MR. PAUL WISON & ORS. v. CHIEF OKECHUKWU OKEKE
(2010)LCN/3983(CA)
In The Court of Appeal of Nigeria
On Thursday, the 15th day of July, 2010
CA/PH/122/2007
RATIO
FORM OF COMMENCEMENT OF ACTION: WHETHER WHAT IS RELEVANT IS IN THE COMMENCEMENT OF AN ACTION IS THE QUESTION OF JUSTICE AND NOT HOW THE ACTION WAS BEGUN
The attitude of the Courts now is that the form of commencement of an action does not make it incompetent. It does not matter whether the action was begun by writ of summons or by originating summons what is relevant is the question of justice. PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A.
LOCUS STANDI: WHAT WILL BE CONSIDERED IN DETERMINING WHETHER OR NOT A PLAINTIFF HAS LOCUS STANDI; WHETHER THE DEFENDANT MUST FILE A STATEMENT OF DEFENCE WHICH WILL MEET THE AVERMENT IN THE STATEMENT OF CLAIM HEADLONG AND DISCLOSE THE PLAINTIFF’S INCOMPETENCE TO FILE THE SUIT
To determine whether a plaintiff has locus standi, the Court is entitled to look at the statement of claim and no other document. It is the statement of claim that exclusively determines the locus standi. In UBA V. BTL INDUSTRIES LTD. (2004) (pt. 904) 180 this court states thus:- “the question whether or not a plaintiff has locus standi in a suit must be determined from its totality of all the averments in his statement of claim. Therefore in ascertaining the locus standi of a plaintiff, it is his statement of claim alone that has to be carefully scrutinized to disclose his interest and how such interest has arisen in the subject matter of the action.” Besides, the issue of locus standi being a point of law by the Rules of the Federal High Court ought to be raise in the pleadings order 25 Rule 2(1) of the Federal High Court Rules 2000 Provides thus: “Any Party shall be entitled to raise by his pleadings any point of law and unless the Court or Judge in chambers so orders, any point so raised shall be disposed of by the Judge who tries the cause at or after the trial.” In the case of DISU v. AJILOWURA (2006) 14 NWLR (pt. 1000) 783, the Supreme Court had to construe at what stage an issue of locus standi may be properly raised. MUKHTAR, JSC states thus:- “Now, at that stage the only way the defendants/appellants could challenge the capacity of locus of the plaintiff to sue them would have been to file a statement of defence which will meet the averment in the statement of claim headlong and disclose her incompetence to file the Suit. Without the statement of defence there was no way the Judge could have been able to determine the issue of locus standi in the circumstance. Although in determining the locus standi of a party, a careful perusal of the statement of claim will suffice. In a case where the opponent is challenging the capacity of a party to file, i.e. its locus ‘as in this case’ a statement of defence is necessary. I think even if it is not so provided in the rules of the High Court, common sense dictates that a statement of defence should be filed in order to assist the court in deciding the competence of the case before it, for the consequence of striking out a suit may be grave on a Plaintiff.” PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
1. MR. PAUL WISON
2. MR. BRAIN VOAKES
3. CATCHET INVESTMENTS LIMITED
4. MARINA NOMNEES LIMITED
5. INTERNATIONAL EQUITABLE ASSOCATION (INDUSTRIAL & COMMECIAL) LIMITED – Appellant(s)
AND
CHIEF OKECHUKWU OKEKE – Respondent(s)
ABUBAKAR JEGA ABDUL-KADIR, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the Federal High Court holden at Umuahia presided over by H. T. Honourable Justice H.T. Soba.
The Respondent as Plaintiff at the trial Court had filed an action against the Defendants now Appellants claiming inter alia “that the purported suspension of the Plaintiff as a Director of the 5th Defendant is malicious, oppressive, unlawful, illegal and untra vires the powers of the 1st Defendant” . The Plaintiff in addition to his Writ of Summons and Statement of Claim also filed a Motion on Notice for an interlocutory Injunction.
The Appellants upon service of the said Court Process filed a Counter-affidavit and a Further Counter-affidavit in opposition to the Respondent’s Motion on Notice for Injunction.
The Appellants also filed a Motion on Notice to strike out the Suit as being an abuse of Court Process and a Notice of preliminary Objection.
The trial Court in a well considered ruling found no merit in the preliminary objection and rightly refused same.
Dissatisfied with the said ruling of the court filed an appeal raising two grounds of appeal.
