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C. N. Ekwuogor Investment (Nig.) Ltd. V. Asco Investment Ltd.

Court of Appeal

Judgement delivered on Friday, May 13, 2011
Citation: 54 NIPJD [CA. 2011] 589/2006
Suit No. CA/L/589/2006      Jurisdiction: Nigeria

BEFORE THEIR LORDSHIPS

CLARA BATA OGUNBIYI, J.C.A
HUSSEIN MUKHTAR, J.C.A.
JOHN INYANG OKORO, J.C.A. (Delivering the Lead Judgement)

Appearances: Chief T. A. Ezeobi, SAN, (with him T. Ezeobi, E. Odigwe, E. Ezeani, and O. Nwidaa) for the Appellant
Kenedy Okiwara Esq. (with him O. Egbunike) for the Respondents

Locus Standi  Whether the trial court was right in holding that the Plaintiff/Respondent being an agent of a disclosed principal has locus standi to sue for reliefs which inure to the principal’s benefit, in its name; and whether the trial court was right in not considering the decision of superior courts which were cited as binding on the trial court.

I. FACTS

The Respondent, who was Plaintiff at the court below, has for years carried on business mainly as importer and marketer of general merchandise particularly LUDE Shoe Polish having been appointed an exclusive distributor and Attorney of Shanghai Light Industrial International (Group) Corporation Limited, the manufacturer and owner of the trade mark of the said polish. The registered proprietor of the trade mark is a Chinese company while the Respondent is domiciled in Nigeria. The Respondent has a special Power of Attorney evidencing this transaction.  It is the Respondent’s case as shown in his statement of claim that sometime in March, 1999, it came to its knowledge that the Appellant and some others were selling and passing off Lude Shoe Polish not of the Respondent’s distribution and not having any connection with the Respondent. Also, that the Appellant was selling at a lower price which led to substantial loss in the business of the Respondent. At the court below, there were more than one Defendant.

Based on the above facts, the Respondent filed a suit against the Appellant and others at the court below and in paragraph 12 of its statement of claim, the Respondent asked for the following reliefs:

“The Plaintiff claims as follows:-

1. A DECLARATION that the Plaintiff being the duty appointed sole distributor with Power of Attorney dated the 1st day of February, 1999 declared the lawfully appointed representative of the manufacturer of LUDE polish shanghai Light (Group) Corporation Ltd. in Nigeria, Togo, Republic of Benin and Cameroun.

2. A DECLARATION that by virtue of the power of Attorney dated 1/2/99, the contract agreement between shanghai Light Industries International (Group) Corporation Ltd., ASCO Investment (i.e., the Plaintiff herein and CRECEEDOR INTERNATIONAL CO. LTD.), the Plaintiff is entitled to the sole distributor’s sale and marketing rights of the LUDE Polish.

3. That the 8th Defendant in particular to the Plaintiff the sum of N20 million being aggravated damages for loss of business occasioned by the sale, distribution and for importation of the fake imitation of LUDE Polish.

4. An order that the 8th Defendant pay the sum of N5million Naira as general damages.

5. An order of perpetual injunction restraining the Defendants jointly and or severally either by themselves or their agents or those upon whose behalf the said Defendants are sued whether acting by themselves, their servants, privies or agents or any of them or otherwise howsoever from doing the following acts and that is to say.-

(i) infringing the trade mark/name “LUDE POLISH” product of Shanghai Light international (Groups) Corporation Ltd., registered under Chinese Law as No. 518660 and whose registration under Nigerian Trade Mark is TP28448/96/5.

(ii) Passing off or causing or enabling or assisting others to pass off the Plaintiff’s business and trade as so/e and exclusive distributor of LUDE Polish products in Nigeria, Republic of Benin, Togo, Ghana and Cameroun.

(iii) Passing off or causing or enabling or assisting others to pass off products purported to be “LUDE Polish” brand and not made, distributed or so/d by the plaintiff (the infringing product) and not being of the Plaintiff’s merchandise as the plaintiff’s product.

(iv) Importing, distributing, setting or offering for sale or supplying “LUDE POLISH” products, lot being products procured through the Plaintiff or with the Plaintiff’s consent.

