IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY HOLDEN AT JABI - ABUJA THIS TUESDAY, THE 4 TH DAY OF JUNE, 2013

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1 IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY HOLDEN AT JABI - ABUJA THIS TUESDAY, THE 4 TH DAY OF JUNE, 2013 BEFORE: HON. JUSTICE UGOCHUKWU A. OGAKWU - JUDGE MOTION NO. FCT/HC/M/1882/2012 BETWEEN: WHOT RIEM CREDIT AND THRIFT CO-OPERATIVE SOCIETY... PLAINTIFF/RESPONDENT 1 AND MR. MENE OLAMIRE... DEFENDANT/APPLICANT RULING The Plaintiff instituted the substantive action against the Defendant claiming for the outstanding amount on the loan which it granted the Defendant. The court processes were duly served on the Defendant. The Defendant had issues with the competence of the action. He consequently entered a conditional appearance and further filed a motion on notice in which he urged the court to strike out the suit for want of jurisdiction. This Ruling is in respect of the said motion on notice. The motion on notice which was filed on 19 th November 2012 is predicated on the following grounds: 1. That the Plaintiff lacks the locus to institute the action. 2. That the High Court is not the proper forum to hear the case pursuant to Section 44 of the Cooperative Societies Act Cap 488 Laws of the FCT 2007 and the Regulation made thereunder. The motion on notice is supported by an affidavit of eight paragraphs with one exhibit attached thereto. Pursuant to the provisions of Order 7 Rule 23 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004 (HCR), a written address was filed in support of the motion. On 11 th February 2013, the Plaintiff filed a fifteen paragraph counter affidavit as well as a written address in opposition to the motion on notice. Subsequently on 15 th February 2013, the Plaintiff filed and attached a list of the documents referred to in the said counter affidavit. In his written address, the Defendant distilled two issues as arising for determination as follows: 1. Whether or not the Plaintiff has the locus standi to institute this suit. 2. If issue one is resolved in the Plaintiff s favour, then whether or not the High Court of the FCT has the requisite jurisdiction to entertain this suit. The Plaintiff equally formulated two issues for determination in its written address, namely: 1. Whether this court has jurisdiction to entertain this suit in spite of Section 44 of the Cooperative Societies Act Whether the Plaintiff possess(es) the requisite locus standi to institute this action. At the hearing of the motion on 30 th April 2013, Alozie Nmerengwa, Esq., learned counsel for the Defendant referred to the grounds of the motion and relied on the paragraphs of the supporting affidavit. He adopted the submissions in the written address filed in support of the motion on notice and he urged the Court to grant the motion. Equally, Rotimi Ojo, Esq., of counsel for the Plaintiff relied on the paragraphs of the counter affidavit. He adopted the submissions in the Plaintiff s written address and further submitted that the word may used in Section 44 of the Cooperative Societies Act was permissive and not mandatory. He urged the court to dismiss the motion.

2 Replicando, Alozie Nmerengwa, Esq., learned counsel for the Defendant referred to Section 2 of the Co-operative Societies Act on the meaning of a member, positing that a combined reading of Sections 2 and 44 (1) of the Cooperative Societies Act shows that a legal action in court is not contemplated by the Act. He further contended that the exhibits referred to in the counter affidavit were not filed with the counter affidavit and he therefore urged the court to discountenance the list of documents that was later filed to attach the said exhibits. I have incisively considered the processes in respect of this motion and the submissions of learned counsel. The motion is hinged on the two broad grounds of law of locus standi and the proper forum or venue for ventilating the Plaintiff s cause of action. The issues for determination formulated by the parties though differently worded are in actual sense of the same purport and effect. The issue of locus standi, which is issue number one formulated by the Defendant and issue number two formulated by the Plaintiff, is a challenge on the court s jurisdiction because if the court holds that the Plaintiff has no locus standi, the court s jurisdiction will be ousted. See EMEZI vs. OSUAGWU (2005) 2 NWLR (PT 939) 340 at 359 and OGBUEHI vs. GOV. IMO STATE (1995) 9 NWLR (PT 417) 53. Furthermore, where the court holds that the Plaintiff has no locus standi, then it will unnecessary to go into the issue raised with regard to the proper forum or venue for ventilation of the Plaintiff s cause of action. Accordingly, in resolving this motion I will follow the order in which the issues for determination were distilled and presented by the Defendant. ISSUE NUMBER ONE WHETHER THE PLAINTIFF HAS THE LOCUS STANDI TO INSTITUTE THIS ACTION The contention of the Defendant is that he had no dealings with the Plaintiff and he relies on Exhibit A of the supporting affidavit as showing that the loan agreement is between him and Whot Riem