UMEH BROTHERS COMPANY LTD & ORS v. ETHELBERT UMEH & ANOR
(2016)LCN/8440(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of March, 2016
CA/E/284/2012
RATIO
COURT: DUTY OF COURT TO EXAMINE GROUNDS OF OBJECTION BROUGHT BEFORE IT
Decidedly, it is the duty of a Court, to examine grounds of objection brought before it, even if there is no reply thereto. – EYA v. OLOPADE (2011) 11 NWLR (PART 1259) 505 at 517. Ipso facto, he was obligated to consider and pronounce on it, whether he upholds it or overrules it before he goes into the merit of the case, if the need arises. PER RITA NOSAKHARE PEMU, J.C.A.
LOCUS STANDI: HOW DOES THE COURT DETERMINE LOCUS STANDI
“Locus standi” just as “Cause of Action” are determinable from the Statement of Claim. The lower Court was obligated, faced with the notice of Preliminary objection, predicated on the issue of lack of locus standi, to consider whether the Statement of Claim contains averments, showing sufficient interest on the part of the plaintiff to institute the action. And to pronounce on it.
Locus standi being a jurisdictional issue is determined by the statement of claim. – CHIJUKU v. MADNEWESI (2011) 16 NWLR (Pt. 1272) 181 @ 186. PER RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
1. UMEH BROTHERS COMPANY LTD.
2. JANET NWANYIEGBO UMEH
3. CHRISTOPHER C. UMEH
4. COLLINS O. UMEH
5. CHUKWUMA C. UMEH
6. OGUADINMA UMEH
7. FRANCIS C. UMEH
(Sued as the personal representatives of Late Augustine Umeh of Osina) – Appellant(s)
AND
1. ETHELBERT UMEH
(Sued as the personal representative of Late Elisius Umeh of Osina)
2. THE CORPORATE AFFAIRS COMMISSION ABUJA – Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): The suit, the subject matter of this Appeal was instituted by way of a PETITION filed on the 5th of May 2011 – Page 1 – 11 of the Record of Appeal.
In Paragraph 52 of the said Petition, the Petitioner seeks the following reliefs –
(i) “A declaration that the father of your humble Petitioner, late Elisius Umeh and the husband and father of the 3rd to the 8th Respondents late Augustine C. Umeh were the only equal share-holders of the 1st Respondent company before their deaths in 2003 and 1999 respectively.
(ii) A declaration that your Petitioner as the personal representative of late Elisius Umeh together with his brothers is entitled to half of the share in the 1st Respondent company due to his late father Elisius Umeh and the other half goes to the 3rd to the 8th Respondents jointly as the personal representatives of Late Augustine C. Umeh.
(iii) A declaration that your petitioner as the personal representative of late Elisius Umeh with his brothers and the 3rd to the 8th Respondents jointly as personal representative of late Augustine C. Umeh are the only persons
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entitled in a general meeting to allot shares of their late fathers in equal measure and appoint directors in equal measure too.
(iv) A declaration that the 3rd to the 8th Respondents are at present not shareholders and or directors of the 1st respondent.
(v) An order to set aside all purported resolutions appointing the 3rd to the 8th Respondents as share-holders and or directors of the 1st Respondent.
(vi) An order of Court to cancel the variation and or reduction of the shares of Late Elisius Umeh by the singular act of late Augustine Umeh, the 3rd and 4th Respondent by the purported special resolutions of 31st May, 1998, 31st August, 1989 and 13th November, 2007.
(vii) An order compelling the 2nd Respondent to cancel and or erase from her records the purported Resolution of the purported extra-ordinary general meeting purportedly allotting shares to the 3rd to the 8th Respondents and appointing them as directors which resolutions have affected the fifty percent share of late Elisius Umeh.
(viii) An order of the Court compelling the 3rd to 8th Respondents to render account of the rents collected from all the property owned by Umeh
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Brothers Company Limited and surrender the company’s account with First Bank Nig. Plc & Union Bank of Nigeria Plc and first Inland Bank, New Market Road, Onitsha for same to be divided equally between the two representatives of late Elisius Umeh and Late Augustine C. Ume.
