LADY LEADER BASILIA EKANEM & ORS. v. THE REGISTERED TRUSTEES, OF THE CHURCH OF CHRIST, THE GOOD SHEPHERD & ORS. (2011)

LADY LEADER BASILIA EKANEM & ORS. v. THE REGISTERED TRUSTEES, OF THE CHURCH OF CHRIST, THE GOOD SHEPHERD & ORS.

(2011)LCN/5046(CA)

In The Court of Appeal of Nigeria

On Friday, the 3rd day of June, 2011

CA/C/84/2010

RATIO

THE NATURE OF LOCUS STANDI

Thus, it is now trite that locus standi is the legal capacity which a plaintiff must have in order to have necessary leverage to institute legal proceedings in a court of law. It is a term which is interchangeably used with others such as “standing”, “standing to sue” or “title to sue”. It covers the right of a party to appear and be heard on the question placed before any court or tribunal. It is the fulcrum or framework which entitles a litigant to drag another party willy nilly to worship at the altar of adjudication. Basically, it is an aspect of justiceability of cause of action. Nevertheless, its fundamental base focuses on the party seeking to have his complaint ventilated before the Court and not on the merit of the issues which the said plaintiff wishes to ventilate or have pronouncement made thereon. Hence, once a party’s standing to institute an action has been challenged, the question thereafter and obviously too, is whether the person whose standing has been or is in issue is a proper person to request an adjudication of a particular issue and not as to whether the issue itself is meritorious or justiceable.see oloriode & ors. v. oyebi & ors. (1984) 1 SCNLR 390, 1984 5 SC 1;Owodunni (supra). Simply and briefly put locus standi as stated above and reiterated for emphasis, denotes the right of access to a court of justice in order to litigate an issue. For one, litigants do not surface in court for the fun of it. Far from it, they appear in court, either to establish their rights and obligations or to defend the same against any injury conceived or perceived, actual or threatened. See Chief Dr. Irene Thomas & Ors. v. O. Olufosoye (1986) 1 NWLR (Pt. 18) 669. Again, once the locus standi of a party has been challenged, it has to be considered first and in its consideration, it is the writ of summons and statement of claim where the cause of action is embedded that should be given adequate consideration. In doing this, it is the cause of action to which attention should be focused in order to determine whether locus standi or standing to sue has been disclosed by a party who seeks right of access to the court. PER. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

THE POSITION OF THE LAW ON WHAT CONSTITUTES A LEGAL RIGHT IN A CASE

THE COMMENCEMENT OF AN ACTION IN COURT BY WAY OF ORIGINATING SUMMONS

The commencement of an action in court by way of originating summons is somewhat uncommon. Thus, as a matter of procedural requirement, it is improper to commence proceedings by originating summons, where the facts are or are likely to be contentious, controversial, hostile and vehemently in dispute. Indeed, originating summons as a mode of commencing an action is confined to instances when what is in contention is the mere construction of documents in respect of which exchange of pleadings will be unnecessary/uncalled for. Hence, if a litigant is not clear whether or not to commence an action by the issuance of a writ of summons or by originating summons; in such a borderline case, the litigant out of abundance of caution should adopt the former procedure. See Din v. Attorney – General of Federation (1986) 1 NWLR (Pt. 17) 471. PER. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

THE POSITION OF THE LAW WHERE FRAUD IS ALLEGED BY A PARTY,

The law is settled that where fraud is alleged by a party, it must be specifically pleaded with particulars and proved accordingly. See Dankula v. Shagamu (2008) 27 WRN 107. In this vein, the invocation of presumption of regularity with regard to the application and registration of 1st respondent by 2nd and 3rd respondents has been seriously challenged and called to question. In this regard, the learned trial judge ought not to have stuck out the suit filed by the appellants. The learned trial judge should have called for oral evidence from the parties to resolve the staggeringly conflicting affidavit evidence placed before him by the parties therein. See Falobi v. Falobi (1976) 1 NMLR 169. PER. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

