CHIEF DR IRENE THOMAS & ORS (APPELLANT)
THE MOST REVEREND TIMOTHY OMOTAYO OLUFOSOYE (RESPONDENT)
(1986) All N.L.R. 261
Division: Supreme Court of Nigeria
Date of Judgment: 14th February, 1986
Case Number: (SC.241/1985)
Before: Obaseki, Eso, Uwais, Kawu, Oputa, JJ.S.C.
The appellants all communicants of the Anglican Communion within the Diocese of the Anglican Communion observing that certain proceedings laid down by the Constitution of the Church leading to the election of a new bishop were not complied with. They therefore claim
(1) a declaration that the appointment of Rt. Rev. Bishop Joseph Abiodun Adetiloye as the Bishop of Lagos by the defendant is unconstitutional, null, and void and of no effect and
(2) an injunction restraining the defendant, his servants, agents, privies or whosoever from enthroning and or installing, or translating to the seat of Lagos Rt. Rev. Bishop Joseph Abiodun Adetiloye.
The issues raises in the grounds of appeal for determination are
(1) Whether the appellants have in their statement of claim disclosed their locus standi or standing to institute the action.
(2) If they have disclosed their locus standi, whether they have in their statement of claim disclosed any reasonable cause of action against the respondent.
(1) The existence or non-existence of the locus standi of any person suing determine whether or not the plaintiffs will be allowed to continue the litigation and be given a hearing. He can only invoke the judicial powers of the Court if any obligations of plaintiff is raised on the pleadings.
(2) To entitle a person to invoke judicial power, he must show that either his personal interest will immediately be or has been adversely affected by the action or that he had sustained an injury to himself, and which interest and injury is over and above that of the general republic.
(3) It is not enough for the appellants to state that they are all communicants of Anglican Communion. They have to go further and state that they have interest in the office of the Bishop of the Diocese and how their interest arose and has been adversely affected by the translation of the Rt. Rev. Adetiloye to the see of Lagos Diocese.
(4) Learned Counsel having submitted that the case was not a challenge to the validity of the election by the House of Bishops and averred that the appellants were not interested in any particular candidate knocked the bottom out of his case and set himself an impossible task of establishing the necessary interest the appellants must posses to give them locus standi to institute the action against the defendant.
Obaseki, J.S.C.-On the 18th day of December, 1985, this appeal came up for hearing before this Court orally. After hearing the arguments and submissions of learned Counsel for the appellants and learned Counsel for the respondent, I came to the decision that there was no merit in the appeal and I accordingly dismissed it and adjourned the delivery of my reasons for the judgment till today.
The sole issue for determination in this matter which fell within a very narrow compass was whether on the pleadings filed by the appellants who were plaintiffs in the action filed in the High Court of Lagos State, Lagos, the locus standi of the plaintiffs to institute the action was disclosed. This issue is of great legal importance as the existence or non-existence of the locus standi of any person suing determines whether or not the plaintiffs will be allowed to continue the litigation and be given a hearing. He can only invoke the judicial powers of the court if any question as to the civil rights and obligations of the plaintiff is raised on the pleadings. At this stage, therefore, a short narration of the history of the proceedings is desirable.
On the 23rd day of August, 1985, the plaintiffs took out a writ of summons against the defendant, the respondent herein, claiming.
"1. A declaration that the appointment of Rt. Rev. Bishop Joseph Abiodun Adetiloye as the Bishop of Lagos by the defendant is unconstitutional, null and void and of no effect;
2. An injunction restraining the defendant, his servants, agents, privies or whatsoever from enthroning and/or installing, or translating to the See Lagos Rt. Rev. Bishop Joseph Abiodun Adetiloye."
The plaintiffs/appellants also filed their statement of claim dated 23rd August, 1985 containing the material facts on which they relied.
Although the defendant/respondent in reply filed his statement of defence, his counsel on the 16th day of September, 1985, filed a notice of motion under Order 16, Rule 15, High Court (Civil Procedure) Rules and Order 18, Rule 19, Rules of the Supreme Court of England 1965 praying the court for an order striking out their statement of claim dismissing the action. The grounds set out in the notice of motion on which the application was based were:
"i. The statement of claim disclosed no reasonable cause of action and the same is frivolous, vexatious and an abuse of the process of this Honourable Court.
ii. The plaintiffs have no locus standi to institute this action;
iii. No leave of Court was obtained before this action was commenced."
After hearing the submissions of counsel for the parties in the application, the learned trial Judge, Adeniji, J. granted the prayer and dismissed the suit. In the closing paragraphs of his ruling the learned judge, Adeniji, J. said inter alia:
"Having regard to all the available facts in this case, then one could now ask what peculiar interest of the plaintiffs is involved in the circumstances of this case? What rights and obligations, personal or peculiar to them have been injured or infringed by the errors, if any, in the translation of the Bishop Adetiloye and confirmation of that appointment by the Archbishop in accordance with the Constitution of the Anglican Church 1979 as amended, when, according to them they have no interest in any particular candidate, the short answer therefore, in my view is none.
Or to put it in another way, even if there is infraction of the Constitution of the Anglican Church in the appointment, what is its adverse effect on the civil rights and obligations of the plaintiffs? The answer again in my view, is none.
The cause of action in this case has not disclosed any substantial interest of the plaintiffs. They themselves have said it clearly that they have no interest in any particular candidate. If that then is the position, why do they then bother themselves about who is appointed Bishop. The plaintiffs therefore, in my view, have no justifiable interest and therefore no locus standi to initiate this proceeding... The application to dismiss the suit succeeds and the suit is hereby dismissed."
