objection. Counsel referred to the record of the court as to what transpired on 25th June, 2003 and 17th July, 2003. That appellant cannot complain or argue, that he was not given opportunity to reply to the Preliminary objection of the 2nd – 8th respondents. That Appellant was aware of the date the case was fixed for reply. He was not in court and he did not write to the court to excuse his absence.

He did nothing between 17th July, 2003 and 30th day of October, 2003 when he filed the motion on notice. That the finding of the learned trial judge appearing at page 158 of the record wherein he said “The Plaintiff was aware of the date for argument on Preliminary Objection. He was given ample opportunity to respond” is unimpeachable. It is a finding of fact. The learned trial judge in consequence of the above exercised the court’s discretion and delivered the court’s ruling on 5th November, 2005. There was no appeal against the finding that appellant was given ample opportunity.

It was also contended that the amendment sought in the motion on notice of 20th day of October, 2003 and filed on 29/10/2003 does not cure nor sought to cure any defect or assist in altering the nature of the argument canvassed in the Preliminary Objection. Learned counsel submitted that the issues in the Preliminary Objection were not addressed in the motion dated 20th October, 2003 and filed on 29th October, 2003. Counsel further contended that issues being an issue of jurisdiction, the trial judge had no option than to entertain the objection based on jurisdiction rule one way or the other, before proceeding with the motion for amendment of the plaintiff/appellant, if the issue of jurisdiction fails. The issue of jurisdiction of a court is dealt with under the inherent jurisdiction of the court and can be raised and disposed of at any stage of the proceedings. That the question whether or not a court has jurisdiction to entertain a suit is a radical and crucial question of competence and when it is raised, it is neater, better, infact imperative to settle that issue one way or the other before proceeding to hear of the case on merits. Reliance was placed on Okoye v. Nigerian Construction and Furniture Co. Ltd. (1991) 6 NWLR (Pt. 198) 501; A.G. Lagos State v. Dosunmu (1989) NWLR (Pt. 111) 552; A.G. Kwara State v. Warch (1995) 7 NWLR (Pt. 405) 120 and A.G. Federation v. Sode (1990) 1 NWLR (Pt.128) 500.

It was argued that the legal effect of defect in competence or lack of jurisdiction is that the proceedings and judgment will be a nullity no matter how well conducted or decided the case is: See Madukolu v. Nkemdilim (1962) 1 SCNLR 595; Oloba v. Akereja (1988) 3 NWLR (Pt.84) 508 and Alinam Ltd. v. Leventis Motors (1990) 5 NWLR (Pt.151) 458.

Counsel further contended that the judge was right at the stage the court refused to entertain the motion for amendment which did not cure or seek to cure the defect in the competence of the court. Reference was made to the case of State v. Onagoruwa (1992) 2 NWLR (Pt. 221) 33 which prohibits any postponement of the determination of an issue of jurisdiction once raised. That the argument of the appellant would have been tenable if the preliminary objection of the 2nd – 8th respondents failed and the trial judge refused to take the motion on notice for amendment.

That there was no miscarriage of justice nor lack of fair hearing in respect of the two motions filed by the appellant. Learned counsel finally urged the court to hold that appellant has failed to establish any breach of his right to fair hearing. That the cases of Akulega v. B SCSC (2001) 12 NWLR (Pt.723) 524 and Adigun v. A.G. Oyo State (1987) 1 NWLR (Pt. 53) 679 cited by appellant’s counsel are inapplicable in the circumstances of this case. He urged the court to resolve issue 1 against the appellant in this case.

The issue to be resolved is whether the refusal of the learned trial judge to hear the appellant on the pending motion amounts to a denial of fair hearing.

