(2018) LPELR-44186(CA)

Transcription

1 CASCADE CONTROLS LTD & ANOR v. THE PORT HARCOURT CHAMBERS OF COMMERCE & ORS CITATION: In the Court of Appeal In the Port Harcourt Judicial Division Holden at Port Harcourt ISAIAH OLUFEMI AKEJU ON MONDAY, 19TH FEBRUARY, 2018 Suit No: CA/PH/572/2016 CORDELIA IFEOMA JOMBO-OFO BITRUS GYARAZAMA SANGA 1. CASCADE CONTROLS LIMITED 2. CHIEF ISAAC WONWU Before Their Lordships: Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal And 1. THE PORT HARCOURT CHAMBERS OF COMMERCE INDUSTRY, MINES AND AGRICULTURE (LIMITED BY GUARANTEE) 2. ENGR. EMEKA UNACHUKWU 3. ENGR. ERASMUS CHUKWUNDA RATIO DECIDENDI - Appellant(s) - Respondent(s)

2 1. COURT - COMPETENCE OF COURT: When will a Court be said to be competent; effect of defect in competence of Court "In the locus classicus case on jurisdiction, that is, GARBRIEL MADUKOLU & ORS V. JOHNSON NKEMDILIM (1962) L.P.E.L.R (SC) the Supreme Court when pronouncing on competence of a Court to exercise jurisdiction over a suit held thus: "Before discussing those portions of the record, I shall make some observations on jurisdiction and the competence of a Court. Put briefly, a Court is competent when (1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdictions; and (3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication". Per BAIRAMIAN JSC on pages 9-10 paragraphs F - D."Per SANGA, J.C.A. (Pp , Paras. C-C) - read in context 2. COURT - JURISDICTION: Effect of a court hearing a matter where it has no jurisdiction "Upon my finding above that the Respondents did not possess the locus standi to institute Suit No. FHC/PH/CS/84/2014 thus depriving the lower Court of jurisdiction it is needless for me to consider issue 2, 3, and 4. This is so because jurisdiction is the competence of a Court to entertain an action as anything done without jurisdiction is null and void."per SANGA, J.C.A. (P. 37, Paras. C-D) - read in context

3 3. JUDGMENT AND ORDER - ORDER OF COURT: Effect of disobeying an order of court "By virtue of valid and subsisting Orders of Lambo Akanbi J. issued on 10th February, 2014 in Suit No. FHC/CS/398/2012 which were upheld by this Court in Appeal No. CA/PH/64/2015 in its judgment delivered on 20th May, 2016, which the Respondents willfully and flagrantly refused to comply with the, 1st Respondent is divested of its powers as a going concern to exercise its legal right to institute a Suit since the position or offices of the 2nd and 3rd Respondents are still vacant. The 1st Respondent as an artificial person can only act through its Council or Executive Committee made up of its principal officers who are its alter ego. The 1st Respondent is therefore incapacitated and cannot exercise its rights without first complying with the binding Orders in Suit FHC/PH/CS/398/2012 which has put its right to sue in abeyance and thus robs the lower Court of its jurisdiction to entertain this suit. This Court held in RAINSON INDUSTRIES LTD V. ABIA STATE COMMISSIONER FOR HEALTH AND SOCIAL WELFARE & ORS (2014) LPELR (CA) at page 2 per Oho J.C.A. that: - "A company, it has been said, is an abstraction. It therefore acts through living persons... those persons who because of their positions are the directing minds and will of the company, the very ego and corporate personality of the company..." Also in THE MILITARY GOVERNOR OF LAGOS STATE & ORS V. CHIEF EMEKA ODUMEGWU OJUKWU & ANOR (1996) LPELR (SC) the Supreme Court held that a party cannot enforce his right while in flagrant disobedience of orders of a Court of competent jurisdiction. Therefore the holding by the learned trial Judge that this Suit No. FHC/PH/CS/84/2014 can be properly prosecuted by the 1st Respondent even when the names of the 2nd and 3rd Respondents are struck out is not the position of the law as seen in the holding of this Court in RAINSON INDUSTRIES LTD V. ABIA STATE COMMISSIONER FOR HEALTH AND SOCIAL WELFARE & ORS (Supra). The 1st Respondent in this Appeal is also the 1st Defendant in Suit No. FHC/PH/CS/398/2012 it is therefore bound by the orders made by the lower Court and this Court in Appeal No. CA/PH/64/2015. The said Respondents lacks the locus standi to bring this action when they are in flagrant disobedience of Court orders. The condition precedent that must be fulfilled before the Respondents can have locus standi and thus vest jurisdiction on the lower Court was not fulfilled."per SANGA, J.C.A. (Pp , Paras. B-B) - read in context

4 BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): Before the Federal High Court of Nigeria, Port Harcourt Judicial Division, Holden at Port Harcourt, A. M. LIMAN J. presiding, the Respondents instituted suit No. PHC/FH/CS/84/2014 as Plaintiffs against the Appellants as 1st set of Defendants (the 2nd set of Defendants were 1: FELASO FARMS LIMITED. 2: DR. FELIX O. FELIX) via an Originating Summons dated 14th April, 2014 claiming to be entitled to the following reliefs: - 1. A declaration that by virtue of the Articles of Association of the Port Harcourt Chamber of Commerce, Industry, Mines and Agriculture, (1st Plaintiff), every of its member is under a contractual obligation and duty to pay Annual subscription to it, particularly in the Month of January each year. 2. A declaration that the defendants having failed, neglected and refused to pay the said Annual subscription, particularly since the 31st of January, 2013 till date, ipso facto cease to be members and/or have forfeited their membership of the said 1st Plaintiff. 3. A declaration that defendants having forfeited their said membership as aforesaid, 1

