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[BASED ON POLICY, PRACTICE AND PUBLISHING LAW REPORT, 3PLR, PROTOCOLS]
(1987) 2. NWLR (Pt.57) 494
PHILIP NNAEMEKA-AGU, J.C.A. (Presided)
IDRIS LEGBO KUTIGI, J.C.A.
OWOLABI KOLAWOLE, J.C.A. (Read the Lead Judgment)
Agbakoba ESQ. (C. Agbu with him) – for the Appellants
Chief Fola Akinrinsola (Mr. Fagboyegun and K. Ogola with him) – for the Respondents
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]
CONSTITUTIONAL LAW – Effect of 1979 Constitution on Abubakri v. Smith and Foss v. Harbottle.
LOCUS STANDI – Breach of Trade Union Constitution alleged – Action taken by members – Whether they have capacity to institute same.
JUDICIAL PRECEDENT – Supreme Court decision consisting of 3 Judges and one of 5 Judges – Whether latter overrules former in case of conflict.
PRACTICE AND PROCEDURE – Demurrer abolition of – 0.22 R. I High Court of Lagos Rules – Point of law – When and how to be raised.
PRACTICE AND PROCEDURE – Parties – Officers of a Union – Whether can be sued in individual or personal instead of representative capacity.
TRADE UNION – Alleged breach of Constitution of – Individual members suing for
redress – Locus standi of such members.
TRADE UNION – Breach of Constitution by members who claim to be officers of the Union – Offending members sued in individual capacity by other members disputing their being officers – Propriety of.
KOLAWOLE, J.C.A. (Delivering the Lead Judgment):
At the High Court of Lagos State in the Ikeja Judicial Division Longe J dismissed a notice of preliminary objection by the first to the ninth defendants to the plaintiffs action that the court lacked jurisdiction on a number of grounds. The objection was dismissed on 22 November 1985 as being frivolous and an abuse of the process of the court.
On the capacity of the plaintiffs the learned judge held that the respondents were entitled to sue the appellants in their individual capacities because the cause of action is that the appellants were unconstitutionally elected. The learned judge also held that the plaintiffs were proper parties and that they had the necessary locus standi to institute the action. It may be mentioned at the outset that the appellants filed no statement of defence to the plaintiffs statement of claim before the objection. was taken.
The issues for determination in this appeal may be summarised as follows namely: whether the appellants can be sued in their personal capacities having regard to the respondents writ of summons and statement of claim; secondly whether the proper parties have been sued and thirdly whether the respondents have the locus standi to institute the action against the appellants.
Mr. Agbakoba, learned counsel for the appellants, submitted that if a person is sued otherwise than in his individual or personal capacity, such capacity must be indorsed on the originating process namely the writ of summons. Reliance is placed on Order 3 Rule 2(1) of the High Court of Lagos State (Civil Procedure) Rule 1972. In order to determine in what capacity a person should be sued, counsel submitted that the proper guide is a full evaluation of the nature of the claim; the endorsement on the writ of summons offers little guide. Learned counsel submitted that although the appellants are sued in their individual capacities, the nature of the complaints in the statement of claim clearly shows that they ought to have been sued in their representative or official capacities. Learned counsel submitted that the allegations in the statement of claim may be conveniently divided into the following:
(a) unconstitutionality of the appellants elections
(b) unlawful merger of union’s branches
(c) unlawful and unconstitutional postponement of the Union’s Delegates Conference
(d) misappropriation of union funds by the appellants.
In the view of learned counsel, a proper evaluation of the allegations will show that the allegations touch upon the appellants actions as officials or representatives of the Union. Reference is made to paragraphs 14, 16, 17, 22, 23, 24, 25, 26 and 28 of the statement of claim. Counsel submitted that paragraph 4 of the statement of claim admitted that the first and seventh appellants were officers of the 9th appellant union until August 1985. Reference is made to paragraphs 14, 28 and 13 of the statement of claim which dealt with the unlawful merger of the branches in early 1985, misappropriation of funds in 1984 and unlawful postponement of 1984 Delegates Conference of the Union from August 1984 to August 1985. In counsel’s view the nature of the allegations against the 1st and 7th appellants as shown in those paragraphs of the statement of claim can only be attributed to them in their official capacities as officers of the Union.
