RIBADU v. DOMA & ORS
(2020)LCN/15411(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Wednesday, November 11, 2020
CA/G/91/2018
RATIO
WORDS AND PHRASES: “LOCUS STANDI”
Locus standi simply means the capacity to sue Per Kalgo JSC in Global Transport Oceanico S. A vs Fress Enterprise (Nig) Ltd (2001) LPELR 1324.
Going by settled judicial precedence, the term Locus Standi denotes legal capacity to institute proceedings in a Court of law. The fundamental aspects of Locus Standi is that it focuses on the party seeking to get his complaint laid before the Court. See Ojukwu vs Ojukwu (2008) LPELR 2401. Adesanya vs President Federal Republic of Nigeria (1981) LPELR 147 Adetono vs Zenith Intl Bank Plc (2011) LPELR 8237.
Locus standi is therefore, the interest the 1st Respondent as plaintiff has in the matter. The 1st Respondent had complained about an article in the This Day Newspaper, back page and other media outlets authored by the Appellant.
The 1st Respondent has an interest in the matter as his name appeared in the article in a way that he did not like.
A man is said to have locus standi to sue in an action if he is able to show to the satisfaction of the Court that his civil right and obligations have been or are in danger of being infringed upon.
There are two tests for determining if a person has locus standi. They are:
i. The action must be justiciable and
ii. There must be a dispute between the parties.
In applying the test a liberal attitude must be adopted. Senator Adesanya vs The President Federal Republic of Nigeria (1981) 5 SC pg 112 laid down the rules for locus standi in civil cases, while Fawehinmi vs Akilu (1987) 12 SC pg 99 laid down the far more liberal rule for locus standi in criminal cases… To have locus standi, the plaintiff’s statement of claim must disclose sufficient legal interest, and show how such interest arose in the subject matter of the action Per Rhodes-Vivour in B.B Apugo & Sons Ltd vs Orthopaedic Hospital Management Board (2016) LPELR 40598. Ajayi vs Adebiyi (2012) LPELR 7811. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
JURISDICTION: CIRCUMSTANCES IN WHICH AN OBJECTION TO THE JURISDICTION OF A COURT CAN BE RAISED
Where the jurisdiction of a Court is challenged the Court is entitled under S. 6 of the 1999 Constitution to consider the plaintiff’s claim before it, in order to decide, whether it has the jurisdiction to entertain it Adeleke vs O.S.H.A (2006) 16 NWLR pt 1006 pg 608, Egbebu vs IGP (2006) 5 NWLR pt 972 pg 146.
An objection to the jurisdiction of a Court can be raised in any of the following situation
(a) On the basis of the statement of claim
(b) On the basis of evidence received
(c) By motion supported by facts relied on
(d) On the face of Writ of Summons where appropriate as to the capacity in which the action was brought on against who the action has brought. Nnonye vs Anyichie (2005) 2 NWLR pt 910 pg 623, NDIC vs C. B. N. (2002) 7 NWLR pt 272 Arjay Ltd vs Airline Management Support Ltd (2003) 2 SCNJ p 148.
It is important for a party who perceives that a Court has no jurisdiction to hear a cause or matter to raise the issue at the earliest opportunity. Nnonye vs Anyichie (supra).
Therefore, a Court is expected to decide the issue of its jurisdiction to hear a case when a challenge is raised at the earliest opportunity. Nnonye vs Anyichie (supra).
In considering whether a Court has jurisdiction to entertain a matter, the Court is guided by the claim before it by critically looking at the Writ of Summons and the statement of claim Gafar vs Govt Kwara State (2007) 4 NWLR pt 1024 pg 375, Onuora vs K. R. P. C. (2005) 6 NWLR pt 921 pg 393, Tukur vs Govt of Gongola State (1989) 4 NWLR pt 117 pg 517 Nkuma vs Odili (2006) 6 NWLR pt 977 pg 587. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
PROCEDURAL IRREGULARITY: CIRCUMSTANCE IN WHICH A PROCEDURAL IRREGULARITY MAY VITIATE A SUIT
Where there is a failing of the form or content of what is envisaged, it would be taken as a mere irregularity that would not vitiate the process.