(ix) An order restraining the 3rd to the 8th Respondents from acting as shareholders and or Directors of the 1st Respondent or doing any act prejudicial to the rights of late Elisius Umeh as a equal share-holder including instituting civil actions in any Court against any person or persons as directors or shareholders of the 1st Respondent until the allotment of shares and appointment of directors of the 1st respondent to be made by your humble Petitioner with his brothers as personal representative of Late Elisius Umeh and 3rd to 8th Respondents as mother and brothers as personal representative of Augustine C. Umeh during their general meeting to be held by both of them.”
The 1st Respondent is the petitioner and the suit is FHC/AWK/CP/248/2011 which is against the appellants and the 2nd Respondent. The Petitioner instituted the suit in his capacity as the personal
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representative of Late Elisius Umeh of Osina who was his father.
The appellants filed an answer to the petitioner ? pages 320-330 of the Record of appeal, where issues of law as regarding LOCUS STANDI was raised. It is that the Petitioner had no locus standi to institute the action.
The Appellants then filed a preliminary objection challenging the competence of the suit on the ground that the petitioner lacked the locus standi to institute the action. – Pages 173-202 of the Record of Appeal.
The 1st Respondent filed a Counter affidavit and a written address in response to the Preliminary objection. – Pages 377-385 of the Record of Appeal. The appellants also filed a further affidavit – Pages 386 – 388 of the Record of Appeal.
On the 19th of March 2012 the preliminary objection was argued, and the lower Court adjourned for ruling – pages 404 ? 405 of the Record of appeal.
On the 18th of May, 2012, the trial Court delivered its ruling, whereby he decided that the Preliminary Objection shall be put in abeyance while the Court entertains the substantive matter. – Pages 407 – 408 of the Record of Appeal.
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The Appellants are dissatisfied with this decision and have appealed it.
Pursuant to the Practice Direction of this Honourable Court, the Appellants filed their notice of Appeal on the 31st of July 2012, with two Grounds of Appeal – pages 390 – 393 of the Record of Appeal.
I deem it pertinent to reproduce these Two Grounds of Appeal.
GROUND 1 ERROR IN LAW
The learned trial Judge erred in law when he ruled that the Preliminary Objection shall be put in abeyance while the Court entertains the substantive matter despite the fact that the Preliminary Objection which had already been argued questions the competence of the suit and therefore challenges the jurisdiction of the trial Court to entertain same, and ought to have been determined first.
GROUND 11 ERROR IN LAW
The learned trial Judge erred in law when he decided that he cannot rule on the competence of the suit, that is whether the petitioner has the requisite locus standi to institute the suit or not without deciding the main issues in the substantive matter, and thereby ruled that the Preliminary Objection shall be put in abeyance.
The Reliefs sought from the
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Court of Appeal are follows:-
(a) “To allow this appeal and set aside the said ruling of the learned trial Judge keeping the appellants’ preliminary objection in abeyance.
(b) To determine the said preliminary objection and allow same by striking out Suit No. FHC/AWK/CP/248/2011 for want of locus standi on the part of the petitioner.”
The Appellant filed his brief of Argument on the 14th of February 2013, but same was deemed filed on the 20/11/2014. It is settled by Chukwuemeka Mebo, Esq.
The 1st Respondent filed his brief of argument on the 18th of December 2016. It is settled by C. H. Asiegbu, Esq.
The appellant filed a Reply Brief on the 2nd of March 2015, but same was deemed filed on the 9th of March 2015.
On the 3rd of March 2016, the parties adopted their respective briefs of argument.
The Appellant had proffered just one issue for determination in this appeal and that is ?
“WAS THE TRIAL COURT RIGHT IN NOT DETERMINING WHETHER THE 1ST RESPONDENT HAD THE REQUISITE LOCUS STANDI TO INSTITUTE THE ACTION OR NOT, IN OTHER WORDS, WHETHER THE SUIT IS COMPETENT OR NOT, BEFORE DECIDING TO
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ENTERTAIN THE SUBSTANTIVE MATTER ESPECIALLY IN THE CIRCUMSTANCE THAT IT HAD ALREADY HEARD THE PRELIMINARY OBJECTION?”
