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In The Supreme Court of Nigeria

On Wednesday, The 21st  day of November 1990

SC 209/1988

 

Before Their Lordships

 

 

Muhammadu Lawal Uwais

......

Justice, Supreme Court

Abdul Ganiyu Olatunji Agbaje

......

Justice, Supreme Court

Philip Nnaemeka-Agu

......

Justice, Supreme Court

Abubakar Bashir Wali

......

Justice, Supreme Court

Olajide Olatawura

......

Justice, Supreme Court

 

 

Between

 

Nigeria Airways Ltd.

......

Appellant  

 

And

 

F.A. Lapite

.......

Respondent

 

Judgment of the Court

Delivered by

Wali, J.S.C.

 

 

 

In the trial court the plaintiff filed a suit against the defendant asking for the following reliefs:­

 

I.    A declaration that the letter dated the 11th of September 1985 purporting to terminate the appointment of the plaintiff as a Pen­sion Accountant in the defendant company is ineffective and ultra vires the powers of the maker thereof.

 

2.    A declaration that the plaintiff is entitled to his full salary and emoluments and all other entitlements from April, 1984.

 

3.    An order directing the defendant to restore the plaintiff to his of­fice and position as Principal Accountant/Pension Accountant.

 

4.    In the alternative, the sum of N138,387.49 being special and general damages for wrongful dismissal.

 

After pleadings were filed and exchanged, the defendant filed a motion on notice dated 4th April, 1986 praying for an order -

 

(a)    striking out the plaintiff's claim for "a declaration that the letter dated 11th September, 1985 purporting to terminate the appoint­ment of the plaintiff .... the defendant company is ineffective and ultra vires the powers of the maker thereof';

   

(b)    dismissing the plaintiffs action.

AND FURTHER TAKE NOTICE that the grounds upon which the forego­ing orders are sought are:­

 

1.     The adjudication of the plaintiff's claim for a declaration that the said letter is ineffective and ultra vires the powers of the maker will require consideration of the Articles of Association of the Defendant Company, thus making the claim a matter arising from the operation of the Companies Act, 1968, and therefore a claim in respect of which only the Federal High Court has juris­diction;

 

2.     Even if the High Court of Lagos State has jurisdiction to adjudicate upon the claim, there is no pleading that the plaintiff is a member of the Defendant Company. In the circumstances, therefore, the plaintiff has no locus standi to complain about the breach of any of the regulations contained in the Articles of As­sociation of the Defendant Company

 

3.     Even if all the facts pleaded in the Statement of Claim are proved, the plaintiff would nevertheless not be entitled to dam­ages for wrongful dismissal.

 

After hearing and considering the arguments presented by learned counsel for and against the Motion the learned trial Judge, Omotosho, J.. delivered a ruling on 19th August. 1986, in which she arrived at the conclusions that -

 

(i)    this Court lacks jurisdiction to entertain it.

 

(ii)    the plaintiff has no locus standi to prosecute the action as pre­sented.

 

(iii)    the pleadings disclose no reasonable cause of action.'

 She accordingly dismissed the action.

Dissatisfied with the trial court's decision, the plaintiff appealed to the Court of Appeal, Lagos Division. After the parties had filed and exchanged briefs of arguments and had also made oral arguments in elaboration thereof the issues for determination as evidenced in its judgment were narrowed down to -

 

I.    Did the plaintiff have the locus Standi to complain about a breach of the Articles of Association of the Defendant Company (of which he was not a member) when such breach affected him in the enjoyment of his rights as an employee of the Defendant Company?

 

2.    Was the learned trial Judge correct in holding that the Statement of Claim disclosed no reasonable cause of action. and was the learned trial Judge correct in dismissing the action for damages for wrongful dismissal when it was plain that the action could have been saved by a simple amendment?

 

3.    Did the ruling delivered become invalid by reason of its being de­livered in chambers?

 

In the unanimous judgment of the Court of Appeal delivered by Moham­med, J.C.A., the following conclusions were arrived at on each of the issues raised therein-

 

I.    Locus standi:

 

I think the learned trial Judge was right to say that since the Arti­cles of Association do not constitute a contract between the ap­pellant and the respondent, even if the appellant succeeds in pro­ving a breach of those articles, he cannot succeed in his claim. It is without any doubt that the appellant had no locus standi to invoke compliance with Article of Association of the respondent's company.

