CHIEF DR IRENE THOMAS & Others v THE MOST REVEREND TIMOTHY OMOTAYO OLUFOSOYE (SC.241/1985) [1986] NGSC 14 (14 February 1986)
CHIEF DR IRENE THOMAS & Others v THE MOST REVEREND TIMOTHY OMOTAYO OLUFOSOYE (SC.241/1985) [1986] NGSC 14 (14 February 1986)
CHIEF DR IRENE THOMAS & ORS (APPELLANT)
v.
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.
HELD:
(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.
Appeal dismissed!
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 transl