5 are no longer entitled to attend the Annual General Meetings (AGM), Emergency General Meeting (EGM) or any of the properly constituted Committee meetings of the said 1st Plaintiff. 4. A declaration that the defendants having forfeited their said membership, are also not entitled to participate in any future elections of the Executive Committee or council of the 1st Plaintiff (PHCCIMA). 5. A declaration that by virtue of the said Articles of Association and the defendants having ceased to be members of 1st Plaintiff as aforesaid, same lack the competence, authority and powers to participate in the affairs, business and administration of the said 1st Plaintiff. 6. An order of injunction restraining: - a. The defendants from attending the Annual General Meetings (AGM), Emergency General Meetings (EGM), or any Committee Meetings of the said 1st Plaintiff. b. The defendants from participating in any electoral process involving the election, nomination and appointment of either the Executive members or council members of the said 1st Plaintiff. c. The defendants, their agents, privies or howsoever, from meddling and interfering in the 2

6 executive and administrative functions or duties of the 2nd and 3rd Plaintiffs who are president and Director General of the said 1st Plaintiff respectively. d. The defendants from gaining access or entry into the premises or administrative offices of the 1st Plaintiff. e. The defendants from utilizing the facilities and properties of the 1st Plaintiff. AND THE PLAINTIFFS REQUIRE THE DETERMINATION OF THE FOLLOWING QUESTIONS: 1. WHETHER THE DEFENDANTS HAVING FAILED, NEGLECTED OR REFUSED TO PAY THEIR ANNUAL MEMBERSHIP SUBSCRIPTION TO THE 1ST PLAINTIFF, PARTICULARLY, SINCE THE 1ST OF JANUARY 2013 TILL DATE, IPSO FACTO NOT CEASED TO BE MEMBERS OF THE SAID 1ST PLAINTIFF OR FORFEITED THEIR SAID MEMBERSHIP? 2. WHETHER THE DEFENDANTS ARE QUALIFIED OR ENTITLED TO ATTEND THE ANNUAL GENERAL MEETINGS (AGM), EMERGENCY GENERAL MEETINGS (EGM) OR THE Committee Meetings of PHCCIMA and/or participates in the affairs or business of the 1st Plaintiff, particularly in view of their aforesaid failure to pay the said Annual membership subscriptions as prescribed by the Articles of Association of the 1st Plaintiff? 3. WHETHER THE DEFENDANT ARE ENTITLED

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8 TO PARTICIPATE IN ANY FUTURE ELECTORAL PROCESS OF THE 1ST PLAINTIFF S EXECUTIVE COMMITTEE OR COUNCIL, particularly, in view of their aforesaid failure to pay the said Annual subscription? (See pages 2 3 of the record of appeal). A 34 paragraphs affidavit in support accompanied the said Originating Summons, attached to which are documents marked as Exhibits A, B and C respectively. Learned counsel to the Plaintiffs also filed a written address in support of the Originating Summons. (pages 4 to 61 of the record of appeal). The 1st set of Defendants (now appellants) filed a counter affidavit in opposition to the Originating Summons containing 11 paragraphs on 3rd July, 2014, attached to which are documents marked as Exhibits CAS1, CAS2, CAS3 and CAS4 respectively. A written address accompanied the counter affidavit. The Plaintiffs filed a Further Affidavit in Reply to the Counter Affidavit and a Reply on Points of Law. (pages of the records). What gave rise to the filing of this appeal is a Notice of Preliminary Objection 4

9 filed by G.I. Abibo Esq. SAN learned counsel to the 1st set of Defendants praying the lower Court for the following: - 1. An Order of this Hon. Court dismissing this suit for want of jurisdiction to entertain same. 2. An Order of this Hon. Court dismissing this suit for constituting an Abuse of Court Process. Attached to the Notice of Preliminary Objection is a 13 paragraphs affidavit in support and a written address. (pages of the record of appeal). The Plaintiffs filed a 7 paragraphs Counter Affidavit in opposition to the Notice of Preliminary Objection, attached to which are documents marked as Exhibits I, II, III and IV respectively. (pages 95 to 99 of the records). A written address accompanied the counter affidavit. The 1st set of Defendants filed a Further Affidavit in support of the Notice of Preliminary Objection and a Reply on Points of Law. (pages of the Records). On 18th April, 2016, learned counsel to the parties adopted their respective written address in respect to the Originating Summons and Notice of Preliminary Objection. (pages 169A to 169B of the record of appeal). Judgment was delivered by 5

10 the learned trial Judge on 27th June, 2016 on pages 172 to 196 of the record of appeal. While dismissing the Preliminary Objection the learned trial Judge held, inter alia, that: - Having held that the election of the 2nd and 3rd plaintiffs in 2012 was not annulled and they were not restrained I must resolve the question whether this action is incompetent on grounds of Res Judicata, or plaintiffs lack locus standi and/or the suit constitutes abuse of Court process in the negative, upholding the competence of the suit and dismissing the preliminary objection. I need not explore the legal principles canvassed by parties or apply them to the facts which form the praxis of the objection, since it is unnecessary to do so, the basis of which being the previous judgment of the Court has been found not to have negatively implicated the capacity in which the plaintiffs are claiming against the defendants." As for the Originating Summons, the learned trial Judge found thus: - Payment of subscription under Clause of the Article of Association of the 1st plaintiff is sine qua non to a valid membership. The Article, without 6