 

Reasonable cause of action:

 

The second issue is on the submission that the Statement of Claim did not disclose any reasonable cause of action. I think this is the weakest point for the appellant, because the case of Shell B- P Petroleum V. Onasanya (1976)1 All N.L.R. (Pt. 1)425 at 429 is on all fours with the case in hand. Another strong authority is also an unreported case of this court, Suit No.FCA/L/26/83, deli­vered on 30th May, 1983. In Shell B-P V. Onasanya, after plead­ings were exchanged, the company applied for the dismissal of Mr. Onasanya's action for wrongful dismissal on the ground that B it disclosed no cause of action. The trial Judge considered both the statement of claim and the statement of defence and refused the application of the company. On appeal, the Supreme Court held that where the action is founded on contract, and the state­ment of claim fails to give sufficient particulars to enable the con­tract to be identified, it (discloses) no cause of action.

 

In this case the appellant did not plead the contract of his employment with the respondent. He alleged that his dismissal was wrongful but such wrongful act could only be established by reference to his contract of employment

 

Following the decision of the Supreme Court in Shell B-P Onasanya (supra) l do not hesitate for a moment in agreeing with the learned trial Judge that the statement of claim, filed by the appellant, did not disclose any reasonable cause of action. I en­tirely agree with counsel for the respondent, in his brief, that an amendment of the pleadings could have saved the action of the appellant. However the appellant did not address his mind to seek for leave to amend the pleadings before the learned Judge delivered her ruling. It is too late now to talk about an amend­ment.

 

Validity of the Ruling delivered in Chambers

 

The learned Justice of the Court of Appeal, after considering the argu­ment presented on the issue and relying on the judgment of this court in Oba Jacob Oyeyipo & Another p. J.O Oyinloye (1987)1 N.W.L.R. (Pt.50) 356 which he quoted in extenso, dismissed the ground of Appeal and held that -

 

In view of the Supreme Court's decision reproduced above if an act is held to be not unconstitutional it is valid even if a court's Rule of Procedure provides otherwise. Therefore, even if I agree that the learned Judge did deliver her ruling in Chambers, since such act is not unconstitutional, the ground of appeal ar­gued in support of this issue cannot stand.

 

Having made the preceding findings, the learned Justice of the Court of Appeal, finally concluded –

 

I have looked into both the statement of claim and the Statement of Defence so far filed, and in my view, the appellant needs to be permitted to reframe his statement of claim. Consequently having regard to the circumstances of this case I will reverse the finding of the learned Judge dismissing the statement of claim and strike it out. It is accordingly struck out.

 

It is against this final order that the present appeal is lodged in this Court.

 

Henceforth the plaintiff and the defendant will be referred to in this Judgment as the respondent and the appellant respectively.

 

The only ground of appeal filed and canvassed reads -

 

The Court of Appeal erred in law in substituting an order striking out the plaintiff's action for the order of dismissal made by the High Court.

 

Particulars of Error

 

 (i)    The objection taken by the defendant before the High Court was such as to substantially dispose of the whole of the plaintiff's ac­tion. Since the objection was taken in lieu of a demurrer the prac­tice for demurrer proceedings ought to have beett followed and the action ought to have been dismissed.

 

(ii)    The plaintiff never sought from the Court of Appeal an order substituting the order of dismissal with an order striking out the action. Consequently, the defendant was not afforded an oppor­tunity of being heard on this point before it was deprived of the benefit of the decision given in its favour in the High Court.

 

Briefs of argument were filed and exchanged by the parties and same were elaborated upon by oral submissions.

 

Two issues were formulated by the appellant in his brief, and these are -

 

(a)    Where a Court concludes that a Statement of Claim discloses no reasonable cause of action, what is the proper order to be made by the Court?

 

(b)    Ought the Court of Appeal substitute an Order of the High Court with its own different order when (i) the appellant does not seek the substituted order, and (ii) the parties - particularly the suc­cessful party - are not heard on the matter before the Order of substitution was made.