(v) Against the Defendant’s jointly and severally and each of those upon whose behalf the Defendants are sued whether acting by themselves, their privies, servants or agents or otherwise howsoever, AN ORDER FOR DELIVERY UP UPON OATH to the Plaintiff of all “LUDE” Polish Products or any other brother to which the trade mark name “LUDE” is infringed or passed with all invoices, receipts and other documents pertaining hereto”.

The Appellant then filed a Preliminary objection via a Motion on Notice dated and filed on 3/12/01. In it, the Appellant prayed for an order:-

“dismissing or striking out the suit against the 2nd Defendant in that the same is incompetent, not maintainable, discloses no reasonable cause of action, is frivolous and vexatious and constitutes an abuse of the Process of the court”.

The grounds upon which the preliminary objection was anchored are that:-

“(i) The Plaintiff had no locus standi and so cannot maintain this action and the same is incompetent.

(ii) The honourable court lacks jurisdiction to entertain the suit because there is no primary claim.

(iii) The Plaintiff being an agent of a disclosed principal cannot maintain this action in the Plaintiff’s name for the reliefs which inure to the principal.

(iv) The Plaintiff has no interest whatsoever in the subject matter of the suit not being the registered proprietor of the Trade Mark or registered assignee thereof.

(vi) The 2nd Defendant is not a party to the pleaded sole and exclusive distributorship contract between the named registered proprietor and the Plaintiff and the same has no relevance to the 2nd Defendant”.

The Appellant was second Defendant at the lower court. The learned trial Judge took arguments on the preliminary objection and on 8/3/05; he overruled the preliminary objection and dismissed the Motion on Notice thereof. Dissatisfied with the Ruling of the court below, the Appellant filed Notice of Appeal on 22/3/05 against the said Ruling. In the Notice of Appeal, four grounds of appeal are raised. From the four grounds, the Appellant distilled five issues for the determination of this appeal though at the hearing, the Appellant abandoned the 5th issue formulated by him. The 5th issue having been abandoned is hereby struck out including the arguments proffered in respect of the said issue. This is so because where there is no issue, there cannot possibly be an argument on it. It is trite that you cannot put something on nothing. See U.A.C. V. Mcfoy (1962) A.C., 152.

The four issues now left in the Appellant’s brief for the determination of this appeal are:-

“1. Whether the learned trial Judge was right in failing to consider and to hold that having regard to the averments in the Respondent’s pleadings, the Respondent had no locus standi to maintain this action against the Appellant.

2. Whether the learned trial Judge was right in purporting to follow the Judgment of the Court of Appeal in United Nigeria Company Ltd. v. Joseph Nahman (Attorney for Jamil Abdullah) & Ors. (2000) 9 N.W.L.R. (pt.671) 177 (whose facts are radically different) as determining that an agent under a power of attorney can sue in the agent’s name.

3. Whether the learned trial Judge was right in not considering all the issues raised before him including the decision of superior courts which were cited as binding on the trial court.

4. Whether the learned trial Judge was right in failing to consider and to hold that the plaintiff/Respondent being an agent of a disclosed principal had no locus standi to sue for reliefs which inure to the principal’s benefit as in the case herein”.

The learned counsel for the Respondent formulated three issues in the brief settled by Omobola Adepegba (Mrs.) but abandoned the 2nd issue which is the same as issue 5 in the Appellant’s brief already struck out. This 2nd issue of the Respondent is also struck out including the arguments in support thereof. The subsisting two issues are:-

1. Whether the Plaintiff/Respondent had the locus standi to institute this action.

2. Struck out.

3. Whether the trial court is bound to follow all precedents that are not relevant to the case before it”.

Having read through the arguments of both the learned senior counsel and counsel in their various briefs, I am of the view that the four issues formulated by the Appellant and the two issues as distilled by the Respondent can be conveniently taken together because they speak the same language thought dialectically divergent. There is no how any of the issues can be discussed in isolation without encroaching on the other issues. I shall therefore discuss the four issues together.