11 further assurances makes no automatic cesser (sic) of membership when a member neglects or refuses for four months to pay the prescribed annual subscription. In this case either way it is looked at, the 1st and 2nd defendants, having failed to pay for the monthly subscription of 1st defendant since 2012 till the 16th day of April, 2014 when this suit was filed; and up till now, there is no arrears or the defendant having automatically forfeited its seat, it has been readmitted on paying the amounts due and upon affirmative decision of council to that effect after payment of the mandatory readmission fees." In the absence of the above qualifying conditions for readmission, I find it difficult to decide otherwise that the 1st defendant s membership has not ceased, and its rights as member of the plaintiff have not been forfeited. Also gone with it is the privilege of the 2nd defendant to represent the 1st defendant on the 1st plaintiff. In the light of above, I hereby answered the true questions in the affirmative against the 1st and 2nd defendants and consequently also grant all the reliefs sought against 7

12 them." This decision aggrieved the 1st set of defendants. Their counsel filed a Notice of Appeal containing nine grounds of appeal which, shorn of their particulars, read as follows: - 1: GROUND ONE: ERROR IN LAW: The learned Judge erred in law and this cause a gross miscarriage of justice when he dismissed the Appellants Objection and held that the 2nd and 3rd Respondents had locus standi and are properly constituted to present the 1st Respondent based on the election of the 1st Respondent held in 2012 when the Judgment of Federal High Court Port Harcourt in Suit No. FHC/PH/CS/398/2012 attached as EXHIBIT 1 in the Respondent s Counter Affidavit which is still subsisting specifically annulled the election of the 1st Respondent held on the 21st of November, 2012 during the pendency of the Suit. 2: GROUND TWO: The learned Judge misdirected himself in law and this occasioned a gross miscarriage of justice when he enquired into the judgment of Hon. Justice Lambo Akambi (Rtd) of the Federal High Court in Suit No. FHC/PH/CS/398/2012 and thereby reached the conclusion that the Appellants never contended that the election 8

13 of 21st November, 2012 violated any of the provision of the Articles of Association but that the election was merely an issue raised during the trial, thereby sitting as an Appeal Court on the Judgment of the same Court and making a case for the Respondents without evidence. 3: GROUND THREE: The Learned Judge erred in law and this resulted in a clear miscarriage of justice when it held that the Respondents had the locus standi to institute this action based on the elections of 21st November, 2012 and that the suit is properly constituted when the Respondents did not produce any proof of the material details of that election in evidence. 4: GROUND FOUR: The Learned Judge erred in law and this resulted in a miscarriage of justice when it held that the 2nd Respondent became the President of the 1st Respondent by virtue of election held on the 21st of November, 2012 when the Respondents pleaded in evidence (without documentary proof) that the 2nd Respondent became the President of the 1st Respondent from becoming the 2nd Deputy President of 1st Respondent in 2006 and then attained the position of President by effluxion of time. 9

14 5: GROUND FIVE: The Learned Judge erred in law and this resulted in a gross miscarriage of law when it dismissed the Appellants Preliminary Objection and held that the Respondents are properly constituted when the 3rd Respondent who deposed to the affidavit in support, failed to show proof of how he acquired the capacity to institute the suit as an officer of the 1st Respondent. 6: GROUND SIX: The Learned Judge erred in law and this resulted in a miscarriage of justice when it held that the 1st Respondent as a legal entity can maintain the action notwithstanding the striking out of the 2nd and 3rd Respondents names even in the light of the authorities presented to the Court to the effect that a company can only act through its alter egos and that the 2nd and 3rd Respondents can only alter the joinder of parties not the competence of the suit. 7: GROUND SEVEN: The Learned Judge misdirect himself in law when he discountenanced the entire paragraph 3 of the Appellants Further Affidavit in Support of the Preliminary Objection for being legal arguments when not urged by any of the parties and/or presented by the Respondent 10

15 and the Court failed to apply the same principle to the Respondent s affidavit in support of Originating Summons, Further Affidavit in support of Originating Summons and counter affidavit in opposition of Preliminary Objection which are all replete with arguments and legal conclusions and clearly resulted in an uneven determination in the case of the parties. 8: GROUND EIGHT: The Learned Judge erred in law and this occasioned a gross miscarriage of justice when it held that the Respondents had the locus standi and were properly constituted to institute the case despite the previous judgment of this Honourable Court in Suit No. FHC/PH/CS/398/2012 BETWEEN CASCADE CONTROLS LIMITED & ANOR vs. PORT HARCOURT CHAMBERS OF COMMERCE & 8 ORS which had decided a similar matter bothering on the same subject matter between the same parties. 9: GROUND NINE: The Judgment of the lower Court is against the weight of evidence adduced. (pages 197 to 206 of the record of appeal). The Record of Appeal was compiled and transmitted to this Court on 18/11/2016 but it was deemed as duly compiled and transmitted on 19th October 2011 vide a 11

16 motion filed on 10/3/2017. The Appellants filed their brief of argument on 16th March, Upon being served with the Respondents brief, they filed a Reply Brief on 21st June, The Respondents Brief of Argument was filed on 24th April, Sequel to the order of this Court deeming the record of appeal on 19/10/2017 the briefs of argument filed by the parties were consequentially deemed on that date as well. The brief facts of this suit is that on 16/4/2014 the Respondents filed Suit No. FHC/PH/CS/84/2014 against the Appellants as 1st set of Defendants and Another as 2nd set of Defendants claiming that both sets of Defendants failed to pay into the coffers of the Plaintiffs/Respondents the Annual subscription for the years 2013 and 2014 respectively thus forfeiting their membership of the said 1st Plaintiff/Respondent. The implication of forfeiting their membership of 1st Respondent is that they are not entitle to participate in any further elections of the Executive Committee or Council of the 1st Respondent. Therefore they ceased to be members of 1st Plaintiff and lacks the competence, authority and powers to participate in the 12