The appeal was heard on the 27/4/10. Counsel to the Appellants Mr. C. N. Nebo informed the Court that the Appellants brief of argument is dated and filed on 3/4/07. Learned counsel adopted the brief and urge the court to allow the appeal.
Counsel to the Respondent Mr. O. Onuigbo informed the Court that the Respondent brief of argument is dated 16/4/07 and filed on 17/4/07. Counsel adopted the brief and urge the Court to dismiss the appeal.
From the two grounds of appeal learned counsel for the Appellants formulated two issues for determination, the Issues are stated thus:-
1. was Suit No. FHC/UM/CS/66/2006 wrongly instituted by a writ of summons instead of by a petition. If it was wrongly commenced should it proceed to trial or would it be struck out condition precedent for commencement of the suit not having been duly complied with.
2. Must a preliminary objection on the competence of the suit improperly commenced and challenge of the Jurisdiction of the Court to hear and determine the suit be raised by way of a notice of preliminary objection and the suit struck out if found incompetent and that the Court has no Jurisdiction.
The Respondent on his part submitted the following Issues for determination.
1. Whether assuming their was non-compliance on the part of the Respondent in instituting his action by writ of summons, was such non-compliance fatal to the Respondent’s case.
2. whether the Appellants’ preliminary objection on the competence of the Respondent’s suit was not such which ought to have been raised in their pleadings.
Both Issues formulated by the Appellants and the Respondents are the same coined in different words as such the Issues formulated by the Appellants would be use in the treatment of this appeal.
On Issue No. 1 – counsel to the Appellants submits trial this Suit was commence by a writ of summons on 19/9/2006 with a claim attached thereto dated 18/9/2006 was filed on 19/9/2006.
Counsel refer to Section 310(1) of CAMA which stipulates that an application to the Court by petition for an order under Section 311 of this Act in relation to a company be made by any of the following persons:
A. a member of the Company
B. a director or officer or former Director or officer of the Company;
C. a Creditor
D. the commission; or any person who, in the discretion of the Court is the proper person to make an application under section 311 of this Act.
2. In Sections 311 to 313 of this Act, members includes:
a) the Personal representative of a deceased member; and
b) any person to whom shares have transferred or transmitted by operation of law.
Counsel submits that this suit was commenced by a writ of summons instead of by petition contrary to section 311(1) of CAMA which clearly states
“An application for relief on the ground that the affairs of a Company are being conducted in an illegal or oppressive manner may be made to the Court by petition.”
That by not having commenced this suit by petition a proper enquiry into the affairs of the Plaintiff Company provided section 312 to 320 of CAMA will be denied the 1st, 2nd 3rd and 4th Defendants/Appellants.
Counsel argues that section 311(1) imposes a duty on the Court to use a particular methods of exercising its statutory power in investigating the internal running of the Company. The method of exercising its statutory power being by way of a petition and no other method. That the use of the word “may” is mandatory. In considering the question whether the provisions in a statute are mandatory or directory, the object of the statute must be look into reference made to UDE v. NWARA (1993) 2 NWLR (pt.278) 638 at 668; GALAODU V. KAMBA (2004) 15 NLWR (pt. 895) 3 at 52 – 53.
That the mode of commencement of action under the Companies and Allied matters Act has been construed strictly reference made to UNIPETROL (NIG) PLC. V. AGIP (NIG) PLC. (2002) 14 NWLR (pt.787) 312.
Finally counsel submits that a case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of Jurisdiction. Any defect in competence is fatal for the proceedings are a nullity however well conducted and decided, the defect is extrinsic to the adjudication, reference made to TUKOR V. GOVERNMENT OF GONGOLA STATE (1988) 1 NWI R (pt. 68) 39 at 42.
Learned Counsel urge the Court to hold that Issue No. I succeed.
In reply to the submissions on Issue No. 1, learned Counsel to the Respondent submit that from the writ of summons and statement of claim, the Respondent was praying the Court to redress wrongs done to him personally by the Appellants which culminated in his purported suspension from the 5th Appellant’s Board of Directors. The Respondent was also challenging the convening of an Extra-ordinary General Meeting of the 5th Appellant Company to his exclusion and with an agenda different from that requisitioned for by the member vide a request for Extra-ordinary General Meeting dated the 4th day of August 2006. That the Respondent’s case actually comes under the provisions of section 300 of the Companies and Allied Matters Act. LFN 1990. That the Respondent’s case clearly does not come within the ambits of the provisions of section 310 or 311 of CAMA.