JUSTICES

JA’FARU MIKA’ILU Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

Between

1. LADY LEADER BASILIA EKANEM
2. PROPHETESS FORTUNE HART
3. SNR. ELDER GEOFFREY IDAMA Appellant(s)

AND

1. THE REGISTERED TRUSTEES, OF THE CHURCH OF CHRIST, THE GOOD SHEPHERD
2. EMMANUEL O. ALOZIE
3. CORPORATE AFFAIRS COMMISSION Respondent(s)

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court, Calabar Judicial Division in Suit No. FHC/CA/CS/64/09, delivered on 31st March, 2010 by C. J. Aneke, J, wherein the case was determined on the issue of jurisdiction predicated on the failure of the plaintiffs to establish their locus standi.
The brief facts of the case are as follows. The plaintiffs members of the Church of Christ the Good Shepherd. They claimed to have discovered that the 2nd defendant succeeded and registered the 1st defendant Church with the 3rd defendant without the approval of the church members and with an unapproved 2005 Constitution instead of the 2003 Constitution which was duly approved by the church members at their national convention and with the requisite resolution having been duly passed. The resultant effect of this course of action led the plaintiffs to institute the instant suit on 2nd July, 2009.
They took out an originating summons against the defendants before the court below and sought a determination of the following three questions:
“1. Whether the 2003 constitution (Exhibit E1) of the 1st Defendant supersedes the 2005 constitution (Exhibit E2) used for the registration of the 1st Defendant?
2. Whether it was the 2003 constitution (E1) of the 1st Defendant which ought to have been used while registering the 1st Defendant instead of the 2005 constitution (Exhibit E2).
3. Whether the 3rd Defendant having realized the mistake and concealment involved in using the 2005 constitution (Exhibit E2) in registering the 1st Defendant, cannot make the correction by way of discarding the 2005 constitution and substitution the some with the 2003 constitution?” (sic)
The plaintiffs then claimed the following two reliefs against the defendants:
“1) A declaration that the 1st Defendant constitution which ought to be submitted to the 3rd Defendant by the 2nd Defendant when registering the 1st Defendant ought to have been the 2003 constitution which is Exhibit E1 and not the 2005 constitution which is Exhibit E2 as the 3rd Defendant mistakenly used Exhibit E1 as the basis of 1st Defendant registration after the 2003 constitution was concealed from the 3rd Defendant which fact become known to the plaintiff on 6/4/2009.
2) An order directing the 3rd Defendant to immediately correct the file of the 1st Defendant by substituting the 2005 constitution (Exhibit E2) used for registration, with the 2003 constitution of the Defendant (Exhibit E1) and the said 2005 constitution (Exhibits E2) is hereby declared null and void and of no effect.”
In support of their action, the plaintiffs filed a 12 paragraph affidavit sworn to by the 1st plaintiff, with four exhibits marked, Exhibits “E1”, “E2”, “E3” and “E4” with the originating summons, coupled with a written address in respect thereof, filed by the learned counsel for the plaintiffs, Dr. A. Amuda – Kannike.
On 16th July, 2009, the 1st and 2nd defendants caused a memorandum of conditional appearance to be filed on their behalf. Both defendants also filed an 18 paragraph counter affidavit sworn to by the 2nd defendant, with two exhibits marked “A” and “B” annexed thereto and in opposition. On 21st July, 2009, the learned counsel for the 1st and 2nd defendants filed their written address, wherein he raised preliminary objection to the originating summons as the basis for the entry of conditional appearance by the 1st and 2nd defendants. The grounds for the preliminary objection are as follows:
“(1) Whether the Plaintiff’s have locus standi to maintain this suit.
(2) Whether the Affidavit is support of the originating summons discloses reasonable cause of action.
(3) Whether it is proper to commence this matter by originating summons.”
As a result thereof, on 14th August, 2009, the plaintiffs filed a 22 paragraph further affidavit, deposed to by the 1st plaintiff in support of the originating summons. The learned counsel for the plaintiffs also filed a reply on points of law to the written address filed by the 1st and 2nd defendants. It is to be noted, that though the 3rd defendant was duly served with the originating summons and other court processes in the suit, it failed to respond to the suit.
on 8th February, 2010 at the hearing of the originating summons, the learned counsel for the parties adopted their respective written addresses. Again, it is noteworthy’ that no evidence was adduced by either of the parties. It is to be further noted that on the stated day, learned counsel, Moses Adaguusu Esq., appeared for the 3rd defendant and informed the trial court that “we did not file any process in reaction, because we believe we should not have been dragged into the matter in the first Place.”