17 affairs, business and administration of the said 1st Respondents. The Respondents sought for injunctive reliefs against the Appellants e.g. barring them from attending Annual General Meetings (AGM), Emergency General Meetings (EGM), or any Committee Meetings of the 1st Respondent etc. In response to the Originating Summons, the Appellants filed a Counter Affidavit and Written Address. They deposed that they have issued cheques for payment of their Annual Subscription in the name of 1st Respondent but the said cheques were returned back because they (Appellants) filed a Suit No. FHC/PH/CS/398/2012 wherein they, inter alia, challenged the election that brought the 2nd and 3rd Respondents into leadership position of the 1st Respondent. The Appellants also attached Exhibit C which exhibited the names of several members of the 1st Respondent who did not pay their Annual Subscription but were not sanctioned by the Respondents. That the lower Court entered judgment against the Respondents wherein it also nullified the election that brought the 2nd and 3rd Respondents to leadership position of the 1st Respondent conducted on 21st November,

18 during the pendency of Suit No. FHC/PH/398/2012. The Appellants then filed a Notice of Preliminary Objection challenging the competence of Suit No. FHC/PH/CS/84/2014 since the parties and subject matter are the same with Suit No. FHC/PH/CS/398/2012 which was earlier instituted by the Appellants. That in that suit, the lower Court had on 10th February, 2014 in its judgment, issued injunctive reliefs against the 2nd to the 9th Defendants (including the 2nd and 3rd Respondents) restraining them from constituting the Council and Executive Committee of the 1st Respondent and went ahead to annul the election conducted by officials of 1st Respondent (including 2nd and 3rd Respondents) held on 21/11/2012. The Respondents appealed that decision of L. Akambi J. before this Court in Appeal No. CA/PH/64/2015. On 20th May, 2016 this Court in a well considered decision upheld the judgment in Suit No. FHC/PH/CS/398/2012 and dismissed the Respondents appeal. That this state of affairs was brought to the attention of the learned trial Judge but he went ahead to grant the reliefs sought by the respondents in their Originating Summons and dismissed the Notice 14

19 of Preliminary Objection. In their brief of argument, the Appellants formulated four issues out of the nine grounds of appeal as follows: - 1: Whether the lower Court was right in law to hold that the Respondents had the requisite locus standi to maintain the action in the lower Court notwithstanding the subsisting judgment of the same Court in Suit No. FHC/PH/CS/389/2012 delivered on the 10th of February, : Whether the lower Court was right in law to have enquired into the judgment of the same Court delivered in Suit No. FHC/PH/CS/389/2012 Between CASCADE CONTROLS LTD & ANOR V. PORT HARCOURT CHAMBERS OF COMMERCE, MINE AND INDUSTRY & ORS and in so doing introduced facts and evidence not relied upon by the Respondents. 3: Whether the lower Court was right in law to have discountenanced the entire paragraph 3 of the Appellants Further Affidavit in support of the Preliminary Objection without being urged to so do but failed to apply the same principle to the Respondents Affidavits. 4: Whether the judgment in Suit No. FHC/PH/CS/389/2012 Between CASCADE CONTROLS LTD & ANOR V. PORT HARCOURT CHAMBERS OF COMMERCE, 15

20 MINE AND INDUSTRY & 8 ORS operates as a bar to the Respondents right to institute this matter in the Court below and thus constitutes Estoppel Per Rem Judicata. On their part the Respondents raised three issues as follows:- 1: Whether Suit No. FHC/PH/CS/84/2014 instituted by the Respondents in this case was rightly held by the lower Court to be competent? (Grounds 1, 3, 4, 5, 6, & 8) 2: Whether by the facts and circumstances of this case the lower Court rightly enquired into the judgment delivered in the said Suit No. FHC/PH/CS/389/2012 Between CASCADE CONTROLS LTD & 1 OR V. PORT HARCOURT CHAMBERS OF COMMERCE, MINE AND INDUSTRY & 8 ORS to arrive at the right decision in this case? (Ground 2) 3: Whether paragraph 3 of the Appellants Further Affidavit in support of Notice of Preliminary Objection was rightly struck out by the lower Court for constituting legal arguments. (Ground 7) A careful consideration of the issues canvassed by the Respondents shows that they are similar with issue 1 to 3 of the Appellants. I will therefore adopt the issues canvassed by the appellants in determining this appeal. 16

21 Whether the lower Court was right in law to hold that the Respondents had the requisite locus standi to maintain the action in the lower Court notwithstanding the subsisting judgment of the same Court in Suit No. FHC/PH/CS/389/2012 delivered on the 10th of February, In his submission on this issue, learned counsel to the Appellants argued that jurisdiction is the livewire of any matter for adjudication since it pertains to authority of a Court to decide a matter. Cited S.P.D.C. LTD V. HELLULU A. BUKUMA FISHERMEN SOCIETY LTD (2001) FWLR {Pt. 79} 975. Learned counsel also cited the holding of the Supreme Court on what cloth the Court with jurisdiction in MADUKOLU V. NKEMDILIM (1962) 26 CNLR 341. That if there is any legal impediment in the manner a suit is constituted before a Court then such will rob the Court of its jurisdiction. That where a plaintiff lacks locus standi to institute a matter before a Court of competent jurisdiction, it also inhibits on the court s authority to entertain an action. That in ADENUGA & ORS V. ODUMERU & ORS (2003) FWLR {Pt. 158} 1288 the apex Court held that locus standi is unquestionably a threshold 17