The plaintiffs being dissatisfied with the ruling, appealed to the Court of Appeal. They were equally unsuccessful there for that Court (Ademola, Nnaemeka-Agu and Kolawole, JJ.C.A.) in a unanimous judgment dismissed the appeal on the ground of lack or non-disclosure of locus standi in the statement of claim. Ademola, J.C.A. delivering his lead judgment concurred in by Nnaemeka-Agu and Kolawole, JJ.C.A. said in the closing paragraphs of the judgment:
"The whole tenor of Professor Wade's commentary is to bring out that the courts in England applied liberal interpretation to the question of sufficient interest of a plaintiff in maintaining an action and also that the issue of locus standi is no longer a test of standing but rather a test of the merit of the complaint. Be that as it may I am in agreement with Mr Ajayi that section 6, sub-section 6(b) of the Constitution of Nigeria 1979 is a constitutional enactment on the issue of locus standi in Nigeria. This section has been judicially examined by the Supreme Court in the Senator Abraham Adesanya v. The President of the Federal Republic of Nigeria and Another and what the law is in this country has been laid down in the judgment of Bello, J.S.C. ... wherein the learned Justice reiterated the stance of the Supreme Court in Gambi Oba & Ors. v. Esesi & Ors. (196) All N.L.R. 584 where it was said:
"The plaintiff's locus standi had not yet been disclosed, and if he has none his claim must be dismissed on that ground, and it would be unnecessary to decide the question involved in the declaration he claims.'
Quoted with approval in Senator Adesanya's case.
It is also the law as laid down in that case that to entitle a person to invoke judicial power, he must show that either his personal interest will immediately be or has been adversely affected by the action or that he has sustained or is in immediate danger of sustaining an injury to himself, and which interest and injury is over and above that of the general public.
It may well be that the attitude of the Supreme Court to the issue of locus standi is the rather orthodox approach. Happily, this Court, having regard to its position in the hierarchy of courts in this country does not have to take a position different from that of the Supreme Court...
The conclusion I have reached in this appeal is that on the statement of claim filed on behalf of the appellants nothing there can be said to show that they have the required locus standi to maintain the action."
The appellants were still dissatisfied and so they have brought this appeal against the decision of the Court of Appeal on one ground only. That ground reads:
"The Court of Appeal erred in law in holding that the statement of claim did not disclose a reasonable cause of action when the averments therein if uncontradicted and taken to be true entitle the plaintiff in law to the reliefs sought by them in the action."
The statement of claim filed therefore thus calls for a critical examination. This is despite the fact that the ruling narrowed the area of the ground for dismissal to a failure to disclose the locus standi of the plaintiffs/appellants to maintain the action. I will therefore set out in full the statement of claim for ease of reference in this judgment. It consists of 16 paragraphs and reads:
"1. The plaintiffs are all communicants of the Anglican Communion within the Diocese of Lagos. They sue by themselves and as representatives of the Laity of the Anglican Communion within the Diocese of Lagos.
2. The defendant is the Archbishop of the Church of the Province of Nigeria, Primate of Nigeria and Metropolitan of the Anglican Communion in Nigeria. The Bishop Court is at Arigidi Street, Bodija, Ibadan, Oyo State of Nigeria.
3. On 29.6.85 the Newspapers and the Electronic media carried the news of the Appointment of Very Reverend Joseph Abiodun Adetiloye (hereinafter referred to as Adetiloye) as the new Bishop of Lagos.
4. This was confirmed on 30.6.85 when a notice of election under the hand of the defendant was pasted on the door of the Cathedral Church of Christ, Lagos.
5. On 22nd August, 1985 and in their issue of that date, The Daily Sketch Newspaper again carried the news that the enthronement and or translation of the said Adetiloye to the See of Lagos will take place on the 31st day of August, 1985.
6. The appointment of Adetiloye was made contrary to the provisions of Article IV Church of Nigeria (Anglican Communion) Constitution of 1979 (hereinafter referred to as the Constitution). The said Article IV read as follows:
"There shall be in each Diocese of the Province an advisory committee to be appointed by the Synod of the Diocese to advise the Archbishop on the appointment of a Diocesan Bishop when a vacancy occurs in the Diocesan Bishopric.
The Committee shall consist of four clerical and five lay members of the Synod of the Diocese, the lay members shall include at least one woman and also the Chancellor of the Diocese who shall be the Chairman of the Committee. It shall be the duty of the Bishop of each Diocese after every Synod to inform the Archbishop of the name and address of the Chairman and of the Advisory Committee of his Synod.'
7. In breach of his clear provision of the Constitution, the Synod for 1984 did not meet. No advisory committee of the
Synod have therefore been appointed. With the exception of the Chancellor; all the other members of the so-called advisory committee who advised the defendant were hand-picked by the former Bishop of Lagos, Reverend F.O. Segun.
8. On 30.5.85 a letter under the hand of the Chancellor of the Diocese was dispatched to the defendant, enclosing as it were, the committees' views on the vacant post of a Bishop in the Lagos Diocese.
9. Under Canon IV, Chapter IV of the Constitution the advisory committee are supposed to submit
'a list of not more than three persons who, in their opinion, possess those qualifications for the consideration of the House Bishops.'
10. In clear breach of the provisions of this canon, the views submitted to the defendant by the advisory committee did not contain a list of not more than three persons who are qualified to be Bishop.
11. In the notice of election referred to in paragraph 4 herein, the defendant wrote thus
'if anyone can show any cause or just impediment why the said Right Reverend Joseph Abiodun Adetiloye should not be translated to that See or can offer any canonical objection to the election or form therefore let him signify the same to me in writing delivered by hand or registered post within fourteen days from this date.'
12. In compliance with the wish of the defendant objections were raised against the appointment but all of them were summarily dismissed as anonymous and those he considered threatening the defendant claimed to have referred to the police and the NSO, whatever that means.
13. At the trial of this suit, the plaintiffs will contend that they are not interested in any particular candidate rather that in the appointment of a new Bishop for Lagos, the procedure laid down by the constitution must be followed to the letter.
14. The plaintiffs will further contend that the defendant had no opportunity to have considered the many petitions against the appointment of Adetiloye in that shortly after issuing his notice of election he left the country on religious preferment and not arrive in the country until 14 days later.
15. The plaintiffs will further contend that the views of the so-called advisory committee circulated to the House of Bishop have no legal backing in that the signatories to the views with the exception of the Chancellor of the Diocese, are not elected by the Synod as provided for in the constitution.
16. The plaintiffs, at the trial of this suit, will found on the following documents namely:
i. The Church of Nigeria (Anglican Communion) Constitution of 1979;
ii. Letter dated 29th June, 1985 titled notice of election and signed by the defendant;
iii. Letter dated 30th May, 1985 addressed to the defendant and signed by the Chancellor of the Diocese and enclosing the views of the advisory committee;
iv. Letter dated 2nd July, 1985 addressed to the defendant and signed by eleven representatives of the Concerned Anglican Communion Christians. The letter was neither acknowledged, nor the members invited for an interview even though they gave a forwarding address.
v. Letter dated 6th July, 1985 addressed to the defendant by one Francis Adekoya Arewa objecting to the appointment on canonical grounds.
vi. Letter dated 20th July, 1985 under the hand of the defendant confirming the election of the new Bishop of Lagos, the said Adetiloye.