By the provisions of S.36(1) of the 1999 Constitution of the Federal Republic of Nigeria, any person standing a trial or engaged in litigation is entitled to fair hearing. I would restate the well known principle of law pertaining to fair hearing as reiterated in the case of Lambert Iwuoha v. Felix Okorike (1996) 2 NWLR (Pt. 429) 231, wherein Rowland JCA (of blessed memory) held thus:-
“It is a fundamental requirement of our administration of justice that a party to the litigation before the court must be heard before the court can determine his civil rights or obligation before it. The right to be heard is so fundamental a principle of our adjudicatory process that it cannot be compromised on any ground. Nwokoro v. Onuma (1990) 3 NWLR (Pt.136) 22 at 35: (1990) 5 SCNJ 93: 1990 SSC (Pt.1) 124 referred to and applied.”
In Magna Maritime Services Limited & Anor Vs. S.A. Oteju & Anor (2005) 14 NWLR (Pt.945) 517 at 543 paras C-D Edozie J.S.C. had this to say:-
“The expression “fair hearing means a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties in a case, and one of such rules is the rule audi alteram partem. See Ariori v. Ezemo (1983) 1 SC 13 at 24. (1983) 1 SCNLR 1 at 254; Rasaki A. Salu v. Madam Towero Egeibon (1994) 6 NWLR (Pt.348) 23. Fair hearing lies in the procedure followed in the determination of the case and not in the correctness of the decision. See State vs. Onagoruwa (1992) 2 NWLR (Pt. 221) 33 at 56.”
It has also been held that a fair hearing must involve a fair trial and a fair trial of a case consist of the whole hearing. There is no difference between the two. See Muhammed v. Kano N.A. (1968) 1 ALL NLR 424 at 426 and Delduwo vs. Okorodudu (1976) Volume 1 N.M.L.R. 238 at 249. The true test of fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done in the case. See Okafor v. A.G. Anambra (1991) 6 NWLR (Pt. 200) 659.

In order to determine whether there was breach of fair hearing or not, I find it necessary to narrate briefly what transpired at the court below on the 25th day of June, 2003; 17th day of July, 2003 and 5th day of November, 2003. The 2nd – 8th defendants/respondents had filed a Notice of Preliminary Objection challenging the jurisdiction of the court to entertain the suit and same was fixed for hearing against 25.06.2003 for hearing. On that date, one B.O. Alingele Esq., announced appearance for the plaintiff/appellant though holding the brief of Frank Chukuka Esq. Mr. O. J. Nnaji Esq., who appeared for the 2nd – 8th respondents argued his Preliminary Objection.

At the end of his submission the court adjourned the matter to 17.07.2003 to enable the Plaintiff reply to the Preliminary Objection. On 17.07.2003 neither the Plaintiff nor his counsel were in court. Only counsel to 2nd – 8th respondents was in court. The court then adjourned the matter to 5.11.2003 for Ruling on the Preliminary Objection. See pages 152 and 156 of the record. On 5.11.2003 Frank A. Chukuka Esq., counsel to the plaintiff/appellant informed the court that he had two pending motions before the court i.e. motion on notice dated 20.10.2003 and motion on notice dated 30.10.2003 and filed on 3.11.2003. The motion seeks for an order for leave to amend the statement of claim and a prayer for leave to reply on the Preliminary Objection.

This is what the learned trial judge said:-

“The Plaintiff was aware of the date for arguments on Preliminary Objection. He was given ample opportunity to respond. There has been no constriction of his right to fair hearing. I shall give the Ruling. Ruling read”. See page 158 of the record.”

I have examined the reliefs sought on the face of the motion on notice dated 29.10.2003 as well as the one dated 30.10.2003 and filed on 31/11/2003. I agree with the submission of counsel to the 2nd – 8th respondents that the amendment sought in the two motions does not cure nor sought to cure any defect or assist in altering the nature of the argument canvassed in the Preliminary Objection. Ordinarily, the court was duty bound to hear the application notwithstanding the perceived weakness of the application. See Essien & Edet Mobil Producing Nigeria Unlimited vs. Monokpo (2003) 18 NWLR (Pt. 852) 346 at 431. However, the ruling to be delivered touches on the competence of the court to entertain the entire suit. The question is can the court postpone delivery of the ruling at that stage so as to hear the pending motions? The answer in my view is no.