On 31st March, 2010, judgment was delivered in the matter, wherein the learned trial judge determined the suit in limine on the point that, “the plaintiffs failed to show that they have locus standi to prosecute this action.” The suit was accordingly stuck out. Dissatisfied with this decision, the plaintiffs filed their notice of appeal to this court on 8th April, 2010 containing four grounds of appeal. Henceforth in this judgment, the plaintiffs will be referred to as the appellants, while the defendants will be called the respondents respectively.
The parties duly filed and exchanged their respective briefs of argument. The appellants’ brief prepared by Dr. A. Amuda – Kannike, dated 15th July, 2010 was filed on 19th July, 2010.
The 1st and 2nd respondents’ brief, also prepared by Fidelis Ibiang Esq., dated 5th August, 2010 was filed on the same day.
On 8th February, 2011, this Court upon the application made by way of motion on notice brought by the appellants, ordered that the appeal be heard on the briefs filed by the appellants and the 1st and 2nd respondents, since the 3rd respondent failed to file its brief of argument.
In their said brief of argument, the appellants raised two issues for determination as follows:
“1) Whether it can be said in low that the Appellants have no locus – standi to file the suit of the lower court?(This issue was distilled from grounds 1, 2, and 3 of the grounds of Appeal)
2) whether the lower court ought to have delivered judgment in favour of the Appellants? (This issue was distilled from ground 4 of the grounds of Appeal).”
The 1st and 2nd respondents did not formulate their own issues.
They predicated their arguments on the issues formulated by the appellants.
This Court heard the instant appeal on 16th March, 2011.
Both learned counsel for the appellants and the 1st and 2nd respondents adopted and placed reliance on the arguments canvassed in their respective briefs of argument. Antai Comfort Ekpo Esq., learned counsel for the 3rd respondent inter alia informed this Court, that since the 3rd respondent did not file any brief of argument, she accordingly has nothing to adopt and rely on. In essence, that she has nothing to urge either in favour or against the appeal.
On the first issue, learned counsel for the appellants referred to the part of the trial court’s judgment, wherein it was stated that since the depositions in appellants’ affidavit in support did not disclose the rights and interests of the appellants which has been threatened, violated or adversely affected by the acts of the respondents complained of and as such that the trial court need not look beyond the depositions in the said affidavit in support of the originating summons. Learned counsel submitted that the appellants have requisite locus standi to file and maintain the instant suit and the said finding of the learned trial judge thereon cannot be sustained, because he ought to have looked beyond the affidavit in support of the originating summons and extend such a look to the appellants’ further affidavit which forms, “part of the affidavit in support”, before pronouncing on the issue. It was contended that there is no particular law or practice which states, “that the further affidavit filed in an originating summons procedure should be ignored when considering whether or not a court has jurisdiction to hear and determine a case.” Further reference was made to paragraphs 6, 8, 17 and 18 of the said further affidavit. Reliance was also placed on the authorities of Owodunni v. Registered Trustees of C. C. C. (2000) 10 NWLR (Pt. 675) 315 /325; Amusa Momoh v. Jimo Olotu (1970) 1 All NLR 177 and pointedly distinguished/excluded a wholesome application of Chief Dr. Irene Thomas & Ors. v. The Most. Rev. Timothy Olufosoye (1986) 1 NWLR (Pt. 18) 669 as not being on all fours with their own case, where they filed a further affidavit. Learned appellants’ counsel contended in another vein that the appellants glaringly deposed and established that their action was instituted for themselves and in representative capacity with pertinent authorization from the congregation.
The cases of Osaguna v. Gov. of Ekiti State (2001) 86 LRCN 1106/ 1111; Mba Nta & Ors. v. Ede Anigbo & Anor. (1972) 5 SC 158 /174, Ayeni v. Sowemimo (1982) 5 SC 6O were cited in aid of the submissions made above.
On the second issue, learned appellants’ counsel argued that having strenuously canvassed the issue of locus standi before the trial court, it ought to have delivered judgment in their favour rather than to regard such further consideration and determination of their originating summons as having been “rendered otiose” The invitation has been extended to this Court, to step into the shoes of the trial court and do the needful by invoking Section 15 of the Court of Appeal Act, make necessary findings and determine the matter on its merit, instead of ordering a retrial. In conclusion, we were urged to resolve both issues as argued above in favour of the appellants and allow the appeal.