And the plaintiffs claim:
1. A declaration that the appointment of Adetiloye as the new Bishop of Lagos is irregular, unconstitutional and therefore null and void.
2. A declaration that the Synod of Lagos be convened immediately to elect a new advisory committee to advise the defendant on the appointment of a new Bishop of Lagos.
3. An injunction restraining the defendant, the Bishops under him, his agents, servants or privies or otherwise whosoever from enthroning, installing or translating the said Adetiloye to the See of Lagos.
That is the statement of claim reproduced in full.
The issues raised in the ground of appeal for determination are:
(1) whether the appellants have in their statement of action disclosed their locus standi or standing to institute the action;
(2) If they have disclosed their locus standi, whether they have in their statement of claim disclosed any reasonable cause of action against the respondent.
Failure to disclose any locus standi is as fatal to the action as failure to disclose any reasonable cause of action.
Following the application of the respondent made on the 16th day of December, 1985 for accelerated hearing and for an order dispensing with the filing of briefs under Order 2, Rules 17 and 19; Order 6, Rule 10; Order 7, Rule 1 (2) and Order 10, Rule 1 of the Supreme Court Rules 1985 this Court dispensed with the filing of briefs of argument and decided to hear the appeal on oral arguments. It then set down the appeal for hearing on the 18th day of December, 1985. On that day, counsel on both sides made their submissions and advanced arguments in support of their contentions.
learned Counsel for the appellants Mr Lardner, S.A.N., conceded that the appellants did not obtain any High
Court's order to sue in a representative capacity. He also conceded that the case of the plaintiffs/appellants is not based on any canonical objection. He also conceded that the case is but a challenge to the validity of the election by the House of Bishops. He quite frankly observed that it was not pleaded that the appellants are qualified to be Bishops. He then submitted that the pre-occupation of the appellants is with strict compliance with the provisions of the Church of Nigeria (Anglican Communion) Constitution of 1979 and referred to the propositions of law he made in his brief of argument before the Court of Appeal.
He conceded that if a party has no locus standi, he has no reasonable cause of action and submitted that section 6(6)(b) of the Constitution of the Federal Republic 1979 is only an expression of the law prior to 1979. learned Counsel then made three propositions as follows:
(1) when a body is not properly constituted any decision arrived at or made by that body is void. When communicant members of the Anglican Communion observed that certain procedures laid down by the Constitution of the Church leading to the election of a new Bishop are not followed, they have a right of access to the court to challenge the decision on the ground that it was ultra vires the powers of the body so to make not on any other ground;
(2) where by the Constitution certain bodies are created within the organisation for the purpose of exercising certain functions or reaching or making certain decisions binding on the organisation, on, failure to follow the correct procedure stipulated in the Constitution prima facie gives a member of the organisation, the right to complain for the reason that all the members of the organisation have essentially agreed that the body should follow the procedure;
(3) In this case, those sections of the Constitution of the Church of Nigeria relevant for the purpose of the plaintiffs' making out a prima facie case are set out in paragraphs 1 to 10 of the statement of claim and also paragraphs 13 to 16 of the statement of claim.
learned Counsel then cited.
(i) Lee v. Showmen's Guild of Great Britain (1952) 1 All E.R. 1175;
(ii) John v. Rees (1970) Ch. 245, (1969) 2 All E.R.
which he commended strongly. learned Counsel urged the court to adopt the modern views of the principle of locus standi reflected in Order 18/19/7 of the 1985 White Book-Rules of the Supreme Court of England and the judgment of Wootten, J. in Mckinnon v. Grogan (1974) 1 N.S.W.L.R. 295 at 198-9, a case involving a football club. learned Counsel closed his submission by submitting that Senator Adesanya's case was distinguishable on the facts.
In reply, Mr G.O.K. Ajayi, S.A.N., submitted that his ground of complaint that the statement of claim disclosed no reasonable cause of action was based on the contention that the locus standi of the plaintiffs to institute the action was not disclosed on the statement of claim. He then contended that on the issue of locus standi, the statement of claim must show how the interest of the plaintiff to commence the action arose. He then referred to the case of Momoh v. Olotu (1970) 1 All N.L.R. 117, a decision of this Court sitting as a full court of five Justices as then provided by the Constitution of the Federal Republic of Nigeria 1963. He contended that it was not enough for the plaintiffs/appellants to state as they averred in paragraph 1 of their statement of claim that they are communicant members of the Anglican Communion. They must state what right they have as such members which have been infringed.
On the contention of learned Counsel for the appellants that the appellants have rights of contract, learned Counsel for the respondent submitted that those rights have to be pleaded in order to satisfy the requirements of locus standi as decided in Olotu's case.
Dealing with Mr Lardner's submission on the rights of members of voluntary organisations to sue in court, he submitted that the question is not whether a member of the voluntary organisation can come to court if there is a breach of the Constitution but whether a member of such organisation whose interest is not adversely affected by a breach of the Constitution can come to court to challenge such action under the Constitution. He then submitted in conclusion that on the general issue, the question of locus standi has been rested firmly upon the question of the jurisdiction of the court to hear and determine the dispute citing the provisions of section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1979 and Adesanya's case (supra). The modern approach to the question of locus standi in England which has statutory support cannot be followed in our courts as Nigeria is no longer ruled by modern English statutory laws which are not part of the laws of Nigeria.
The concessions made by learned Counsel for the appellants, Mr H. A. Lardner, S.A.N. were to say the least, made in the interest of justice and learned Counsel deserves the greatest commendation for the skilful strategy of withdrawal.
When learned Counsel submitted that the case was not a challenge to the validity of the election by the House of Bishops and referred to the averment in paragraph 13 that the appellants were not interested in any particular candidate, he, in my view, knocked the bottom out of his case and set himself an impossible task of establishing the necessary interest the appellants must possess to give them locus standi to institute the action against the defendant. What, therefore, is the true meaning, import and content of locus standi in the context of this case? What does reasonable cause of action mean?
