⦿ CASE SUMMARY OF:
Registered Trustees of Auto Spare Parts and Machinery Dealers Association & Anor v. Mr. Obojiofor Obinna John & Ors (2020) – CA
by PaulPipAr
⦿ TAG(S)
– Jurisdiction;
– Locus standi;
– Pre action notice;
– Executive election;
⦿ PARTIES
APPELLANTS
1. Registered Trustees Of Auto Spare Parts and Machinery Dealers Association;
2. Mr. Daniel Oforkansi;
v.
RESPONDENTS
1. Mr. Obojiofor Obinna John;
2. Mr. James C. Onwugamba;
3. Mr. Philip N. Ezeabasili;
4. Mr. Nwadimka Nathaniel
⦿ CITATION
(2020) LPELR-49541(CA);
⦿ COURT
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Ugochukwu Anthony Ogakwu, J.C.A.
⦿ APPEARANCES
* FOR THE APPELLANT
* FOR THE RESPONDENT
– Chief Olalekan Yusuf, SAN.
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⦿ FACT (as relating to the issues)
The contest in this appeal is all about tenure of office and alleged elongation of tenure. It is with respect to the Executive Officers of the Auto Spare Parts and Machinery Dealers Association (ASPMDA) [hereinafter referred to as ASPDMDA]. It is the case of the Respondents, as Claimants at the lower Court; that the ASPMDA Constitution under which the Executive Officers were elected stipulated a tenure of two years, but that the Executive Officers were seeking to elongate their tenure by claiming the four years tenure provided in the Amended Constitution which was adopted after they were elected. Au contraire, the Appellants contend that the Executive Officers took their oath of office under the Amended Constitution and that the tenure was for the four years provided thereunder.
The Respondents commenced an action by Originating Summons before the High Court of Lagos State in SUIT NO. LD/2588GCM/2018: MR. OBOJIOFOR OBINNA JOHN & ORS. vs. THE REGISTERED TURSTEES OF AUTO SPARE PARTS & MACHINERIES DEALERS ASSOCIATION & ANOR. for the determination of the following questions:
1. Whether or not the 2nd Defendant led executive committee members of the 1st Defendant, the Auto Spare Part (hereinafter referred to as “ASPMDA”) are not bound by the tenure of office stipulated in 1986 ASPMDA Constitution under which they took their respective oaths of office.
2. Whether or not the 2nd Defendant led executive committee members can by executive fiat validly take advantage of the provisions of the new 2016 ASPMDA Constitution on tenure of office of executive committee members.
3. If the answers to 1 and 2 are in the positive and negative respectively, whether or not the 2nd Defendant led executive committee members of ASPMDA can remain in office beyond the stipulated 2-year term of office.
Upon the determination of the said questions, the following reliefs were claimed: (i) AN ORDER directing the 2nd Defendant and other members of the executive committee to vacate their respective offices at the expiration of their tenure of office on 7th, August 2018. (ii) AN ORDER of perpetual injunction restraining the 2nd Defendant from further contesting for the position of the executive chairman of ASPMDA having successfully contested and won two terms in office, the maximum terms stipulated in the old 1986 Constitution of ASPMDA. (iii) AN ORDER directing the 2nd Defendant led executive committee members or the interim government of ASPMDA, as the case may be, to conduct a fresh election for the positions on the executive committee specified under the new 2016 ASMDA Constitution. (iv) The Cost of this action.
In the course of trial, the Defendants (herein Appellant) raised some preliminary objections as to the jurisdiction of the High Court and several matters.
The preliminary objection and the Originating Summons were heard together by the lower Court and in its judgment delivered on 28th November 2018, it dismissed the preliminary objection and entered judgment for the Respondents on their Originating Summons.
The judgment of the lower Court is at pages 556-565 of the Records. The Appellants being dissatisfied with the judgment, appealed against the same by Notice of Appeal filed on 28th November 2018.
⦿ ISSUE(S)
1. Whether in the light of Article 21(A) of the ASPMDA Constitution (as amended in 2016), the trial Court possessed the requisite jurisdiction to entertain the suit ab initio?
2. Whether the lower Court was right when it held that, in spite of the pendency of Suit No: LD/5010GCMW/2018, the instant suit was not an abuse of Court process?
3. Whether the Learned Trial Judge was right in placing sole and heavy reliance on the conditions stated in B.B Apugo & Sons v. OHMB (2016) LPELR 40598 (SC) in holding that the Respondents possess the requisite standing to institute the action, even in the face of the positive facts placed before it suggesting otherwise?
4. Whether the dust raised as to the time the Amended Constitution became operative vis-a-vis the tenure of the members of the Executive Council as well as the dispute as to membership of the association duly raised are not sufficient hostile facts to warrant calling of evidence?