 

These issues were adopted by the respondent as he did not formulate any in his brief.

 

It was the submission of learned counsel for the appellant that since his application before the trial court was brought under the provisions of Order 22 Rules 2 and 3 of the High Court of Lagos (Civil Procedure) Rules, 1972, the learned trial Judge made the correct order when she dismissed the re­spondent's action.  

It was his contention that although the Court of Appeal has the power to substitute the order striking out the Statement of Claim for the order of dis­missal, the Court of Appeal ought not to have made such an order without first hearing counsel on the propriety of making it. It was his further submis­sion that the order made was not asked for by the respondent. Learned counsel cited and relied on the following authorities - Oloriode & Ors. v. Oyebi & Ors. (1984)15 N.S.C.C.286 at 295; (1984)1 S.C.N.L.R.390; lbrahim v. Osim (1988) 6 N.S.C.C. (Pt.l) 1184 at 1197; (1988) 3 N.W.L.R. (Pt.82) 257 and Hubbuck V. Wilkinson (1889)1 Q.B.90 at 91. He submitted that the procedure adopted by the Court of Appeal in making the order is in violation of section 33 of the 1979 Constitution.

 

In his reply learned counsel for the respondent submitted that the sub­stituted order made by the Court of Appeal is right and that there has not been any infringement of section 33 of the 1979 Constitution. Re further A submitted that the fact that the application was brought under the provisions of Order 22 Rules 2 and 3 of the Lagos High Court (Civil Procedure) Rules 1972, would not preclude the Court of Appeal from giving effect to rule 4 of Order 22 in order to do justice. Recited and relied on Steeds V. Steeds (1889) 22 Q.B.537; Griffiths V. London and St. Katharine Docks Co. Ltd. (1884) 13 Q.B.D.259 at 261; Shell B-P Petroleum Development Co. of Nigeria Ltd. v. Onasanya (1976)1 All N.L.R. (Pt.1) 425 and Epenyong & Ors. V. Inyang (1975) 2 S.C.71.

 

The fact that this action is based and founded on contract of employ­ment is not in dispute. See in particulars paragraphs 1,2,3,4,5,6,7,8,9, 10, 11, 12, 14, 16, 17, 18, 19, 24 and 25 of the statement of claim which were ad­mitted by the appellant. The gravamen of the issues raised is the propriety of substituting the order of striking out the statement of claim for that of dismissal by the Court of Appeal without first hearing counsel on both sides.

 

When the appeal came up for hearing, this Court drew the attention of Mr. Ogundipe, learned counsel for the appellant to the findings of the learned trial Judge and the Court of Appeal that the respondent lacked locus standi to prosecute the case in the manner he presented the facts in his statement of claim and against which there is no appeal, learned counsel conceded that in the given circumstance the correct order that the trial court and the Court of Appeal could have made was to strike out the case. The learned trial Judge considered this point in her Ruling wherein she said –

 

A second point must be made and that is, the Articles of Association of a company constitute a contract between that company and its members. The Articles of Association cannot constitute a contract between the company and an outsider…

Nowhere in the plaintiff's statement of claim is it averred that the plaintiff is a member of the Defendant Company. Re is an employee of the company. The Articles of Association do not therefore constitute a contract between himself, the company and/or its members. Consequently even if the plaintiff is able to prove a breach of the Articles of Association, he cannot succeed -in his claim; as these Articles of Association do not constitute a contract between him and the company. Not being a member of the company he has no locus standi to involve or compel compliance by the company with the provisions of its articles of Association.

It is my view that…

 

(ii)    the plaintiff has no locus standi to prosecute the action as presented.

 

In the judgment of the Court of Appeal, the learned Justice expressed his view agreeing with the findings of the learned trial Judge where he said -

 

I think the learned trial Judge was right to say that since the articles of association do not constitute a contract between the ap­pellant and the respondent, even if the appellant succeeds in pro­ving a breach of those articles he cannot succeed in his action. It is without any doubt that the appellant had no locus standi to invoke compliance with Articles of Association of the respondent's company.

