The Road Transport Employers Association Of Nigeria Vs The National Union Of Road Transport Workers (1992)
LawGlobal-Hub Lead Judgment Report
B. O. BABALAKIN, J.S.C.
Both parties in this appeal are registered Trade Unions under the Trade Union Act. No. 22 of 1978. In the Lagos High Court the Plaintiff/Appellant took action against the Defendant/Respondent for the following reliefs:-
“(1) a declaration that Plaintiff has the right to operate at motor parks in Nigeria.
(2) a declaration that the Defendant has no right to operate at motor parks in Nigeria:
(3) an injunction restraining the Defendant from operating at motor parks in Nigeria.”
These claims were later amended to read:
“(1) A declaration that the Plaintiff has the right to control and operate by way of collection of dues levies, fees or otherwise from its members, at any Motor Parks in Nigeria.
(2) A declaration that the Defendant has no right to control or operate by way of collection of dues levies and fees or otherwise at any Motor Parks in Nigeria other than to load and off load goods and passengers at such Motor Parks.
(3) An injunction restraining the Defendants their servants or agents from controlling or operating by way of collection of dues levies and fees or otherwise at any Motor Parks in Nigeria, other than to load and off load, goods and passengers at such Motor Parks.
(4) A declaration that the defendant is not empowered to collect monies under the “Check Off System” from drivers of vehicles belonging to members of the plaintiff Association.
(5) An injunction restraining the Defendants their servants or agents from collecting monies under the “Check Off System from Drivers of Vehicles belonging to members of the Plaintiff Association.”
Statements of Claim and Defence were filed, amended and exchanged. The parties called witnesses to prove their respective cases.
At the conclusion of hearing the learned trial Judge amended and awarded the following claims to the plaintiff/appellant. He declared:-
“In the end, and for all those reasons which I have endeavoured to give. I enter judgment for the plaintiff against the defendant as respects all the claims made by the plaintiff. in these terms:
- A declaration that the plaintiff as a registered trade union of employers, (whose members engaged in transport business) has the right to control the operations and activities of those members, and the servants and agents of the union and the drivers engaged by those members, at all motor parks throughout Nigeria (at which the plaintiff has been authorized by the owners thereof to enter upon and carry on those activities), so as to facilitate smooth operations of vehicles and orderly boarding and disboarding of passengers and of loading and discharge of goods carried by or in such vehicles, at such motor parks and to collect trade Union does for such services at motor parks from its members, through the drivers employed by those members: and I declare that the defendant has no such rights.
- An order of perpetual injunction restraining the defendant, by itself, its servants and agents (including its workers) from preventing the plaintiff, its servants or agents from carrying on the said activities at any motor parks in the Federation, being activities to which the first declaration relates.
- A declaration that the defendant is not empowered under its constitution or otherwise to collect monies, (whether by way of fees, dues or charges) from members of the Plaintiff’s union at motor parks throughout the Federation or at all.”
Dissatisfied with this judgment the defendant/respondent appealed to the Court of Appeal in which court the basic complaints against the judgment of the trial court are:-
“1. That the reliefs granted by the trial Judge were wider than those formulated by the Plaintiff in its Amended Writ of Summons dated 13th September 1983 at pages 281 to 283 of the records.
- That the Plaintiff did not claim an injunction at all in terms of what was granted it at page 318 lines 27-33 of the record.
- Locus standi by the Plaintiff to challenge an alleged lacuna in the Defendant’s Constitution viz. the right to operate in motor parks owned by local governments etc.
- The lack of an effective “contradictor” to the claims for Declaration where the rights of the Plaintiff as an association operating within its constitution on its own members, were concerned.
” The Court of Appeal in its judgment at pages 582 to 599 of the record gave judgment in favour of the defendant/respondent.
The plaintiff/appellant has now appealed to this court because it is not satisfied with the judgment of the Court of Appeal.