The term locus standi was extensively discussed in the case of Senator Adesanya v. The President of the Federal Republic & Another (supra) (1981) 1 All N.L.R. 32. It cannot stand independently from the provisions of section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1979 and the consequences of a failure to disclose a plaintiff's locus standi has been settled by the pronouncement of this Court as long ago as 1961 in the case of Gambioda & Ors. v. Esesi & Others (1961) All N.L.R. 584 is that if he has none, his claim must be dismissed.
I will pause at this stage to look into the meaning of cause of action. The definition appears in the White Book. I will refer to the 1976 White Book-The Supreme Court Practice Volume 1, page 161 15/1/2A. There, the meaning of cause of action as stated by eminent judges in England and Ireland is given as follows.
(1) The words "cause of action" comprise every fact (though not every piece of evidence) which it would be necessary for the plaintiff to prove, if traversed, to support his right to the judgment of the Court (see Red v. Brown (1888) 22 Q.B.D. 128 per Lord Esher, M.R. at p. 131).
(2) The phrase comprises every fact which is material to be proved to enable the plaintiff to succeed. (See Cooke v. Gill (1873) L.R. 8 C.P. 107, per Brett, J. at 108).
(3) The words have been defined as meaning "simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person" per Diplock, L.J. in Letang v. Cooper (1965) 1 Q.B. 222 at p. 242).
(4) In Ireland, these words have been held to mean the subject-matter or grievance founding the action, not merely the technical cause of action (O Keefe v. Welsh (1903) 2 Ir. R. p. 718).
I would say having regard to the constitutional provisions in section 6(6)(b) of our 1979 Constitution, that a cause of action is the question as to the civil rights and obligation of the plaintiffs founding the action to be determined by the court in favour of one party against the other party.
What then, does the phrase "No reasonable cause of action" mean? There is some difficulty in giving a precise meaning to this term. In point of law, every cause of action is a reasonable one (See per Chitty, J. in Rep. of Peru v. Peruvian Guano Co. 35 Ch. D p. 495). Lord Pearson in Drummond-Jackson v. British Medical Association (1970) 1 W.L.R. 688; (1970) 1 All E.R. 1904 C.A. defined "a reasonable cause of action" as meaning a cause of action with some chance of success when only the allegations in the pleading are considered. The practice is clear. So long as the statement of claim or the particulars disclose some cause of action or raise some question fit to be decided by a judge or jury, the mere fact that the case is weak and not likely to succeed is no ground for striking it out (Moore v. Lawson 31 T.L.R. 418 C.A.; Wenlock v. Moloney (1965) 1 W.L.R. 1238; (1965) 2 All E.R. 821 C.A.) Where the statement of claim discloses no cause of action and if the court is satisfied that no amendment, however ingenious, will cure the defect, the statement of claim will be struck out and the action dismissed. Where no question as to the civil rights and obligations of the plaintiff is raised in the statement of claim for determination, the statement of claim will be struck out and the action dismissed.
I have searched in vain to discover any question as to the civil rights and obligations of the plaintiffs raised in the statement of claim. I cannot see how the disqualification of some members of the Archbishop Advisory Committee of the Synod of Lagos Diocese raises any question as to the civil rights and obligations of the plaintiffs. Neither do I see how the summary dismissal of complaints by anonymous persons against translation of Rt. Revd. Abiodun Adetiloye raises any question as to the civil rights and obligations of the plaintiffs. I cannot also see from the pleading how the letter of Francis Adekoya Orewa dated 6th July, 1985 raises the question as to the civil rights and obligations of the plaintiffs.
Learned Counsel submitted half heartedly that by reason of the appellants being communicants there exists a contract between each member and the Anglican Communion entitling them to take action whenever there are breaches of or non-compliance with the provisions of the Constitution of the Diocese.
In support of this submission, learned Counsel made the following propositions of law,
(1) In the old cases, the courts originally conceived that the relationship among the members of a religious or social organisation was purely personal and thus the court should not intervene unless there was something more at stake than the mere right of membership. Thus, if the alleged wrong caused a deprivation of a property right, the courts would intervene.
He then cited the cases of:
(a) Hopkins v. Marguis of Exeter (1867) L.R. 5 Eq 63
(b) Clough v. Ratcliffe 63 E.R. 1016
(2) The modern law however predicates the court's right to intervene on its jurisdiction to protect rights to contract. The rules and constitution of the Church of Nigeria (Anglican Communion) (pp. 18 28) a voluntary association, form a contract between its communicant members and the Church from the moment the member becomes entitled to the incidents of membership (see Lee v. The Showmen's Guild of Great Britain (1952) 2 Q.B. 329 at 341) per Lord Denning. "The jurisdiction of a domestic tribunal such as the committee of the Showmen's Guild must be founded on contract, expressed or implied. The set of rules contains the contract between the members and is just as much subject to the jurisdiction of this Court as any other contract."
(3) Although there may be no deprivation of property as such or of property rights, the courts will intervene to enjoin what may be technically a breach of contract. learned Counsel cited in support Breen v. The Amalgamated Engineering Union (1971) 2 W.L.R. L.P.C.
(4) The position of jurisdiction in contract terms now makes it unnecessary to enquire whether the Church of Nigeria (Anglican Communion) is a proprietary or members organisation before granting relief. learned Counsel then cited Young v. Ladies Imperial Club (1920) 1 K.B. 81.
(5) The persons who can complain of an improper use of a power of decision given to the domestic tribunal are those who are privy to the contract which grants the power to make decision. He cited in support
Byrne v. Kinematoryraph Renters Ltd. (1958) 2 All E.R. 579.
(6) The courts will intervene to prevent the tribunal from acting otherwise than on those occasions when it can positively be proved that the condition precedent to its agreed jurisdiction does exist. Lee v. Showmen's Guild of Great Britain (supra).
(7) The court will compel strict observance of the procedures upon which the grant of the decision making function has consensually conditioned.
Learned as the above propositions of law set out above are, they do not advance the case of the plaintiffs an inch forward in the absence of any pleading of the contract terms between the plaintiffs on the one hand and the Church and the defendant on the other.
