Mrs. Comfort Ifekwe & Ors V. Prince Joe Madu (2000)

LawGlobal-Hub Lead Judgment Report

OPENE, J.C.A. 

The pith and substance of this case is that on the 8th day of October, 1996, the respondent in the High Court of Cross River State holden at Calabar for himself and on behalf of Master Bakers and Caterers Association of Nigeria, Cross River State Branch obtained leave to apply for an order of injunction to restrain the appellants from acting as members of the State Executive Council of the Master Bakers and Caterers Association of Nigeria, Cross River State Branch.

The respondent on the same day filed a motion on notice and also a motion ex parte. The motion ex parte at page 5 of the records reads:-

Motion ex parte:

Pursuant to Order 43 Rules 1 and 3 of the High Court Civil Procedure Rules, Cross River State

Take Notice that this Honourable Court will be moved on……….. the……….day of………..1996 at 9 O’clock in the forenoon or so soon thereafter as counsel for the applicant may be heard praying this Honourable Court for:-

(a) Leave to apply for an Order of injunction restraining the respondents from continuing to parade themselves as members of the State Executive Council of the Association of Master Bakers and Caterers of Nigeria, Calabar Branch.

(b) An Interim Order restraining the respondents from parading themselves as officers of the Association of Master Bakers and Caterers of Nigeria, Cross River State Branch pending the determination of this application.

(c) And Take Notice that the facts of the case and the grounds for the application are as contained in the accompanying affidavit with the statement attached.

And for such further/other orders as this Honourable Court may deem fit to make in the circumstances.”

There are affidavits in support of the motion ex parte and also the motion on notice. The motion ex parte was granted on that same day. The orders for leave and the interim injunction and the motion on notice were served on the appellants who thereupon filed a preliminary objection challenging the competence of the entire action and it reads as follows:-

“Notice of Preliminary Objection:

TAKE NOTICE that the hearing of the Motion on Notice filed by the plaintiff/applicant on the 9th day of October, 1996 the defendants/respondents shall be objecting to this suit on substantial points of law:-

TAKE FURTHER NOTICE that grounds upon which the objection is predicated are as follows:-

(1) The plaintiff/applicant cannot sue in a representative capacity as he is purporting; as he had not sought and obtained leave of court to so do as contemplated by Order 2 Rule 8 of the High Court (Civil Procedure) Rules, 1987.

(2) The plaintiff/applicant cannot proceed on behalf of members of an Association which is not registered or known to law.

(3) The motion for interlocutory injunction is predicated on nothing. It is well settled law that an application for an interlocutory injunction must be anchored on a pending suit begun by a writ of summons, originating summons and/or originating motion.

(4) The cause of action or the substratum of the action is not within the general purport of Order 43 of the High Court (Civil Procedure) Rules, 1987, which to all intents and purposes is the Order which regulates the judicial review/power of this Honourable Court.

(5) The action as constituted is demonstrably frivolous, vexatious, unmaintainable and an egregious abuse of the court process.”

The learned trial Judge, Effanga C.J., in a reserved ruling delivered on 15/12/97 dismissed the preliminary objection. The appellants were dissatisfied with the said ruling and they have therefore appealed against it. Both parties through their counsel filed and exchanged briefs of argument.

In the appellant’s brief of argument, three issues identified for the determination of this appeal and they are as follows:-

“1. Whether the respondent can maintain an action on behalf of the other respondent, the Association of Master Bakers and Caterers of Nigeria, Cross River State Branch without presentation before the trial court an authority granted to him by members of the said Association to enable him sue on their behalf.

2. Whether the other respondent, the Association of Master Bakers and Caterers of Nigeria, Cross River State Branch is competent to sue in view of the fact that it is not a registered body as contemplated by the combined effects of the provisions of section 673 subsection 1 and 63 sub-section 1 of the Companies and Allied Matters Act, Cap. 59 Laws of the Federation of Nigeria, 1990.
3. Whether Order 43 Rule 1(1) (b) of the High Court (Civil Procedure) Rules of Cross River State, 1987 contemplates private office such as the State Executive Council of the Association of Master Bakers and Caterers of Nigeria, Cross River State Branch, and if the answer is in the negative whether that had not rendered void the entire action.”