Briefs of Arguments were filed and exchanged in this court. In the plaintiff/appellant’s brief the “Questions/Issues for Determination” are put thus:-
“In view of the “opinion” delivered by the Honourable Mr. Justice Akpata (J.C.A.) of the Court of Appeal in the judgment of the Court at page 598 lines 31-32 of the record, to wit:-
“In effect, this judgment has not conferred any right on the Appellants, (i.e. the National Union of Road Transport Workers)”
The Appellant in this appeal as per ground 1 of the Notice of Appeal at page 600 of the record posit the predominant question or issue for determination in this appeal as follows:-
“What is the proper order to make in the circumstances where an appellate court holds that a Plaintiff had no locus standi in relation to the reliefs he seeks from the court Ought the order in the judgment’ be one of ‘dismissal’ or of ‘striking out’”
In the defendant/respondent’s Brief the issue for Determination was put thus:-
“THE ONLY ISSUE RAISED IN APPELLANTS’ BRIEF
The Respondents agreed that the first issue raised by the ground of Appeal relate to the type of order which the Court of Appeal ought have made once it held that the Plaintiffs had no locus standi to maintain the action.
The Respondents recognise that the issue of locus standi raises also a question of the jurisdiction of the courts. Want of locus standi on the part of the Plaintiff deprives the court of jurisdiction. To that extent therefore the consequential order which the Court of appeal made after it allowed the appeal ought to he altered from one of dismissal to that of striking out of the suit.”
The submissions of Counsel for the plaintiff/appellant in the brief of argument filed on behalf of the plaintiff/appellant and orally before us are that the Court of Appeal having held that all the claims (i)-(iv) in the amended writ of summons were unstainable because the plaintiff/appellant had no locus standi was wrong to have made order of dismissal of the plaintiff/appellant’s claims. That where an Appellate Court has held that a party in a case with regard to its claims as formulated had no ‘locus standi’ thereto, the proper order to make is one of ‘striking out’ rather than of dismissal. He cited the cases of The Nigeria Union of Journalists v. The Attorney-General of the Federation (1986) Law Reports of the Commonwealth (Constitutional) 1 atp.1 7(b): Oloriode v. Oyebi (1984) 1 SCNLR 390: (J984) 5 SC. 1 at 30-32 and 34-36 and Otapo v. Sunmonu (1987) 5 SC. 228 at 284-285: (1987) 2 NWLR (Pt.58) 587
This is because an order of striking out best meets the justice of this case in which it has been held by their Lordships of the Court of Appeal that the judgment of the Court herein conferred no rights or benefits on the Respondent in this appeal. Further that it is a just order to make in view of the fact that the Court of Appeal firmly rejected the argument that there was no “contradictor” to the plaintiff/appellant’s claims.
That above all, an order of striking out’ rather than of ‘dismissal’ would best meet the justice of a case in which in the interest of justice, the trial Judge ‘suo motu’ reformulated the plaintiff/appellant’s claim.
In the alternative counsel submitted that this court should uphold the act of the learned trial Judge in reformulating the plaintiff/appellant’s claims as there was ample unchallenged evidence on the record in support of the reliefs ultimately awarded by the trial court and no inconvenience or harm could have been caused to the defendant/respondent with regard to claims it was not resisting. He relied on the cases of Okupe v. Federal Board of Inland Revenue (1974) 1 All NLR (Part 1) 314: Okeowo v. Migliore (1979) 11 SC.138 especially at page 197 lines 26 et seq: Afolabi v. Adekunle (1983) 2 SCNLR 141 and The White Book (1985) Edition paragraph 20/5- 8/16 at page 345. He finally urged us either to restore the judgment of the trial court, or in the alternative, effect a striking out of the plaintiff/appellant’s claim.
He contended that the submission of learned counsel for the defendant/respondent that this appeal be dismissed but that the order to be made should be that of striking out of the action is a contradiction in terms.
On his part learned counsel for the defendant/respondent in the brief of argument filed on behalf of the defendant/respondent submitted that the defendant/respondent recognises that the issue of locus standi raises also a question of the jurisdiction of the courts. That want of locus standi on the part of a plaintiff deprives the court of jurisdiction. To that extent therefore the consequential order which the Court of Appeal made after it allowed the appeal ought to be altered from one of dismissal to that of striking out of the suit.
That this being the only issue formulated by the plaintiff/appellant in this appeal is the only issue the plaintiff/appellant can argue in this appeal. This is because once issues for determination have been framed from the grounds of appeal filed argument should be based on the said issues and not on the grounds of appeal since issues for determination supercede the grounds of appeal. It will also not be open to this court to decide any matter which is not formulated as an issue in the appeal. He relied on the cases of Attorney-General Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646; Onyia v. Oniah (1989) 1 NWLR (Pt.99) 514; (1989) 1 (NSCC) 319 and Attorney-General Anambra State v. Onuselogu Enterprises Ltd. (1987) 4 NWLR (Pt.66) 547.