On the question whether or not the respondents could sue the appellants in their individual capacities so far as it relates to the disputed elections, Mr. Agbakoba submitted that on a true construction the appellants would be deemed to be properly elected and therefore they ought to be sued by their offices. Mr. Agbakoba is of the view that it is not for the respondents to declare the appellants unconstitutionally elected and thereby refuse to recognize their positions. If that is the case there would be no need to have the court declare on the constitutionality of the appellants elections.
For the several propositions of law, learned counsel referred to the case of Uzor & ors. v. Nigerian Stores Workers Union & ors (1973) 1 All NLR part 2 page 38. Learned counsel submitted that the Uzor case established the principle that whereby the statement of claim, it is clear that a party ought to be sued in a representative capacity or official capacity then such a party cannot be sued in his individual or personal capacity.
Mr. Agbakoba submitted that the appellants are not the proper parties against whom the respondents could claim the reliefs enumerated in their writ of summons and the statement of claim. Counsel submitted that on the issue of the unlawful merger of the branches of the Union, there was the affidavit evidence of the third respondent to the effect that it was the Central Working Committee of the 9th appellant which directed the merger. Further, on the issue of the unconstitutional postponement of the delegates conference counsel submitted that it was the National Executive Council of the 9th Defendant Union that decided to postpone the conference.
Learned counsel referred to the affidavit of the 2nd appellant and Exhibits 10 & 17 attached to the affidavit which remained uncontroverted. That being so, learned counsel submitted that the learned trial judge should have upheld the appellants position on the question of proper parties. Learned counsel submitted that it is well settled that in a declaratory action if all the parties are not joined in the suit no court will exercise its discretion in granting the declaration sought. Counsel referred to the case of Abubakri & ors v. Smith & ors. (1973) 6 S.C. 31, 35.
It was further submitted that on the authority of Madukolu v. Nkemdilim (1962) 1 All NLR 587 where the proper parties are not before the Court, a condition precedent to the exercise of the courts’ jurisdiction is lacking.
It was submitted by Mr. Agbakoba that having regard to the nature of the wrongs alleged by the respondents and the reliefs claimed, the respondents have no locus standi to institute the action. Counsel submitted that whilst it is conceded that there is provision in the Union’s Constitution that members of the Union are entitled to institute an action with regard to the breach of the Union’s Constitution, it is contended that only the Union can approach the court to complain about the breach of the Constitution. This was the principle enunciated in Foss v. Harbottle 67 E.R. 189 and followed in Uzor & ors. v. Nigerian Stores Workers Union & ors. (1973) 1 All NLR Part II page 38. The rights which the respondents seek to enforce, counsel contended, properly belong to the Union.
In regard to the allegation of misappropriation of the Union funds, Mr. Agbakoba submitted that by virtue of Rule 20 of the Constitution all funds shall be the property of the Union. The Constitution further provides that all properties of the Union shall vest in four Trustees who shall deal with them in such ways as the Central Working Committee may direct. This right, according to learned counsel, is to derogate from the general right conferred on members of the Union to sue. Learned counsel further submitted that in so far as the 9th appellant Union’s property is conferred specifically on Trustees the respondents have no right to seek an account in this action. The only standing the respondents would appear to have is spelt out in section 16 of the Trade Unions Act 1973, namely that five or more members may, where appropriate apply for an injunction to restrain the misapplication of union funds.
Learned counsel referred to a passage in the book of Mr. Akintunde Emiola where the learned author at page 157 stated under ULTRA VIRES DOCTRINE as follows:
“Where the property of the Union becomes vested in the Trustees, it vests on Trustees for and on behalf of the Union as a Legal entity and not for its individual members…. Thus in a breach of the rule book involving the property of the Union as a whole, it is the majority of its members who can put right such irregularity unless the breach can be brought within section 16(1) of the Trade Unions Act 1973.”
Mr. Agbakoba conceded it however that the rule in Foss v. Harbottle is not absolute and that where a person can show that he is personally affected by another’s action it is well established that he would have standing. Counsel contended however that in this case the respondents have failed to show how their interests have been personally affected. Learned counsel submitted that the facts in the Uzor case are very similar to the present case.