Where the irregularity is procedural, the effect is not to operate for purposes of defeating the course of justice, because the Court is set out to do justice Odoni vs PDP (2005) LPELR 24351 Abazie vs Nwachukwu (2012) LPELR 7945, Akahall vs NDIC (2017) LPELR 41984. In Famfa Oil Ltd vs AGF (2003) LPELR 1239 The Supreme Court held per Belgore JSC that
“A procedural irregularity should not vitiate a suit once it can be shown that no party has suffered miscarriage of justice.
There is no allegation of any miscarriage of justice in this matter in fact the 1st Respondent had filed unconditional appearance to the originating summons. To my mind, the procedural irregularity like this one which has clearly shown what the plaintiff has as its complaint should not vitiate the proceedings. Procedure is to guide orderly and systematic presentation of a case, it is to help the substantive law and not to enslave it”
See Eboh vs Akpotu (1968) LPELR 25434, Adimora vs A.P Plc (2017) LPELR 42775.
It is therefore, safe to hold that failure to file the writ on a foolscap sheet is an irregularity that can be remedied. It has not affected the substance of the main suit. It is clear what the substantive suit is all about. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Between
NUHU RIBADU APPELANT(S)
And
1. BELLO DOMA 2. THE EDITOR IN-CHIEF, THIS DAY NEWSPAPER LTD 3. THIS DAY NEWSPAPER LTD RESPONDENT(S)
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Gombe State delivered on 6th July 2017 by Hon. Justice Sa’adu Mohammed dismissing the Appellant’s motion on notice dated 23rd March 2017. Dissatisfied with the ruling, the Appellant filed his notice and grounds of appeal.
The 1st Respondent as plaintiff filed a Writ of Summons dated 24th February 2016 seeking the following reliefs:
i. A Declaration that the statement made by the 1st Defendant of and concerning the plaintiff which the 2nd and 3rd defendant published in the back page column of This Day Newspaper of 10th June, 2015 to the effect that the plaintiff is one of the early converts of and leaders of Boko Haram is defamatory
ii. A perpetual injunction restraining the Defendants, their agents, servants or privies from publishing or continuing to publish the said defamatory statement concerning the plaintiff.
iii. An order directing the Defendants to retract the said defamatory statement concerning the plaintiff at Diplomacy Lab, This Day Newspaper, Sahara Reporters, Leadership Newspaper and any other traditional or social media that published it.
iv. An order directing the Defendants jointly and severally to pay the plaintiff One billion, five hundred million naira (N1,5000,000.00) only damages.
v. An order directing the defendants to tender public apology to the plaintiff.
ALTERNATIVELY
vi. A Declaration that the statement made by the 1st Defendant which the 2nd and 3rd Defendants published is capable of being understood as referring to the plaintiff
vii. A Declaration that the plaintiff who holds international passport No. A04889752 is not one of the converts and/or leaders of Boko Haram.
viii. A Perpetual Injunction restraining the Defendants from publishing or further publishing the said statement made by the 1st Defendant which is capable of being understood as referring to the plaintiff.
ix. An order directing the Defendant to retract the said defamatory statement which is capable of being understood as referring to the plaintiff at Diplomacy Lab, This Day Newspaper, Sahara Reporters, Leadership Newspaper and any other traditional or social media that published it.
x. An order directing the defendants to tender public apology to the plaintiff.
xi. An order directing the Defendant jointly and severally to pay the plaintiff five hundred million naira only (N500,000,000.00) as general damages.
Upon being served with the Writ of Summons the Appellant as defendant filed a motion on notice challenging the jurisdiction of the lower Court and asking inter alia for the following orders:
a. An order striking out this suit for want of jurisdiction
b. An order striking out the name of the Appellant, NUHU RIBADU, as a party to this suit.