 

Neither the appellant nor the respondent appealed or cross-appealed re­spectively against this finding.

 

Where a trial court at a preliminary stage makes a finding that the plain­tiff has no locus standi to prosecute an action, the only course open to it is to strike out the action.

 

This is enough to dispose of this appeal. I shall however briefly consider the submission of learned counsel for the appellant that the Court of Appeal was wrong to substitute the order of dismissal with that of striking out since it did not invite learned counsel on both sides to address it on the propriety of making that order.

 

The order of the trial court was that of the dismissal of the action. The present respondent appealed to the Court of Appeal. The Court of Appeal made an order of striking out the statement of claim in place of that of dis­missal of the action of the trial court. The main complaint by the appellant against this order is that the Court of Appeal made the substituted order suo motu. I do not think this is correct particularly when one looks at paragraphs 6.02 and 6.03 of the respondent's brief (as the appellant in the Court of Ap­peal) where it was argued –

 

6.02  The proper course for the learned trial Judge to have taken was to order - upon a proper application by the defendant -the plaintiff to supply particulars of the facts relied upon by him in support of the averment that the plaintiff had been in the service of the defendant.

 

6.03 Alternatively, the plaintiff submits that if the learned trial Judge was of the opinion that a specific Contract ought to have been pleaded, then the proper order to have made would have been one that the plaintiff amend his Statement of Claim so as to plead the type of contract of service relied upon.

 

The present appellant (as respondent in the Court of Appeal) replied to the arguments of the respondent (as appellant in the Court of Appeal) quoted supra in paragraph 6.2 of his brief as follows -

 

6.2    Without prejudice to the appellant's objection~ it is submitted that although a Judge ought not to summarily dismiss an action that can be cured by amendment, the Judge ought not to amend a plaintiff's claim suo motu. If the plaintiff fails to seek an amend­ment at the time when it is open to him to do so, he ought not to be allowed to complain after he has lost the opportunity The ap­pellant could have sought an amendment to his pleadings. In­stead of doing this he contended that his claim was proper as drawn. After the court has held that the claim was improper and has dismissed the entire claim, he now seeks to argue that an amendment could have saved his claim. He is right. An amend­ment could have saved his claim. However, he chose not to amend. He chose not to address the court on the argument that an amendment could have saved his claim. He failed to formulate any amendment for the consideration of the Judge. The Judge therefore, quite properly dismissed the action. It is now too late in the day to argue that an amendment could save the action. The action is already dead.

 

It is therefore not correct to say that the Court of Appeal made the sub­stituted order suo motu without hearing learned counsel on the issue, in contravention of Section 33 of the 1979 Constitution.

 

Now Order 22 Rules 2 and 3 of the Lagos State High Court (Civil Procedure) Rule, 1972 provides

 

2.    Any party shall be entitled to raise by his pleading any point of law and unless the court or a Judge in Chambers otherwise orders any point so raised shall be disposed of by the Judge who tries the cause at or after the trial.

 

3.    If, in the opinion of the Court or a Judge (in Chambers) the deci­sion of such point of law substantially disposes of the whole ac­tion, or of any distinct cause of action, ground of defence. set-off, counter-claim, or reply therein, the Court or a Judge may thereupon dismiss the action or make such other order therein as may be just.

 

The provision of rule 3 of Order 22 did not take away the discretion of the Court of Appeal as it says - "the Court or Judge may thereupon dismiss the action or make such other order therein as may be just."

 

In an action based on contract between the plaintiff and the defendant, the court will only dismiss the action when it appears clearly that-

 

(a)    there is no contract between the plaintiff and defendant. or  

 

(b)    there is no contract valid in law, or

 

(c)    the matter is already res judicata, or

 

(d)    the action is brought solely to obtain relief which the Court has no power to grant, or

 

(e)    that the relief being asked is based on a ground which is no ground for such a relief.

 

The Court is naturally reluctant to decline, on the ground of a defective pleadings, to entertain what might appear to be a legitimate claim on the part of someone who has suffered real injury - See Abbot V. Sullivan (1952) K.B.189 at 196.

