B. Oroh & Ors V. B. B. Buraimoh (1989)

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ADEMOLA, J.C.A. 

The respondent in this appeal was plaintiff in the court below, and a member of the Nigerian Ports Authority Workers Union. He sued 26 defendants who are officers and members of the Union in an action in the court below in which he claimed as follows:-

1. That a true and proper Account be taken in respect of the Union Bank deposits in Account No. 3854 (current and NO. 22995 (savings) at the National Bank of Nigeria, Yaba Branch and account No. 243146 at the Union Bank of Nigeria Oyingbo Branch, in the Lagos Mainland Local Government area of Nigeria and the Federal Mortgage Bank (fixed Term Deposit) Lagos Island or elsewhere.
2. An order for true and full disclosure concerning the withdrawals and disbursement of the sum of N12,500.00 irregularly withdrawn from Account No. 3854 with the National Bank Yaba Branch aforesaid.
3. An order for true and full disclosure concerning the attempted and frustrated withdrawal of an irregular cheque drawn for N35,700.00 on the Union’s Bank Account No. 241563146 with the Union Bank of Nigeria Ltd. Oyingbo Branch aforesaid.
4. Perpetual Injunction restraining the defendants their servants, agents or privies from carrying on any or further Bank transactions on the said or any of the Union’s Bank Account.

The appellants, who were defendants, upon the service of the writ of summons on them, filed a notice of preliminary objection dated the 6th of October, 1988 contending that the respondent has no locus standi to institute the action, and that the action is an abuse of the process of the court.

The respondent’s reaction to the notice of preliminary objection was to file an application two months afterwards seeking the leave of the court for four other people to be joined with the plaintiff as co-plaintiffs.

When the matter came up later on the 20th day of February, 1989, counsel for the appellants sought to argue the notice of preliminary objection first, but the learned Judge directed that the motion to join four other people should be argued first. If even, to use the words of the learned Judge, “it means taking the wind out of the sail of the preliminary objection.”

The learned Judge ruled that the four other members should be joined with the plaintiff now respondent to continue the action. It is against this Ruling that the appellants have appealed here.

The questions for determination in this appeal are set out in the appellants’ brief thus:-

1. When a preliminary objection is raised about the standing of a plaintiff in an action should further proceedings based on the action be taken without first of all determining the standing of the parties in that action?
2. When a person is said to lack capacity to institute certain legal proceedings proceeds to institute such legal proceedings, should such action be regarded as mere procedural irregularity that can be regularised or an incurable defect?

For the respondent, the issues are formulated thus:

1. Whether in the circumstances of the case, the Court has discretion and whether the discretion has been properly and/or judiciously exercised.
2. Whether a judicial order judicially lifted abates or can from the grave constitute a valid ground of appeal.
3. Whether the Defendants behaviours, amount to taking steps in the proceedings and if it did whether the Preliminary Objection still subsists, or waived by the various steps taken in the proceedings.

The argument for the appellants in the brief and in the court by Mr. Adesanya is simple and straight forward. It is that before a court can assume jurisdiction in an action before it, such action must be properly before it. For an action to be properly before a court, the party bringing the action must have standi or standing.

Whenever there is preliminary objection based on the standing of the plaintiff, this must be determined first before entertaining any further proceedings on that matter, because that is the foundation of the case itself, and if the case lacks foundation, there is no further proceedings on the case to continue. Lack of standing therefore is a terrible defect which cannot be regularised by taking the wind out of the sail of the preliminary objection.

The brief noted the case of Abraham Adesanya v. The President of the Federal Republic of Nigeria 1981 1 A.N.L.R. part 11, page 1 1981 2 NCLR 358 in which the Supreme Court said:

“If a plaintiff has no locus standi, his claim must be dismissed on that ground and it will be unnecessary to decide the question involved in his action.”

Learned counsel for the respondent in his brief and argument, which in my view covered more than the short point put before the court, contended on the issue of locus standi that the case of Agbonikhena v. Egba 1987 2 N.W.L. R. part 57 page 494 at page 595, has recognised the competence of any member of the Union to initiate civil actions at his own expense in connection with any branch of the provisions of the Union’s Constitution.

Because of this, the decision of the court below not to take the preliminary objection first was justified by Order 22, Rule 1, Lagos State Civil Procedure Rules which does not permit any demurrer to be raised, but that such point of law could be raised in the pleadings and determined after the pleadings have been closed.