On the first issue and in response to the argument canvassed above thereon, learned counsel for the 1st and 2nd respondents cited a host of cases which included Ojukwu v. Ojukwu (2009) 12 WRN 119 /122; Ajilowura v. Disu (2007) FWLR (Pt.359) 1517/1523; Owodunni v. Registered Trustees of C.C.C. (2000) 10 NWLR (pt. 675) 315 and Ladejobi v. Shodipo (1989) 1 NWLR (Pt. 99) 596, with the argument that, the learned trial judge was absolutely right to have patiently and painstakingly perused the appellants’ affidavit in support of their originating summons along to determine the appellants, locus standi to file and maintain the matter at the court below, without bothering to give any consideration to their further affidavit in support thereof. The cases of AGF v. Abubakar (2007) 6 MSSC (Vol. 6) 1/7 and owodunni (supra) were cited with the submission that the appellants failed to show what or which particular personal interest of theirs or injury sustained or to be sustained in the given circumstances of their complaints, more so, when they failed to establish their membership of and or representation of other members of the Church. It was further contended by learned counsel for the 1st and 2nd respondents that appellants’ further affidavit, amounted in essence to an amendment of the main affidavit in support of the originating summons and this should be discountenanced/disallowed.
The gist of the submissions of learned counsel for the 1st and 2nd respondents on the second issue, is to the effect that since the learned trial judge has determined and concluded that the appellants lacked locus standi to institute and maintain the instant action against the 1st and 2nd respondents, the issue being fundamental and jurisdictional was sufficient to decisively determine the same without the need to give further consideration to other issues. According to the learned counsel, if consideration had been given to the remaining issues, “the conclusion would have still been the same.” Hence, their standpoint that, “the judgment of the trial court was proper”.
We were also urged in conclusion, to resolve the two issues raised and argued in this appeal in favour of the 1st and 2nd respondents and dismiss the appeal as it lacks merit.
I have carefully persued both the record of appeal and brief of arguments of learned counsel for the parties in this appeal and I have reviewed the same in details above. I am of the viewpoint that it will be pertinent to commence the consideration and determination of issues raised in this appeal from the vantage and weighty position of locus standi and by reiterating once again, what it denotes and connotes. This is more so, because this appeal will be considered and determined under the aegis of the narrow but path finding compass of locus standi. A plethora of authorities of the Supreme Court and this Court have firmly established the point. Thus, it is now trite that locus standi is the legal capacity which a plaintiff must have in order to have necessary leverage to institute legal proceedings in a court of law. It is a term which is interchangeably used with others such as “standing”, “standing to sue” or “title to sue”. It covers the right of a party to appear and be heard on the question placed before any court or tribunal. It is the fulcrum or framework which entitles a litigant to drag another party willy nilly to worship at the altar of adjudication. Basically, it is an aspect of justiceability of cause of action. Nevertheless, its fundamental base focuses on the party seeking to have his complaint ventilated before the Court and not on the merit of the issues which the said plaintiff wishes to ventilate or have pronouncement made thereon.
Hence, once a party’s standing to institute an action has been challenged, the question thereafter and obviously too, is whether the person whose standing has been or is in issue is a proper person to request an adjudication of a particular issue and not as to whether the issue itself is meritorious or justiceable.see oloriode & ors. v. oyebi & ors. (1984) 1 SCNLR 390, 1984 5 SC 1;Owodunni (supra).
The first issue touches on locus standi of the appellants to institute and maintain the action against the respondents.
Being jurisdictional, it is the pivot of the appeal. Thus, the main question for determination thereon, is whether or not the appellants had locus standi to initiate the instant action and the most appropriate mode or means of doing this, if the answer is in the positive. However, a negative answer will obviously terminate the entire proceeding.
Simply and briefly put locus standi as stated above and reiterated for emphasis, denotes the right of access to a court of justice in order to litigate an issue. For one, litigants do not surface in court for the fun of it. Far from it, they appear in court, either to establish their rights and obligations or to defend the same against any injury conceived or perceived, actual or threatened. See Chief Dr. Irene Thomas & Ors. v. O. Olufosoye (1986) 1 NWLR (Pt. 18) 669. Again, once the locus standi of a party has been challenged, it has to be considered first and in its consideration, it is the writ of summons and statement of claim where the cause of action is embedded that should be given adequate consideration. In doing this, it is the cause of action to which attention should be focused in order to determine whether locus standi or standing to sue has been disclosed by a party who seeks right of access to the court.