In determining the issue of locus standi, the court must constantly bear in mind that its judicial powers are being invoked and the matters in which the judicial powers can be exercised are by the provisions of section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1979 expressly stated to "extend to all matters between persons or between government or authority and any person in Nigeria and to all actions and proceeding relating thereto, for the determination of any question as to the civil rights and obligations of that person."
The requirement of adversity is graphically expressed in the subsection by the requirement of any question as to the civil rights and obligations of that person to be raised in matters for determination by the courts.
The observation of the Supreme Court of the United States of America in Paul Poe v. Abraham Ullman 36 U.S. 497 6 L Ed. 2nd Ed. 989, 81 S. Ct. 1752 is particularly opposite. It reads.
"The requirement for adversity was classically expounded in Chicago and G.T.R. Co. v. Wellman 143 U.S. 339, 334, 345, 36 L. Ed. 176, 179, 12 S. Ct. 400 as follows.
"The Theory upon which, apparently, this suit was brought is that parties have an appeal to the courts; and that the latter are given an immediate and general supervision of the constitutionality of the acts of the former. Such is not true. Whenever in pursuance of an honest and actual antagonistic assertion of rights by an individual against another, there is presented a question involving the validity of any act of any legislature, State or Federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination only in the real earnest and vital controversy between individuals. It never was the thought that by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act'."
The term "locus standi" denotes legal capacity to institute proceedings in a court of law. It is used interchangeably with terms like "standing" or "title to sue" per Fatayi-Williams, C.J.N. in Senator Adesanya's case at p. 128 129.
Thio, at page 1 of her book titled "locus standi and the Judicial Review" Dr Thio observed pertinently, that.
"The requirement of locus standi is mandatory in some jurisdictions where the judicial power is constitutionally limited to the determination of a 'case' or controversy or a 'matter which is defined by reference to criteria which include the legal capacity of the parties to litigation'."
I pause to observe that this is the position under our law.
Continuing, the learned author said:
"In other jurisdictions, the requirement is a product of judicial expedience and public polity."
I find nothing under our law to indicate that the requirement of locus standi is a product of judicial expedience and public policy.
I think I have cause to repeat here what I said in Adesanya's case. It is at page 174 of the report, 5 S.C. It reads.
"Locus standi of standing to sue is an aspect of justiciability and as such, the problem of locus standi is surrounded by the same complexities and vagaries inherent in justiciability. The fundamental aspect of locus standi is that it focuses on the party seeking to get his complaint before the court not on the issues he wishes to have adjudicated."
I agree with the submission of learned Counsel for the respondent that the case of Amusa Momoh v. Jimo Olotu (1970) 1 All N.L.R. 117 is on all fours with the instant appeal and that the observation of the Court at page 123 is opposite. The facts of the case are that the plaintiff had claimed to be a member of a Ruling House and had claimed a declaration that the correct custom for the selection of the Olukare is not that it devolves on the eldest son but on the person put forward by the family conclave. There was in existence a Declaration under the Chiefs' Law to the contrary. The Supreme Court held that the mere fact that the plaintiff averred in his pleadings that he was a member of the Olukare family was not disclosure of interest sufficient to give him locus standi to prosecute the action. Ademola, C.J.N. delivering the judgment of the Supreme Court, said at page 123.
"In regard to paragraph 1 of the statement of claim and the point raised that the plaintiff has no locus standi in the matter, the learned trial Judge ruled that as this paragraph has not been denied, the plaintiff cannot be said to have no interest. Now what is the averment in paragraph 1? The plaintiff says that he is a member of Olukare family. The question may be asked, is it enough for the plaintiff to state that he is a member of the family? Has he not got to say that he has an interest in the chieftaincy? Surely, not every of a chieftaincy family as such has an interest in the chieftaincy title. We are of the view that it is not enough for the plaintiff to state that he is a member of the family; he has to state further that he has an interest in the chieftaincy title, and furthermore, state in his statement of claim how his interest in the chieftaincy title arose. It is difficult to say on the pleadings that the plaintiff has any locus in the matter."
In the instant appeal, looking at the statement of claim, what is the averment in paragraph 1? The plaintiffs say that they are all communicants of the Anglican Communion within the Diocese of Lagos. The question that naturally comes to my mind is, is it enough for the plaintiffs/appellants to state that they are all communicants of the Anglican Communion? Have they not got to say that they have an interest in the office of the Bishop? We know that not every communicant of the Anglican Communion has an interest in the office of Bishop. The plaintiffs/appellants, in my view, have to go further and state that they have interest in the office of the Bishop of the Diocese and go further to state how their interest arose and how their interest has been adversely affected by the translation of the Rt. Revd. Joseph Abiodun Adetiloye to the See of Lagos Diocese. I cannot say that the plaintiffs/appellants have on the pleadings disclosed any locus standi.
This Court does not make the law. Its function is to administer and interprete the law. As the law stands, there is no room for the adoption of the modern views on locus standi being followed by England and Australia. The adoption of those views in England have found support in the statute Law of England.
The appeal for a change in the law by learned Counsel for the appellants should therefore be directed to the law making authorities in the country.
The appeal therefore fails. It was for the above reasons I dismissed the appeal.
Kayode Eso, J.S.C.-The appeal filed by the appellants through their learned Counsel H.A. Lardner, S.A.N. came before us on 17th December 1985. On that day we heard arguments after dispensing with the filing of briefs by both the appellants and the respondents and gave our judgment which was a dismissal of the appeal, at the same time reserving our reasons for this course which we took.
My learned brother, Obaseki, J.S.C., has just read his Reasons for the dismissal of the appeal after setting out the facts in full and considering in detail the law in the matter. I respectfully adopt these Reasons.
I think the problem posed in this appeal is a very simple one. It is as to whether or not the appellants have a locus standi to have brought the case to court. This is a matter that has been laid to rest by this Court in the case of Abraham Adesanya v. The President of the Federal Republic of Nigeria and Another. This court has already laid down guidelines as to when a party could be deemed to have a locus standi in a litigation while condemning interlopers and professional litigants. I do not think the appellants in this case are professional litigants. What has happened is that their claim, which is as communicants in the church, will not suffice as entitlement to question the appointment of Rt. Rev. Adetiloye as the Bishop of Lagos. They need to be more than Communicants in the church. Communicants are those who could take holy communion in the church and they must be legion whereas those concerned with the appointment of a Bishop are those who under the Constitution of the church are charged with such function. The appellants never claimed to be those.