The grounds upon which the Appellant challenged the jurisdiction of the Court are as follows:
1. The grounds for the objection, among others, were that the copies of documents to be relied on by the plaintiff were not served on the Applicant, the plaintiff lacks the standi to institute the action and that the statement of claim did not disclose a cause of action against the Applicant
2. The 1st Respondent filed his counter affidavit (page 96-106 of record) to the motion and after it was argued the Court in its ruling of 6th July, 2017 (pages 128-135 of the record) dismissed the Appellant’s objection thus giving rise to this present appeal.
Addresses were exchanged and adopted. Thereafter, the learned trial judge delivered his considered ruling dismissed the Appellant’s objection hence this appeal.
The Appellant filed his brief on 25th September, 2020 and articulated just one issue for determination as follows:
1. Whether the lower Court has jurisdiction to entertain this suit? (Grounds 1 & 2 of the Notice of Appeal)
The learned counsel for the Appellant submitted that the suit was not initiated according to law to warrant the exercise of jurisdiction by the lower Court. A Court is competent to exercise its jurisdiction in a case if
a. It is properly constituted as regards number and qualification of the members of the bench and no member is disqualified for one reason or the order.
b. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction.
c. The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.” See also Madukolu vs Nkemdilim (1962) 2 SCNLR 341.
Counsel complained that some of the documents, the 1st Respondent intended to rely on listed were not front loaded. Also, that the 1st Respondent’s Writ of Summons was not in conformity with the Rules of Court. He argued that Order 5 Rule 7 of the Rules of the lower Court provides as follows
“Writs of Summons shall be printed on opaque foolscap size paper of good quality.”
Counsel argued that Rules of Court are meant to be obeyed see Kwajaffa vs Bank of the North Ltd (2004) 13 NWLR pt 889 pg 146. Counsel argued that there was no identifiable plaintiff or competent plaintiff before the lower Court to activate an originating process and that the 1st Respondent lacks locus standi. See A.G Adamawa State vs A.G.F (2005) 18 NWLR pt 958 pg 581 Shibkau vs A.G Zamfara State (2010) 10 NWLR pt 1202 pg 312. These cases held that “a person is said to have locus standi if he has shown sufficient interest in the cause of action and that his civil rights and obligation have been or are in danger of being infringed upon. Counsel referred the Court to Bewaji vs Obasanjo (2008) 9 NWLR pt 1093 pg 540 where it was held that
“It is not sufficient that there is a triable cause of action but whether the party suing is conferred with the legal capacity to institute such action. Furthermore, because it is the person in whom is vested the aggregate of the enforceable rights in a cause who is better placed, positioned and armed with locus to stand up and be counted, by suing thereon”
Ezechigbo vs Government Anambra State (1999) 9 NWLR pt 619 pg 386. Counsel re-iterated that in the determination of locus standi of a party only the statement of claim should be considered Global Trans-Oceanic SA vs Free Ent. (Nig) Ltd (2001) 5 NWLR pt 706 pg 426.
RESOLUTION
This is a case for determination of the jurisdiction of the Court which the Appellant has gone ahead to proffer arguments for, the substantive issues to the Court at this stage on appeal. However, this Court cannot start dealing with substantive issues which ought to be determined in the substantive suit. At this stage Courts are enjoined to restrict themselves strictly on preliminary issues for determination.
The Appellant in his brief went further than anticipated into the realm of what would have been the substantive issues for determination. See the case of Awusa vs Nig Army (2018) LPELR 44377.
A preliminary objection as in this case seeks to abort, indeed forecloses hearing of the case in limine and if upheld, terminates the case. It automatically puts an end to the case without determining the rights of the parties. Odunze vs Nwosu (2007) 13 NWLR pt 1050 pg 1, Efet vs INEC (2011) I SCNJ pg 179, UBA VS ACB (2005) 12 NWLR pt 939 pg 232 Najega vs Salihu (2018) LPELR 46603.
