Registered Trustees Of Eket Commercial Motorcyclists Association V. Eket Local Government Council & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

The Appellant as plaintiff, had taken an action against the Respondents in Suit No. FHC/UY/CS/45/2008 before the Federal High Court, sitting at Uyo, Akwa Ibom State. Pleadings and statements on oath of witnesses for the parties were filed and hearing commenced on the 3/11/2009 with the adoption of the Plaintiff s witnesses’ statement on oath.

The Plaintiffs’ only witness was one Samuel Bassey Peter, a member of its Registered Trustees, who after adopting his statement on oath, filed notice of discontinuance of the action based on a resolution by a majority of the Registered Trustees said to have been passed at an emergency meeting held on the 15/3/2010. Before then, learned counsel for the plaintiff Bassey Akpaetim, Esq., had filed a motion seeking an order to strike out the evidence of Samuel Bassey Peter for the plaintiff and leave to call another witness in his place.

Learned counsel had also filed a notice of preliminary objection in reaction to the notice of discontinuance filed by Mr. S. B. Peter primarily on the ground that he lacked the locus standi to file the notice since he was not a party to the suit.

After consideration of the written addresses by learned counsel for the parties, the Federal High Court (to be called lower court after now) in a ruling delivered on the 13/7/2010, decided that S. B. Peter had the locus standi to file the notice of discontinuance and accordingly stuck out the action for being discontinued.

Being aggrieved by that decision, the Appellant filed this appeal vide a notice of appeal dated the 4/10/2010, containing a lone ground.

In the Appellants’ brief filed on 11/2/11, learned counsel for the Appellant had framed the following issue for decision in the appeal:

“WHETHER IT DID NOT OCCASION A GROSS MISCARRIAGE OF JUSTICE FOR THE LEARNED TRIAL JUDGE TO DISCEND INTO THE ARENA AND ACTED ON THE NOTICE OF DISCONTINUANCE SUO MOTU WHEN IT WAS NEITHER FILED BY A PROPER PARTY TO THE SUIT NOR WAS IT ARGUED?”

In the 1st Respondent’s brief filed on the 31/05/12, but deemed on the 24/5/13, the issue for determination in the appeal is said to be:-

“3.1- Whether the learned trial judge was right in discontinuing the suit or not in the face of the Notice of Discontinuance (not opposed by Defendants) filed by Samuel Bassey Peter (a Trustee) which said notice was supported by an affidavit with three Exhibits?”

It is clear that the substance in the two (2) issues formulated by both counsel is the same as to whether the lower court was right in law to have acted on the notice of discontinuance filed in the case as reason for striking it out.

I will consider the submissions by counsel in their respective brief on the issue.

Learned counsel for the Appellant had referred to the definitions of the word, “Plaintiff’ as set out in the cases Ejezie v Anuwu (2008) ALL FWLR (422) 1005 at 1016; Green v Green (1987) 3 NWLR (61) at 480; Ogunsanya v Dada (1990) 6 NWLR (156) 347 and Black’s Law Dictionary 6th Edition, page 1150, and argued that Samuel Bassey Peter, who filed the notice of discontinuance was not a plaintiff in the case. He said the Plaintiff was the registered Trustees which are regulated by part ‘C’ of the Companies and Allied Matters Act (CAMA) under which the Incorporation of Trustees Constitution; Article 7 (3) requires that all documents to be executed by the Trustees shall be signed by the President and any other member and be sealed with the common seal. It was his contention that the resolution of the Trustees of the Appellant on which the lower court relied to find locus standi for Samuel Bassey Peter as plaintiff, was not signed by the President of the Appellant’s Trustees nor sealed with the common seal.