Regd. Trustees, A.S.P. & M.D.A. v. John : On when locus standi is question of law and when question of fact -: An insight into the Court of appeal landmark decision.

PARTIES IN FULL:
REGISTERED TRUSTEES OF AUTO SPARE PARTS AND MACHINERY DEALERS ASSOCIATION
MR. DANIEL OFORKANSI
V.
MR. OBOJIFOR OBINNA JOHN
MR. JAMES C. ONWUGAMBA
MR. PHILIP N. EZEABASILI
MR. NWADIMKA NATHANIEL

CITATION: [2020]17 NWLR PT.1753 AT 189. By Courtesy: Moruff O. Balogun Esq.

Summary of Facts:
The respondents commenced an action by originating summons against the appellants. The substance of their case was that they were members of the Auto Spare Parts and Machinery Dealers Association (ASPMDA); that they are interested in vying for posts in the executive committee of ASPMDA; and that the 2nd appellant and other executive officers of ASPMDA who were elected under the 1986 ASPMDA Constitution, which stipulated a tenure of two years, were seeking to elongate their tenure by claiming the four years tenure provided in the 2016 Amended Constitution of ASPMDA, which was adopted after they were elected. Consequently the respondents sought the following reliefs:

An order directing the 2nd appellant and other members of the executive committee to vacate their respective offices at the expiration of their tenure of office on 7th August 2018.
An order of perpetual injunction restraining the 2nd appellant from further contesting for the position of the executive chairman of ASPMDA having successfully contested and won two terms in office, the maximum terms stipulated in the 1986 Constitution of ASPMDA.
An order directing the 2nd appellant led executive committee members or the interim government of ASPMDA, as the case may be, to conduct a fresh election for the positions on the executive committee specified under the 2016 Constitution of ASPMDA.
Costs of the action.

In response, the appellants countered by affidavit that the 2nd appellant and other members of the executive committee of ASPMDA took their oath of office under the Amended 2016 Constitution of ASPMDA and that the tenure was for four years provided thereunder. The appellants, however, did not deny the deposition in the affidavit in support of the originating summons that the 2nd appellant and his co-members of the executive committee contested and were elected into office under the 1986 Constitution of ASPMDA.

The appellants also filed a preliminary objection to the action on grounds that:
The trial court lacked the requisite jurisdiction to entertain the suit.
The respondents lack the locus standi to institute the suit, by virtue of the ASPMDA Constitution (as amended in 2016) because they were neither registered nor honorary members of ASPDMA (the 1st appellant)
This suit was an abuse of court process because it has same subject matter as that of suit No: LD/5010GCMW/20B by some purported members of the association representing the members of ASPMDA (the 1st appellant), including the respondents.
The 2nd appellant is not a necessary party to the suit.
The suit should not have been commenced by originating summons because its facts are contentious and hostile.
The suit was wholly incompetent because the respondents were merely seeking orders of the court as against declarations for which an originating summons is used for.
The suit, though instituted in individual capacities, clearly showed that the claims of the respondents were in respect of supposed wrong to be committed against the general members of ASPMDA as a whole.
The facts in the affidavit in support of the originating summons did not disclosed a reasonable cause of action, and suit was speculative and wholly incompetent.

The preliminary objection and the originating summons were heard together by the trial court. And in addition to the grounds listed in their notice of objection, the appellants raised the issue of the respondents’ failure to issue and serve a pre-action notice on the 1st appellant as stated in the Constitution of ASPMDA.
After hearing the parties, the trial court delivered its judgment. In determining the respondents’ locus standi, the trial court considered materials outside the affidavit in support of the originating summons, and held that they had locus standi. The trial court also found and held that the appellants did not challenge the 1st and 4th respondents’ assertion of being members of ASPMDA.

The trial court held that the appellants were not entitled to the benefit of the consequences of the respondents’ failure to issue a pre-action notice before commencing the action because the appellants did not make it a ground of their preliminary objection and because they waived the non-compliance by filing a counter affidavit to the originating summons. The trial court also held that the respondents’ suit was not an abuse of court process because the parties in the earlier suit included the Corporate Affairs Commission and because the reliefs sought in that suit are not same as those in the respondent’s case. In the end, the trial court dismissed the preliminary objection and entered judgment for the respondents on their originating summons.

Being dissatisfied with the trial court’s judgment, the appellant appealed to the Court of Appeal. They filed five grounds of appeal. Though they challenged the respondents’ membership of ASPMDA at the trial court, they did not appeal against the trial court’s finding that the 1st and 4th respondents were members of ASPMDA. The appellants formulated five issues for determination, but presented arguments on what they called a sixth issue, which encapsulated their arguments presented on the other five issues. They also filed a reply brief. They argued inter alia that non-service of pre-action notice is a jurisdictional issue that could be raised viva voce.

Held: Unanimously dismissing the appeal.

The appellate court stated as follows:
“It now remains to put a wrap on this judgment.All the issues for determination have been resolved against the appellants. This signposts that the appeal is devoid of merit in its entirety. The appeal accordingly fails and it is hereby dismissed.”

The following issues were raised and determined by the Court of Appeal:

On When locus standi is question of law and when question of fact –
Given the fact that locus standi denotes the capacity to institute proceedings in a court of law, it can be a matter of law only or a question of fact only. It is a matter of law when a statute specifically and mandatorily provides for the category of person or persons who can commence a particular action.
It is a question of fact only when the law does not specifically provide for the category of person or persons who can sue. In the latter situation, the claimant in his pleadings avers to facts (or deposes to facts in an affidavit in matters commenced by originating summons) which show that he has the standing to sue. The claimant need not state that he has locus standi, all he needs to do is to proffer facts establishing his rights and obligations in respect of the subject matter of the suit.