For another reason, Mr. Agbakoba contended that the respondents lack locus standi because the allegation that the appellants distributed false copies of the Union’s Constitution constitutes a criminal offence within the provisions of sections 50 & 51 of the Trade Unions Act 1973. Learned counsel submitted that because sections 50 and 51 of the Trade Unions Act prescribe specific criminal sanctions, only the Attorney-General can sue for any infraction of the Union’s constitution. This is so because the falsification alleged is in the nature of a public wrong and unless the respondents can show that they have personal interest over and above that of everyone else, they cannot be heard in the court. Learned counsel referred to De Smith’s Judicial Review of Administrative Actions 4th edition at page 458, Gouriet & ors. v. Union of Post Office Workers (1978) A.C. 435 and Adesanya v. President of Nigeria (1981) 2 NCLR 358, 382.
For his own part, learned counsel for the respondents, Chief Akinrinsola, submitted in-the respondent’s brief that the principal question for determination is
(1) Whether the Notice of Preliminary Objection is not a Demurrer which has been abolished by Order 22 rule 1 of the High Court of Lagos State (Civil Procedure) Rules 1972. Subsidiary to the principal question are:
(a) whether the respondents have standing and
(b) whether the proper parties are before the Court.
Learned counsel submitted that the preliminary objection of the appellants was rightly dismissed as it was in the nature of a demurrer already abolished by Order 22 rule 1 of the High court Rules. Learned counsel submitted that Order 22 rule 1 of the Lagos Rules is in pari materia with Order 22 rule 1 of the Oyo State High Court Rules and the notice of preliminary objection in the form in which it was filed and argued is against the principles of law recently enunciated by the Supreme Court in Lasisi Fadare & ors. v. A.G. of Oyo State (1982) 4 S.C. 1. Learned counsel submitted that objection on point of law can only be raised in the pleadings and can be disposed of at or after the trial by the Judge who tries the case. At the time the preliminary objection was taken in this case, the appellants had not filed their statement of defence though the respondents had filed their statement of claim.
Learned counsel submitted that after the learned trial judge had declared that the objection was in the nature of a demurrer, he considered the merits of the appellants objection upon the principle laid down in Tijani Bambe & 6 ors. v. Alhaji Aderinola & ors. (1977) 1 S.C. 1 at page 5. Chief Akinrinsola submitted that the learned judge should not have considered the merits of the objection, instead the learned judge should just dismiss the objection without examining the merits. Learned counsel submitted that the case of Tijani Bembe has been overruled impliedly by a court of five members in the case of Lasisi Fadare (supra).
On locus standi, Chief Akinrinsola submitted that the respondents have the standing to institute the action against the appellants by virtue of the provisions of article 5(8) of the Constitution of the 9th appellant Union (Exhibit B). It provides thus:
“Any member shall have the right to initiate action at his own expense in connection with any breach of the provision of the constitution.”
Learned counsel submitted that the gravemen of the suit is a breach of the provisions of the Union’s Constitution.
Reliance is placed on the case of Thomas v. Olufosoye (1985) 3 NWLR 523. On the question of locus standi, learned counsel contended that the case of Uzor v. Nigerian Stores Workers Union (supra) is irrelevant and inapplicable.
On whether the proper parties were before the Court, Chief Akinrinsola submitted that having regard to the claim contained in the writ of summons and the statement of claim, the proper parties were before the High Court. Learned counsel further submitted that the action as constituted present a real and substantial controversy which unequivocally calls for adjudication of the rights asserted by the respondents.
Chief Akinrinsola submitted that paragraphs 1 and 2 of the statement of claim firmly established the locus standi of the respondents. These paragraphs provide as follows:
“1. The 1st, 2nd, 3rd, 4th, 5th, 6th, 7th and 8th plaintiffs are at all times material to this action employees of the Nigerian Ports Authority and accredited members of the 9th defendant Union who have vested interest in instituting this suit and in particular to ensure strict obedience and compliance to the Constitution of the 9th defendant Union in all the Union activities including amongst others, conducting elections to the various offices of the 9th defendant Union.”
“2. The 1st, 2nd, 3rd, 4th, 5th and 6th plaintiffs had held various offices at various levels within the 9th defendant Union since its inception until August 1985.”