The question whether a court has jurisdiction to entertain a suit is a radical crucial question of competence and once raised it is imperative on the court to settle the issue one way or the other. The Supreme Court in Okadigbo v. Emeka & Ors. (2012) LPELR – 7839 (SC) observed thus:- It is trite that where an objection as the instant one raise fundamental issues touching on the vires of the court to entertain a matter or the instant appeal it is incumbent on the court to have it disposed first, as to proceed to entertain the matter in the circumstances where the court has no vires to do comes to naught being a mere academic exercise.” See also Pareto Funds Securities Ltd. Vs. International Trust Bank Plc. (2011) LPELR 4830 (CA) and State v. Onagoruwa (1992) 2 NWLR (Pt. 221) 33. The argument of the appellant would have been tenable if the Preliminary objection of the 2nd – 8th respondents failed and the trial judge refused to hear the motion on notice for amendment.

As regards the prayer seeking to reply to the Preliminary Objection, I regard it as subtle way of trying to arrest the Ruling. Appellant was given opportunity to reply to the Preliminary objection of the 2nd – 8th respondents. Appellant was aware of the date fixed for him to reply but he failed to show up in court or explain his absence. It behoves a party or through his or her counsel to be present in court on any date the case is to come up for hearing and failure of such party to be present in court on any date the case is to come up for hearing and failure of such party to be present by himself or herself or through his or her counsel in court, such party could not be heard to complain against the consequential effect of his or her conduct. In Okparanta v. Ezechi (2007) ALL FWLR (Pt. 358) 1185 at 1193 this court per Dattijo Muhammad JCA. (as he then was) had this to say:-
“A litigant has no right to conduct his case in the manner he chooses. The law, here See Section 36 of the 1999 Constitution only confers on the litigant the opportunity of being heard as and when the rules of court stipulates he should. In the instant case, the appellants who were aware that their matter was coming up for adjudication at the lower court neither attended court nor intimated the court with the reasons for their absence. An opportunity had been given to them to present their case. They chose, in the absence of any explanation for their not being in court on the appointed date, to let go of the opportunity. They cannot subsequently complain about the stance the court took in striking out the notice of appeal and, in accordance with what the rules of court provided, dismissed the appellant’s appeal.”
It is my humble view, that the learned trial judge was on firm ground when he refused to hear the motions and proceed to deliver his ruling. As earlier noted, the true test of fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done in the case. From all that transpired, it is obvious that the complaint of the appellant that he was denied the right of fair hearing is unfounded. Every case had to be treated according to its given set of facts and circumstances. In the circumstance, I will resolve issue 1 in favour of the respondents.

Issue ii is whether the learned trial judge was right in declining jurisdiction considering the appellant’s statement of claim. The contention of appellant’s counsel is that the facts pleaded in paragraph 16 of appellant’s statement of claim is not a mere declaration of status or merely positions once held in the town unions. That the appellant pleaded sufficient facts in his statement of claim, which confers locus standi on the appellant to initiate the suit at the court below. (See paragraphs 1 and 2 of the appellant’s statement of claim at page 10 of the record). It was contended that the decision reached by the learned trial judge at the court below that appellant has no locus standi to initiate the suit at the court below is erroneous. Counsel also submitted that appellant does not need to initiate the suit in representative capacity in order to have locus standi to initiate the suit.

Learned counsel submitted that the expression “locus standi” consist of two Latin words meaning a “place to stand”. It is usually in connection with the Plaintiff who has commenced a suit as to whether he has got a place to stand in the suit and whether he in law can commence or prosecute the suit which he has initiated. See Ojukwu v. Ojukwu (2000) 11 NWLR (Pt. 677) 65 at 84 para F.

That from the averments in paragraphs 1, 12, 13, 14, 15 and 16 of the appellant’s statement of claim, the court below has jurisdiction to hear and determine the suit as the appellant has locus standi to initiate the suit. Reliance was placed on A.G. Kaduna State v. Hasssn (1985) 2 NWLR (Pt.8) 483. Counsel further submitted that the learned trial judge did not consider the claims, reliefs and status of the 1st defendant as Federal Government Agency before declining jurisdiction. Reliance was placed on Section 251(1)(e) of the 1999 Constitution and the cases of Nepa v. A. Edegbero (2002) 18 NWLR (Pt.798) 779 at 99 – 100 paras H – C; F.G.N. vs. Oshiomhole (2004) 3 NWLR (Pt. 860) Pg.305 and Tanarewa Nigeria Limited v. Plastifarm Ltd. (2003) 14 NWLR (Pt.840) 355.