What is every important in the case is the danger of bringing Religion as such to the reasoning of jurisprudence. The Reasoning in Religion is one of God or Allah which passeth all jurisprudential understanding. The more so when christian judges have to be called upon to settle moslem disputes or moslem judges adjudicate upon christian issues. The unbeliever in each case can only apply the laws of the State. Since Aquina Summa Theological, jurisprudence as a legal reasoning within the confines of law itself has not been conterminous with religious philosophy. Yet judges, once they are seised of a matter, have no choice but to apply the law and not religious sentiments. Perhaps, religionists would assist themselves more, by devising a forum for settlement of their disputes and come to court only when that fails. For legal locus standi may not be the same to a believer as it is to a lawyer.
I abide by all the orders contained in the Reasons just read by my Lord Andrews Obaseki, J.S.C. presiding.
Uwais, J.S.C.-I have had the opportunity of reading in draft the reasons for judgment read by my learned brother, Obaseki, J.S.C. I entirely agree with the reasons and conclusions therein. As it was for the same reasons that I dismissed this appeal on 18th December, 1985 with
N300.00 costs to the respondent, I adopt his reasons as mine.
Kawu, J.S.C.-I have had the privilege of reading in draft the reasons for judgment just read by my learned brother, Obaseki, J.S.C. and I agree with the reasons he has given for dismissing this appeal on the 18th day of December, 1985 and I respectfully adopt them as mine.
Oputa, J.S.C.-This appeal was heard on the 18th day of December, 1985. The parties filed their Briefs and addressed the court copiously on the central issue namely, whether or not the Statement of Claim filed by the plaintiffs, now appellants; disclosed facts giving them the necessary locus standi to prosecute the action. Mr Lardner, S.A.N. for the appellants said yes while Mr Ajayi, S.A.N. for the respondent said No. The court of first instance said No. The Court of Appeal, Lagos Division said No. Mr Lardner therefore had the rather uphill task of showing that the two courts below were wrong.
Because of the vital importance of the concept of locus standi in civil litigation and also because of the constitutional provisions of Section 6(6)(b) of our 1979 Constitution, I intend to review the main arguments of counsel on both sides, arguments elaborating the points taken up in their various Briefs. Before giving my reasons for judgment, I might as well set out the arguments by counsel on both sides.
Mr Lardner, S.A.N. for the appellants, in his oral arguments, made three "significant" propositions, namely:-
Proposition No. 1 Where there is a contract, the courts will intervene to protect the contractual rights of the parties. (I underlined rights because that is the crux of the matter).
This is a sound proposition of law. No one will dispute that. But the Statement of Claim in the case on appeal did not plead the existence of any contract between the plaintiffs (who since they obtained no approval from the court must represent "the Laity of the Anglican Church in the Diocese of Lagos" must be presumed to be suing in their personal capacities) and the defendant. Also the defendant was not sued as representing the Church of Nigeria (Anglican Communion). He was sued in his personal capacity as The Most Reverend Timothy Omotayo Olufosoye not even as Archbishop. If then there was a contract, it was a contract between the six named plaintiffs and the defendant who was sued. What were the terms of this contract? What was the consideration or was it a nudum pactum? Was it a contract in writing or by deed? The Statement of Claim is silent on all these vital issues. How can any court enforce so porous a contract, a contract whose terms and conditions are unknown, whose rights and obligations have not been set out anywhere, a contract existing only in the realm of imagination.
In the Brief of the appellant, paragraph 22(2)-it was argued that the rules and constitution of the Church of Nigeria (Anglican Communion), a voluntary association, form a contract between its communicant members and the church. Even if, for the purposes of argument, one accepts this proposition as correct, the parties to the action should then be such communicant members and the Church. The plaintiffs may answer the definition of communicant members since it was so pleaded in paragraph 1 of the Statement of Claim. But certainly The Most Reverend Timothy Omotayo Olufosoye is not the Church of Nigeria (Anglican Communion). The Church of Nigeria ought to be a legal persona with perpetual succession. The defendant may be the Archbishop of the Province of Nigeria but he is certainly not the Church of Nigeria. He was not even sued as representing the Church of the Province of Nigeria. In the case of Lee v. The Showman's Guild of Great Britain (1952) 2 Q.B. 329 mentioned in the Brief and cited to us, the suit was brought against the Showman's Guild and not against its President. If these proceedings were really against the Church of Nigeria, then the plaintiffs sued the wrong party. But in any event, if the plaintiffs action sounded in contract, the Statement of Claim would plead the precise terms and obligations under the contract, and what amounted to its breach, before they can invoke the help of the court to enforce the contract. All the arguments both orally before us and in the Brief based on contract (para. 22(3) to 22(10) are misconceived.
The second proposition is contained in paragraph 22(11) of the appellants' Brief, namely.
"The court will compel strict observance of the procedures upon which the grant of the decision making functions has been consensually conditioned."
As an academic proposition of law, no one will quarrel with the above but as a necessary incident of trial and adjudication in a suit at law, it is only when a party has suffered an injury or a wrong by failure of the opposite party to observe laid down procedure that the right to appeal to the court for a redress accrues otherwise the issue is purely academic. In their Statement of Claim, the plaintiffs did not indicate the injury they suffered by the alleged failure to observe laid down procedure. When then is the Court being called upon to redress? Courts only redress wrongs. Where no wrong has been alleged there will be nothing to redress.
On Senator Abraham Adesanya's case, Mr Lardner, submitted that the decision was inevitable on the facts of that particular case. He contended that Senator Adesanya's case was not supposed to, and did not lay down a general rule of law on locus standi to be followed in all cases. He finally submitted that the facts of this case on appeal are distinguishable from the facts in the case of Senator Adesanya.