The learned counsel submitted that the Court had no jurisdiction to entertain this case as the suit was incompetent because the documents to rely on where not front loaded.
It is trite that when you are filing your matter before the Court, See Order 5 Rule 10 of the High Court Rules which enjoins you to front load your documents. Where a party lists his documents and does not file them together with his writ, it does not make the writ incompetent. The effect of the list is to put the other party on notice. It may be filed alongside the writ. The other party may or may not object to it during their pre-trial session. However, if for any reason it is not frontloaded, it may still be tendered in Court with or without objection.
For this, does not make the writ or originating process incompetent.
On the writ again, the counsel to the Appellant stated that Order 5 Rule 7 of the High Court Rules also provides that the Writ of Summons shall be printed on opaque foolscap size paper of good quality.
It is trite that Rules of Court are to be obeyed for the smooth running of the trial Courts. However, Order 2 Rule 1 of the High Court Rules provides as follows
“Where in beginning or purporting to begin any proceeding or at any stage in course of any connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place or manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein”
Learned counsel distinguished Kwajaffa’s case (supra) and Amaechi vs INEC (supra)
The provision of Order 2 Rule 1 is clear and unambiguous. Where there is a failing of the form or content of what is envisaged, it would be taken as a mere irregularity that would not vitiate the process.
Where the irregularity is procedural, the effect is not to operate for purposes of defeating the course of justice, because the Court is set out to do justice Odoni vs PDP (2005) LPELR 24351 Abazie vs Nwachukwu (2012) LPELR 7945, Akahall vs NDIC (2017) LPELR 41984. In Famfa Oil Ltd vs AGF (2003) LPELR 1239 The Supreme Court held per Belgore JSC that
“A procedural irregularity should not vitiate a suit once it can be shown that no party has suffered miscarriage of justice.
There is no allegation of any miscarriage of justice in this matter in fact the 1st Respondent had filed unconditional appearance to the originating summons. To my mind, the procedural irregularity like this one which has clearly shown what the plaintiff has as its complaint should not vitiate the proceedings. Procedure is to guide orderly and systematic presentation of a case, it is to help the substantive law and not to enslave it”
See Eboh vs Akpotu (1968) LPELR 25434, Adimora vs A.P Plc (2017) LPELR 42775.
It is therefore, safe to hold that failure to file the writ on a foolscap sheet is an irregularity that can be remedied. It has not affected the substance of the main suit. It is clear what the substantive suit is all about.
Learned counsel for the Appellant also stated that there was not a proper plaintiff that is to say that the 1st Respondent does not have the locus standi to initiate this process.
Whether or not the plaintiff has locus standi is invariably also challenging the Court’s jurisdiction to hear this case.
Where the jurisdiction of a Court is challenged the Court is entitled under S. 6 of the 1999 Constitution to consider the plaintiff’s claim before it, in order to decide, whether it has the jurisdiction to entertain it Adeleke vs O.S.H.A (2006) 16 NWLR pt 1006 pg 608, Egbebu vs IGP (2006) 5 NWLR pt 972 pg 146.
An objection to the jurisdiction of a Court can be raised in any of the following situation
(a) On the basis of the statement of claim
(b) On the basis of evidence received
(c) By motion supported by facts relied on
(d) On the face of Writ of Summons where appropriate as to the capacity in which the action was brought on against who the action has brought. Nnonye vs Anyichie (2005) 2 NWLR pt 910 pg 623, NDIC vs C. B. N. (2002) 7 NWLR pt 272 Arjay Ltd vs Airline Management Support Ltd (2003) 2 SCNJ p 148.
It is important for a party who perceives that a Court has no jurisdiction to hear a cause or matter to raise the issue at the earliest opportunity. Nnonye vs Anyichie (supra).
Therefore, a Court is expected to decide the issue of its jurisdiction to hear a case when a challenge is raised at the earliest opportunity. Nnonye vs Anyichie (supra).