Learned counsel also referred to exhibits A, B, E and F which were duly filed in the court below and submitted that these valid documents conferred jurisdiction on the court below to hear and determine the suit. He urged the court to resolve issue 2 in favour of the appellant.

The 1st respondent’s counsel responded by submitting that the mere fact that 1st respondent is a Federal Government Agency does not on its own and without more confer jurisdiction on the court where the subject matter of the action is not within the competence of that court to adjudicate. That parties cannot confer jurisdiction on the court. See Olaniyi v. Aroyechun (1991) 5 NWLR (Pt. 194) 652.

On the part of the 2nd – 8th respondents, it was contended that the court cannot accede to the appellant’s relief as the appellant has no locus standi to institute the suit. The suit is premature and the appellant is caught by the rule in Foss v. Harbottle (1843) 2 hare 461 or 67 ER page 189.

Learned counsel submitted that appellant has not suffered any loss or injury peculiar to him or injury over and above that of any other member of the 2nd defendant. Reference was made to paragraphs 4 of the Statement of Claim and the case of Adesanya v. President of Nigeria (1981) 2 NCLR 318 at 380, 385 and 393. That appellant has not established or stated how his legal rights have been infringed or are in imminent danger of being invaded by the act complained of over and above any other member of the 2nd defendant. Counsel cited the cases of A.G. Akwa Ibom v. Essien (2004) 7 NWLR (Pt. 872) 288 at 320 para. H and 321 paras. A and B; Owodunni v. Registered Trustees of Celestial Church of Christ (2000) 10 NWLR (Pt.675) 315; Oloriode v. Oyebi (1984) 5 SC 1 at 28 to emphasize the fact that locus standi focuses on the party seeking to get his complaint before the court and not on the issues he wishes to have adjudicated. It was submitted that looking at the reliefs sought by the plaintiff/appellant in paragraph 17(a) to (H) of the Statement of Claim at pages 12 and 13 of the record, the learned trial judge was right in holding that the plaintiff had not disclosed any interest peculiar to him or any injury peculiar to him or that he (appellant) is entitled to personal injury over and above any member of the 2nd defendant, the plaintiff/appellant not being a trustee of the 2nd defendant. That the declaration sought can only be by majority of the members of the 2nd defendant and not an individual having regard to the well laid down principle in Foss v. Harbottle 67 E.R. 189 which have been applied in several cases in Nigeria including Abubakar & Ors. vs Abudu Smith & Ors. (1973) ALL NLR page 634 at 641 to 643; Agbaje & Ors. v. Agbohaje & Ors. 1970 1 All NLR 21; Adenuga v. Odumeru (2003) 8 NWLR (Pt. 821) 163. That, the situation here is not dissimilar with the case of Bolaji v. Bamgbose (1986) 4 NWLR (Pt. 37) 632 at 650 to 653. Section 681 of CAMA was also referred to.

Learned counsel further contended that locus standi in chieftaincy matter is settled and to have locus standi in chieftaincy matter, the plaintiff must bring himself within the class of persons so entitled. See Ebongo v. Uwemedimo (1995) 8 NWLR (Pt.411) 22 and Momoh v. Olotu (1997) ALL NLR 117. Counsel further argued that the finding of the trial court that the plaintiff’s position is an isolated one or that the plaintiff is an activist is supported by the rule in Foss v. Harbottle (supra) under the doctrine of unenforceability and the court not acting or making orders in vain. Counsel also argued that the averments in paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of the statement of claim are not matters personal to the plaintiff/appellant. They are matters for the 2nd defendant/respondent and her members. That the issue of lack of locus standi was sufficient for the court to decline jurisdiction. Counsel further submitted that the court also declined jurisdiction that the suit is premature notwithstanding the fact that the 1st defendant is a Federal Government Agency. That the events as stated in the statement of claim with respect to the draft or proposed constitution of the 2nd defendant are still transitory and remain proposals which will not warrant the filing of the suit by the plaintiff/appellant as rightly held by the trial judge. That jurisdiction of the court cannot be invoked under Section 251 of the 1999 Constitution simply because the 1st defendant is an agency of the Federal Government. That no cause of action was available against the 1st defendant over a draft constitution, counsel argued.