22 issue and lack of it robs a Court or Tribunal of the authority to adjudicate on an action. Cited OPIC & ORS V. ATUNRASE PETROLEUM & ALLIED PRODUCTS LTD (2003) FWLR {Pt. 140} That on page 1020 the Black s Law Dictionary (9th edition) defines locus standi as: The right to bring an action or be heard in a given forum. That the Preliminary Objection of the Appellants before the lower Court is to the effect that the Federal High Court, Port Harcourt had entered judgment on 10/2/2014 against the Respondents where it found that the election conducted by the 1st Respondent on 18/11/2009 was not conducted in accordance with the Articles of Association of the 1st Respondent. The lower Court then declared the Constitution of the members of the Executive Committee and Council of the said 1st Respondent null and void. It ordered the 1st Respondent to immediately conduct on election into the Executive Committee 1st Respondent appealed this judgment to this Court in Appeal No. CA/PH/64/2015. On 20/5/2016 this Court dismissed the appeal. That both the judgment of the lower Court in Suit No. FHC/PH/CS/389/2014 and of this Court in 18

23 Appeal No. CA/PH/64/2015 are subsisting and binding on parties and non-parties alike until set aside. Cited GBEMISOLA V. BOLARINWA (2014) All FWLR {Pt. 741} 477 SC. That the lower Court held that the suit before it would have been properly constituted even if the names of the 2nd and 3rd Respondents are to be struck out. Learned counsel submitted that this holding by the learned trial Judge is wrong. That the 1st Respondent is a juristic person but it can only act through its staff, agents or servants whose acts can bind it. Cited FIRST BANK OF NIGERIA PLC V. TSOKWA (2003) FWLR {Pt. 1530} 205; and MOKWE V. EZEUKO (2001) FWLR {Pt. 38} Learned counsel urged this Court to resolve this issue in favour of the Appellant. In their submission on their issue one, learned counsel to the Respondents contended that the objection by the Appellants was premised on the wrong notion and misconception that the Respondents lacked locus standi to maintain Suit No. FHC/CS/84/2014 and that the subject matter of the said suit was res judicata. That this misconception by the appellants is based on their reliance on the judgment delivered in Suit No. FHC/PH/CS/389/

24 That in Suit No. FHC/PH/CS/398/2014, the learned trial Judge had overruled the objection raised by the Appellants. Learned counsel quoted large portions of the judgment of A. M. Liman J. and submitted that in the determination of a plaintiffs locus standi to maintain an action, the Court is expected to rely only on the originating process containing the claim of the Plaintiffs which in the instant suit is the Originating Summons and affidavit in support. Learned counsel cited and quoted portions of the following judicial authorities: - (1) FAWEHINMI V. PRESIDENT FRN (2008) 23 WRN 65 at 109 lines 20 30, where the Court held thus: - In ascertaining whether the Plaintiff in an action has locus standi, it is necessary to examine the statement of claim filed in Court to see if it discloses a cause of action vested on him. Thus only the plaintiff s statement of claim should be looked into to see if the plaintiff has locus standi to institute the action." Learned counsel also cited the Supreme Court decision in ADESOKAN V. ADEGOROLU (1997) 3 NWLR {Pt. 493} 261 at 278 per Ogundare JSC thus: - To determine 20

25 whether the plaintiff has locus standi, it is to the statement of claim one looks." He also cited and quoted the following authorities 1: EGHOBAMIEN V. EGHOBAMIEN (2013) 3 NWLR {Pt. 1341} 362 at 376 paragraphs B D. 2: GOVT. OF KOGI STATE V. ADAVI L.G.C. (2005) 16 NWLR {Pt. 951} 327 at paragraphs H-B. He urged this Court to determine the issue of locus standi to maintain this suit by looking only at the following processes filed by the Respondents at the lower Court. (a) The Originating Summons dated 14/4/2014 filed on 16/4/2014. (b) The 34 paragraphs affidavit in support of the Originating Summons deposed to by the 3rd Respondent on 16/4/2014 (pages 1 4 of the record of appeal). (c) Further affidavit in support of Originating Summons deposed to by 3rd Respondent on 25/9/2014. (pages of the record of appeal). That based on the substantive claim before the lower Court which is for the determination of whether the 1st Appellant s company who failed to pay its annual subscription had not ipso facto ceased to be a member of the 3rd respondent s company, learned counsel 21

26 quoted most of the affidavit in support of the Originating Summons deposed to by the 3rd Respondent in paragraph 4.04 pages 9 to 14 of his brief. He submitted that the deposition he copiously quoted sufficiently established the locus standi of the Respondents to maintain the suit, which is specifically based on the membership status of the 1st Appellant who violated and breached the Articles of Association of the 1st Respondent when he neglected, refused and failed to pay its annual subscription. Therefore it is within the right of the 2nd and 3rd Respondents to seek legal remedies for and on behalf of the 1st respondent. Learned counsel submitted that since the substantive claim was in respect of the 1st Respondent legal right and/or pecuniary interest, the joinder of the 2nd or 3rd Respondent as plaintiffs in the suit was a surplus requirement for maintaining the said action. That in the unlikely event this Court hold that the 2nd and 3rd Respondents lacked locus standi to institute the said suit learned counsel to respondents contend that the said action can be maintained by the 1st Respondent as sole plaintiff. This is because as a legal entity the 22