The cause of action in a suit has been defined as comprising, “every fact which would be necessary for the plaintiff to prove if transversed in order to support his right to judgment.” See Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1/17. Hence, the cause of action in a suit which must be justiceable can be garnered from the claim of the plaintiff as made out in his pleadings. Such a showing by the plaintiff must be indicative of a dispute between the contending parties which requires resolution. See U. B. A. Plc. v. B. T. L. Ind. Ltd. (2004) 18 NWLR (Pt. 904) 180.

Indeed a plaintiff can only approach a court of law and seek redress or relief, if he has interest in the dispute, which the law regards as being sufficient. The question of sufficiency of defensive interest is however determinable in the light of facts and given circumstances of each case. See Guda v. Kitta (1999) 12 NWLR (Pt. 629) 21; In Re: obianwu (1999) 12 NWLR (Pt. 629). 78. Hence, what constitutes a legal right, sufficient or special interest or interest so adversely threatened or likely to be affected, will depend on the given facts, peculiar circumstances, and reliefs sought by a claimant. See Adesanya v. President of the F. R. N. & Anor. (1981) 5 SC112. Thus, it suffices for a person to have locus standi in an action, once he is able to show that his civil rights and obligations have been or are in danger of being infringed upon, either actually, or contingently or tangibly. See Ogbuchi v. Governor of Imo State (1995) 9 NWLR (Pt.417) 53.
Now, in the instant case the affidavit evidence in support of the originating summons filed by the appellants and more particularly, the further affidavit in support thereof, disclosed in clear terms, the sufficiency of their cause of action. The core or kernel on which the cause of action was predicated has been disputed and vehemently too, by the respondents herein. By so doing, issues have been joined and by necessary implication and intendment, the need to adduce evidence becomes imperative for the just determination of the case, which is likely to be contentious and or controversial. It will thus be better, neater and tidier for the trial court to order that pleadings be filed and exchanged in order to allow the parties to freely articulate and ventilate their respective standpoints by adducing oral evidence in support and or opposition thereto. see F. S. B. Int. Bank Ltd.  v. Imano (Nig.) Ltd. (2000) 7 SCNJ 65; G. E. B. Plc v. odukwu (2009) 14 NWLR (pt. 1160) 43.
My Lords, to my mind, the infinite or overwhelming interest of justice strongly demands that at all times, the issue or question of locus standi should be given a broad leverage and liberal latitude by the courts in order not to muzzle the voice of dissent and thereby bring out the true essence of justice in consonance with the law.
The commencement of an action in court by way of originating summons is somewhat uncommon. Thus, as a matter of procedural requirement, it is improper to commence proceedings by originating summons, where the facts are or are likely to be contentious, controversial, hostile and vehemently in dispute. Indeed, originating summons as a mode of commencing an action is confined to instances when what is in contention is the mere construction of documents in respect of which exchange of pleadings will be unnecessary/uncalled for. Hence, if a litigant is not clear whether or not to commence an action by the issuance of a writ of summons or by originating summons; in such a borderline case, the litigant out of abundance of caution should adopt the former procedure. See Din v. Attorney – General of Federation (1986) 1 NWLR (Pt. 17)  471.