In considering whether a Court has jurisdiction to entertain a matter, the Court is guided by the claim before it by critically looking at the Writ of Summons and the statement of claim Gafar vs Govt Kwara State (2007) 4 NWLR pt 1024 pg 375, Onuora vs K. R. P. C. (2005) 6 NWLR pt 921 pg 393, Tukur vs Govt of Gongola State (1989) 4 NWLR pt 117 pg 517 Nkuma vs Odili (2006) 6 NWLR pt 977 pg 587.
The Appellant argued strenuously that the plaintiff/1st Respondent had no locus standi to initiate this suit in the lower Court. The Appellant claimed that the 1st Respondent does not have any interest in the subject matter.
Locus standi simply means the capacity to sue Per Kalgo JSC in Global Transport Oceanico S. A vs Fress Enterprise (Nig) Ltd (2001) LPELR 1324.
Going by settled judicial precedence, the term Locus Standi denotes legal capacity to institute proceedings in a Court of law. The fundamental aspects of Locus Standi is that it focuses on the party seeking to get his complaint laid before the Court. See Ojukwu vs Ojukwu (2008) LPELR 2401. Adesanya vs President Federal Republic of Nigeria (1981) LPELR 147 Adetono vs Zenith Intl Bank Plc (2011) LPELR 8237.
Locus standi is therefore, the interest the 1st Respondent as plaintiff has in the matter. The 1st Respondent had complained about an article in the This Day Newspaper, back page and other media outlets authored by the Appellant.
The 1st Respondent has an interest in the matter as his name appeared in the article in a way that he did not like.
A man is said to have locus standi to sue in an action if he is able to show to the satisfaction of the Court that his civil right and obligations have been or are in danger of being infringed upon.
There are two tests for determining if a person has locus standi. They are:
i. The action must be justiciable and
ii. There must be a dispute between the parties.
In applying the test a liberal attitude must be adopted. Senator Adesanya vs The President Federal Republic of Nigeria (1981) 5 SC pg 112 laid down the rules for locus standi in civil cases, while Fawehinmi vs Akilu (1987) 12 SC pg 99 laid down the far more liberal rule for locus standi in criminal cases… To have locus standi, the plaintiff’s statement of claim must disclose sufficient legal interest, and show how such interest arose in the subject matter of the action Per Rhodes-Vivour in B.B Apugo & Sons Ltd vs Orthopaedic Hospital Management Board (2016) LPELR 40598. Ajayi vs Adebiyi (2012) LPELR 7811.
In the present appeal, I believe the 1st Respondent has sufficient interest in the matter. He claimed that the Appellant wrote an article in various Newspapers about him in a way he did not like. This already gives him a cause of action. It can be said that there is a prima facie case against the Appellant. Whether it can be proved is another thing altogether that would be left for when the substantive issue would be heard.
Like I had earlier stated, in dealing with preliminary objection and issues, care should be taken not to over step the boundaries. Therefore, I will stop at this stage and hold that the 1st Respondent has locus standi to institute this case as it is. Also, that the breaches in filing the Writ of Summons are mere irregularities that does not impact on the substantive suit.
This appeal is therefore, unmeritorious, it is dismissed. I affirm the Ruling of the lower Court.
Cost to the 1st Respondent is assessed at Two hundred and fifty thousand naira (N250,000.00).
JUMMAI HANNATU SANKEY, J.C.A.: I had the privilege of reading in draft the lead Judgement of my learned brother, Ndukwe-Anyanwu, J.C.A.
I agree with her reasoning and conclusion.
The 1st Respondent has disclosed sufficient interest and therefore his locus standi to maintain the suit.
I also dismiss the Appeal and abide by the consequential Orders.
JAMES GAMBO ABUNDAGA, J.C.A.: I read the draft of the Judgment delivered by my learned brother, Uzo I. Ndukwe-Anyanwu, JCA.