The learned senior counsel for the Appellant, Chief T. A. Ezeobi, SAN, who settled this brief, submitted primarily that the Respondent had no locus standi to institute this suit. Elaborating on the issue, the Learned Silk posited that on the face of the statement of claim, the Respondent has not shown any legal right or interest which has been or is on danger of being violated or adversely affected by the act of the Appellant in this case. In order to have locus standi to sue, he submitted that the Plaintiff must show his interest or legal right in the subject matter of the suit. He cites and relies on the cases of Abraham Adesanya v. The President of the FRN & Anor. (1981) 5 SC 112; Chief Irene Thomas & Ors. V. The Most Rev. Timothy Omotayo Olufosoye (1986) 1 N.W.L.R. (pt.18) 669; His Eminence Bolaji (Sued as Rev. Professor Bolaji Idowu) v. Rev. G. A. Bamgbose (1986) 4 N.W.L.R. (pt.37) 032 and Joseph Kayode Owodumni v. Registered Trustees of Celestial Church of Christ & Ors. (Joined by Order of Court dated December, 1st 1989 as Defendants to counter claim) (2000) 10 N.W.L.R. (pt.675) 315.

It was the further contention of learned senior counsel that the Respondent, having brought this suit in his personal capacity, it is not maintainable. This is also the complaint in issue No. 4. He submitted that an agent of a disclosed principal cannot maintain an action in the agent’s name for reliefs which inure to the principal’s benefit. That from the facts deduced from the writ of summons and statement of claim in this suit, the principal is the Shanghai Company while the Respondent is an agent. He relies on the cases of Vulcan Gases Ltd. v. Gassellschaff Fur Industries etc. AC (2001) 9 N.W.L.R. (pt.719) 610; Ekuma & Anor. v. Easgle shipping Agenceis (PH) Ltd. (1987) 4 N.W.L.R. (pt.65) 472; Allied Trading company Ltd. v. GBN Line (198s) 2 N.W.L.R. (pt.5) 74.

Learned senior counsel urged this court to hold that the court below wrongly applied the case of United Nigeria Company Ltd. v. Joseph Nahman (Attorney for Januil Abdullah) & ors (2000) 9 N.W.L.R. (pt.671) 177 on this issue.

The Learned Silk further posited that the Respondent, who has a sole and exclusive agreement with Shanghai Light (Group) Corporation Ltd. of China for sale and distributorship of Lude Polish in Nigeria, has not shown that the Appellant was a party to the agreement. He submitted that only parties to a contract can sue or be sued thereon. Having based the suit against the Appellant on the said agreement, the suit discloses no reasonable cause of action against the Appellant. He cites and relies on the case of Att. Gen. Fed. V. A.I.C. Ltd. (2000) 10 N.W.L.R. (pt.675) 293.

Finally, it was his further submission that failure of the court below to deal with all the issues raised for determination led to a miscarriage of justice and also that the court failed to adhere to binding precedents which he urged this court to apply to this case. He urged the court to resolve these issues in favour of the Appellant.

In his reply, the learned counsel for the Respondent submitted that in ascertaining whether a Plaintiff in an action has locus standi, recourse must be made to the averments in the statement of claim. That it is the statement of claim that will disclose whether the Plaintiff has sufficient interest in seeking redress in court and that the civil rights and obligation of the Plaintiff has been affected. That from the averments of the plaintiff (now Respondent) in the statement of claim, it is clear that the civil right of the Respondent has been violated by the Appellant. He submitted that the Respondent has the locus standi to institute this action.

Learned counsel further submits that the Respondent which has stated in his statement of claim that he is the sole distributor to the donor of the Power of Attorney here in Nigeria and also that the Respondent and other marketers who did not get this product from him or the proprietor are passing off on his trademark, the said act has also affected the sale of the Lude Polish because the Appellant even sold at a lower price. Relying on the case of Owodunni v. Registered Trustees of Celestial Church of Christ (2000) 10 N.W.L.R. (pt.673) 315, he submitted that since the Respondent has shown sufficient interest in the matter, it will be wrong to deny him locus standi.

It was the further contention of the learned counsel for the Respondent that, being the donee of a power of attorney from the Chinese company, the Respondent had the locus standi to sue, relying on the cases of Melwani v. Five Star Industries Ltd. (2002) 3 N.W.L.R. (pt.753) and united Nigeria company Ltd. v. Nahman (2000) 9 N.W.L.R. (pt.671) 177.