In the instant case, the learned trial judge made detailed exposition and placed much reliance on the authority of Chief Dr. Irene Thomas (supra), wherein the trial court in dismissing the suit, held that the plaintiff’s statement of claim did not disclose any reasonable cause of action and or any threatened interest sought to be protected. In the said case, appeals to both the Court of Appeal and Supreme Court were dismissed. It is to be noted that the said case, can be readily distinguished from the instant case, where the appellants herein, evinced threatened interest and need to protect the same. Additionally, there was the new dimension and development brought about by the filing of a further affidavit in support of the originating summons, and which said further affidavit gave added impetus to the action.
It is trite that competency to institute an action is an essential and indeed a core component in deciding the competence of the action itself. Thus, once it is challenged by a defendant, the plaintiff has the onus of establishing it. See Alhaji olorunkemi Ajao v. Mrs. L. E. Sonola & Anor. (1923) 1 A11 NLR (Pt. 1) 533/ 537. In the given circumstance of the instant case, the filing of a further affidavit by the appellants herein, can be likened to the filling of an amended statement of claim and also considered as their avowed bid to establish that they have the requisite locus standi to initiate the instant proceeding. It was thus erroneous on the part of the learned trial judge, when he made no mention or give consideration if any, to the said appellants further affidavit.
In the instant case, it can be readily seen, that the reliefs sought/claimed by the appellants are inter-twined and predicated on which of the two Constitutions of the Church, 2003 or 2005 is the authentic and approved one, passed by its national convention. Additionally, even the 1st and 2nd respondents deposed in paragraph 25 of their counter affidavit that the facts contained in paragraphs 10, 11 and 12 of appellants’ affidavit in support of the originating summons are not true and controversial. Again, with allegation of fraud embedded in the affidavit evidence and documentary evidence placed before the trial court, the need for oral evidence to unravel the knotty issues becomes indispensable.
In view of all the above stated and guided by the decided authorities expounded in this judgment, the first issue raised in this appeal is resolved in favour of the appellants to the effect that they have requisite locus standi to institute the action and the appeal succeeds on this issue.
In the end, I find that the appeal has merit and thus succeed. It is accordingly allowed by me. The decision of the lower court is hereby set aside. In view of what I have earlier said with regard to taking of evidence in this case, a fresh hearing before the Federal High Court, Calabar Judicial Division, after due filing and exchange of pleadings among the parties is hereby ordered. I make no order as to costs.

JA’AFARU MIKA’ILU, J.C.A.: I agree with all the reasons given in the lead judgment of my learned brother Hon. Justice Massoud Abdulrahman Oredola, JCA.
The appeal has merit and it succeeds. The decision of the lower court is set aside. Fresh hearing be conducted before the Federal High court, Calabar Judicial Division after due filing and exchange of pleadings between the parties.
I make no order as to costs.

ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, Massoud Abdulrahman Oredola, JCA gave me the privilege of reading the draft of his lead judgment in this appeal. I agree with the conclusion that the appeal succeeds as well as the reasons therefore. I too allow the appeal and abide by the consequential orders.

Appearances

DR. A. AMUDA- KANNIKEFor Appellant

AND

FIDELIS IBIANG ESQ.For Respondent