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: DISMISSED WITH N350,000]
1, 2 & 3: THESE ISSUES WERE RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
RULING:
i. But the diacritical circumstance of this matter was not one where the objection to jurisdiction was raised viva voce. No! The Appellants filed a formal notice of preliminary objection, setting out the grounds on which the objection to the jurisdiction of the lower Court was predicted (see pages 172-189 of the Records). The issuance vel non of a pre-action notice was not made one of the grounds of the objection. The Appellants would have been on a strong wicket as to an issue of jurisdiction being raised viva voce if they had not filed a formal notice of preliminary objection. But having filed a notice of preliminary objection, they become bound by the grounds therein stated. The lower Court was therefore correct when it held that depositions in an affidavit support the prayers in the application and that there was no prayer or ground of objection that the Respondents failed to give pre-action notice. It is because the Appellants failed to make it a ground of their objection, not necessarily because they filed a counter affidavit per se, that they waived their right to insist on the effect of non-compliance with the requirement. In NTIERO vs. NPA (2008) 10 NWLR (PT 1094) 129, the Supreme Court held that the effect of non-service of a pre-action notice where it is required is only an irregularity which renders an action incompetent but that the irregularity can be waived by a defendant who fails to raise it either by motion or plead it in the statement of defence. The failure by the Appellants to raise the issue as a ground of their preliminary objection amounted to a waiver of the irregularity.
ii. The Appellants have relied on the dictum of Rhodes-Vivour, JSC in PDP vs. SHERRIF (supra) to contend that if a case involves the allies of the parties in a different action, then it is an abuse of process. The lower Court in holding that the parties were not the same used the presence of the Corporate Affairs Commission in the other action as the basis for holding that the parties were not the same. I have closely examined the parties in the matter and I am unable to see how the Corporate Affairs Commission can be said to be the ally of any of the parties in order to make applicable the decision in PDP vs. SHERRIF. I am therefore not swayed by the Appellants contention in this regard. I have insightfully considered the writ of summons in the earlier action (See page 179 of the Records) and there is no basis to interfere with the conclusion of the lower Court that the parties are not the same, and that the reliefs sought are not the same. This being so, the lower Court rightly held that the action was not an abuse of process on grounds of multiplicity of actions.
iii.The lower Court held that the Appellants did not challenge that the 1st & 4th Respondents were bona fide members of ASPMDA. The Appellants have not challenged this finding in their Notice of Appeal. The concomitance is that the said finding remains unassailable and binding on the parties: NNADIKE vs. NWACHUKWU (2019) LPELR (48131) 1 at 27-28, ANYANWU vs. OGUNEWE (2014) LPELR (22184) 1 at 47 and DURBAR HOTEL PLC vs. ITYOUGH (2016) LPELR (42560) 1 at 7-8. Arguendo, even if the Appellants contention that the 2nd & 3rd Respondents do not have locus standi is correct, the action can still be maintained by the 1st & 4th Respondents whose membership of ASPMDA by the unchallenged finding of the lower Court was not questioned.
4. ISSUE 4 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
RULING:
i. In the instant case, the Appellants make a kerfuffle of the fact that they deposed that the Respondents were not members of ASPMDA. This however pales into insignificance when it is remembered that the membership of ASPMDA by the 1st & 4th Respondents was not challenged by the Appellants. It thus became a moot point which did not affect the live issues in the action as the action could be sustained by the 1st & 4th Respondents, even if arguendo, the 2nd & 3rd Respondents were not members. It therefore became entirely academic as any such dispute raised was peripheral and did not affect the substance of the material and live issues in the action.
ii. The finding of the lower Court that “The deposition in paragraph 13 of the Originating Summons that the current members of the executive committee contested and won the election under the ASPMDA Constitution 1986 was not denied by the Respondent” lays to rest and renders otiose any contention as to the date when the Amended Constitution of 2016 became operative since the unchallenged finding of the lower Court is that the Executive Committee was elected under the 1986 Constitution. This issue number four is therefore resolved in favour of the Respondents. There were no contested facts on the material and live issues in the matter to warrant the conversion of the action to a writ of summons in order for witnesses to be called.
⦿ REFERENCED
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
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⦿ NOTABLE DICTA
* PROCEDURAL
The decision of the lower Court that the Appellants had waived their right on the consequences of non-compliance with the issuance of a preaction notice is the correct decision. An appellate Court is concerned with whether the decision appealed against is the correct decision and not whether the reasons given are correct. – Ogakwu, JCA. Spare v. Obojiofor (2020)
Locus standi is determinable from a consideration of the totality of the facts proffered by the claimant in his processes, which facts have to be carefully scrutinized with a view to ascertaining whether it has disclosed sufficient interest to give the claimant standing and title to sue. – Ogakwu, JCA. Spare v. Obojiofor (2020)
It is hornbook law that the originating summons procedure is intended to be used in limited circumstances in matters involving the construction and interpretation of enactments and documents. – Ogakwu, JCA. Spare v. Obojiofor (2020)
It is however pertinent to emphasise that judgment writing is an art and there are as many variants to judgment writing as there are judges. What is however essential is for the judgment to capture the issues in controversy in the matter, the evidence placed before the Court on the issues, demonstrate a full and dispassionate consideration of the issues and how the Court arrived at its verdict based on materials before it. – Ogakwu, JCA. Spare v. Obojiofor (2020)
* SUBSTANTIVE
The authorities seem to be settled that the purpose of serving a pre-action notice on a defendant is to give him the opportunity to settle the dispute amicably without resort to litigation. The requirement would not deny a claimant the right to seek redress in Court. – Ogakwu, JCA. Spare v. Obojiofor (2020)
The term abuse of process of a Court is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. Abuse of process can only mean the abuse of legal procedure or the improper use or misuse of the legal process. – Ogakwu, JCA. Spare v. Obojiofor (2020)
In order for a person to have locus standi, he must show that his civil rights and obligations have been or are in danger of being infringed and that he has sufficient legal interest in seeking redress in Court. – Ogakwu, JCA. Spare v. Obojiofor (2020)
The claimant need not state that he has locus standi, all he needs to do is to proffer facts establishing his rights and obligations in respect of the subject matter of the suit. – Ogakwu, JCA. Spare v. Obojiofor (2020)