He urged us to dismiss the appeal but the consequential order of the Court of Appeal dismissing the action be varied to striking out of the action. That it is not open to this court to consider all other matters raised in the plaintiff/appellant’s brief other than the issue of ‘locus standi”.
In his oral submission before us he submitted that the issue of locus standi only related to one of the issues decided by the trial court and that is claim No.3.
That there has been no appeal against the other issues decided by the Court of Appeal and they therefore stood unaffected.
The above argument was heard on 14th October,1991. We then adjourned for judgment. We later discovered that it was necessary for Counsel for both parties to address us on the following issues:-
- In view of page 544 lines 21-23; page 552 lines 1-9 and pp.580-1 was the Court of Appeal right to consider the issue of locus standi in respect of claims (i).(ii) and (iv) on pages 595 line 38 – p.596 line 33 without giving the parties in the case the opportunity to address it
- Notwithstanding, the answer to the foregoing and the argument in the Appellants’ and respondents’ briefs in this Court should this Court in the light of the findings on p.595 line 38-p.596 line 33 non-suit the Plaintiffs on the action as a whole or in respect of claim (iii) alone
Counsels for both parties were asked to appear for the above purpose on Tuesday the 3rd of December 1991 at 12 noon. They were both duly served with notice to this effect by the court.
On the said 3rd of December, 1991 however only learned Counsel for the plaintiff/appellant turned up. Having been satisfied that counsel for the defendant/respondent was duly served but absent we heard further argument from counsel for the plaintiff/appellant who submitted that in considering the issue of locus standi the Court of Appeal ought to have given the parties the opportunity to be heard on the matter as the issue of locus standi goes to the jurisdiction of the court which can dispose of the case in limine.
That the Court of Appeal having found that the plaintiff/appellant has no locus standi in respect of all the claims 1, 2, 3 and 4 the proper order to make was to have struck out the claims and not to have dismissed the action.
He urged us to allow the appeal and strike out the action in the trial court. The amended claims 1, 2, 3 and 4 by the plaintiff/appellant are as set out above.
The Court of Appeal held that the plaintiff/appellant had no locus standi to institute all these claims in the following words:-
“There are other issues which are equally importance in this appeal, and I must go on to consider them in this judgment. They are:-
(i) Whether there is or not an effective contradictor to the declarations asked for;
(ii) The issue of Locus Standi; in relation to claim 3.
(iii) Whether the reliefs granted were asked for in the claim.
On the issue whether there is or not an effective contradictor to the declaration asked for, the appellant had relied on the statement of the law by Lord Dunedin in Russian and Industrial Bank v. British Bank for Foreign Trade Limited (1921) 2 AC page 438 (supra). Using the guideline principle enunciated in that case in relation to the declaration claimed in the amended writ of summons, J must answer or resolve the issue in respect of claim (1) on the amended Writ of Summons in favour of the respondent.
Having regard to the issue raised in that claim and the elaboration of it in the statement of claim in paragraph 10 and the denial in paragraph 6 of the amended statement of defence, there is, in my view, a real question and not a theoretical one between the parties, but whether the respondent can raise it in the circumstance of this case is a different question. I say this because of the evidence of 2nd P.W. and 3rd P.W. about the people really affected who are the drivers of the owners of the Motor vehicles, who are the members of the respondent’s union. These drivers are not members of the respondent’s union. The Union cannot be said to be really interested as to have Locus Standi.
Using the test again in relation to claim (ii), I find myself unable to accept that the respondent has any interest whatsoever in raising it against the appellant. Similarly, the same cannot apply to claim (iv) and the declaration asked for there. The persons who are entitled to question an alleged taking of money under the check off system are the employers of the drivers who happened to be members of the respondent’s union and not the respondent union.