No issues were formulated in the respondent’s brief of argument; they rather adopted the three issues formulated by the appellants.

In respect of issue No.1, the appellants in their brief of argument referred to the provisions of Order 2 rule 8 of High Court (Civil Procedure) Rules of Cross River State, 1987, which will henceforth be referred to as the Rules. It was argued that the contemplation of Order 2 rule 7 of the Rules is that before a party could maintain a suit in a representative capacity that it must in addition to seeking leave of the court show that he has been given or authorised by other persons interested to initiate the action on their behalf, that the respondent did not present any evidence that members of the other respondent had mandated him to proceed against the appellants in order to protect their interests which the appellants had supposedly infringed on and that the respondent did not obtain authority in the form of a resolution by other members irrevocably establishing that they had authorized the respondent to sue and represent their common interest and also that he did not obtain the leave of the court.

In support of their contention, the following cases were cited; Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587; Nwamara v. Okeahialam (1999) 1 NWLR (Pt.588) 590; Bolatito v. Sole Administrator (1986) 5 NWLR (Pt.42) 496 at 498. In the respondent’s brief, it was submitted that the issue before the lower court was not whether the respondent could maintain the action without presentation of the authority granted to him by the members of the Association to sue but rather that the issue was whether the respondent could maintain the action having not obtained leave of the court to sue in a representative capacity as required by Order 2 rule 8 of the Rules. It is argued that having not been raised in the lower court that it cannot be raised in this court without leave of the court.

Reference was made to Order 1 rule 20(3) of the Court of Appeal Rules, Archibong v. Akpan (1992) 4 NWLR (pt.238) 750; Leedo Presidential Hotels Ltd. v. Bank of the North Ltd. (1993) 1 NWLR (Pt.269) 334 at 349; Eze v. Okechukwu (1998) 5 NWLR (pt.548) 43 at 62.

On the issue of competence of a representative action where no leave is obtained by the plaintiff before filing the action, it was submitted that the law is now trite that failure is not fatal to the action and in support of their submission, reference was made to Otapo v. Sunmonu (supra) 600; Bolatito v. Sole Administrator (supra) 507-508, Order 2 rule 8, Order 13 rule 14, Order 2 rule 7, Order 3 rule 2(1) and Afolabi v. Adekunle (1983) 8 SC 98, (1983) 2 SCNLR 141.

It was then submitted that what is mandatory by the wordings of Order 2 rule 7 and Order 2 rule 8 of the Rules is not the leave to sue but that the representative capacity shall be expressed on the writ and that the case of Nwamara v. Okeahialam (supra) relied upon by the appellant is clearly distinguishable from the instant case. I must observe that at the trial court that the issue whether the respondent could not maintain the action without presentation of the authority granted to him by the members of the association to sue was not raised at all. The issue was whether the respondent could maintain the action having not obtained leave of the court to sue in a representative capacity as required under Order 2 rule 8 of the Rules. I have earlier in this judgment set out the grounds of objection in the Notice of Preliminary Objection; Ground 1 of which complained of the respondent’s suing in a representative capacity without obtaining leave from the court as required under Order 2 rule 8 of the Rules.

No doubt, the issue whether the respondent was authorised by members of the association to sue in a representative capacity is a matter of evidence and if it was raised at the lower court, evidence would be adduced to that effect at the trial and having not been raised at the lower court, it is therefore a fresh issue and cannot be raised at this court without the leave of the court. See Osho v. Ape (1998) 8 NWLR (Pt. 562) 492; Ononuju v. A-G., Anambra State (1998) 11 NWLR (Pt.573) 304; Okolo v. U.B.N. Ltd. (1998) 2 NWLR (pt.539) 618.

In respect of failure to obtain the leave of the court to sue in a representative capacity, it is settled law that such failure is not fatal as to vitiate the proceedings. It has been the attitude of the courts that the rule regarding representative proceedings is a rule of convenience which requires a flexible and broad approach. See Nwamara v. Okeahialam (1999) 1 NWLR (Pt.588) 590; Anatogu v. A-G., East Central State of Nigeria (1976) 11 S.C 109; Obiode v. Orewere (1982) 1-2 S.C 170.

The court cannot strike out or dismiss an action just because the plaintiff did not obtain the leave of the court to sue in a representative capacity as this will no doubt defeat the justice of the case.