27 said 1st Respondent can sue or be sued in its name. Consequently, to file a competent suit, it does not need the 2nd and 3rd respondents to be joined as co-plaintiffs. Cited ABACHA V. FEDERATION (2014) 8 NWLR {Pt. 1438} 31 at 49. That the locus standi of the Respondent to maintain the suit before the lower Court was not effectively challenged by the Appellants. That the deponent to the affidavits of the Appellants, one Courage Ijogi is not a member of the 1st Respondent and is not competent to testify concerning the internal affairs, resolutions, meetings, elections, business and management of the 1st Respondent. He urged the Court to discountenance the depositions of the said Courage Ijogi for constituting hearsay or opinion evidence. That the two suits before the lower Court were not in respect of the same issues or subject matter. While Suit No. FHC/PH/CS/398/2012 challenged the decision reached by the 1st Respondent during its 52nd Annual General Meeting held on 18th November, 2009 and its failure to render and publish its yearly accounts, Suit No. FHC/PH/CS/84/2014 challenged the membership status of the 1st Appellant who failed to pay its 23

28 membership subscription to the 1st Respondent. That the reliefs sought also differs. That the law is trite that for a civil suit to be defeated on grounds of res judicata certain basic and essential ingredients must be shown to co-exist and failure to establish anyone of these ingredients will defeat such an application. Learned counsel listed the ingredients and cited in support the authorities of GEGE V. NANDE (2006) 10 NWLR {Pt. 953} 256; LONG JOHN V. BLAKK (2005) 17 NWLR {Pt. 953} 1 at 14 and ANWOYI V. SHODEKE (2006) 13 NWLR {Pt. 996} 34. Learned counsel finally submitted on this issue that the lower Court was right in discountenancing the Preliminary Objection raised by the Appellant. He urged the Court to resolve this issue in favour of the respondents. I have considered the submission by learned counsel to the Appellants in their Reply Brief while replying the respondents submission in their brief of argument. I will encompass same in determining this issue. FINDINGS ON ISSUE 1: Issue 1 formulated by the Appellants is: - Whether the lower Court was right in law to hold that the Respondents had the requisite locus standi 24

29 to maintain the action in the lower Court notwithstanding the subsisting judgment of the same Court in Suit No. FHC/PH/ CS/389/2012 delivered on the 10th of February, 2014? To answer the question posed by this issue, I have to consider the judgment in Suit No. PHC/PH/CS/389/2012 delivered on 10/2/2012 whether it bars or prevents the Respondents from instituting Suit No. FHC/PH/CS/84/2014. The judgment is on pages of the record of appeal. It was delivered by Lambo Akambi J. on 10th February, The parties in that suit are as follows: - SUIT NO. FHC/PH/CS/398/2012 BETWEEN 1. CASCADE CONTROLS LIMITED 2. CHIEF ISAAC WONWU - PLAINTIFFS AND 1. THE PORT HARCOURT CHAMBER OF COMMERCE, INDUSTRY, MINES AND AGRICULTURE ( Limited by Guarantee ) 2. ENGR. VINCENT FURO 3. ENGR. EMEKA UNACHUKWU 4. DR. RENNY COOKEY 5. MRS. STELLA AGADA 6. MAZI BANK ANTHONY OKOROAFOR 7. DR. CHINYERE NWOGA 8. MR. ERASMUS CHUKUNDA 9. PRINCE BILLY GILLIS-HARRY - RESPONDENT (page 100 of the record of appeal)

30 Upon carefully scrutinizing the parties in that suit vis-à-vis this 25

31 suit I discovered that the plaintiffs are the 1st set of Defendants. The 1st, 3rd and 8th Respondents are the Plaintiffs, now Respondents. That suit was also commenced by Originating Summons dated 24th October, 2012 wherein the Plaintiffs approached the lower Court for a determination of the following critical questions: - 1: Whether in view of Articles and of the Articles of Association and Section 3 of the Bye-Laws of the 1st Defendant and other rules of law relating thereto, the Constitution of the Council and the Executive Committee of the 1st Defendant must be by election or by selection. 2: Whether the selection of the present members of the Council and the Executive Committee of the 1st Defendant (including the 2nd to 7th Defendants) at the 52nd PHCCIMA Annual General Meeting held on 18th November 2009 at Hotel Presidential is not ultra vires the Articles of Association and Bye-Laws of the 1st Defendant and therefore arbitrary, unlawful, null and void. 3: Whether by virtue of Article 11 of the Articles of Association and Section 2 of the Bye-Laws of the 1st Defendant, it is not mandatory for the Defendant to render yearly 26

32 accounts and to publish and deliver to the Plaintiffs the financial statements including income and expenditure of the 1st Defendant. 4: Whether the failure, neglect and/or refusal of the Defendants to render, publish and deliver the yearly accounts and financial statements including the income and expenditure of the 1st Defendant to the Plaintiffs is not contrary to the Articles of Association and Bye-Laws of the 1st Defendant and therefore arbitrary, unlawful and illegal. (page 101 of the record of appeal) The Plaintiffs were seeking for 9 reliefs, reliefs 1, 2, 3, and 6 are as follows: - 1: A declaration that in view of Articles and of the Articles of Association and Section 3 of the Bye-Laws of the 1st Defendant and other rules of law relating thereto, the Constitution of the Council and the Executive Committee of the 1st Defendant must be by election. 2: A declaration that the selection of the present members of the Council and the Executive Committee of the 1st Defendant (including the 2nd to 7th Defendants) at the 52nd PHCCIMA Annual General Meeting held on 18th November, 2009 at Hotel Presidential is ultra vires the 27