Strategies Limited and not with the Plaintiff on record. It was therefore posited that there is no privity of contract between him and the Plaintiff, and therefore the Plaintiff was not in any way aggrieved in order to be invested with the locus to institute the action. On its part, the Plaintiff maintains that the averments in the Statement of Claim and the documents pleaded show the contractual relationship between the Plaintiff and the Defendant regarding the loan facility and that to the knowledge of the Defendant, Whot Riem Strategies Limited was a consultant to the Plaintiff; and that the Defendant had dealt with the Plaintiff with such understanding, writing series of applications for rollover of the facility and proposal for payment of the facility to the Plaintiff. The Plaintiff insists that the averment in the Statement of Claim discloses sufficient interest in the subject matter of the claim, thus giving it the standing to sue. Now, the term locus standi denotes the legal capacity to institute proceedings in a court of law for redress or assertion of a right enforceable at law. See A-G KADUNA STATE vs. HASSAN (1985) 2 NWLR (PT 18) 453 at 496. The term is often used interchangeably with the terms title and standing to sue. The fundamental aspect of locus standi is that it focuses on the party before the court and not on the issues he presents to the court for adjudication. See ADESANYA vs. PRESIDENT OF NIGERIA (1981) 1 All NLR 1. Locus standi can be a matter of law only or a question of fact only. It is a matter of law only when a statute specifically provides for the category of persons who can commence a particular action. It is a question of fact only when the law does not specifically provide for the category of persons who can sue. In this latter situation, the plaintiff in his processes avers to facts which show that he has the standing to sue. See ALBIN CONSTRUCTION vs. RAO INVESTMENTS AND PROPERTIES LTD (1992) 1 NWLR (PT 219) 583 at 594. The plaintiff need not plead in the statement of claim that he has locus standi, all he needs to plead are facts establishing his rights and obligations in respect of the subject matter of the suit. See OROGAN vs. SOREMEKUN (1986) 2 NSCC 1231 at In determining whether a plaintiff has locus standi, it is the cause of action that has to be examined. See OLORIODE vs. OYEBI (1984) 5 SC 1 at 28. A cause of action being the entire set of circumstances giving rise to an enforceable claim. It is in effect the fact or combination of facts giving rise to the right to sue and it consists of two elements viz: (i) the wrongful act of the defendant which gives the plaintiff his cause of complaint and (ii) the consequent damage. See IBRAHIM vs. OSIM (1988) 3 NWLR (PT 82) 257 and THOMAS vs. OLUFOSOYE (1986) 1 NWLR (PT 18) 669. The only material a court considers in determining whether a plaintiff has locus standi is the originating process filed by the plaintiff, usually, the writ of summons and statement of claim: see A-G FED. vs. A-G ABIA STATE (2001) 40 WRN 1 at 63. 2

3 Locus standi in a suit is determinable, only from the totality of the averments in the statement of claim, which must be carefully scrutinised with a view to ascertaining whether sufficient interest giving the standing to sue has been disclosed. See BUSARI vs. OSENI (1992) 4 NWLR (PT 235) 557 at 558 and OWODUNNI vs. REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST (2000) 6 SC (PT III) 60 at 97, It is for this reason that the contention of the Defendant s counsel on the documents referred to in the counter affidavit having been filed separately is of no moment since in determining the question of locus standi, the court only considers the averments in the statement of claim. Where the facts presented disclose the right or interest of the plaintiff which have been or are in danger of being violated, invaded or adversely affected by the act(s) of the defendant, the complaint of such a plaintiff would be deemed to have shown sufficient interest to give him the locus standi to litigate over the subject matter in issue. In Public Law, the determinant of the locus standi of a plaintiff is whether his interest or injury in the action exceeds that of the general public. In Private Law, the determinant is whether the reliefs claimed would confer some benefit on him. See OWODUNNI vs. REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST (supra) at The test of sufficient interest is whether the person seeking a redress or remedy will suffer from injury or hardship arising from the litigation. If the court is satisfied that he would so suffer, then he must be heard, as he is entitled to be heard. See A-G LAGOS vs. EKO HOTELS LTD (2006) 18 NWLR (PT 1011) 378 at 450, OJUKWU vs. GOV. OF LAGOS STATE (1985) 2 NWLR (PT 10) 806 and ODELEYE vs. ADEPEGBA (2001) 5 NWLR (PT 706) 330. The fact that a person may not succeed in an action does not have anything to do with whether or not they have the standing to sue. See LAWAL vs. SALAMI (2002) 2 NWLR (PT 752) 687 and DANIYAN vs. IYAGIN (2002) 7 NWLR (PT 766) 346. When a court is considering an objection to the locus standi of a plaintiff to maintain an action, the