Learned counsel also contended that the argument of the plaintiff/appellant that the court ought to have looked at the record of proceedings and documents filed in the court is misconceived. It is an elementary principle for the determination of jurisdiction of the court that it is the claim of the plaintiff that determines jurisdiction of the court which entertains the claims. Reliance was placed on Akanbi v. Military Governor Ondo State (1990) 3 NWLR (Pt. 140) 525; Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 and Western Steel Works v. Iron & Steel Workers (1987) 4 NWLR (Pt.49) 284. That the argument that the court in determining the issue of jurisdiction should go outside the claim or statement of claim does not hold. Counsel pointed out that the statement of the law in F.G.N. v. Oshiomohle (supra) has been watered down by the recent Supreme Court decision in Onuorah v. Kaduna Refining and Petrochemical Company Ltd. (2005) 6 NWLR (Pt. 921) 393 at pages 405 and 409. That the claim must come within the purview of S.251 and the parties must be Federal Government Agency. Counsel contended that the trial Judge was right in holding that the court has no jurisdiction and was also right to strike out the suit.

Now what is the meaning 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 or tribunal. The term entails the legal capacity of instituting, initiating or commencing an action in a competent court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever. In short, locus standi is the right of appearance in a Court of Justice in a given question. See Guda v. Kita (1999) 12 NWLR (Pt. 629) 21; Elendu v. Ekwoaba (1995) 3 NWLR (Pt. 386) 704 and Ogbuchi v. Governor of Imo State (1995) 9 NWLR (Pt. 417) 53.
For a person to have locus standi in an action, he must be able to show that his civil rights and obligations have been or are in danger of being infringed. It is well settled law that the locus standi of a plaintiff is determinable from the totality of all averments in his or her statement of claim since it is the statement of claim that has to be carefully scrutinized with a view to ascertaining whether or not it has disclosed sufficient legal interest and how such interest has arisen in the subject matter of the action. See Owodunmi v. Registered Trustees of Celestial Church of Christ (2000) 10 NWLR (Pt.675) 315; Arowolo v. Akano (2003) 8 NWLR (Pt.873) 451; PVC Ltd. v. Lawal (2005) 3 NWLR (Pt. 911) 121 at 142 and Adesanya v. President of Nigeria (1981) 2 NCLR 338 at 380, 385 and 393.
In A.G. Akwa Ibom v. Essien (2004) 7 NWLR (Pt.872) 288 at 320 para H and 321 paras A and B this court per Ekpe JCA stated thus:-
“The fundamental aspect of locus standi is that it focuses on the party seeking to get his complaint before the court and not on the issues he wishes to have adjudicated. Locus Standi to sue does not depend on the success or merits of a case but on the showing of the plaintiff’s case in his statement of claim. In other words, it is a condition precedent to a determination on the merits. It follows therefore that if a Plaintiff has no locus standi or standing to sue, it is not necessary to consider whether or not there is genuine case on the merits his case must be struck out”.
In another related case of Ojukwu v. Ojukwu & Anor. (2008) 12 SC (Pt. 111) 1 at 11 Aderemi JSC had this to say:-
“The fundamental aspect of locus standi is that it focuses on the party seeking to get his complaint laid before the court. In matters where a plaintiff seeks to establish a “private right” or special damage”, whether under administrative law, in non-constitutional litigation, by way of an application for certiorari, prohibition or mandamus or for a declaratory and injunctive reliefs as in the instant case, the law is sacrosanct that the plaintiff will have locus standi in the matter only if he has a special legal right or alternatively if he can show that he has sufficient or special interest in the performance of duty sought be enforced, or where his interest is adversely affected. All of the above will however depend on the facts of each case. However, whether an interest is worthy of protection is a matter of judicial discretion which often varies according to the remedy asked for, See Owodunni v. Registered Trustees C.C.C. (2000) 6 SC (Pt. 111) 60; Oloriode v. Oyebi (1984) 5 SC 1 and Prof. Yesufu v. Gov. of Edo State & Ors. (2001) 6 SC 56.”