Chief Akinrinsola submitted that the combined effect of the averments in paragraphs 1 and 2 of the statement of claim and the provisions of article 5(8) of the Union’s Constitution earlier reproduced above give the plaintiffs locus standi. Counsel submitted that the case of Thomas v. 01ufosoye (1985) 3 NWLR 523, 525 cited by learned counsel for the appellants is not on all fours with the instant case.
Chief Akinrinsola submitted that for an action to be properly constituted the plaintiffs must have the capacity to sue and the defendants the capacity to defend. Each and every one of the eight plaintiffs/respondents have capacity to institute the action and the statement of claim made specific allegations against the appellants which called upon them to defend the action. Both the writ of summons and the statement of claim say that the first to eighth appellants were not properly elected.
Learned counsel therefore submitted that it will be a contradiction in terms to refer to them as officers when in fact that is what is being challenged. Counsel further submitted that the appellants’ appeal is incompetent because at the time they took the preliminary objection, the appellants have waived their rights to protest. Learned counsel referred to page 364 of the record where counsel addressed the court on the question of waiver. The appellants after the service of the writ of summons on them and having become aware of the irregularities both in the writ of summons and the statement of claim have taken fresh steps in the proceedings. The writ of summons was filed on 30 September 1985. The appellants entered a conditional appearance on 7 October 1985. On 2 October 1985 the respondents were granted an order of interim Injunction ex parte until the hearing of the substantive application for interlocutory injunction on notice. On 15 October 1985 the appellants filed two counter-affidavits in opposition to the affidavit filed by the respondents in support of the motion on notice. On 21 October 1985 the respondents filed a further and better affidavit by way of a Reply to the counter- affidavits of the appellants. On 29 October 1985 by the application of the appellants the High Court varied the Interim Order of 2 October 1985 to enable the 9th appellant Union maintain certain essential services. The High Court made a further variation order on 27 November 1985.
All these steps amount, in the view of Chief Akinrinsola, to an abandonment of the right of the appellants to object later in the day to the propriety of the action. Learned counsel has relied on the cases of (1) Joab U. Ezobo v. G. B. Oyakhire (1985) 2 S. C. 260; (2) Nigerian Bar Association & ors. v. Chief Gani Fawehinmi (1986) 2 NWLR part 21 page 224; (3) Omonuwa v. Oshodin (1985) 2 S.C. 1 and Order 2 rule 2 of the Rules of the Supreme Court of -England (1985)
I think that for a proper understanding of the issues raised in this appeal, it is necessary to set out the main claims on the writ of summons:
(1) A declaration that for the purposes of determining this action it is the pre 1981 Constitution of the 9th defendant Union as amended and adopted by the Emergency Delegates Conference of the 9th defendant Union held at Lagos in April 1982 that is valid, relevant and subsisting.
(2) A declaration that a booklet titled “Constitution, Rules and Regulations of the Nigerian Ports Authority Workers’ Union” issued and/or printed and/or distributed and/or used by the 1st to 9th defendants in August 1985 or thereabout purporting to alter, change, restructure, amend, tamper with or in any way affect or effect pre 1981 Constitution (as duly amended in April 1982) is ultra vires, invalid, null and void and of no effect whatsoever and should be set aside.
(3) Declaration that the election of the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th and 8th defendants at the 2nd Triennial conference of the 9th defendant Union held in Lagos in August 1985 through the casting of votes by means of a show of hand or by any other means of election whatsoever or howsoever, was unconstitutional, null and void and of no effect whatsoever and should be set aside.
(4) A declaration that the election of a second vice president in the person of Mr. J. B. Jegede at the 2nd Triennial Conference of the 9th defendant Union held at Lagos in August 1985 was unconstitutional, null and void and should be set aside.
(5) A declaration that the convention of the 2nd Triennial Conference of the 9th defendant Union held at Lagos in August 1985 was ultra vires, unconstitutional, null and void.
The respondents also seek various injunctions to restrain the 1st eight appellants from holding out or parading themselves as officers of the 9th defendant Union, restraining the 9th, 10th and 11th defendants from taking any steps which would amount to treating the first eight appellants as representatives or officers of the 9th defendant Union and an account against the 1st and 7th appellants as to how the sum of N60,000 was spent at the Nigeria Labour Congress Conference in Enugu 1984.