 

Where the pleading by the plaintiff is struck out, and if the justice of the case demands, the court may order a mere striking out of the case in order to afford the plaintiff an opportunity of filing a fresh action on the same facts if he so desires. See Shell B-P Petroleum Development Co. of Nigeria Ltd. V. M.S. Onasanya (1976)6 S.C.89.

 

In Ibrahim V. Osim (1988) 3 N.W.L.R. (Pt.82) 257 (1988) 1 N.S.C.C.1184, Karibi-Whyte, J.S.C., in his dictum at p.1197 opined thus -

The court in exercise of its powers may on the application of either of the parties before it strike out the Statement of Claim or defence, either as a whole, or part of it. Where the Statement of claim is struck out as disclosing no cause of action, the action fails in limine, because the Statement of Claim supercedes the writ and are read together for the purposes of disclosing a cause of ac­tion."

 

The power of the court to dismiss a case in limine should be exercised with utmost circumspection and not lightly as a matter of course.

 

In the circumstance the proper order the Court of Appeal should have made was to strike out the case. The appeal therefore succeeds. The orders made by the High Court and the Court of Appeal dismissing the action and striking out the Statement of Claim respectively are hereby set aside. I sub­stitute the order of striking out the action in its entirety. T

 

he appellant is awarded N500.00 cost against the respondent.

 

Judgment delivered by

Uwais,J.S.C.

 

I have had the opportunity of reading in draft the judg­ment read by my learned brother, Wali, J.S.C. I agree with the judgment.

 

The only point I wish to emphasise concerns the striking out of the re­spondent's statement of claim by the Court of Appeal. In its ruling the High Court, Omotosho, J., held as follows –

 

It is my view that this action is not maintainable in the Court on the grounds that -

 

(i)    this court lacks jurisdiction to entertain it;

 

(ii)    the plaintiff has no locus standi to prosecute the action as presented:

 

(iii)    the pleadings disclose no reasonable cause of action.

before dismissing the respondent's action. On appeal, the Court of Appeal (per Mohammed, J.C.A.) remarked as follows­-

 

Finally, I have followed the decision in Shell B-P V. Onasanyu (1976)1 All N.L.R. (Pt.1) 425 in accepting that the Statement of Claim filed by the appellant had disclosed no reasonable cause of action. But I have not decided what to do with the action. Do I dismiss or strike it out? The learned counsel for the appellant had urged for the reversal of the finding of the learned trial Judge because she could have ordered for the amendment of the State­ment of Claim, thus saving it from being struck-out or dismissal. In Shell B-P V. Onasanya the Supreme Court ordered for the pleadings to be struck-out. I think the learned trial Judge would have done the same in respect of this case if not of her finding that the Lagos State High Court had no jurisdiction to try the action.

 

I have looked into both the Statement of Claim and the Statement of Defence so far filed, and in my view, the appellant

needs to be permitted to reframe his Statement of Claim. Con­sequently, having regard to the circumstances of this case, I will reverse the finding of the learned trial Judge dismissing the Statement of Claim and striking it out. It is accordingly struck-out....

 

The application, which was brought before the High Court, was brought under the provisions of Order 22 rules 2 and 3 of the High Court of Lagos (Civil Procedure) Rules, Cap.52 which deals with proceedings in lieu of demurrer. By the provisions of Order 22 rule 3. where a point of law has been raised by pleadings, as in the present case, if the point is established, A the trial court may order the action to be dismissed or make any order as may be just. The rule reads thus-

 

3.    If, in the opinion of the Court or a Judge in Chambers, the deci­sion of such point of law substantially disposses of the whole ac­tion, or of any distinct cause of action, ground of defence, set-off, counter-claim, or reply therein, the Court of justice may thereupon dismiss the action or make such other order therein as may be just.