The 1st Respondent, on his part had proffered Two Issues for determination. They are ?
a) “WHETHER THERE IS A DECISION OF THE TRIAL COURT ON THE NOTICE OF PRELIMINARY OBJECTION BY THE APPELLANT, QUESTIONING THE LOCUS STANDI OF THE 1ST RESPONDENT WARRANTING THE APPEAL TO THE COURT OF APPEAL.
b) WHETHER THE COURT OF APPEAL CAN TAKE ARGUMENT OF THE APPELLANTS ON THE ISSUE OF LOCUS STANDI?”
The Gravaman of the Appellants argument is that the suit, the subject matter of this appeal was instituted by the Petitioner under Section 311 of the Companies and Allied Matters Act (C.A.M.A.). That Section 310 (1) of the Companies and Allied Matters Act, provides that an application to the Court by petitioner, for an order under Section 311 of the Act in relation to a company, may be made by any of the following ?
(a) A member of the company.
(b) A director or officer or former director or officer of the company.
(c) A Creditor.
(d) Any other person who, in the discretion of the Court, is a proper
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person to make an application under Section 311 of the Act.
He submits that the 1st Respondent instituted the action as personal representative of Late Elisius Umeh of Osina, who was his father, and who was a member and director of the 1st Appellant Company. The suit was therefore instituted in a representative capacity pursuant to Section 310 (2) of the Act.
The Appellants contention, as reflected in the preliminary objection, is that even if the 1st respondent is the personal representative of the said Late Elisius Umeh of Osina (which he is not) he will still not have the legal capacity to institute the action, because the said Late Elisius Umeh of Osina was never a member of the 1st Appellant Company.
That a “member” of a company presupposes that he has subscribed to the Memorandum of Association of the Company, or that his name is entered in the register of members of the company – ALALADE v. NORTHLINE IND. AGRO SERV. LTD (2003) 14 NWLR (Pt. 839) pg 172. Refers to Section 79 (1) and (2) of the Companies and Allied Matters Act.
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That the 1st Respondent in paragraph 13 of his petition admitted that Umeh-Nwisu printing press
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Ltd was formed by late Augustine Umeh and one Nwisu. – Page 3 of the Record of Appeal. That Exhibit “R” Memorandum of Association attached to the Notice of Preliminary objection, shows that Mr. Augustine C. Umeh and Mr. Aloysius Nwisu subscribed to the company as its members – Pages 178 – 194 of the Record of Appeal.
He submits that Exhibits “R2”, “R3”, “R4” and “R5”, attached to the Preliminary Objection at pages 195 to 198 of the Record of Appeal, show that it was the same Umeh-Nwisu Printing Press that was later changed to Umeh Brothers Company Limited.
That Exhibit “R2” shows that it was Augustine C. Umeh who acquired the shares of Aloysius Nwisu and not any other person. – Page 195 of the Record of Appeal.
He submits that the 1st Respondent did not show or produce any evidence of when and how his father Late Elisus Umeh of Osina became a member of the company.
?He strenuously submits that for the 1st Respondent to be entitled under Section 310 of the Companies and Allied Matters Act, to institute such an action as the one in hand, there must be credible evidence that his father, Late Elisius Umeh of Osina was in law, a
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member of the 1st Appellant’s company.
He further submits that for the 1st Respondent to have the standing to institute the action, as personal representative of Late Elisius umeh of Osina, he must, in addition to showing that the said Elisius Umeh was a member of the company, also show that he has been authorized to execute and administer the estate of the said Elisius Umeh of Osina. This is because the phrase “Personal Representative” means an executor or administrator of the estate of a deceased person.
He submits that the issues raised by the appellants in their preliminary objection at the lower Court, affects the jurisdiction of the lower Court to entertain the suit, and it was obligated to have first determined, whether the suit was competent or not before deciding whether to go into the merits of the case. Moreso when the Preliminary Objection had been heard UMANAH v. ATTAH (2006) 17 NWLR (Pt. 1009) 503 @ 534 e-g.
It is the 1st Respondents’ contention that there is no pending appeal before this Honourable Court as no decision was made regarding the Preliminary objection filed by the appellants at the lower Court, which would
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require this Court to entertain and hold that the decision was wrongly arrived at.