The learned trial Judge in his judgment at page 28 of the record found that the respondent did not obtain leave of the court to sue in a representative capacity and that he could not strike out the suit on the ground that leave was not obtained and in support of this view he cited the Supreme Court decision in Otapo v. Sunmonu (1987) 5 SC 228 at 302-303 or (1987) 2 NWLR (Pt.58) 587 where it was observed as follows:

“The West African Court of Appeal in Divisional Chief Gbogbonolulu v. Head Chief Hodo (1941) 7 WACA 164 held that it is the duty of the courts to aim at doing substantial justice and therefore where necessary to make any formal amendment to reflect the capacity in which parties sue. This court has in many cases decided that it will not disturb the capacity in which parties sued or are sued even where they failed to obtain an order of the court enabling them to sue or defend in that capacity; Afolabi v. Adekunle (1983) 2 SCNLR 141 and 154.”

There is no way that this finding can be faulted and in fact, the learned counsel for the appellant in paragraph 3, page 5 of the appellants’ brief stated as follows:

“The courts have been flexible on the principle guiding representative suits. The attitude of the courts have always been that the failure of a party or litigant to obtain prior leave of the court is not fatal as to vitiate the proceedings. See Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587, (1987) 5 SC 228 at 302 – 303. See Nwamara v. Okeahialam (1999) 1 NWLR (Pt.588) 590.”

Learned counsel has correctly exposed the law that the courts have been flexible on the principles guiding representative suits and that the attitude of the courts have always been that the failure of a party or litigant to obtain prior leave of the court is not fatal as to vitiate the proceedings, he cited the case of Otapo v. Sunmonu (supra) which the learned trial Judge relied on when he held that the failure to obtain leave to sue in a representative capacity will not vitiate the proceedings.

The learned counsel is saying exactly the same thing as the learned trial Judge and he has clearly conceded that failure to obtain prior leave of the court by the respondent is not fatal as to vitiate the proceedings and this no doubt brings to an end the whole argument as to the issue of competence of a representative action where leave is not obtained by the respondent before filing of the action. I will further add that in Otapo v. Sunmonu supra at page 603, it was observed:-

“It is true that in keeping with Order 13 rule 14 that it is more elegant for a plaintiff suing in a representative capacity if he desires leave to sue in that capacity to make an application simpliciter seeking leave to sue in that capacity. Unlike the provision of Order 3 rule 2(1), the provision of Order 13 rule 14 is couched not in mandatory but in permissive terms.”

(italics are for emphasis)

In the case under-reference, the Supreme Court was interpreting the provisions of Order 13 rule 14 and Order 3 rule 2(1) of Lagos State High Court (Civil Procedure) Rules which are in pari materia with Order 11 rule 6 and Order 11 rule 7 of Cross River State High Court (Civil Procedure) Rules respectively.

It therefore follows from the interpretation of these rules in the case under reference that what is mandatory is not the leave to sue in a representative capacity but that the representative capacity shall be expressed on the writ and the respondent had of course complied with that provision. Issue No.2 reads:”

Whether the other respondent, the Association of Master Bakers and Caterers of Nigeria, Cross River State Branch is competent to sue in view of the fact that it is not a registered body as contemplated by the combined effects of the provisions of section 673 sub-section 1 and 63 sub-section 1 of the Companies and Allied Matters Act, Cap. 59 Laws of the Federation of Nigeria, 1990.”

In the appellants’ brief, it was argued that this case being a purported representative action that the other party whom the respondent is suing on her behalf is a party to the proceedings and that the Association of Master Bakers and Caterers of Nigeria, Cross River State Branch is a party in the proceedings.

Reference was made to Otapo v. Sunmonu supra at page 591 where it was observed:-

“In a representative action, it is not only the named plaintiff who is a party to the action. The others who are not named but whom the plaintiff purports to represent are also parties.”

It was then argued that a court can only assume jurisdiction over a matter when the party invoking the jurisdiction of the court possesses juristic personality or capacity and that the Association of Master Bakers and Caterers of Nigeria, Cross River State Branch is a body which requires registration by Section 673 of the Companies and Allied Matters Act, Cap. 59, Laws of the Federation of Nigeria, 1990.