 

Now it is from the foregoing that when the High Court found that it had no jurisdiction, the respondent had no locus standi in the action and the Statement of Claim did not disclose a reasonable cause of action, it was open to the learned trial Judge to either dismiss the action or make any other order that appeared to her to be just and proper in the case. The learned trial Judge opted to dismiss the action. The appeal before the Court of Appeal was against the order of dismissal. The Court of Appeal considered and held that the issue of jurisdiction had been determined by the decision of this Court in Savannah Bank of Nigeria Ltd. V. Pan Atlantic Shipping & Transport Agency Ltd. & Anor. (1987)1 N.W.L.R. (l't.49) 212 which laid down that by virtue of the provisions of section 236 of the 1979 Constitution the High Court had unlimited jurisdiction. So that the question to be determined by the Court of Appeal was narrowed down to what order should the learned trial Judge have made on finding that the respondent had no locus standi and his Statement of Claim disclosed no reasonable cause of action?

 

Although the application before the High Court was brought under Order 22 rules 2 and 3, it is clear from rule 4 thereof that where a Statement of Claim fails to disclose a reasonable cause of action the court may strike out the Statement of Claim. The rule reads –

 

4       The Court or Judge in chambers may order any pleading to be struck-out, on the ground that it discloses no reasonable cause of action…

 

Order 22 of the Rules is to be read as a whole in order to understand its import. Though rule 3 thereof gives the court the power to dismiss an action on point of law, the same rule gives the Court the discretion to do otherwise. If the point of law merely shows that a Statement of Claim does not show a reasonable cause of action, the trial court should, in my opinion, exercise its discretion under rule 3 to strike out the action and not to dismiss it. This will have the effect of avoiding the absurdity that would arise in interpreting rules 3 and 4 in such a way that different consequences will follow where a Statement of Claim is alleged to disclose no reasonable cause of action. For the objection that a Statement of Claim does not disclose a cause of action can be raised either under rule 3 or rule 4. The striking out of an action and the striking out of a Statement of Claim have the same consequences in that the plaintiff cannot continue with that particular action but could, on perfecting the pleading, bring the action again. The consequence is, however, different where the cause of action is dismissed. In that case, the plaintiff cannot re-institute the action.

 

In the present case it is not only that there was no reasonable cause of action but also that the plaintiff had no locus standi. Where a party has no locus standi, it means he has no standing to bring the action. In such event the proper order to make is to strike out the action since it has not been tried - see Alhaji Chief Yekini Otapo V. Chief R.O. Sunmonu & Ors. (1987) 2 N.W.L.R. (Pt.58) 587 at 615 and Oloriode V. Oyebi (1984)15 N.S.C.C.286 at 295; (1984)1 S.C.N.L.R.390.

 

It follows from the foregoing that the appropriate order to have been made in this case was that of striking out the action, whether under the provisions of Order 22 of the High Court Rules or on holding that the respon­dent had no locus standi. The Court of Appeal in its finding, quoted above, struck Out the statement of claim instead of the action, ostensibly because "the appellant needs to be permitted to re4rame his Statement of Claim". With respect, if the party had no locus standi in the case, there cannot be any opportunity for him to amend his Statement of Claim, for the action as a whole is abortive. The Court of Appeal was, therefore, in error when it substituted the order of dismissal made by the learned trial Judge with an order striking out the Statement of Claim. The proper order the Court of Appeal should have made was that of striking out the action.

 

Accordingly, the appeal succeeds. The orders made by the High Court and the Court of Appeal dismissing the action and striking out the Statement of Claim respectively are hereby set aside. In their place I substitute an order striking out the action in its entirety. I adopt the order as to costs as con­tained in the judgment of my learned brother, Wali, J.S.C.

 

Judgment delivered by

Agbaje,J.S.C.

 

The plaintiff's claims against the defendant are as fol­lows:­-

 

1.    A declaration that the letter dated the 11th of September, 1985 purporting to terminate the appointment of the plaintiff as Pension Accountant in the Defendant Company is ineffective and ultra vires the power of the maker thereof.

 

2.    A declaration that the plaintiff is entitled to his full salary and emoluments and all other entitlements from April, 1984.

 

3.    An order directing the Defendant to restore the Plaintiff to his office and position as Pension Accountant.

 

4.    In the alternative, the Plaintiff claims from the Defendant N500,000.00 being damages for wrongful dismissal.

 

Following an application by counsel on behalf of the defendant for an order:

 

(a)    striking out the plaintiffs claim for "a declaration that the letter dated 11th September, 1985 purporting to terminate the appoint­ment of the plaintiff . . .the defendant company is ineffective and ultra vires the power of the maker thereof'",

 

(b)    dismissing the Plaintiff's action.

the learned trial Judge having heard arguments from counsel on the application gave her ruling on it on 17/8/86 as follows:­

 

It is my view that this action is not maintainable in this Court on the grounds that,

 

(i)    this court lacks jurisdiction to entertain it.           