Learned Counsel contends that assuming without conceding that the Respondent’s case can be unduly stretched to fit into section 311 of CAMA, the operative word used by the legislature therein is the word “may” as defined in Blacks Law Dictionary sixth Edition as follows:-
“In construction of statutes and presumably also in construction of Federal rules (‘may” as opposed to shall is indicative of discretion or choice between two or more alternatives, but con in which word appears must be controlling factor.”
Learned Counsel for the Respondent submits that by using the word “may” the legislature clearly intended that commencement of an action shall not be limited to and may be commenced in any other manner than by way of petition.
That assuming without conceding that the Respondent’s case can be subsumed under section 311 of CAMA, the provisions of the sections are in no way mandatory. Consequently the Respondent by commencing his action by writ of summons instead of by petition has not breached any condition precedent as the court appears to have a discretion to allow the commencement of action under section 311 of CAMA by petition or by any other means other than by petition; reference made to HON. MICHAEL DAPIALONG V. RT. HON. SIMON LALONG (2007)5 NWLR. (pt.1026) 199; ALHAJA FAOSAT AKIBU v. RACE AUTO supply LTD. & 3 ORS. (2000) 14 NWLR (pt. 686,) 190 at 197; FAJIMI v. SPEAKER WESTERN HOUSE OF ASSEMBLY (1962) I SCNLR 300; NWOSU V. IMO STATE ENVIRONMENTAL SANITATION AGENCY (1990) 2 NWLR (pt.135), 688, 717; C & C CONSTRUCTION Co. LTD. V. OKHAI (2003) 18 NWLR (pt. 79) 94: DUKE v. AKPABUYO LOCAL GOVDERNMENT (2005) 19 NWLR (pt. 959) 458;
Further, learned counsel to the Respondent contends that assuming there was non-compliance with any condition precedent, the non-compliance alleged against the Respondent is at best an irregularity and not fatal to the Respondent’s case Order 3 Rule I of the Federal High court Rules 2000 provides that such non-compliance if at all shall be treated as an irregularity and shall not nullify the proceedings.
Further by the provisions of order 3 Rule 2 of the Federal High court Rules 2000 the Appellants are deemed to have waived any objection to the alleged non-compliance now being complained about, that it is instructive to note that the Appellants had filed a counter-affidavit and had also filed a further counter-affidavit all in opposition to the motion for injunction. These acts amounts to taking steps in the proceedings and entitle the Respondent to understand these steps as acts of waiver of the alleged non-compliance now complained about, reference made to P.D.P v. ADEYEMI (2002) 10 NWLR (pt.776) 524, 531; OKO I v. IBIANG (2002) 10 NWLR (pt.776) 455 at 457.
Finally learned Counsel submits that in filing what the Appellants turned as a Notice of Preliminary Objection they did not comply with the provision of Order 3 Rule 2(2) of the Federal High Court Civil Rules 2000 which states.
“Any application under sub rule (1) of this rule may be made by summons or motion on notice and the grounds of objection shall be stated in the summons or motion on notice.”
That the said preliminary objection was thus bad in law and unsustainable Learned counsel to the Appellant urged us to resolve the issue in favour of the Respondent.
The complaint of the Appellants in Issue No.1 is that the Respondent in instituting his Suit before the trial, he came by way of a writ of summons instead of a petition and according to them since the condition precedent for commencement of the said suit has not been complied with the suit ought not to proceed to trial but should be struck out.
To determine whether this suit ought to be commenced by writ of summons or petition, it is pertinent to examine the writ of summons as to what the claim of the Respondent entails.
At page 1A of the record of Proceedings, the Respondent as plaintiff claims against the Defendants as follows:-
1. A Declaration of this Honourable Court that the purported suspension of the plaintiff as a Director of the 5th Defendant by the 1st Defendant is malicious, oppressive, unlawful, illegal and ultra vires the powers of the 1st Defendant .
2. A Declaration that the purported Extra Ordinary General Meeting of the 5th Defendant being convened by the 1st and 4th in collusion with the 2nd and 3rd Defendants and fixed for the 21st day of September 2006 at Hotel De la Paix 60. Ekenna Road, Aba and any resolution purportedly agreed therein is malicious, oppressive, illegal and unlawful.