33 Articles of Association and Bye-Laws of the 1st Defendant and therefore arbitrary, unlawful, null and void. 3: AN ORDER OF JUNCTION restraining the Defendants from constituting the Council and the Executive Committee of the 1st Defendant by any other means other than by election in line with the Articles of Association and Bye-Laws of the 1st Defendant. 6: AN ORDER compelling the Defendants to immediately conduct an election into the Council and the Executive Committee of the 1st Defendant in line with the Articles of Association and Bye-Laws of the 1st Defendant. (pages of the record of appeal). As I stated above, judgment was entered by the lower Court in Suit No. FHC/PH/CS/398/2012 in favour of the Plaintiffs (now Appellants) on 10/2/2014 wherein all the reliefs sought were granted. Some of the reliefs as contained on the Judgment Order on pages 91 to 94 of the record of appeal are as follows: - 1. That in view of Articles and of the Articles of Association and Section 3 of the Bye-Laws of the 1st Defendant and other rules of law relating thereto, the Constitution of the Council and the Executive Committee of 28

34 the 1st Defendant must be by election and not by selection. 2. That the selection of the present members of the Council and the Executive Committee of the 1st Defendant (including the 2nd to 7th Defendants) at the 52nd PHCCIMA Annual General Meeting held on 18th November, 2009 at the Hotel Presidential ultra vires the Articles of Association and Bye-Laws of the 1st Defendant and therefore arbitrary, unlawful, null and void. 3. That the Defendants be and are hereby restrained from constituting the Council and the Executive Committee of the 1st Defendant by any other means other than by election in line with the Articles of Association and Bye-Laws of the 1st Defendant. 6. That the Defendants be (sic) are hereby ordered to immediately conduct an election into the Council and the Executive Committee of the 1st Defendant in line with the Articles of Association and Bye-Laws of the 1st Defendant. 9. That the Annual General Meeting of the 1st Defendant held on Wednesday the 21st day of November, 2012 in Atlantic Hall of the Hotel Presidential Port Harcourt during the pendency of this suit be and is hereby declared null and void as if it never took 29

35 place. (pages of the record of appeal) It is my findings that these orders issued by the Federal High Court Port Harcourt Judicial Division on 10th February, 2014 are to the effect that: - 1. By the provisions of Articles and of the Articles of Association and Section 3 of the Bye-Laws of the 1st Defendant (1st Respondent in this appeal) the Constitution of the Council and Executive Committee of the 1st Respondent MUST be by election and not by selection. (underlined for emphasis). 2. The selection of the members of the Council and Executive Committee of the 1st Respondent during its 52nd Annual General Meeting held on 18th December 2009 at Hotel Presidential is ultra vires the Articles of Association and Bye-Laws of the said 1st Respondent and therefore arbitrary, unlawful, null and void. (underlined for emphasis). 3. The Defendants (including the 2nd and 3rd Respondents in this appeal) are restrained from constituting the Council and Executive Committee of the 1st Respondent by any other means than by election in line with the Articles of Association and Bye-Laws of the said 1st Respondent (also 30

36 underlined for emphasis). 4. The Defendants (including the 2nd and 3rd Respondents) are ordered to immediately conduct an election into the Council and the Executive Committee of the 1st Defendant (now 1st Respondent) in line with Articles of Association and Bye-Laws of the 1st Defendant (now 1st Respondent) (underlined for emphasis). 5. The Annual General Meeting of the 1st Defendant (now 1st Respondent held on 21st November, 2012 in the Atlantic Hall of Hotel Presidential Port Harcourt during the pendency of Suit No. FHC/PH/CS/398/2012 was declared null and void as if it never took place. (also underlined for emphasis) These clear and unambiguous orders were issued against the Respondents by Lambo Akanbi J. on 10th February, The Defendants in that suit, (amongst which are the Respondents to this appeal) were aggrieved with the decision of Lambo Akanbi J., in Suit No. FHC/PH/CS/398/2012. They filed an appeal before this Court in Appeal No. CA/PH/64/2015. On 20th May, 2016 this Court delivered its judgment wherein it dismissed the appeal. There is no evidence that the Respondents filed a further appeal to the Supreme Court. The crux of 31

37 the matter is that the Respondents did not comply with any of the orders of the lower Court before or after their appeal was dismissed. That judgment of Lambo Akanbi J., still subsist in view of the decision of this Court dismissing the appeal against it. Rather than appeal further to the apex Court or comply with the Orders of the lower Court in Suit No. FHC/PH/CS/398/2012 the Respondents instituted this Suit No. FHC/PH/CS/84/2014 without complying with the clear orders of the lower Court in FHC/PH/CS/398/2012. In the locus classicus case on jurisdiction, that is, GARBRIEL MADUKOLU & ORS V. JOHNSON NKEMDILIM (1962) L.P.E.L.R (SC) the Supreme Court when pronouncing on competence of a Court to exercise jurisdiction over a suit held thus: Before discussing those portions of the record, I shall make some observations on jurisdiction and the competence of a Court. Put briefly, a Court is competent when (1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject matter of the case is within its jurisdiction, and 32