I agree with the reasoning and conclusion reached in the Judgment that the appeal is unmeritorious, and hence, it deserves a resounding dismissal.
I shall want to add the following to reinforce my agreement with the conclusion reached in the Judgment.
It is settled law that in determining the jurisdiction of a Court to entertain a matter, what a Court looks at is the statement of claim, and in a suit commenced by originating summons or motion, the affidavit in support. See NNPC vs. Ibrahim & Ors (2014) LPELR-23999 (CA), Pp. 38 – 40, paras C – A, Adetona & Ors vs. Zenith International Bank Ltd (2007) LPELR-8896 (CA) per Awala, JCA (p. 16 paras C – E).
The main thrust of the objection is that the 1st Respondent has no locus standi to institute the action.
In the case of Egolum vs. Obasanjo & Ors (1999) LPELR-1046 (SC), it was held:
“The fundamental aspect of locus standi is that it focuses on the party asking to get his complaint before the (High) Court not on the issues he wishes to have adjudicated,” – per Obaseki J.S.C. in Adesanya v. President of Nigeria & Anor. (1981) 2 N.C.L.R 358: (1981) 12 N.S.C.C 146, 173. The importance of the standing of a litigant to bring an action was once highlighted by this Court, In Alhaji Olorunkemi Ajao v. Mrs. L.E. Sonola & Anor. (1973) 5 S.C. 119 at 123, this Court, per Coker J.S.C., observed. “We consider it generally accepted as a sound legal proposition that the plaintiff to an action must be competent to institute such an action and if such a plaintiff claims by substitution, he has the onus of proving that he has the legal capacity to do the legal act which he had set out to perform. In Lawal & Ors. v. A. Younan & Sons & Co. (supra), the question arose as to right of persons who were granted Letters of Administration in a Customary Court to administer the estate of a deceased person by virtue of that grant to sue for damages on behalf of the dependents of the deceased under the Fatal Accidents Acts, 1846. In the course of the judgment of the Federal Supreme Court, Ademola C.J.N. observed at page 253 of the Report thus:- ‘On the view I have taken of this matter, it is clear that a person to whom power is given under Customary Law to administer the Estate of a deceased person, is a person empowered by that law to administer the estate of the deceased where Customary Law can be invoked, and such power cannot be extended to matters which are statutory rights under English Law and to which statutory remedies apply.’ We think it is settled that competency to institute an action is an essential or indeed a vital factor in deciding the competency of the action itself, and if challenged by a defendant, the plaintiff has the onus of establishing it.” See also: Gamioba & Ors. v. Esezi II & Ors. (1961) 1 All N.L.R 594; (1961) A.N.L.R 668: (1961) 2 S.C.N.L.R 237; Senator Abraham Ade Adesanya v. The President of the Federal Republic & Anor. (supra); Fawehinmi v. Akilu & Anor, In Re Oduneye. DPP (1987) 4 N.W.L.R 797.” Per OGUNDARE, JSC (Pp. 27-29, paras. F-B).
Now, looking at the 1st Respondents’ writ of summons and statement of claim, the undeniable fact is that his complaint is that his name was defamed and therefore, he sought not only monetory damages but restraint order against further publication of the defamatory statement. It is therefore without doubt that he has sufficient interest in the cause of action, which is to protect his name from being disparaged. I hold that he therefore had locus standi to institute the action.
The other complaints in the Appellant’s motion are matters of procedure, which to my mind are issues of irregularities which does not affect the substance of the action.
It is on the basis of the foregoing, more explicitly expatiated in the lead Judgment that I too find the appeal unmeritorious, and hereby adopt his Lordship’s order dismissing same.
I abide his Lordship’s consequential orders including the order as to costs.
Appearances:
B. A. Satau, Esq. For Appellant(s)
D. Eze – for 1st Respondent
S. A. Onimisi Esq., with him, J. O. Obi Esq. – for 2nd and 3rd Respondent For Respondent(s)