This leads me straight on to the issue of locus standi raised in the appellant’s brief in relation to declaration in claim (iii). It does appear to me that I have already answered that while considering the issue of whether there is an effective contradictor or not. To repeat what I said, where there is no person who has a real interest in a question raised, such person cannot have locus standi, and I say so in this case in respect of claim (iii), having regard to the evidence. of 2nd P.W. and particularly 3rd P.W. about the anatomical structure of the respondent’s union; see page 223, lines 25-28 for the evidence on this by 2 P. W. and page 233, lines 11-18 for the evidence of 3 P. W.”
Each of the Justices of the Court of Appeal then ordered a dismissal of the action as follows;-
Justice Ademola J.C.A. at page 597 lines 37 to 40:
“My conclusion is that this appeal is allowed, the judgment of the court below is hereby set aside. The claim of the respondent should have been dismissed, and is hereby dismissed with costs in the court below,”
Justice Akpata. J.C.A. (as he then was) at page 598 lines 33 to 35:
“I therefore set aside the judgment of the High Court and dismiss the respondents’ action. I also adopt the orders of my learned brother as to costs.”
And Justice Awogu, J.C.A. at page 599 lines 23 to 25:
“I too dismiss this appeal and I abide by the orders as to costs both in this appeal and in the court below.”
This is obviously not supportable. When a court holds that a plaintiff has no locus standi in respect of a claim the consequential order to be made is striking out of such claim and not a dismissal of the claim.
The rationale is that holding that a plaintiff has no locus standi goes to the jurisdiction of the court before which such an action is brought. When the question that a plaintiff has no locus standi to institute an action arises all that is being said in effect is that the court before which such an action is brought cannot entertain the adjudication of such an action. The court cannot dismiss a claim the merit of which it is not competent to enquire into. The Court of Appeal having held that the plaintiff/appellant has no locus standi to bring claims 1, 2, 3 and 4 above cannot embark on the adjudication on the claims which will lead to a pronouncement on the merit of the issues raised therein as the Court of Appeal did.
The proper order to make in the circumstances of this case is an order striking out the claims and not that of dismissal as done by the Court of Appeal in this case. A dismissal in that circumstances postulates that, that action was properly constituted. See the cases of Oloriode v. Oyebi (1984) 5 S.C.1; (1984) 1 SCNLR 390; Nigeria Airways v. Lapite (1990) 7 NWLR (Pt.163) 392.
Learned Counsel for the defendant/respondent himself agreed with this proposition of the law when he stated in the Brief of Argument filed on behalf of the defendant/respondent thus:
“The Respondents agreed that the first issue raised by the ground of Appeal relates to the type of order which the Court of Appeal ought have made once it held that the plaintiffs had no locus standi to maintain the action.
The respondents recognise that the issue of locus standi raises also a question of the jurisdiction of the courts. Want of locus standi on the part of a plaintiff deprives the court of jurisdiction. To that extent therefore the consequential order which the Court of Appeal made after it allowed the appeal ought to be altered from one of dismissal to that of striking out of the suit.”
As the basis for granting relief 5 claimed in the amended claim to wit:
“5. An Injunction restraining the Defendants their servants or agents from collecting monies under the “Check-Off System from Drivers of Vehicles belonging to members of the Plaintiff Association”
is dependent on adjudication on and success of claims 1,2,3 and 4 a consideration of this claim as well is incompetent.
I wish to emphasize that the purpose of pleadings in trials before High Courts and Briefs of Arguments before the appellate court is to enable parties to know the cases they are going to meet at trial and on appeal respectively.
Situations sometimes arise as it did in this case when the court in the interest of justice would want to make certain orders so that issues in controversy can be decided once and for all. When such a situation arises it behoves the trial or the appellate court handling such a situation to call on counsel for the parties to address the court on such arisen situation before making an order thereon. This is to ensure fairness to both parties as well as to avoid any element of surprise.
This is why the Court of Appeal should have called on counsel for both parties to address it once it has discovered that the plaintiff/appellant has no locus standi not only in respect of claim 3 in respect of which there was complaint before it but also in respect of claims 1, 2 and 4 in respect of which the court discovered that the plaintiff/appellant also has no locus standi.
This appeal succeeds and is therefore allowed.
The order of the Court of Appeal dismissing the plaintiff/appellant’s claims is hereby set aside. In its place I hereby substitute an order of striking out the claims.
I award N1,000.00 (One thousand Naira) costs to the plaintiff/appellant.
Other Citation: (1992) LCN/2492(SC)