In the instant case appellant filed a statement of claim containing 17 paragraphs. What then is the interest the plaintiff/appellant has manifested through the averments, that will avail him to say and contend that he has legal capacity to institute this action. To answer this all important question, I must have a resort to the averments in the pleadings. Appellant in his submission relied specifically on paragraphs 1, 12, 13, 14, 15 contending that he has locus standi to institute the action. For ease of reference, the said paragraphs of the statement of claim are reproduced hereunder as follows:-

“1. The Plaintiff is a legal practitioner of the rank/status of Senior Advocate of Nigeria (SAN) and holds the traditional title of “OCHIAGHA ORAIFITE” in the Ana-Edo clan of the Ekwusigo Local Government Area of Anambra State of Nigeria. A copy of the Ochiagha’s Oath of Office subscribed to by the Plaintiff and attested by His Royal Highness, Igwe Greg. Obi Udeh – Ubaka Ezeora 1, Igwe Oraifite, of blessed memory is attached hereto.
12. Sometime in 2001, the 7th and 8th Defendants and their cohort, using the machinery of the illegal “interim Management Committee” aforesaid commenced the circulation, advertisement, projection or, proffering to two versions (or editions) of a draft constitution which they desire to fist upon the union without any legal foundation and/or mandate. This is also one of the reasons for this lawsuit. Copies of the said two versions of the draft constitution aforesaid are attached hereto.
13. The said interim management committee being an arbitrary and illegal body within the con of the Union has no authority or mandate, known to the Companies and Allied Matters Act, to change, alter or replace the existing constitution of the Union.
14. The interim management committee aforesaid is an unelected body, unknown to the Companies and Allied Matters Act, the Constitution of the Oraifite Improvement Union, 1985 and the 1st Defendant herein.
15. The 1st Defendant has the statutory function to check the excesses of the Union, its functionaries, including the 2nd Defendant, if legally constituted and registered. This is also one of the reasons for instituting this action.
16. The Plaintiff has interests in the affairs and welfare of the Union and the Oraifite Community of which he is a member, a traditional chieftaincy title holder and an Ichie by virtue of the Oraifite Chieftaincy Constitution 1977. The Plaintiff was a member of the National Executive Committee (or the National Legal Adviser) under the constitution of the Oraifite Improvement Union, 1985.

I have carefully gone through the averments contained in the statement of claim. The averments in paragraph 7 clearly showed that Oraifite Improvement Union has operated as an incorporated association under the land (perpetual succession) Act, now repealed and replaced by part C of the Company and Allied Matters Act, 1990, Since 1963 or thereabout. In paragraphs 9, 10, 11 and 12 appellant has shown that the affairs of the Union was not well managed by the interim committee.

Appellant clearly stated his status in paragraphs 1 and 16 of the statement of claim. Being a member of the union, appellant has special interest in the progress of the union. Paragraphs 9 of the statement of claim showed that the interim Management Committee had been operating in breach of the constitution of the union. Since the interim committee is not managing the affairs of the union as expected, nothing stops the appellant as an individual to challenge the union in court. Appellant in my humble view has shown sufficient and special interest relating to the management of the affairs of the union. His interest has been adversely affected or threatened by the act of the interim management committee.