38 there is no feature in the case which prevents the Court from exercising its jurisdictions; and (3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication. Per BAIRAMIAN JSC on pages 9 10 paragraphs F D. It is clear as crystal from the facts of this suit as I narrated above that the Respondents did not fulfill some conditions precedent before instituting this suit. The conditions as stated above are: - (1) Failure to conduct elections into the Council or Executive Committee of the 1st Respondent. (2) The selection of the 2nd and 3rd Respondents among others during the 52nd Annual General Meeting of the 1st Respondent held on 18th November, 2009 ultra vires the Articles of Association and Bye-Laws of the 1st Respondent, therefore that selection which was declared arbitrary, unlawful, null and void by the lower Court in Suit No. FHC/PH/CS/398/2012 still subsists. In other 33

39 words the selection of 2nd and 3rd Respondents is arbitrary, unlawful, null and void. (3) The Respondents were restrained by Lambo Akanbi J. in Suit No. FHC/PH/CS/398/2012 from constituting the Council and Executive Committee of 1st Respondent by any other means other than by election as provided by the Articles of Association and Bye-Laws of the 1st Respondent. (4) The Respondents were ordered to immediately conduct an election into the Council and the Executive Committee of the 1st Respondent in line with its Articles of Association and Bye-Laws. These are the conditions precedent that must be fulfilled by the Respondents before the lower Court can have jurisdiction to entertain any suit instituted by them. It is obvious that this flagrant disobedience to Court orders issued by Lambo Akanbi J. in Suit No. FHC/PH/CS/398/2012 were not contained in the Originating Summons and affidavit in support thereof of the Respondents when they instituted Suit No. FHC/PH/CS/84/2014. But when the attention of the learned trial Judge was drawn to this anomaly via a Notice of Preliminary Objection by Appellant it is expected that he should have honourably 34

40 divested himself of the jurisdiction to hear and determine that suit since the Plaintiffs before him were and are still in contemptuous disobedience to Court orders issued by a Court of competent jurisdiction. By virtue of valid and subsisting Orders of Lambo Akanbi J. issued on 10th February, 2014 in Suit No. FHC/CS/398/2012 which were upheld by this Court in Appeal No. CA/PH/64/2015 in its judgment delivered on 20th May, 2016, which the Respondents willfully and flagrantly refused to comply with the, 1st Respondent is divested of its powers as a going concern to exercise its legal right to institute a Suit since the position or offices of the 2nd and 3rd Respondents are still vacant. The 1st Respondent as an artificial person can only act through its Council or Executive Committee made up of its principal officers who are its alter ego. The 1st Respondent is therefore incapacitated and cannot exercise its rights without first complying with the binding Orders in Suit FHC/PH/CS/398/2012 which has put its right to sue in abeyance and thus robs the lower Court of its jurisdiction to entertain this suit. This Court held in RAINSON INDUSTRIES LTD V. 35

41 ABIA STATE COMMISSIONER FOR HEALTH AND SOCIAL WELFARE & ORS (2014) LPELR (CA) at page 2 per Oho J.C.A. that: - A company, it has been said, is an abstraction. It therefore acts through living persons.. those persons who because of their positions are the directing minds and will of the company, the very ego and corporate personality of the company Also in THE MILITARY GOVERNOR OF LAGOS STATE & ORS V. CHIEF EMEKA ODUMEGWU OJUKWU & ANOR (1996) LPELR 3186 (SC) the Supreme Court held that a party cannot enforce his right while in flagrant disobedience of orders of a Court of competent jurisdiction. Therefore the holding by the learned trial Judge that this Suit No. FHC/PH/CS/84/2014 can be properly prosecuted by the 1st Respondent even when the names of the 2nd and 3rd Respondents are struck out is not the position of the law as seen in the holding of this Court in RAINSON INDUSTRIES LTD V. ABIA STATE COMMISSIONER FOR HEALTH AND SOCIAL WELFARE & ORS (Supra). The 1st Respondent in this Appeal is also the 1st Defendant in Suit No. FHC/PH/CS/398/2012 it is therefore bound 36

42 by the orders made by the lower Court and this Court in Appeal No. CA/PH/64/2015. The said Respondents lacks the locus standi to bring this action when they are in flagrant disobedience of Court orders. The condition precedent that must be fulfilled before the Respondents can have locus standi and thus vest jurisdiction on the lower Court was not fulfilled. Therefore it is my finding on this issue that it is resolved in favour of the Appellants. Upon my finding above that the Respondents did not possess the locus standi to institute Suit No. FHC/PH/CS/84/2014 thus depriving the lower Court of jurisdiction it is needless for me to consider issue 2, 3, and 4. This is so because jurisdiction is the competence of a Court to entertain an action as anything done without jurisdiction is null and void. It is therefore the judgment of this Court that this appeal is meritorious, it is hereby allowed. All the reliefs contained in the Notice of Preliminary Objection filed on 23rd June, 2014 by the Appellants before the lower Court are granted as prayed. Suit No. FHC/PH/84/2014 is hereby struck out. The judgment of the lower Court delivered on 27th June, 2016 is 37

43 hereby set aside. The Appellants are entitled to cost which I assessed at N100,000 against the Respondents jointly and severally. ISAIAH OLUFEMI AKEJU, J.C.A.: I read the judgment of my learned brother, BITRUS GYARAZAMA SANGA JCA before it was delivered. I agree with the reasoning of my learned brother and the conclusion that the appeal is meritorious. I allow the appeal and abide by the consequential orders. CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the advantage of reading in draft the lead judgment just delivered by my learned brother Bitrus Gyarazama Sanga, JCA. I agree entirely with the reasoning and conclusion arrived thereat. I abide by the consequential order made as to costs. 38

44 Appearances: C. E. EZE ESQ. with him, E.E. BRIGGS ESQ. and B.O. UGBARI ESQ. For Appellant(s) D. TELLA ATTONI ESQ. For Respondent(s)