THE DAILY TIMES OF NIGERIA & ORS. v. D. S. V. LIMITED
(2013)LCN/6078(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of March, 2013
CA/L/298/2010
RATIO
“The issue of locus standi, if raised, borders on jurisdiction. jurisdiction is fundamental threshold, and if brought to bear, it has to be addressed first. The learned trial judge, having become aware of an application raising the issue of locus standi, should have entertained same promptly. His failure to do so, makes the whole proceedings a nullity, which affects every other matter, as the instant one. Failure to entertain same knocks the bottom off other applications which are predicated on it, and indeed the Petition in respect of which judgment was delivered by him.” Per PEMU, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
Between
1. THE DAILY TIMES OF NIGERIA
2. FOLIO COMMUNICATIONS LIMITED
3. FIDELIS ANOSIKE
4. CHARLES ANOSIKE
5. NOEL ANOSIKE Appellant(s)
AND
D. S. V. LIMITED Respondent(s)
AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): This is one of three appeals against the decision of the Federal High court in respect of the dispute over the sale of the 1st Appellant to the 2nd Appellant, who emerged as the preferred bidder, when the Federal Government of Nigeria sold the 1st Appellant’s shares, pursuant to its privatization Programme.
To fulfill its obligation, the 2nd Appellant borrowed N750,000.00 from Hallmark Bank Plc., and offered the Respondent 40% of the shares for N500,000.00, which it paid to the Bureau of public Enterprises [BPE], and it was then registered as a shareholder by corporate Affairs commission [CAC]. In 2005, the Respondent filed suit No. FHC/L/CS/594/2005 at the Federal High court against the Appellants, and Nigerian stock Exchange as 4th Respondent, Hallmark Bank as 5th Respondent, Equatorial Trust Bank as 6th Respondent, BPE as 7th Respondent, and chief Anthony Idigbe SAN, as the 8th Respondent.
The parties subsequently settled out of Court, and a Consent Judgment was entered as per the terms of settlement by D. D. Abutu, J., (as he then was) on the 24th of April 2006, wherein it was agreed by the parties inter alia that-
“No party shall file any new action based on the matters, the subject of this Settlement Agreement, in any guise whatsoever save for the enforcement of this Agreement”.
However, in 2009, the Respondent and Afribank Nigeria Plc., filed a Petition under Section 311(1) of the Companies and Allied Matters Act of 1990 [CAMA], wherein they prayed the Federal High Court, Lagos, for the following reliefs –
1. A DECLARATION that FOLIO COMMUNICATIONS LTD. [2nd Appellant] – – did not pay for the 140, 252, 900 shores that is 56% shores allotted to DTN Plc. [1st Appellant].
2. A DECLARATION that 140, 252, 900 shares allotted to FOLIO COMMUNICATIONS LTD. [2nd Appellant] have reverted back to DTN Plc. [1st Appellant].
3. A DECLARATTON that DTN PLC paid for the 140, 252, 900 that is 55% of its shares.
4. A DECLARATT1N that FOLIO COMMUNICATION LTD. is No LONGER a shareholder of DAYLY TIMES OF NIGERIA (DTN) PLC.
5. A DECLARATION that the current issued shares in DTN PLC have been reduced to 93, 501, 936 ordinary shares held by DSV LTD. [Respondent] and 9,600 ordinary shares held by various shareholders.
6. A DECLARATTON that the use of the proceeds from the sale and mortgage of DTN properties and other minority shareholders in DTN PLC is oppressive against the petitioner [i.e. the Respondent] and other minority shareholders in DTN PLC and a breach of fiduciary relationship.
7. A DECLARATION that the debt due to AFRIBANK NIGERIA PLC IN the SUM Of N575,696,793.61, the subject of winding up proceedings in Suit No. FHC/L/CP/1072/09 is capable of being settled by the sale of the reverted shares of DTN PLC without winding up DAILY TIMES OF NIGERIA PLC.”
The Appellants, who were the 1st, 3rd to 6th Respondents, filed two processes on the 21st of December 2009; an “Affidavit in opposition to the Petition”, and a Motion on Notice praying the lower Court for an order “dismissing and striking out this Suit for want/lack of jurisdiction” on the following Grounds –
1. The suit of the Petitioner disclosed no cause of action.
2. The petitioner had by the consent Judgment entered in Suit No. FHC/L/CS/594/2005 waived her right and therefore has no right of action in respect of the matters grounding this Petition.