In approaching issues relating to locus standi courts are enjoined to adopt the liberal approach. The rigid approach in my view should not be applied having regard to the circumstances of this case. Every case has to be considered according to its peculiar set of facts and circumstances. It is desirable and in fact essential that a party should be given as much latitude as possible the opportunity to canvass his case where the court would then sieve the wheat from the chaff. In Ladejobi v. Oguntayo (2004) 18 NWLR (Pt. 904) 149 at 177, Pats Acholonu, J.S.C. (of blessed memory) opined thus:
“it is important to bear in mind that ready access to court is one of the attributes of a civilized legal system and it will amount to setting the clock back at this stage for any court to dismiss or strike an action based on the pleading without carefully analyzing the averments and ensuring that there is no nexus. Besides, I make bold to say that it is dangerous to limit the opportunity for one to canvass his case by rigid adherence to the ubiquitous principle inherent in locus standi and which is whether a person has the stand in a case. The society is becoming highly dynamic and certain stands of yester years may no longer stand in the present state of our social and political developments”.
This authority supports the stand of the appellant that he has locus standi to institute the action against the union. Appellant need not commence the action by representative action as contended by 2nd – 8th respondents.
It must also be remembered that the issue of locus standi does not depend on the success or the merits of the case but on whether the plaintiff or plaintiffs have sufficient interest or legal right in the subject-matter of the dispute. Some of the issues raised by the 2nd – 8th respondents could be thrashed out when the actual trial commences.
Having regard to the facts and circumstances of the case, I hold the view that appellant has locus standi to institute the action. The learned trial judge was therefore wrong to have declined jurisdiction. Accordingly, issue 2 is resolved in favour of the appellant.

On the whole, the appeal partially succeeds. Appeal is partly allowed. I hereby set aside the ruling of the Federal High Court Enugu delivered on 5/11/2003 by Archibong J. The suit No. FHC/EN/CS/227/2002 is remitted back to the Federal High Court Enugu Division, for assignment to another judge of the said court to hear and determine same on merit.
Parties to bear their own costs.

IGNATIUS IGWE AGUBE, J.C.A.: I have had the privilege of reading the impeccable judgment of my learned brother A.G. MSHELIA, J.C.A. and am totally in agreement with his reasoning and conclusion that the Court below had the jurisdiction to entertain the claim of the Appellant by virtue of Paragraphs 1, 12, 13, 14, 15 and 16 of his Statement of Claim which show clearly that the Appellant is a major stakeholder in not only the affairs of the Oraifite Improvement Union but a Senior Advocate of Nigeria and the holder of the traditional title of “Ochiagha Oraifite in the Ana-Edo Clan of Ekwusigo Local Government.”

“Ochiagha” in English parlance means “Commander-in-Chief’ or “War Lord”. Accordingly, nobody can be more vested with the requisite locus standi to challenge the misdeeds of the Interim Management Committee of the Oraifite Improvement Union, than the Appellant in this Appeal going by the definition of locus standi in the locus classicus of ABRAHAM ADESANYA V. THE SENATE OF THE FEDERAL REPUBLIC OF NIGERIA (1981) 2 NCLR 318 at 380, 385 and 393 and other cases like A-G AKWA IBOM STATE V. ESSIEN (2004) 7 NWLR (PT. 872) 288 and 320; OWUDUNMI v. R.T.C.C..C. (2000) 10 NWLR (PT. 675) 315; OJUKWU V. OJUKWU (2008) 12 S.C. (PT. 111) 1 at 11. per Aderemi, J.S.C and more particularly the dictum of Pats-Acholonu, J.S.C. of blessed memory, in LADEJOBI V. OGUNTAYO (2004) 18 NWLR (PT. 904) 149 at 177.

Accordingly, the learned trial Judge was in grave error which error occasioned substantial miscarriage of justice and a deprivation of the Appellant’s right to ventilate his grievances in a court of law a right which is donated to him by virtue of Sections 36(1) and 6(6) (b) of the Constitution of the Federal Republic of Nigeria.

I shall also allow the Appeal in part and send back the case to the Federal High Court for assignment to another Judge for hearing and determination on the merits. I abide by the orders as to costs.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had read the very erudite judgment just delivered by my Learned Sister, ADZIRA GANA MSHELIA, JCA. I am in complete agreement with the reasoning and conclusions therein. I also hold that the appeal partly succeeds and is allowed in part. The ruling of the Federal High Court at Enugu in FHC/EN/CS/227/2002 delivered on 3-11-2003 is hereby set aside. The said case is remitted back for retrial by another judge of the Federal High Court at Enugu Division.

I also make no order as to costs.

Appearances

Frank A. Chukuka Esq.,For Appellant

AND

O.S. Imaji Esq. for 1st Respondent.

F.U. Abazonu Esq. for 2nd – 8th Respondents.For Respondent