It was submitted that there was no evidence that the respondent’s Association had applied for registration as provided by section 673(1) of the said Act and section 679(1) of the same Act provides that where such body as the respondent’s Association applies for registration and the registration is granted by the Corporate Affairs Commission that such Association becomes a body corporate and shall have perpetual succession and a common seal and power to sue and be sued in its corporate name and that since the respondent’s Association was not registered that the respondent cannot sue on its behalf or purport to represent it in any proceedings.

The following cases were relied upon:- Adesanoye v. Akinwale (1997) 3 NWLR (Pt. 496).664 at 666, Abu v. Ogli (1995) 8 NWLR (Pt.413) 353.

It was submitted that Abu v. Ogli (supra) was decided under section 2(3) and 3 of Land (Perpetual Succession) Act Vol. IV, Laws of the Federation of Nigeria, 1958, and that section 673(1) of Companies and Allied Matters Act is inpari material with Trustees under the Land (Perpetual Succession) Act, Cap. 98, Laws of the Federation of Nigeria, 1958, and that section 694 of Companies and Allied Matters Act, Cap. 59 repeals the Land (Perpetual Succession) Act Cap. 98 of 1958. It was then submitted that the present case is incompetent on the ground that the respondent cannot represent the Association.

In response to the appellants’ submission, the respondent argued that in a representative action that the representative plaintiff is the sole plaintiff and is Dominus Litis until judgment, that he can discontinue, compromise, submit to dismissal and other things as he decides during the course of the proceedings. He cited Otapo v. Sunmonu (supra) 604.

It was also argued that those represented by the named plaintiff even though not stated nominees are bound by the judgment of the court so long as the named plaintiff is in court and that those people are not parties nominee and cannot be referred to as “2nd respondent” as done by the appellants and that where a named plaintiff dies that even though the suit is maintainable that it will not be continued until a living person has been substituted for the named deceased plaintiff to carry on the representative action.

It was submitted that the person invoking the jurisdiction of the court is not the represented party but the named party who is dominus litis until judgment, and that non-registration of the Association of Master Bakers and Caterers of Nigeria under Companies and Allied Matters Act does not vitiate the action, that the respondent instituted the action on behalf of himself and the other members of the Association and where the respondent dies that the other members can authorize some other people to continue with the action.

In this action, the plaintiff, Prince Joe Madu sued for himself and on behalf of the Master Bakers and Caterers Association of Nigeria, Cross River State Branch. It is the contention of the appellant that the respondent’s Association which is Master Bakers and Caterers Association of Nigeria, Cross River State Branch was not registered as provided under section 673(1) of the Companies and Allied Matters Act and that the respondent cannot sue on its behalf or purport to represent it in any proceedings and that in a representative proceeding that the other party not stated must be a person who is capable of suing and being sued.

I must confess that I find it very difficult to understand the basis of this submission and not to talk of agreeing with it. The argument that if a person or a group of persons are suing for themselves and on behalf of the members of a community, village, town, association or a body that the members of the community, village, town, association or the body is a party to the case and that it must be registered and that if it is not registered that a person cannot sue on its behalf and that it can also not authorise anyone to sue on its behalf because it is not a juristic person.

If this argument is followed to its most logical conclusion, it means that if any company causes an oil spillage or hazard which caused a damage to the town like Akamkpa or Akpabuyo that the people of Akamkpa or Akpabuyo cannot authorize one or two people to sue for themselves and on behalf of the members of the town, because Akamkpa or Akpabuyo is not registered under section 673(1) of the Companies and Allied Matters Act.

In Eghologbin Oketie & Ors. v. Ambrose Olughor & Ors. (1995) 4 NWLR (Pt. 392) 655 at 667, Iguh, JSC, observed:

“in a representative action, both the named plaintiffs and/or defendants as the case may be and those they represent are parties to the action, although the named representative plaintiffs and/or defendants are dominus litis until the suit is determined. And so, for the purpose of initiating any process in the representative action such process must be by and in the name of the named plaintiffs or defendants so long as their mandate from those they represent remains acceptable and uncountermanded.”