Submits that the Preliminary Objection still pending at the lower Court, has not been decided, as the trial Court opted to put same in abeyance pending the hearing of the main suit.
Submits that the Appellants submission on locus standi and jurisdiction of the Court to entertain the suit does not support the issue for determination.
In determining this appeal, perhaps it is pertinent to first and foremost see what transpired in the Court below culminating in this Appeal.
From records, the 1st, 3rd to 8th Respondents filed a Notice of Preliminary Objection at the Federal High Court in suit No. FHC/AWK/CP/248/2011, on the 23rd of June 2011, for an order striking out the Suit as being incompetent, the Petitioner not having the requisite locus standi to institute the Suit.
The Grounds upon which the Preliminary objection is based included inter alia that ?
“The Petitioner has no locus standi to bring this action since neither his father, himself nor his siblings is a member or director of the 1st Respondent Company.”
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-Pages 173-174 of the Record of Appeal.
From Records, the Petitioner/Respondent filed a counter affidavit in opposition to the preliminary objection on the 1st of November 2011. It is of twenty (20) paragraphs – pages 367-369 of the Record of Appeal.
Written addresses were also filed in support of the respective processes.
On the 2nd of December 2013, Mr. Asiegbu of counsel for the petitioner, prays Court for extension of time to reply to counter affidavit and counter affidavit to preliminary objection – Page 385 of the Record of Appeal.
On the 19th of March 2012, Nnamdi Ibegbu, SAN tells Court that he has a motion filed on the 23rd of June 2011 to strike out the Suit – Page 386 of the Record of Appeal.
From records, on the 19th of July 2012 the Court observed thus –
“? Ruling preliminary in abeyance until hearing of main matter itself. Adjourned to 19/7/2012 for hearing”.
Before this, the record says ?
“Ruling delivered”.
– See Page 387 of the Record of Appeal.
But curiously, and curiously indeed, the Record of Court says that the Ruling was delivered on the 18th of
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May 2012, and in fact signed by P. F. Olayiwola Presiding Judge on that date. – Pages 388 – 389 of the Record of Appeal.
It is apparent that there is a contradiction in terms. Indeed the proceedings of 19th July 2012 that “Ruling delivered” is at variance with the Ruling of the 18th of May 2012. Be that as it may the 1st Respondent had argued that there is no decision appealed. I do not think that argument is tenable, because the ruling delivered on the 18th of May 2012 is a “decision” in law, in reaction to the preliminary objection filed by the Appellant.
A painstaking look at the Ruling of the lower Court, it seems to me, without a doubt, that he considered the notice of preliminary objection and the Counter affidavit in opposition to it, but the Court curiously concluded thus ?
“In my opinion, it is premature to take this objection as of now. On the full trial of the case Court would be able to shift the wheat from the chaff when evidence is called to see where justice of the case stands. In the same light, taking this objection now would prejudice the hearing of the main matter as it is asking the Court to determine the main
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matter itself on this objection.
It is the attitude of Court that what should be determined in the substantive case when evidence has been called should not be taken at the interlocutory level. In the light of this, the ruling is put in abeyance until the hearing of the main matter.
That is my decision.
Sgd.
P. F. Olayiwola
PRESIDING JUDGE
18/5/2012.”
With respect this pronouncement is grievously erroneous.
It was incumbent on the lower Court, having considered the argument of the parties (as reflected in the body of the Ruling) to pronounce on this threshold issue instanter.
Decidedly, it is the duty of a Court, to examine grounds of objection brought before it, even if there is no reply thereto. – EYA v. OLOPADE (2011) 11 NWLR (PART 1259) 505 at 517. Ipso facto, he was obligated to consider and pronounce on it, whether he upholds it or overrules it before he goes into the merit of the case, if the need arises.
?
Decidedly “locus standi” has nothing to do with merits of the case. It suffices if the party shows sufficient interest or legal right in the subject matter of the dispute as shown by
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the PLEADING. – PAM v. MOHAMMED (2008) 16 NWLR (Pt. 1112) 1.