following have been distilled from a long line of cases as guiding principles: (a) the plaintiff must show that his civil rights and obligations have been or are in danger of being infringed; (b) the fact that a person may not succeed in an action does not have anything to do with whether or not a person has the standing to sue; (c) whether a person s civil rights and obligations have been affected depends on the peculiar facts of the case; and (d) the courts should not give an unduly restrictive interpretation to the expression locus standi. See FAWEHINMI vs. AKILU (1987) 4 NWLR (PT 69) 797, NNADI vs. OKORO (1998) 1 NWLR (PT 535) 573 at 600 and A-G KADUNA vs. HASSAN (supra). As already noted, locus standi could be a matter of law only or a question of fact only. I know of no statute which prescribes the category of persons who can commence the kind of action instituted by the Plaintiff and none has been brought to the attention of the court. The issue of the Plaintiff s locus standi is therefore a question of fact which can be ascertained from the Statement of Claim. In order to show sufficient interest in the Plaintiff therefore, the statement of claim must set out: (i) the legal right of the Plaintiff; (ii) the obligation of the Defendant; (iii) the facts constituting the infraction of the Plaintiff s legal right, and/or (iv) the failure of the Defendant to fulfil his obligation in such a way that if there is no proper defence the Plaintiff will succeed in the reliefs it seeks. See ETALUKU vs. NBC PLC (2004) 15 NWLR (PT 896) 370 at 399. I have carefully scrutinized the totality of the averments in the Statement of Claim (see particularly paragraphs 3 12) and I am satisfied that the averments therein show the legal rights of the Plaintiff, the obligation of the Defendant, the failure by the Defendant to fulfil his obligation by repaying the loan which failure constitutes the infraction of the Plaintiff s legal right to have the loan repaid. Accordingly, I am satisfied that the Plaintiff has disclosed sufficient interest giving it the locus standi, standing or title to sue: OWODUNNI vs. CELESTIAL CHURCH OF CHRIST (supra). Consequently, I am unable to agree with the Defendant, who extracted one of the documents relied upon by the Plaintiff and on the basis of which he premised his contention that the Plaintiff does not have locus standi. An integral consideration of the totality of the averments and documents relied upon by the Plaintiff bears out the fact that the Plaintiff has sufficient interest in the matter and since the same affects its civil rights and obligations, it is entitled to be heard: A-G LAGOS vs. EKO HOTELS LTD (supra). Having found that the Plaintiff has the requisite locus standi and concomitantly the court has jurisdiction, I will now proceed to the second issue for determination in this motion which is on the proper forum or venue for the ventilation of the Plaintiff s cause of action. ISSUE NUMBER TWO WHETHER THE HIGH COURT OF THE FCT HAS THE REQUISITE JURISDICTION TO ENTERTAIN THE SUIT The contention of the Defendant is that the court does not have the competence to entertain the action on the basis of Section 44 of the Co-operative Societies Act which stipulates that any dispute touching the business of a 3

4 registered society, which includes a claim for a debt, is to be sent to the Registrar of Co-operative Societies and such a dispute by Order 21 of the Cooperative Societies Regulations is to be decided by arbitration. Relying on the decision in MADUKOLU vs. NKEMDILIM (1962) 2 SCNLR 341 or (1962) 2 NSCC 374 or (2001) 46 WRN 1, the Defendant maintained that the court was not competent to entertain the action. The Plaintiff in its reply submits that parties are bound by their agreement and that the court cannot make a contract or re-write the contract made by the parties. The Plaintiff maintained that the contract entered into by the parties did not envisage the referral of any dispute arising therefrom to arbitration; that the parties do not have any agreement to arbitrate and therefore Section 44 of the Co-operative Societies Act was not binding particularly when it was not made part of the contract by the parties. It is the further submission of the Plaintiff that Section 44 of the Co-operative Societies Act uses the word may as opposed to shall. Therefore the reference of any the dispute to the Registrar of Co-operative Societies was at the discretion of the parties. Now, Section 44 of the Co-operative Societies Act clearly stipulates that a dispute touching the business of a registered society, which includes a claim by a registered society for a debt or demand due to it, MAY be referred to the Registrar of Co-operative Societies for decision. It is upon such a reference being made that Order 21 of the Co-operative Societies Regulations then stipulates that the Registrar may either decide the dispute himself or refer it to arbitration. The paramount question for consideration is whether the stipulation of Section 44 of the Cooperative Societies Act is a mandatory provision, such that any dispute has to be referred to the Registrar for decision as contended by the Defendant. This