It is the person invoking the jurisdiction of the court, that is, the named party who is dominus litis that must be a juristic person and not the party being represented. In Oketie & Ors. v. Olughor & Ors. above, the 3 plaintiffs filed an action on behalf of themselves and on behalf of Gbolokposo people against the 1st and 2nd defendants for themselves and on behalf Ugbomro village and also against other defendants. It will be very novel to argue that the plaintiffs cannot represent Gbolokposo people and the 1st and 2nd defendants can also not represent Ugbomro village because the people they represent are not registered and therefore not juristic persons.

In Nwamara & Ors. v. Okeahialam & Ors. supra, referred to by the appellants’ counsel, he cannot say that the four plaintiffs who sued for themselves and on behalf of the members of Onicha Amairi Autonomous Community Council of Ndi Nze and the 1st and 2nd defendants who defended the action for themselves and on behalf of members of Onicha Town Union that the members of Onicha Amairi Autonomous Community Council of Ndi Nze and members of Onicha Town Union are registered under section 673(1) of Companies and Allied Matters Act before they prosecuted and defended the action respectively. This no doubt defeats the counsel’s argument.

I entirely agree with the respondent’s counsel that it is the respondent who is the sole plaintiff and the dominus litis that is invoking the jurisdiction of the court and not the party that is represented. Any group of people or members of a community or association having a common interest can authorise any of their members to sue on their behalf and such process must be by and in the name of the named plaintiff. This is exactly what has been done in this case and this action remains valid and competent so long as his mandate from the members of the Association that he represents remains acceptable and uncountermanded.

Learned counsel had cited the case of Abu v. Ogli (1995) 8 NWLR (Pt.413) 353 in support of his contention but that case can be distinguished from the present case as the issue in that case was the ownership of land wherein the plaintiffs instituted an action as representing themselves and Ojei G. Achi Egwu G’ Ondu – a church whom they claimed owned a place of worship when the said church was not registered. The plaintiff in that case cannot sue on behalf of a body that was not registered and could not own land. The issue in this case is quite different as it is only in respect of running the Association.

There is no way that the action can be struck out because assuming that the represented party must be registered before action can be brought on its behalf which is not the law, the plaintiff is a legal person, and can still maintain the action in his personal capacity. Further, if the represented party is a legal personality, obviously, there is no need suing on its behalf because it can sue and be sued in his own name. The submission of the learned counsel is not only novel but also baseless and very unattainable.

The 3rd issue is whether Order 43 rule 1(1) (b) of the High Courts (Civil Procedure) Rules of Cross River State, 1987, contemplated private office such as the State Executive Council of Association of Master Bakers and Caterers of Nigeria, Cross River State Branch, if the answer is in negative whether it had not rendered the entire action void.

In the appellants’ brief, it was argued that the State Executive Council of the Association of Master Bakers and Caterers of Nigeria is undoutedly a private office and Order 43 of the Rules is intended to regulate the practice and procedure concerning the traditional prerogative writs of certiorari, mandamus and injunction, that for a person to avail himself of Order 43 of High Court of Cross River State that he must be suing to challenge the proceedings and decisions of inferior courts, tribunals or other bodies of persons charged with the performance of public acts and duties.

It was submitted that the respondent could not claim a remedy or relief under Order 43 of the Rules for an injunction restraining the appellants who are private individuals from acting in an office of a private unregistered body. He referred to De Smith’s Judicial Review of Administrative Action, 4th Edition, 1980, Page 488, P.O.A. Oluyede, Constitutional Law in Nigeria, 1st Edition (1992) Page 428, Okupe v. Soyebo (1937) 3 WAC A 151; Onyenucheya v. Military Administrator, Imo State (1997) 1 NWLR (Pt.482) 429 at 435.

It was argued that Order 43 rule 1(1) (b) of the Rules is akin to the old writ of quo warranto in England which was abolished in 1938 and which has been replaced with Order 53 of the Supreme Court Rules of England which is in pari materia with Order 43 of the Rules.

It was submitted that the respondent Association of Master Bakers and Caterers of Nigeria, Cross River State Branch being a private body cannot take the benefit of an application for judicial review to restrain the appellants from acting in an office which is not a creation of law or State.

“Order 43 rule 1 reads:”

1(1) An application for:-

(a) an order of mandamus, prohibition or certiorari; or

(b) an injunction restraining a person from acting in any office in which he is not entitled to act, shall be made by way of an application for judicial review in accordance with the provisions of this order.”