Mr Ajayi, S.A.N. for the respondent attacked the Statement of Claim filed by the plaintiffs and submitted that the Statement of Claim did not allege enough facts that would confer on the plaintiffs a locus standi to prosecute this case. He relied on Momoh v. Olutu (1970) 1 All N.L.R. 117. On the proposition that rights derived from contract can be protected by an action at law, Mr Ajayi conceded the proposition as a proposition. He however submitted that it is those very rights that the plaintiffs were bound to plead, to have the necessary locus standi. This the plaintiffs failed to do. On the legal status of voluntary organisations and their right to come to court, Mr Ajayi submitted that the question is not whether a member of a voluntary organisation can come to court if there is a breach of the constitution of the organisation, the issue is whether such a member whose interest has not been adversely affected by the said breach can go to court to challenge the breach. On locus standi, Mr Ajayi submitted that the question has been firmly posited on the jurisdiction conferred on the courts by s6(6)(b) of the 1979 Constitution. Senator Adesanya's case was merely the judicial interpretation by the Supreme Court of that Section. Since the issue is now an issue of jurisdiction, it follows that where there has not been established a locus standi by the plaintiffs, our courts will have no jurisdiction to hear the case and the present appeal falls squarely within the warm embrace s6(6)(b). In the absence of a locus standi, the courts have no jurisdiction to hear the plaintiffs case.
Having set out the main arguments presented to us, I now give my reasons for dismissing the appeal. This appeal was fought on one solitary single issue-the right of the plaintiffs now appellants to bring the action at all their locus standi, their quo warranto. Mr Ajayi, S.A.N. concentrated his attack on the pleadings of the plaintiffs and submitted that the Statement of Claim filed in this case did not show how the interest of the plaintiffs to commence this action arose and I may add it did not show what those interests were to enable the court decide whether they were general or special interest; legal interest, moral interest, equitable interest, or else academic and hypothetical interest.
The broad and general principle of law is contained in the old latin maxim-ubi jus ibi remedium. Jus here signifies the legal authority to do or demand something and Remedium here means the right of action, or the means given by law for the recovery or the declaration or assertion of that right. In other words, the maxim presupposes that wherever the law gives a right, it also gives a remedy. Conversely wherever a plaintiff is claiming a remedy that remedy must be founded on a legal right. Applying the above broad definition of the maxim, the first hurdle for the plaintiffs to clear is to let their Statement of Claim reflect their legal authority to demand the declaration sought and their right which had been injured or which is likely to be injured and for the protection of which they need the remedy of an injunction.
By paragraph 13 of the Statement of Claim, the Plaintiffs pleaded.
The concept of an existing legal right as a necessary pre-requisite for an action at law is amply illustrated by the old case of Ashy v. White (1703) 1 Bro. Parl. cas. 62 2 Lord Raym 938 where it was held that a man who has a right to vote at an election for members of Parliament may maintain an action against the returning officer for maliciously refusing to admit his vote even though the persons for whom he offered to vote were elected. In that case Lord
Holt made the famous and immortal observation-
"If men will multiply injuries, actions must be multiplied too, for every man that is injured ought to have his recompense" (the underlining is mine to emphasise the close relationship existing between actions and injuries).
In other words, it is only a legal wrong or injuria that can ground an action at law. In the present case, the plaintiffs averment in paragraph 13 of their Statement of Claim (that they are not interested in any particular candidate) notwithstanding, the plaintiffs can still sue if by the act of the defendant now respondent they suffered what the law regards as injuria or wrong. It is this wrong that the law redresses in an action. It is the suffering of this wrong that invests a plaintiff with the right to sue. From the averments in the Statement of Claim, in any proper case it should be obvious that wrong has been done to the right (legal right) of the plaintiff to qualify him to ask the court, in an action, to intervene and right the wrong done to his right. And this is what the submission of Mr Ajayi really amounts to.
On the issue of locus standi, Mr Ajayi submitted that the Statement of Claim must show how the interest of the plaintiffs to commence this action arose. He relied on the judgment of this Court in Amusa Momoh & Anor. v. Jimoh Olotu (1970) 1 All N.L.R. 117 where at p. 123 the court observed as follows:-
"The plaintiff says that he is a member of the Olukare family. The question may be asked, is it enough for the plaintiff to state that he is a member of the family? Has he not got to state that he has an interest in the Chieftaincy? Surely not every member of a Chieftaincy family as such has interest in the Chieftaincy title. We are of the view that it is not enough for the plaintiff to state that he is a member of the family; he has to state further that he has an interest in the Chieftaincy title, and furthermore, state in his Statement of Claim how his interest in the Chieftaincy title arose. It is difficult to say on the pleadings filed that the plaintiff has any locus in the matter."
What then is locus standi? It is simply the right of appearance in a court of justice to litigate an issue. People do not appear in court for the fun of it. No. They appear either to establish their right or to defend that right against any injury actual or threatened.
In the case on appeal, paragraph 1 of the Statement of Claim merely alleged that "the plaintiffs are all communicant of the Anglican Communion within the Diocese of Lagos" what legal rights, if any, accrue to them as such communicants are not pleaded. As such communicants, do they qualify to be appointed a Bishop? We are not told. How did the appointment of the Very Reverend Joseph Abiodun Adetiloye by the defendant adversely affect any of their rights as communicants? We are not also told. The constitution of the Anglican Communion of 1979 was referred to in many paragraphs of the Statement of Claim. The specific rights of communicants under that constitution were not pleaded. How then does one know whether under the Anglican Church Constitution of 1979 communicants have a right to challenge the appointment of a Bishop by an Archbishop? In my humble view, the pleadings in Momoh's case supra were even fuller than those in this case. In Momoh's case, this Court held at p. 124-
1. We fail to see how the plaintiff can maintain an action on the Statement of Claim filed.
2. The learned trial Judge was in error when he ruled that on the face of it, the Statement of Claim disclosed a cause of action or that the plaintiff has a locus standi.
3. The learned trial Judge was clearly wrong in refusing to strike out the Statement of Claim and/or the action before him.
The court consequently dismissed the plaintiff's action. A fortiori, the present plaintiffs, not having shown any right or interest in the subject matter of this action (the appointment of Very Rev. Joseph Abiodun Adetilove to the Bishopric of Lagos) and the origin of such right or interest, have in law no locus standi to commence this action. The learned trial Judge was therefore right when he ruled.
"the cause of action in this case has not disclosed any substantial interest of the plaintiffs. They themselves have said it clearly that they have no interest in any particular candidate. If that then is the position, why do they then bother themselves about who is appointed as Bishop. The plaintiffs therefore in my view have no justifiable interest and therefore no locus standi to initiate this proceeding" (the underlining is mine to emphasise the ratio decidendi of the case).