3. The petitioner had by the said Consent Judgment waived her right to litigate the issues as contained in the Petition.
4. No Right of action enures to the Petitioner.
The Application came up for hearing before O. J. Okeke, J., on 14/1/2010, and learned counsel for the Respondent, L. A. Idu, Esq., told the lower Court that –
“The petitioner’s answer to the 1st, 3rd – 6th Respondents’ said Motion on Notice is the petition itself. The Court is urged to take a look at the Petition in its entirety and refuse the 1st, 3rd – 6th Respondents’ Motion on Notice dated 27th December 2009”.
The lower Court adjourned the matter to 19/2/2010, “or any earlier date to be communicated to counsel” for Ruling/Judgment, but it later abridged the time from 19/2/2010 to 29/1/2010. However, before the lower Court could deliver the said Ruling/Judgment, the Appellants filed an Application dated 27/1/2010, wherein they sought for five reliefs, which included a prayer for the following –
Granting leave to the Applicants to raise the issue of jurisdiction to wit: locus standi by the petitioner to file the Petition in the first place and deeming the supplementary address on this issue as properly filed and served”.
The Respondent opposed the Application on the ground that -“it is not known to the Rules”, and “it is an attempt to arrest the Judgment” – The lower court stood down the matter and came back to deliver two Rulings and a Judgment. It dismissed the Application dated 21/12/2009 because the Petition contains “serious allegations on the way and manner the affairs of the 1st Respondent are run by the Respondents to the detriment of the 1st Respondent, etc., the “allegations relate to the acts done after the consent judgment of 24/2/2006”; and even without some paragraphs, the Petition “discloses a cause of action”
In its Ruling on the Application dated 27/1/2010, the lower court held that –
Though, couched as seeking the leave of court to re-open the argument in the matter – – it is nothing but on attempt to arrest the delivery of the Ruling/judgment fixed for this morning. Courts generally frown on arrest of Judgment, and the grant or refusal of Application for arrest of Judgment of a competent Court with jurisdiction to entertain the claim short turn on peculiar circumstances of each case – – – Notwithstanding the fact that on arrest of Ruling or Judgment is a stranger to the Rules of court, there is nothing in the grounds and affidavit in support to persuade this court to be favourably disposed to the Application – – The present Application is nothing but a ploy to unnecessarily delay the conclusion of the Petition. The – – Motion on Notice dated 27/1/2010 is unmeritorious, and it is hereby dismissed”.
In its Judgment on the petition itself, the lower court held that the Respondent “presented unassailable facts in support of same”, 2nd the “Petition succeeds”.
Dissatisfied with the said decisions, the Appellants filed three appeals –
Appeal No.CA/L/298/2010 against the Ruling on the issue of “cause of action”; Appeal No.CA/L/298A/2010 questions the decision on the issue of locus standi, and Appeal No. CA/L/298B/2010 challenges the decision in the final Judgment. In the Judgment I delivered earlier in Appeal No CA/L/298A/2010, I held that –
“Locus standi beams a searchlight on the party, while “cause of action” focuses on the grievance that he wishes to air in Court. — They both connote different things in law, and are totally distinguishable from each other – see A.G. Anambra v. Eboh (supra), cited by the Appellant, where Uwaifo, JCA (as he then was) held that –
“The objection as to locus standi was not canvassed on the question whether there was a reasonable cause of action. – – The issue of standing to sue must with due care be separated from whether a Plaintiff has a reasonable cause of action. They are not coextensive, nor does a finding in favour of the former depend on the examination of the latter. All that is required is to ascertain whether the person whose standing to sue is in issue is a proper party to request an adjudication of a particular issue”‘
The bottom line is that a Statement of claim or Petition as in the case, must disclose a cause of action, and must also show the locus standi of the Plaintiff – see Thomas v. Olufosoye (1986) 1 NWLR (Pt.18) 669 SC. and Sehindemi v. Gov. Lagos State (supra), cited by the Appellants, where it was also held that –
“..The issue of standing is distinguishable from that of a reasonable cause of action – whether a plaintiff has a locus standi is different from whether d plaintiff has a reasonable cause of action. Both issues are not co-terminus or synonymous and determination that the Plaintiff has a standing to sue does not depend on the investigation or examination of the latter. All that is involved in the determination of a litigant’s locus standi is to ascertain that a party whose standing is impugned is the proper person to submit for resolution a particular question”.