3. An order of this Honourable Court compelling the 1st, and 4th Defendants to convene an Extra-ordinary General Meeting with the agenda as contained in the requisition of an Extra for an Extra-ordinary General Meeting dated the 4th of August 2006.
From the writ of summons and of claim, it is clear that the Respondent was praying the Court to redress wrongs done to him personally which resulted in his suspension from the 5th Appellant’s Board of Directors. The Respondent was also challenging the convening of an Extra-ordinary General Meeting of the 5th Appellant company to his exclusion and with an agenda different from the requisitioned for by the members vide a request for an Extra-ordinary General Meeting dated 4th day of August 2006.
The Appellants have contended that the Respondent’s case came within the ambits of the provisions of section 310 and 311 of CAMA. section 310(1) of CAMA States that “An application to the Court by petition for an Order under section 311 of this Act in relation to a Company may be made by any of the following persons:
a) a member of the Company
b) a director or officer or former director or officer of the Company;
c) a Creditor:
d) the Commission or
e) any person who in the discretion of the Court is the proper person to make an application under section 311 of this Act.
Section 310(2) of CAMA states:
In Sections 311 to 313 of this Act member includes:
a) the Personal representative of a deceased member; and
b) any person to who shares have been transferred or transmitted by operation of law.
The contention of the Appellants is that this Suit should have been initiated by way of a petition under section 311(1) of CAMA which states thus:
“An application for relief on ground that the affairs of a Company are being conducted in an illegal or oppressive manner may be made to the Court by petition.”
In the instant appeal the Respondent by his writ of summons and statement of claim is praying the Court to redress wrongs done to him personally by the Appellants which resulted in his purported suspension from the 5th Appellant’s Board of Directors. The Respondent was also challenging the convening of an Extra Ordinary General Meeting of the 5th Appellant Company to his exclusion and with an agenda different from that requisitioned for by the members vide a request for an Extra Ordinary General Meeting dated the 4th day of August 2006.
From writ of summons and statement of claim filed before the trial Court it is very clear that the Respondent is seeking for protection of his personal rights and his case therefore actually comes under the provisions of section 300 of the companies and Allied Matters Act LFN 1990 which provides as follows:-
“Without prejudice to the rights of members under sections 303 to 308 and sections 310 to 312 of this Act or any other provisions of this Act, the Court on the application of any member may by injunction or declaration restrain the Company from the following:
a) entering into any transaction which is illegal or ultra-vires.
b) Purporting to do by ordinary resolution any act which by its constitution or Act requires to be done by special resolution.
c) Any action or omission affecting the applicant’s individual rights as a member.
d) Committing fraud on either the Company or the minority shareholders where the directors fail to take appropriate action to redress the wrong done.
e) Where a Company Meeting cannot be called in time to be of practical use in redressing a wrong done to the Company or to the minority shareholders; and
f) Where the directors are likely to derive profit or benefit from their negligence or from their breach of duty.
From the foregoing it is clear that the Respondent’s case does not come with the ambits of the provisions of section 310 or 311 of CAMA.
Again, even if the Respondent’s case be unduly stretched to fit into section 311 of CAMA the operative word used by the Legislature therein is the word “May”. The word “May” is defined in Blacks Law Dictionary sixth Edition as follows:
“In construction of statutes and presumably also in construction of Federal Rules word may as opposed to shall is indicative of discretion or choice between two or more alternatives, but con in which the word appears must be the controlling Factor.”
It is glaring by using the word “may” the legislature clearly intended that commencement of action shall not be limited to and may commenced in any other manner than by way of a Petition.
Therefore even if the Respondent’s case can be subsumed under section 311 of CAMA which is not the case in this appeal. The provisions of the section are in no way mandatory, accordingly the Respondent by commencing his action by writ of summons instead of by petition has not breached any condition precedent as the Court has a discretion to allow the commencement of action under section 311 of CAMA by petition or by any other means other than a petition.
The attitude of the Courts now is that the form of commencement of an action does not make it incompetent. It does not matter whether the action was begun by writ of summons or by originating summons what is relevant is the question of justice .
It is apparent from the totality of the record before the Court that the Appellants had not suffered any miscarriage of justice by the alleged non-compliance complained of as such it would amount absurdity to allow parties the pick their way in Court through naked technical rules of procedures, the breach of which does not occasion a miscarriage of justice.