The Court of Appeal, Lagos Division rightly dismissed the plaintiffs appeal to it from the decision of Adeniji, J.
In his lead judgment, Ademola, J.C.A observed-
"I am in agreement with Mr Ajayi that Section 6, subsection 6(b) of the Constitution of 1979 of Nigeria is a constitutional enactment on the issue of locus standi in Nigeria. This section has been judicially examined by the Supreme Court in the Senator Abraham Adesanya v. The President of the Federal Republic of Nigeria & Another and what the law is in this country has been laid down in the judgment of Bello, J.S.C. wherein the learned Justice reiterated the stance of the Supreme Court in Gamioba & Ors. v. Esesi & Ors. (1961) All N.L.R. page 584 where it was said:-
'The plaintiff's locus standi has not been disclosed, and if he has none, his claim must be dismissed on that ground, and it would be unnecessary to decide the question involved in the declaration he claims'
It may well be that the attitude of the Supreme Court to the issue of locus standi is the rather orthodox appeal. Happily, this Court, having regard to its position in the hierarchy of courts in this country, does not have to take a position different from that of the Supreme Court. Therefore an invitation such as has been directed to it to take a course different from that which the Supreme Court had taken must of necessity be rejected."
I am in complete agreement with the views expressed above by Ademola, J.C.A. The law will be in utter confusion if in every new case, a new decision is arrived at, completely ignoring what has been decided before. Lord Kenyan, L.C.J. as far back as 1718 sounded this note of warning when he said-
"Little respect will be paid to our judgments if we overthrow that, one day, which we resolved the day before"-see Rex v. Inhabitants de Haughton (1718) 1 Str. 83.
This warning applies more to the Supreme Court and less to the Court of Appeal bound to follow decisions of the Supreme Court by the doctrine of precedent and stare decisis.
What are the requirements of locus standi as it relates to our law? Are there any decisions of our courts with regard to locus standi? Have we got to travel overseas in search of cases on locus standi? In answers to these questions, I will repeat what I said in two previous judgments: In Attorney General Kaduna State v. Hassan (1985) 2 N.W.L.R. 483 at p. 522 I observed:-
"Here in Nigeria the problem of locus standi is compounded by the fact that the common law concept where the right to sue accrues only to a person who has a legal right, or whose legal right has been adversely affected or who has suffered or is likely to suffer special damage in consequence of an alleged wrong has been reinforced by the constitutional provisions of Section 6 (6) (b) of the 1979 Constitution.'
This section has been judicially interpreted by the Supreme Court in Senator Abraham Adesanya's case supra. The decision in that case remains our law on locus standi until it is reversed by another and contrary decision of a constitutional panel of at least 7 Justices. The panel that heard that appeal was a panel of 5 Justices, a panel which could not, even if it wanted to, over-rule the decision in Abraham Adesanya's case. We were bound by that decision. Were there any conflicts in the rationes decidendi of the Justices in Adesanya's case?
To answer this question, let me first refer to the observation of Best C.J. in Richardson v. Mellish (1824) 2 Bing 248 to wit:
The expressions of every judge must be taken with reference to the case on which he decides, otherwise the law will get into extreme confusion. That is what we are to look at in all cases. The manner in which he is arguing it, is not the thing; it is the principle he is deciding." (The italics are for emphasis and is mine.)
We must go upon general principles. The ratio decidendi of the case must never be confused with the obiter dictum. What lays down the law is the ratio decidendi and not the obiter dictum no matter how celebrated or how renowned the Judge is. What is binding as a precedent is the ratio not the obiter. In Abraham Adesanys's case, there was no disagreement on the rationes decidendi of the Justices. Each agreed that the appeal be dismissed-the reason being that the Appellant had no locus standi. How each of the Justices arrived at his decision-that is, the way he argued it, is not as important as the decision he arrived at based on general principles of law.
The second observation I will like to make is on the temptation on the part of counsel to travel around the globe looking for cases. In his Brief and in his oral argument in court, Mr Lardner, S.A.N. demonstrated a good deal of hard work and extensive research quoting liberally from cases, from far and near, dealing with trade unions, golf clubs and all sort of unincorporated Associations. Nnaemeka-Agu, J.C.A. in his concurring judgment made the following observations in that regard.
"Finally I am of the opinion that cases decided on trade unions and clubs are not applicable to this case which is essentially a religious affairs. I do not see how I can imply a contract between the members of the Church interse. In any case the constitutions of such clubs, and unions usually not only define their rights and obligations and impose sanctions for their breach but also reserve rights for members to go to court. The case on hand is clearly different."
I fully agree. One does not start off with decided cases. No. The reason is that courts do not decide case so that they may in future serve as precedents. That is merely an incidental aftermath based on the common law doctrine of precedent and stare decisis. Rather, decisions are primarily made to settle the particular issues in dispute in particular cases before the court. A decision therefore draws its peculiar quality of justice, soundness and profoundness from the peculiar facts and surrounding circumstances of the case it has presumed to adjudicate via-a-vis the applicable law:-see Oladiran v. The State SC. 13/8 on 19th January 1986 not yet reported.
In his own concurring judgment; Kolawole, J.C.A. observed:-
"I believe that it is settled beyond per-adventure that the general rule is that whenever there exists a right recognised by law, there exists also a remedy for any infringement of such right. According to the old maxim, ubi fus, ibi remedium. Now the plaintiffs Statement of Claim contains some sixteen paragraphs none of which pleaded the existence of any facts establishing a right in the plaintiffs and the alleged infringement of such right. In other words the Statement of Claim contains no facts that a right recognised by law exists to enable the courts to provide a remedy for the infringement of such right."
I completely agree. And that is the crux of the matter and no multitude of decided cases cited to the court can invest the plaintiffs with a right which they did not possess and so could not plead, and in fact did not plead. Facts are obstinate things. They either exist or they do not. One cannot manufacture them. And that is the headache the Appellants are having to contend with in this case. There is no factual basis or foundation for their claim. Any structure without a foundation is bound to collapse. And so it is with this case on appeal. It was still born and no amount of decided cases can infuse into it that necessary spark of life.
In the final result, it was for all the reasons given below and for the fuller reasons given by my learned brother and presiding Justice, Obaseki, J.S.C. which reasons I agree with and now adopt as mine, that I dismissed this appeal on 18/12/85.