“…It is also settled that when the issue is raised, the Court before whom the action is pending is under a duty to determine it first before going into the merit of the action itself – see Baido v. INEC (2008) 12 NWLR (pt.1101) 379 and Anisu v. Osayomi (2008) 15 NWLR (Pt.1110) 246, wherein the Court categorically stated–
“Where the question of the locus standi of a party to initiate civil claims is raised it should be settled first and decisively, and not shelved…”
In this case, the Appellants had filed an Application to have the Respondent’s suit dismissed for want lack of jurisdiction as it “disclosed no cause of action”. – -The Respondent objected – – on the ground that it is an “attempt to arrest the delivery of the Ruling”. Apparently, the lower Court agreed with it – – -. The lower Court dismissed the Application without even mentioning the said prayer for leave to raise the issue of locus standi, which is a jurisdictional issue. It is trite law that a court without the necessary jurisdiction automatically lacks the competence to try the case in the first place-see Utih v. Onoyivwe (1991) 1 NWLR (Pt.166) 166 SC, where Bello, JSC (as he then was) observed that –
Jurisdiction is blood that gives life to the survival of an action in a Court of law, and without jurisdiction, the action will be like an animal drained of its blood. It will cease to hove life and any attempt to resuscitate it without infusing blood into it would be abortive exercise”.
The importance of jurisdiction is why the issue can be raised at any stage of a case, be it at the trial, or on appeal; a Court can even raise the issue suo motu – see Ijebu-Ode L.G. v. Adedeja (1991) 1 NWLR (pt.165) 1-35, and Olutola v. Unilorin (2004) 18 NWLR (pt. 905) 416, P. E. Ltd. & Anor V. Leventis Tech. Co. Ltd. (1992) NWLR (Pt.244) 675 SC, where Belgore, JSC (as he then was) held –
“It is desirable that preliminary objection be raised early on issue of jurisdiction; but once it is apparent to any party that the Court may not have jurisdiction, it can be raised even viva voce – – it is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity”.
Obviously, the lower court fell into serious error when it failed or refused to consider the prayer for leave to raise the issue of locus standi…it is one thing to have a reasonable cause of action, and quite another to hove the locus standi to appear and be heard in Court. – – – In the circumstances of this case, I really think the lower court should have adjourned the matter or taken its time to consider the Application because the issue of locus standi is not something a Court can ignore or close its eyes to since it may affect its jurisdiction, and jurisdiction is the lifeline of any action.This appeal, therefore, succeeds and is allowed. The Application dated 27/1/2010 is hereby sent back to the lower Court for hearing by another judge”.
In view of my order in Appeal No.CA/L/298A/2010, it will be foolhardy for this Court to deal with this appeal because “cause of action” and “locus standi” are jurisdictional issues, and it will augur well for the justice of this case if the other Judge deals with both issues, given that a matter cannot be heard unless there is a cause of action, and the Plaintiff has a right to bring the action – see Utih V. Onoyivwe (supra) Thus, Appeal No.CA/L/298/2010 is hereby struck out.
RITA NOSAKHARE PEMU, J.C.A.: I had read in draft the lead judgment just delivered by my brother Amina Adamu Augie JCA and I agree with her reasoning and conclusions.
Where the issue of jurisdiction comes to play, there is the need to entertain same first before looking at any other matter. I also strike out this appeal and subscribe to the consequential order made in the lead judgment.
FATIMA O. AKINBAMI, J.C.A.: I had read in draft the lead Judgment just delivered by my learned brother, Augie, JCA, and I agree with his reasoning and conclusion, which I adopt as mine. The lower Court should have dealt with the Application challenging its jurisdiction on the ground of locus standi, before proceeding to deliver the Ruling being challenged in this appeal.
In the circumstances, I also strike out this appeal, and I also abide by the consequential orders in the lead Judgment.
Appearances
Dr. Alex Izinyon (SAN) with N. I. Quakers (SAN), C. S. Ekeocha, Esq., L.O.Fagbemi Esq., and Mrs. Ifeoma PetersFor Appellant
AND
Kola Awodein (SAN), with Mrs. L. A. Idu, I. Williams-Udobi, Esq. and Miss O. AmureFor Respondent