is an inevitable question in view of the fact that the word used in Section 44 is MAY. The word may is an auxiliary verb which qualifies ability, competence, probability or contingency. Regardless of the instrument in which it appears whether Constitution, statute, deed or contract, the courts sometimes construe may as shall or must so that justice may not be a slave to grammar. However, as a general rule, the word may will not be treated as a word of command unless there is something in the context or subject matter of the Act to indicate that it was used in such sense. In the construction of statutes and rules the word may as opposed to shall is indicative of discretion or choice between two or more alternatives, but the context in which the word appears must be the controlling factor. Put differently, in interpreting the word may the context in which the word appears is the controlling factor whether it has a mandatory or directory effect. See BLACK S LAW DICTIONARY, ATAYI FARMS LTD vs. NACB LTD (2003) 4 NWLR (PT 810) 427 at 447G 448D, I.C.A.N vs. A-G FEDERATION (2004) 3 NWLR (PT 859) 186 at 207E 209D and ORAKUL RESOURCES LTD vs. NCC (2007) 16 NWLR (PT 1060) 270 at 303G 304B. Although the etymological meaning of may is permissive and facultative, and seldom can mean must and imperative, it assumes this last mentioned character when there is anything in the provision that makes it the duty on the person on whom the power is conferred to exercise that power. When the exercise of the power is coupled with a duty on the person to whom it is given to exercise it, then it is imperative. See ADESOLA vs. ABIDOYE (1999) 14 NWLR (PT 637) 28 at 56. I therefore pause and ask, whether the context in which the word may appears in Section 44 of the Co-operative Societies Act is the controlling factor? Or in other words, whether there is a duty on the person on whom the power is conferred to exercise that power. A close look at Section 44 of the Co-operative Societies Act appears to indicate that the word may therein employed is not the controlling factor. The duty therein conferred is on a person to refer a dispute to the Registrar. The person so aggrieved may choose not to enforce his right in which case he does not have to refer any dispute to the Registrar. Equally, he may choose in pursuit of his civil rights and obligations to have such a dispute determined by any of the courts in which judicial powers have been invested by Section 6 of the Constitution. It therefore seems that it is for the person aggrieved to use his faculty to decide whether to refer the dispute to the Registrar for decision or not. This in my opinion clearly shows that the word may used in Section 44 of the Cooperative Societies Act is merely directory or permissive. It is neither mandatory nor imperative such that the Plaintiff can be said to have chosen the wrong venue or forum for the ventilation of its cause of action. In OBIOHA vs. DAFE (1994) 2 NWLR (PT 325) 157 at it was held that the cardinal principle in interpretation of a statute is to discover the intention of the lawmaker and that where the matter calls for the interpretation of a word like may the whole section is to be read together in order to discover the intention of the lawmaker. The principle is that whenever a statute creates a duty, the primary question will be what is the sanction that has been provided for its breach? Since no statute creates an obligation without anticipating a breach. If there is a sanction then the provision is mandatory. It is absolute. Where a court cannot interfere to compel performance or indeed punish the breach of duty, the act is directory. Bringing this principle closer home, relative to the facts of this matter, can the court punish an aggrieved party who decides not to refer a dispute to the Registrar of Co-operative Societies? I think not. This is particularly so because 4

5 the Co-operative Societies Act has not provided for any sanction where a dispute has not been so referred. It is thus clear that the word may employed in Section 44 of the Co-operative Societies Act is merely directory and not compulsory. It confers a discretionary power. See EMOKPAE vs. UNIBEN (2002) 17 NWLR (PT 795) 137 and AMAEFULE vs. THE STATE (1988) 2 NWLR (PT 75) 156. In BAKARE vs. A-G FEDERATION (1990) 5 NWLR (PT 152) 516, the Supreme Court interpreted the word may to be directory and not mandatory. See also WILSON vs. OKEKE (2011) 3 NWLR (PT 1235) 456 at 473. Accordingly, the Defendant s challenge to the competence of the court to entertain the Plaintiff s action on the ground that this High Court of the Federal Capital Territory, Abuja is not the proper forum or venue for ventilating the Plaintiff s cause of action cannot be correct. In a summation, having duly considered the two broad grounds of law on which this motion has been anchored and having resolved both of them against the Defendant, the motion is totally devoid of merit. The same fails and it is hereby dismissed. Appearances: Rotimi Ojo, Esq. (with Jacob Usang, Esq. and Mrs. Joy Umoren) for the Plaintiff. Alozie Nmerengwa, Esq. for the Defendant. UGOCHUKWU ANTHONY OGAKWU PRESIDING JUDGE 5