The supreme in the case of C & C CONSTRUCTION CO. LTD. V. OKHA 1 2003 18 NWLR (pt. 79) 94 states thus:
“The Judicial Process Malfunctions and is discredited when it is bossed down by technicalities and is manipulated to go from technicality to technicality and thrive on technicality. That is why at all times, the tendency towards technicality should be eschewed and the determination to do substantial justice should remain the preferred option and the hallmark of our Judicial System.”
Besides by the combined effect of order 3 Rule 1 and order 3 Rule 2 of the Federal High Court Rules 2000 whatever non compliance alleged against the Respondent is to be treated as an irregularity and should not nullify the proceedings. Further the Appellants are deemed to have waived any objection to any alleged noncompliance, it is on record the Appellants had filed a counter-affidavit and had also filed a further counter-affidavit all in opposition to the motion for injunction. These acts clearly amount to taking steps in the proceedings and entitled the Respondent to understand these steps as acts of waiver of the alleged non-compliance now complained about, accordingly issue No.1 is resolved against the Appellants in favour of the Respondents.
On Issue No. 2. Learned counsel for the Appellants submits that objection on Jurisdiction is different from demurrer as decided in ARJAY LTD. V. A.M.S LTD (2003) 7 NWLR (pt. 820) 577 AT 601, that objection to jurisdiction can be raised even viva-voce by Counsel and SUO-MOTU even at the Appellate Court.
Counsel contends that an objection on Jurisdiction and competence of a Judge to hear and determine a suit must not be raised in the Defendants statement of defence. That the preliminary objection is based on the competence of the suit and if the suit is incompetent, the Court lacks Jurisdiction to hear it. A Court can only, be competent if among other things all the conditions precedent to its Jurisdiction are fulfilled, reference made to MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 587 at 589. On the submission that the Notice of Preliminary Objection must be raise in the statement of defence , Counsel referred to ELABANJO V. DAWODU (2006) 15 NWLR (pt.1001) 76. Counsel urged the Court to resolve Issue No. 2 in favour of the Appellant.
In reply to the submissions on Issue No. 2, learned Counsel for the Respondent said that what the Appellants turned a “Notice of Preliminary Objection” is riddled with Facts, that it contains obscure points of facts which facts ought to be better clarified by leading evidence reference made to WOHEREM V. EMERUWA (2004) 13 NWLR (pt. 890) 406.
Learned Counsel for the Respondent argues that non-compliance with a condition precedent to the commencement of an action must be pleaded. That failure to plead it amounts to a waiver. Thus a party who wishes to rely upon a defence of noncompliance must raise it in his pleadings, reference made to MOBIL PROD (NIG) UNLTD. V. LASEPA (2002) 18 NWLR (pt. 798) I cited with approval in NNPC V. SELE (2004) 5 NWLR (pt. 366) 379. That the Appellants never filed their pleadings but rushed into having the matter struck out on mere technicalities.
Counsel further submits that the Appellants preliminary objection touching on the locus standi of the Respondent cannot rightly be said to be an objection challenging the Jurisdiction of the trial Court. That all the Appellants wanted was to dismiss the suit in limine based on their perceived defect in instituting the suit reference made to HON. JUSTICE FELIX ICHOKU v. MIKE ABIA ESQ. & 4 ORS. (2001) 41 NRN 111.
That in determining whether a plaintiff has locus standi, the Court is entitled to look at the statement of claim and no other document. In paragraph 9 of the statement of claim, the Respondent clearly averred that based on the shares of late D.S.C. ONYEMELUKWE, he was appointed a Director of the 5th Defendant, Counsel to the Respondent contended that it is only through a statement of defence that this averment can be rebutted or challenged, reference made EGE SHIPPING & TRADING INDUSTRY INCORPORATED & ORS. V. TIGRIS INTERRNATIONAL CORPORATION (1999) 14 NWLR (pt. 637) 70. That the power of Attorney upon which the Appellants wanted the issue of locus standi to be resolve in their favour was not pleaded in the statement of claim but was annexed as an exhibit in the Appellants’ own counter-affidavit to the motion on notice for injunction, which process was not part of the statement of claim. Reference made to ADESANOYE V. ADEWOLE (2006) 14 NWLR (pt.1000) 242; UNITED BANK FOR AFRICA PLC. V. BTL INDUSTRIES LTD. (2004) 18 NWLR (pt. 904) 180.