On Meaning of “locus standi”-
The term “locus standi” denotes the legal capacity to institute proceedings in a court of law. It is often used interchangeably with terms like standing, or title to sue. The fundamental aspect of locus standi is that it focuses on the party presenting a complaint before the court and not on the issues presented for adjudication.

On what party must show to establish locus standi –
In order for a person to have locus standi, he must show that his civil rights and obligations have been or are in danger of being infringed and that he has sufficient legal interest in seeking redress in court.
The fact that a person may not succeed in the action does not have anything to do with whether or not he has the standing to sue.

On What court looks at and considers in determining locus standi of party-
In determining whether a claimant has locus standi, the court examines the cause of action, and looks at only the statement of claim or other originating process filed by the claimant. Put differently, locus standi is determinable from a consideration of the totality of the facts proffered by the claimant in his processes, which facts have to be carefully scrutinized with a view to ascertaining whether it has disclosed sufficient interest to give the claimant standing and title to sue. In this case, the respondents stated in their affidavit in support of the originating summons that they are members of ASPMDA interested in vying for posts in the executive council of ASMPDA. In the circumstance, the alleged elongation of the tenure of the executive officers of the ASPMDA affected the interest of the respondents who as members had indicated that they wanted to contest for elective positions in ASPMDA. The deposition in the affidavit in support of the originating summons therefore shows that the respondents have the requisite standing, title to sue or locus standi to maintain the action. Even though the trial court was wrong in considering materials outside the affidavit in support of the originating summons, it arrived at the correct decision when it held that the respondents have the locus standi to maintain the action.

On Nature of pre-action notice and whether only statutory bodies need be served pre-action notice –
The issuance of pre-action notice is not restricted to statutory bodies only. A pre-action notice connotes some form of legal notification or information required by law or imparted by operation of law, contained in an enactment, agreement or contract, which requires compliance by the person who is under legal duty to put on notice the person to be notified before the commencement of any legal action against such a person. In this case, the requirement for pre-action notice is provided for in the amended constitution of ASPMDA. The constitution is a contract between the members inter se. So the provision, even if not binding on non-members of ASPMDA, is binding on the respondents who profess to be members of ASPMDA. So even though the 1st appellant (ASPMDA) is not a statutory body, it is entitled to insist that the respondents, who profess to be its members, comply with the stipulations of its constitution on the issuance of pre-action notice.

On When appropriate to commence action by originating summons and when not –
Originating summons procedure is intended to be used in limited circumstances in matters involving the construction and interpretation of enactments and documents. Originating summons may only be used in initiating proceedings to obtain declarations or decisions of court on the construction or interpretation of documents, instruments or statutory provisions in circumstances where there is no dispute on question of facts or the likelihood of such dispute. In other words, where the facts in issue between the parties involve matters of serious controversy that the justice of the case would demand the settling of pleadings, originating summons cannot be applicable. In this case, though the appellants filed counter affidavits which raised questions whether some of the respondents are members of ASPMDA, the question raised in the respondents originating summons are on the interpretation of the constitution of ASPMDA.

On What constitutes dispute on facts that warrants conversion of action commenced by originating summons to action by writ of summons –
The fact that the defendant in an action commenced by originating summons filed a counter affidavit is not tantamount to the matter being contentious and hostile. The dispute on facts, which will necessitate the conversion of an action commenced by originating summons to a writ of summons, must be substantial, material and affecting the live issues in the matter. Where the disputes are peripheral and not material to the live issues, an action can be sustained by originating summons. In this case, there was no substantial dispute of facts that warranted the calling of evidence. The appellants stated that the respondents were not members of ASPMDA. But they did not dispute the 1st and 4th respondents’ membership of ASPMDA. In the circumstance, the dispute over the respondents’ membership of ASPMDA became a moot point which did not affect the live issues in the action as the action could be sustained by the 1st and 4th respondents, even if the 2nd and 3rd respondents were not members of ASMPDA. It therefore became entirely academic as any such dispute raised was peripheral and did not affect the substance of the material and live issues in the action. Further, the appellants’ argument that the facts relating to the operative constitution of ASPMDA was contested is unfounded because the respondents’ case was based on the 1986 constitution of ASPMDA and related to the tenure of the executive elected under that constitution. In addition, the appellants did not deny the deposition in the affidavit in support of the originating summons that the current members of the executive committee contested and won the election under the 1986 constitution of ASPMDA.

On Constituents of good trial court judgment –
Every Judge has his own peculiar style and method and there is no particular form a judgment should take. The important thing is for the judgment to contain the well-known constituent parts of a good judgment. For a trial court, these include:
The issues or questions to be decided in the case.
The essential facts of the case of each party and the evidence led in support.
The resolution of the issues of fact and law raised in the case.
The conclusion or general inference drawn from facts and the law as resolved.
The verdict and orders made by the court.
The above elements need not be stated expressly in every judgment as they may not be present in every case. Notwithstanding the peculiarity in style, what is important is that the Judge should dispassionately and adequately consider and resolve the relative cases made out by the parties. In this case, contrary to the appellants’ argument, trial court considered and resolved all the issues raised in the action.

Courtesy:
Moruff O. Balogun Esq.
IJEBU ODE, OGUN STATE.
08052871414.