The learned trial Judge interpreting the provisions of Order 43 rule 1(1) in his judgment at page 29 of the records observed:

“It is my considered view that the word “OR” immediately after Order 1(1)(a) must be construed disjunctively from Order 1(1)(b). My view is strengthened by section 183 of the Interpretation Act 1990, wherein the word is interpreted thus and I quote “The word “or” and the word “Other” shall, in any enactment, be construed disjunctively and not as implying similarity.”

From the above interpretation Order 43 Rule 1 (1) (a) and Order 43 (1) (b) do not imply similarity, so I hold that by the wordings of the wherein, any person and this include the applicant can apply for an injunction relief to restrain any person from purporting to hold an office to which he is not entitled.”

I entirely agree with the learned trial Judge as no other interpretation can be given to the provisions of Order 43 rule 1(1) (a) and 1(b). It is settled that where words are clear and unambiguous those words must be given their literal interpretation. See Francis Nwanezie v. Nubu Idris (1993) 2 SCNJ 139, (1993) 3 NWLR (Pt.279) 1; Meke Obomhense v. Erhahon (1993) 7 SCNJ 479, (1993) 7 NWLR (Pt.308) 22; Imah v. Okogbe (1993) 12 SCNJ 57, (1993) 9 NWLR (Pt.316) 159.

The wordings of Order 43 Rule 1 (a) and (b) are very clear and unambiguous and they must be given their literal interpretation. The word “Or” immediately after Order 43 Rule 1(1) (a) must be construed disjunctively and this must be so as there is a semi-colon before the word “OR”. Under Section 188(3) of Interpretation Act, 1990, the word “OR” and the word “Other” shall in any enactment, be construed disjunctively and not as implying similarity.

It therefore follows that the injunction provided for in Order 43 Rule 1(1) (b) is not the same class as mandamus, prohibition or certiorari which is a remedy against only public bodies. It must also be observed that the words “any office” in Order 43 Rule 1 (1) (b) given a literal interpretation simply means any office and cannot be restricted to only public offices.

Order 43 rule 1(2) states:

“An application for a declaration or an injunction not being an injunction mentioned in paragraph (1) (b) may be made by way of an application for judicial review, and on such an application the court may grant the declaration or injunction claimed if it considers that having regard to:-

(a) the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition or certiorari;

(b) the nature of the persons and bodies against whom relief may be granted by way of such an order; and

(c) all the circumstances of the case, it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.”

It can be clearly seen that the words “not being an injunction mentioned in paragraph (1) (b)” in Order 43 rule 1(2) have clearly shown that it was providing for application for a declaration or an injunction that is not mentioned in paragraph 1(b) which may be made by way of judicial review. This no doubt shows that the injunction mentioned in rule 1(1) (b) and Order 43 rule 1(2) are entirely different as rule 1(1)(b) provides for injunction in respect of any office while Order 43 rule 1(2) provides for injunction, mandamus, prohibition in respect of public offices.

I have read the case of Onyenucheya v. Military Administrator of Imo State (1997) 1 NWLR (Pt. 482) 429 cited by the appellants’ counsel, it did not say that Order 43 rule 1(1) (b) cannot be used for an office which is not a public office.

It was observed that section 27(1) and 28 of High Court Law Cap. 61, Laws of Eastern Nigeria which made provisions for quo warranto proceedings had been abolished and replaced by Order 43 rule 1(1) (b) and that the Rule does not cover election to Local Government which may now be challenged as rightly done by election petitions. It was not decided in that case that Order 43 Rule (1) (b) can not be used against private persons.

I am fully of the view that Order 43 rule 1(1) (b) contemplated private use such as the State Executive Council of Association of Master Bakers and Caterers of Nigeria, Cross River State Branch and that the action is not void as contended by the appellants.

The three issues formulated by the appellants having been resolved in the respondent’s favour, I am of the view that the appeal is devoid of merit and that it should be dismissed.

In the result, I hereby dismiss the appeal, I affirm the Ruling delivered by Effanga C. J., on 15th December, 1997. There will be N5,000.00 costs in the respondent’s favour.

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Other Citations: (2000)LCN/0867(CA)