He further submitted for the Appellants that preliminary objection not having been raised in their pleadings is in conflict with Order 25 Rule 2(1) of the Federal High Court Rules 2000 which provides:-
“Any Party shall be entitled to raise by his pleadings any point of law and unless the Court or Judge in chambers so Orders any point so raised shall be disposed of by the Judge who tries the cause at or alter the trial.”
On this counsel referred to DISU v. AJILOWURA (2006) 14 NWLR (pt. 1000) 783 at 790. On the need to always comply with the Rules of Court in the conduct of proceedings, learned Counsel refer IGWE UZOR & SONS (NIG) LTD. V. ONWUZOR (2007) 4 NWLR (pt. 1024) 303. Counsel finally urged the Court to resolve Issue No. 2 in favour of the Respondent.
In their Notice of Preliminary Objection dated 28th September. 2006 the Appellants prayed for an Order to strike out the suit , the Court not having Jurisdiction to hear and determine same; since the Plaintiff has no LOCUS STANDI to bring the action and the appropriate procedure to institute the action was not adopted.
Issue No. 2. is on the Jurisdiction of the Court and the locus standi of the Respondent to bring the action.
Ground 1 upon which the Preliminary Objection is based states:-
The Plaintiff has no locus standi to bring this action, the donor of the purported power of attorney whereupon he was a share-holder and later director of the 5th Defendant is dead, and the power of attorney ceased at the death of the donor. Moreso the alleged power of attorney is not a valid power of attorney. There are no letters of Administration or Probate granted to him. In the appeal at hand in particular in Appellants’ issues No. 2, they are challenging these locus standi of the Respondent to bring this action. To determine whether a plaintiff has locus standi, the Court is entitled to look at the statement of claim and no other document. It is the statement of claim that exclusively determines the locus standi.
In UBA V. BTL INDUSTRIES LTD. (2004) (pt. 904) 180 this court states thus:-
“the question whether or not a plaintiff has locus standi in a suit must be determined from its totality of all the averments in his statement of claim. Therefore in ascertaining the locus standi of a plaintiff, it is his statement of claim alone that has to be carefully scrutinized to disclose his interest and how such interest has arisen in the subject matter of the action.”
Besides, the issue of locus standi being a point of law by the Rules of the Federal High Court ought to be raise in the pleadings order 25 Rule 2(1) of the Federal High Court Rules 2000 Provides thus:
“Any Party shall be entitled to raise by his pleadings any point of law and unless the Court or Judge in chambers so orders, any point so raised shall be disposed of by the Judge who tries the cause at or after the trial.”
In the case of DISU v. AJILOWURA (2006) 14 NWLR (pt. 1000) 783, the Supreme Court had to construe at what stage an issue of locus standi may be properly raised. MUKHTAR, JSC states thus:-
“Now, at that stage the only way the defendants/appellants could challenge the capacity of locus of the plaintiff to sue them would have been to file a statement of defence which will meet the averment in the statement of claim headlong and disclose her incompetence to file the Suit. Without the statement of defence there was no way the Judge could have been able to determine the issue of locus standi in the circumstance. Although in determining the locus standi of a party, a careful perusal of the statement of claim will suffice. In a case where the opponent is challenging the capacity of a party to file, i.e. its locus ‘as in this case’ a statement of defence is necessary. I think even if it is not so provided in the rules of the High Court, common sense dictates that a statement of defence should be filed in order to assist the court in deciding the competence of the case before it, for the consequence of striking out a suit may be grave on a Plaintiff.”
In the instant appeal, since the Appellants are challenging the capacity of the Respondent to sue i.e. his locus standi it is absolutely obligatory on the Appellants to file their statement of defence in which they can raise the objection this is so because demurrer has been abolished. The issue of locus standi being one of Jurisdiction and therefore a point of law cannot be raised in limine as was done by the Appellants in the instant case. The issue can only be raise in the pleadings.
Having failed to file their pleadings and raising the issue of locus standi therein Issue No.2 is resolved against the appellants and in favour of the respondent.
In the result having resolved the two issues for determination against the Appellants, this appeal is totally lacking in merit, and is accordingly dismissed.
A cost of N30,000.00 is awarded to the Respondent against the Appellant.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I agree.
MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.
Appearances
Mr. C. N. NeboFor Appellant
AND
Mr. O. Onoigbo holding the brief of C. G. UcheFor Respondent