 

(ii)    the Plaintiff has no locus standi to prosecute the action as pre­sented. (Italics mine.)

 

(iii)    the pleadings disclose no reasonable cause of action.

 

Accordingly the action is dismissed.

 

The plaintiff appealed against the ruling to the Court of Appeal, Lagos Division. That court allowed the plaintiff's appeal in part. It held as per the lead judgment of Uthman Mohammed, J.C.A., in which Ademola, J.C.A. and Akpata, J.C.A., as he then was, concurred:­-

 

I have looked into both the Statement of Claim and the State­ment of Defence so far filed, and in my view, the appellant needs to be permitted to reframe his Statement of Claim. Consequently having regard to the circumstances of this case I will reverse the finding of the learned trial Judge dismissing the Statement of Claim and strike it out. It is accordingly struck out.

 

The defendant has in turn appealed to this court against that decision. The issues submitted for determination in this appeal according to the

defendant are as follows:

 

The Notice of Appeal filed contains one ground of appeal com­plaining of error in law in substituting an order striking out the plaintiffs action for the order of dismissal made by the High Court. Two particulars are set out. It is respectively submitted that the issues of law which arise for the consideration and deter­mination of the Supreme Court may be formulated thus:-

 

(a)    Where a Court concludes that a Statement of Claim dis­closes no reasonable cause of action, what is the proper order to be made by the Court?

 

(b)    Ought the Court of Appeal substitute an Order of the High Court with its own different order when (i) the appellant does not seek the substituted order, and (ii) the parties -particularly the successful party - are not heard on the mat­ter before the order of substitution was made.

 

Very much relevant to this appeal is the following passage in the lead judg­ment of Uthman Mohammed, J.C.A.:

 

I think the learned trial Judge was right to say that since the Arti­cles of Association do not constitute a contract between the appel­lant and the respondent, even if the appellant succeeds in proving a breach of those articles he cannot succeed in his claim. It is without any doubt that the appellant has no locus standi to invoke compliance with Article of Association of the respondent's company.

The decision of the Supreme Court in Hutchful V. Biney (supra) is not an authority on the issue being considered in this appeal. In fact the issue of locus standi was not considered or even dealt with in that case. (italics mine)

 

In this passage from the judgment of Mohammed, J.C.A., we have a confir­mation by the Court of Appeal of the following decision of the trial court namely:-

 

The plaintiff has no locus standi to prosecute the action as presented.

 

The decision has not been re-opened before us. In effect it stands. In Oloriode V. Oyebi (1984)1 S.C.N.L.R.390 it was held that where a plaintiff has no locus standi to institute an action, the court has no jurisdiction to grant the relief or reliefs he is claiming. It was further held in the case that the proper order to make, when the court has no jurisdiction to adjudicate upon a matter for whatever reason, like say, the parties before the court have no locus standi is one striking out the action.

 

So in my judgment, the order to make in the instant case on the basis of the decision that the plaintiff has no locus standi to prosecute the action is one striking out the action. The order of the lower court striking out the Statement of Claim alone is in my judgment wrong.

 

In the result of the above reasons and the fuller reasons given in the lead judgment of my learned brother, Wali, J.S.C. I too allow the defendant's/ appellant's appeal. I abide by all the consequential orders in the lead judg­ment, including the order striking out the plaintiff’s action.

 

 

Judgment delivered by

Nnaemeka-Agu,J.S.C.

 

I have had the privilege of reading in draft the judgment just delivered by my learned brother, Wali, J.S.C. He has fully set out the facts.

 

The material facts for the determination of this appeal are as follows:

 

1.    The learned trial Judge, Omotosho, J. found as a fact that:

 

(i)    the High Court lacked jurisdiction to entertain the suit;

 

(ii)    the plaintiff had no locus standi to institute the action; and

 

(iii)    that the pleadings disclosed no reasonable cause of action.