Paragraphs 1 and 2 of the statement of claim show that the plaintiffs are employees of the Nigerian Ports Authority and members of the 9th appellant Union. The paragraphs also show that the plaintiffs have vested interest in the affairs of the Union and are concerned with ensuring strict obedience and compliance with the constitution of the Union including the conduct of elections to the various offices of the Union.
Paragraphs 10, 13, 14, 16, and 20 of the Statement of claim complained about the triennial conference of the Union held in August 1981 at Lagos where the respondents as well as the first eight appellants were present as delegates. The statement of claim also complained of an attempt to amend the Constitution of the union to reflect the aspirations of members and the Special Delegates Conference of April 1982 convened to amend the said Constitution of the 9th appellant Union. It also complained about a merger of branches of the Union in contravention of the rules and regulations of the said Union in the face of series of protests. In other words the statement of claim complained of various breaches of the Constitution of the 9th appellant Union.
Learned counsel for the appellants in the appellants’ reply brief conceded that in the light of some recent authorities of the Supreme Court, the affidavits relied upon in support of many of his various contentions in the main brief should be expunged as inadmissible. He then submitted that having abandoned the submission on locus standi as contained at page 13 paragraph 1(a) – (f), he submitted in the alternative that there is nothing on the face of the writ of summons and the statement of claim to infer that the plaintiffs have a standing to sue. He further submitted that the failure of the plaintiffs to plead specifically their legal authority to sue is fatal to their case notwithstanding their membership of the 9th appellant Union.
On the question of whether the proper parties were before the court, learned counsel abandoned page 9 paragraph (c) to page 11 but maintained paragraphs (c) and (d).
In my view the sudden turn of events by the learned counsel for the appellants has narrowed down the areas of controversy in this appeal even though a lot has been included in the appellants’ brief which contained the shaft and the corn. It seems to me that a proper reading and understanding of the statement of claim by the appellants’ counsel ought to have shown clearly that the respondents complained mainly about the Delegates Conference of the 9th defendant Union, amendment of the Constitution of the 9th defendant Union, attendance of the first eight appellants at the Delegates Conference, ratification of the amended Constitution of the Union, a merger of the Union branches in contravention of the Constitution, ineligibility of 1st appellant for re-election as President of the appellant Union and the election of the 2nd to the 8th appellants as officers of the 9th appellant Union. All these apart, article 5(8) of the Constitution of the 9th appellant Union Exhibit B relied upon by all the parties entitles any member of the Union with the right to initiate civil action at his own expense in connection with any breach of the provisions of the Union’s Constitution.
In the light of the provisions of article 5(8) of the Constitution of the Union and the various complaints enumerated above are the respondents not entitled to invoke the judicial power of the court to determine the constitutionality of the actions over which they have complained when they have shown that they have vested interests in the various matters and when they have also shown that their personal interests will immediately be or have been adversely affected by the action of the appellants or that they have sustained or are in immediate danger of sustaining injury to themselves.
Article 5(8) is similar to article 5 rule 5 considered in the case of Benson Oduduru & anor. v. National Union of Hotels etc. & ors. FCA/L/226/83 of 13/3/85 unreported. There Adenekan Ademola JCA held as follows:
“This to my mind is not only decisive but also conclusive of the issue of locus standi in this matter.”
It is my view that having regard to the provisions of article 5(8) of the Constitution of the 9th appellant Union the respondents who are members of the 9th appellant Union have the locus standi to institute the present proceeding against the defendants. The provisions of the Constitution are decisive and conclusive of the issue of locus standi in this case.
Apart from the provisions of article 5(8) of the Union’s Constitution, I am satisfied that the statement of claim clearly shows that the respondents civil rights and obligations have been or are in danger of being violated or adversely affected by the acts of the appellants complained of. The respondents have also shown in the statement of claim how their interest in the various issues for determination arose, they have also shown that as members of the 9th appellant Union they have vested interest in the action and they are entitled to have their legal rights protected.