“Locus standi” just as “Cause of Action” are determinable from the Statement of Claim. The lower Court was obligated, faced with the notice of Preliminary objection, predicated on the issue of lack of locus standi, to consider whether the Statement of Claim contains averments, showing sufficient interest on the part of the plaintiff to institute the action. And to pronounce on it.
Locus standi being a jurisdictional issue is determined by the statement of claim. – CHIJUKU v. MADNEWESI (2011) 16 NWLR (Pt. 1272) 181 @ 186.
The issue of locus standi named in the Preliminary Objection (indeed the main issue) cannot be glossed over by the Court, when it observed that “preliminary objection is premature and that it can be taken at the full trial of the case, when the Court would be able to shift the wheat from the chaff when evidence is called?”. – page 389 of the Record of Appeal.
By this pronouncement, the lower Court was utterly misconceived as to the state of law when the issue of LOCUS STANDI props up by way of preliminary objection, and what the Court faced with
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it should do, as a matter of utmost urgency.
It is without doubt that the lower Courts approach smacks of justice inconsistent with what it stands for. Worse still, the lower Court’s view of the preliminary objection betrayed its lack of knowledge of the law as it is.
Per Nweze J.S.C. in ODENO v. OGUEBEGO (2015) 13 NWLR (Pt. 1476) Pg.229 @ 241.
“In one word, what transpired thereat on February 2, 2015 with regard to the aid Bench ruling, was a miscarriage of justice; failure of justice; or simply; justice inconsistent with the law or a juridical aberration.” OWOSO v. SUNMONU (2004) 30 W.R.N. 93, 106 ? 107, OJO v. ANIBIRE (2004) 5 KLR (Pt. 177) 1205, 1207 (2004) 10 NWLR (Pt. 882) 571; WILSON v. WILSON (1969) ALR 191.”
It seems to me that there obtains diverse features that have bedevilled the ruling of the lower Court, which is being appealed.
?
First and foremost, the date judgment was delivered is different from when it was allegedly said to be delivered in the Record. Moreso, the ruling was delivered before the proceedings whereby it was adjourned for judgment.
For purposes of elucidation, at pg. 387 of the
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Record of appeal, the ruling on the 19th of July 2012 was delivered, and in another breadth, the lower Court says that “the Ruling preliminary in abeyance until hearing of main matter itself.”
But in a strange twist, the judgment had, from Records been delivered on the 18th of May 2012 and in fact signed on that day by the Judge.
This makes the Judgment suspect and liable to be set aside.
The Court cannot deliver its Judgment before it reserves its Judgment. It makes no sense.
Second of all, the lower Court was in error to have failed to pronounce on the preliminary objection. This constitutes miscarriage of Justice. And grossly too!
The sole issue for determination is resolved in favour of the Appellant and against the 1st Respondent.
The Appeal succeeds, and the Judgment of the Federal High Court presided over by Hon. Justice P. F. Olayiwola, delivered on the 18th of May 2012, at Awka in the Awka Judicial Division in Suit No. FHC/AWK/CP/248/2011 is hereby set aside, and the matter is hereby remitted back to the Chief Judge of Anambra State to be heard by another Judge.
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Parties to bear their
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costs.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I read in advance, the lead judgment just delivered by my learned brother Justice Rita Nosakhare Pemu, JCA. In the said judgment, relevant facts to the instant appeal matter have been duly reviewed and this has been done in the light of the sole issue thrown up for determination/resolution in this appeal. I also agree that there is merit in this appeal. It is accordingly allowed by me. I abide by the consequential orders made in the said lead judgment inclusive of the one on costs.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment delivered by my learned brother, RITA NOSAKHARE PEMU, JCA. I agree with reasoning, conclusions and orders therein.
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Appearances:
Chukwuemeka Mebo, Esq. with Arthur Obi Okafor, SAN and Okechukwu Ojukwu, Esq.For Appellant(s)
C. H. Asiegbu, Esq.For Respondent(s)
Appearances
Chukwuemeka Mebo, Esq. with Arthur Obi Okafor, SAN and Okechukwu Ojukwu, Esq.For Appellant
AND
C. H. Asiegbu, Esq.For Respondent