She proceeded to dismiss the action.

 

2.    On appeal, the Court of Appeal reversed the High Court.

In its judgment, it struck out the Statement of Claim but said nothing about the order of dismissal. It does appear that the court did not hear the parties before making the orders. I may add, however, that that court agreed with the learned trial Judge that the plaintiff had no locus standi to institute the action as, on the facts, only a member of the defendant company could have sued. Their Lordships, however held that in view of the judgment of this Court in Savannah Bank of Nig. Ltd. V. Pan Atlantic Shipping & Transpori Agencies Ltd. & Anor. (1987)1 N.W.L.R. (Pt.49) 212 both the Federal High Court and the State High Court have jurisdiction to entertain the suit. This has not been disputed before us.

 

I agree with my learned brother, Wali, J.S.C., that on the finding of the learned trial Judge, which has been confirmed by the Court of Appeal. that the plaintiff/appellant has no locus standi to institute the action, the only course open to the trial Judge, and indeed, the Court of Appeal, was to have struck out the suit. not to have dismissed it. I must emphasize that, as the courts have so found, it ought to have occurred to their Lordships that locus standi is a threshold issue. When a plaintiff, by his pleading, fails to show that he has a locus to institute an action no issue in the case can be gone into, not even the question whether or not the Statement of claim discloses a cause of action. The only and proper order to make is that striking out the Suit. See - Otapo V. Sunmonu (1987) 2 N.W.L.R. (Pt.58) 587; Iwuaba V. Nwaosigwelem (1989)5 N.W.L.R. (Pt. 123)623. As it is so, the Court of Ap­peal was in error to have proceeded to strike out the statement of claim only. Strikingly, it said nothing about the order of dismissal made by the learned trial Judge. I would, therefore, on this ground alone, strike out the suit. This disposes of this appeal.

 

For this reason and the fuller reasons contained in the judgment of my learned brother, Wali, J.S.C., I hereby allow the appeal and set aside the judgment of the court below. In it place, I hereby strike out the suit.

 

I assess and award costs in favour of the plaintiff at N500.00 in this Court and N300.00 in the Court of Appeal.

 

Judgment delivered by

Olatawura,J.S.C.

 

I had the advantage of reading in draft the judg­ment of my learned brother, Wall, J.S.C. I agree with the conclusions reached that the appeal should be allowed and that the proper order which the trial court should have made was the order striking out the action.

 

The conclusions reached by the trial court on the ground that the action is not maintainable are:

 

(i)    That the High Court lacks jurisdiction

 

(ii)    That the plaintiff has no locus standi to prosecute the action

 

(iii)    That the pleadings disclose no reasonable cause of action.

On appeal to the Court of appeal, the Court of Appeal agreed with these conclusions but for a different reason decided to strike out the action. It was for the reason given that led to the appeal. The reasons as stated by Mohammed, J.C.A. is as follows:

 

I have looked into both Statement of Claim and Statement of Defence so far filed, and in my view, the appellant needs to be permitted to reframe his Statement of Claim. Consequently having regard to the circumstances of this case, I will reverse the finding of the learned trial Judge dismissing the Statement of Claim and strike it out. It is accordingly struck out.

 

A Court must ensure that there is proper justification in fact and in law be­fore an action is dismissed. Since the Court of trial came to the conclusion that it has no jurisdiction, the proper order would have been that of striking out the action. Similarly on the issue of locus siandi the action ought to have been struck out. Mr. Ogundipe rightly conceded this point.

 

When an action is dismissed, unless the Rule of Court permit, the action cannot be re-opened. The dismissal is conclusive of the matters or issues decided therein until the judgment is set aside on appeal.  

For the fuller reasons given in the lead judgment of my learned brother, Wall, J.S.C. and which I respectively adopt, I will also allow the appeal. I abide by the order of costs.

 

Appeal allowed.

 

 

Counsel

 

B.O.  Ogundipe

  ........

For the Appellants

Mrs. Ayo Obe 

With G.O. Kolawole,

  ........

For the Respondents