See Seidu & Ors. v. A-G Lagos & Ors. (1986) 2 NWLR 165,173; Adesanya v. President of Nigeria & anor (1981) 1 All NLR (part 1) pl, 39;
Momoh & anor. v. Olotu (1970) All NLR 117, 123)
The other two issues for determination appear to me rather trivial namely whether the appellants can be sued in their personal capacities or in representative capacities. I think it will be quite instructive to reproduce the relevant rule referred to by Mr. Agbakoba. Order 3 rule 2(1) of the High Court of Lagos State (Civil Procedure) Rules provides as follows:
“If the plaintiff sues, or the defendant or any of the defendants is sued, in a representative capacity, the indorsement shall show in what capacity the plaintiff or defendant sues or is sued.”
In my judgment it is for the plaintiff to decide whether he wishes to sue a defendant in a personal or representative capacity depending on the nature of the claim and when he so decides to sue a defendant in a personal capacity, it is not open to his adversary to force it upon the plaintiff to sue such a defendant in a representative capacity. The dispute between the plaintiffs and the defendants or some of them is that the defendants are not competent to act in the way they did on behalf of the Union consequently their individual action was being challenged. I am of the view that the logical trend is for the plaintiffs to sue those defendants who breached the constitution in their individual capacities otherwise an action against them in a representative capacity would amount to an admission on the part of the plaintiffs that they sanctioned the action which they complained about in violation of the Union’s Constitution. I think that in itself will amount to a negation of the real purpose why they had approached the court for redress.
The appellants argument on the question whether the proper parties were in court is rather otiose. It seems to me to be extremely difficult to appreciate. First the statement of claim in the present action clearly discloses a cause of action in so far as the defendants did not file a defence. It must be assumed that at the stage when the application to dismiss the action was filed all the averments in the statement of claim were admitted.
In Alhaji lmman N. Abubakri & ors. v. Abudu Smith & ors (1973) 6 S.C.31, the action therein was dismissed on the following grounds
(a) That the rule in Foss v. Harbottle 67 E.R. 189 applies to an unincorporated association or body such as the Jamat, possessing a constitution or a set of rules and regulations entitling it to sue and be sued as a legal entity.
(b) That the rule would not apply to individual members of the Jamat even if they can establish their personal rights, as distinct from those of the Jamat, have been invaded.
The case of Abudu Smith is distinguishable from the case in hand. First since the coming into force of the-1979 Constitution and many judicial pronouncements thereafter a person can invoke the judicial powers of the court once he can show that either his personal interest will immediately be or has been adversely affected by the action complained of or that he has sustained or is in immediate danger of sustaining an injury to himself, and which interest or injury is over and above that of the general public. To that extent Abudu Smith is no longer good law on that second aspect. (See Abraham Adesanya v. President of the Federal Republic of Nigeria and anor (1979) 1 All NLR 1.)
The instant case is in the same way distinguishable from Uzor & ors v. Nigerian Stores Workers Union (1973) 1 All NLR (Part 2) p.38. At page 46, Udo Udoma JSC said –
“On the pleadings, there appears to be no nexus between the individual appellants and the body known as the Revolutionary Reform Committee. It is more incomprehensible that the three unions represented by the respondents, not stated in the statement of claim to be members or agents of the Nigerian Workers Council, can be heard to complain about any injury done to the property of the said Council.”
Later his Lordship said at page 47 –
“The statement of claim is a remarkable document. For instance, there is therein no averment as to the composition of the Nigerian Workers Council, that is to say, its membership and the qualification for such membership. It is even more astonishing from the point of view of their case that the respondents failed to plead directly that they are members of the said Council.”
These serious lapses highlighted above clearly show that the plaintiffs lacked locus standi in the Uzor case. The statement of claim here clearly shows the standing of the plaintiffs together with the allegations made against the individual defendants. It was therefore unnecessary to sue the appellants on behalf of themselves and all other members of the executive committee of the Union since in any event the Nigerian Ports Authority Workers Union was sued as one of the defendants. As I have earlier pointed out paragraphs 1 & 2 of the statement of claim show the nexus of the plaintiffs and the defendants with the 9th defendant appellant while various other paragraphs in the statement of claim show the complaint of the plaintiffs against each defendant. It is in my view premature at this stage to shut the plaintiffs out upon these trivialities without delving into the realities and substance of the subject matter.
These views which I have expressed should conclude the matter were it not for the issue of proceedings in lieu of Demurrer raised by Chief Akinrinsola learned counsel for the respondents. It was his contention that the procedure adopted in the preliminary objection raised amounted to a demurrer which, by virtue of Order 22 rule 1 of the High Court of Lagos State (Civil Procedure) Rules, had been abolished. He contended that the learned trial judge should not have considered the merits of the objection once he had come to the conclusion that the procedure adopted by Mr. Agbakoba amounts to a demurrer.
I think the learned judge was right to have considered the merits of the preliminary objection because if his ruling on the issue of demurrer were wrong the whole exercise of trying the preliminary objection would be thrown back from the Court of Appeal to the High Court and so much time would have been wasted, money would have been thrown away and the patience of the litigants would have been exhausted.
Now, the question of the correct interpretation of Order 22 has given the court some disquiet but I am of the view that there are binding authorities which should give the court sufficient guidance.
In Bolaji v. Bamgbose (1986) 4 NWLR 632 I said at page 644 –
“As I see it although demurrer has been abolished Order 22 rule 4 of the Lagos High Court Rules permits the defendant to file a motion either after the service of the writ of summons on him or after the service of the statement of claim and to show that even if the facts alleged by the plaintiff in his pleading are true there will nevertheless be no cause of action or that at any event the plaintiff cannot hope to succeed.”
In Bolaji v. Bamgbose my attention was not referred to Tijani Bambe & 6 ors. v. Alhaji Yusufu Adeeinji Aderinota & ors. (1977) 1 S.C. 1 which confirms the above view. In Bambe’s case the Supreme Court held thus:
“in construing the provisions of Rule 1, it will be wrong to ignore the provisions of Rules 2 to 4. Order 22 is similar to Order 25 of the Rules of the Supreme Court applicable in England in 1963. Order 22 only abolishes demurrers but substitutes a more summary process for getting rid of pleadings which show no reasonable cause of action….
As the objection taken in the instant case could, if upheld, dispose of the whole action, we are of the view that it comes within the ambit of Order 22. We find ourselves unable to support the view expressed by the learned trial judge that the objection was premature.”
I think it is unnecessary to refer to further authorities on the construction of Order 22 rule 4 but this court has had to take the queue after the Bambe case in FCA/L/165/82 of 15 June 1983 Fred Egbe v. The Hon. Justice J.A. Adefarasin & anor. where the court stated as follows:
“It is true that in appeal No. FCA/L/137/81 Egbe v. Ilori & Ors. (supra) this court expressed the view that before a court can exercise powers under rules 3 and 4 of Order 22 the Defendant must have filed his defence. It is also true that Bambe v. Aderinola (1977) 1 S.C. I at 7 was not cited in that judgment, and that a contrary decision was reached in that case in relation to Order 22 rule 4. It is clear that the above opinion of this court cannot stand in view of the contrary opinion of the Supreme Court in Bambe v. Aderinola (supra)”
Finally, I should like to say with due reference to Chief Akinrinsola that the Supreme Court in Lasisi Fadare & ors. v. Attorney-General of Oyo State did not overrule Bambe v. Aderinola because that court was composed of five members while in Bambe’s case the court was composed of three members. While under the Federal Supreme Court Act (section 9) the Supreme Court was properly constituted if it was composed of three members, under the 1979 Constitution section 214 enacts as follows:
“For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any law, the Supreme Court shall be duly constituted if it consists of not less than 5 Justices of the Supreme Court.
Provided that where the Supreme Court is sitting to consider an appeal brought under section 213 (2)(b) or (c) of this Constitution, or to exercise its original jurisdiction in accordance with section 212 of this Constitution, the court shall be constituted by 7 Justices.”
The case of Lasisi Fadare dealt with the construction of Order 22 rules 1-3 so to that extent the two decisions of Lasisi Fadare & Bambe are not in conflict. Bambe’s case dealt with rule 4 while Lasisi Fadare’s case dealt with rules 1 to 3.
The conclusion which I have reached is that the appellants are entitled to raise the preliminary objection which they raised under Order 22 rule 4 without filing a defence but the objections lack merit and I hereby dismiss them with costs assessed at N300.00 in favour of the plaintiffs/respondents against appellants.
NNAEMEKA-AGU, J.C.A. (Presiding): I read in draft the judgment of my brother Kolawole, J.C.A. just delivered. I agree with it and have nothing more to add.
KUTIGI, J.C.A.: I concur.