Furthermore, learned counsel posited that the essence of agency is for the principal/proprietor to do through its agent things he can ordinarily do by himself but for one reason or the other he is conferring authority or power in another person to do. That in bringing an action an agent of a disclosed principal as his attorney may do so in the name of the principal or agent’s name or state facts to such effect on the writ of summons or any other process that he is acting on behalf of his principal. He relies on the case of Laah v. Opaluwa (2004) 9 N.W.L.R. (pt.879) 558. Referring to the Power of Attorney made in favour of the Respondent, counsel opined that the Respondent had the right to bring this action in his own name.

Referring to the case of united Nigeria Company Ltd. v. Nahman (Supra) which the court below relied upon and the present case, he urged this court to hold that they are on all fours and submitted that although lower courts are bound to follow settled precedents, they are not bound to follow cases which are not relevant to the facts of the case at hand, relying on the cases of Ndidi v. State (2005) 17 N.W.L.R. (pt.953) 17 and International Bank for West Africa Ltd. v. Sytvanus I. Unakalamba (1998) 9 N.W.L.R. (pt.565) 245.

He then urged this court to hold that the Respondent not only has locus standi to bring this action but that he could do so in his own name.

As I observed at the beginning of this Judgment, the four issues which were formulated for the determination of this appeal are interwoven and I have just tried to summarise them above. They all center around the capacity of the Respondent to institute this action and in his own name. The other issues which relate to the failure of the court below to follow Supreme Court decisions are in my view ancillary issues which shall also be pronounced upon. I have carefully discountenanced some of the arguments made by the learned counsel for the Respondent in this matter particularly those that touch on the main reliefs sought for and still pending at the court below. Therefore, the issue as to whether there was indeed a passing of or not of Lude Polish does not call for consideration here. I shall thus resist the temptation of delving into substantive matters at this preliminary stage.

It has been held in a long line of cases that the term “Locus Standi” denotes the legal capacity to institute proceedings in a court of law and has been used interchangeably with terms like “standing” or “title to sue”. Simply put, locus standi means the right or competence of a party to institute proceedings in a court for redress or assertion of a right enforceable at law.  A Plaintiff instituting an action in court only needs to show or establish in his statement of claim his right and obligation in respect of the subject matter of the suit.  The issue of locus standi does not depend on the success or the merit of a case but on whether the Plaintiff has sufficient interest in the subject matter in dispute. See Abraham Adesanya v. The President of the Federal Republic of Nigeria & Anr. (1981) 5 SC 112; His Pre-Eminence Bolaji (sued as Rev. Prof. Bolaji Idowu) v. Rev. G. A. Bangbose (1986) 4 N.W.L.R. (pt.37) 632.

It is therefore the duty of a Plaintiff in his suit to show by his averments in the statement of claim that he has locus standi to institute the action; else, the statement of claim will be struck out. See Chief Irene Thomas & Ors. V. Olufosoye (1986) 1 N.W.L.R. (pt.18) 669.

The statement of claim of the Respondent in this case throws onto the front burner the following facts to wit:-

“1. That Shanghai Light Industries International (Group) corporation Ltd. is the maker and Trade Mark owner of Lude Shoe polish.

2. That the respondent has a contract with the said Chinese company to be the sole distributor of the said shoe Polish in Nigeria and other West African Countries.

3. That the Appellant is not a party to the said contract.

4. That the Appellant has infringed on the trade mark of the Chinese company.

5. That the Respondent has Power of Attorney from the Chinese company to institute this action.

6. That pursuant to the aforesaid Power of Attorney, the Respondent has instituted this action in his own name”.

As I pointed out earlier, the above facts are yet to be tried and decided upon by the court below but a casual perusal of the statement of claim reveals those facts. There is no allegation in the statement of claim that there is a breach of the contract entered into between the Respondent and the Chinese Company for the sale and distribution of Lude Polish in Nigeria. There is also no averment in the statement of claim that the Appellant was a party to the said contract. Therefore, even if there is a breach of the said contract, the Respondent cannot sue the Appellant under the contract, the Appellant not being privy to the terms and conditions of the contract. It is now trite that a person, who is not a party to a contract, cannot be held bound by it. He cannot sue or be sued under it. See A.G. of the Federation v. A.I.C. Ltd. (2000) 10 N.W.L.R. (PT.675) 293, particularly the dictum of Ejiwunmi JSC (of blessed memory) where His Lordship at p.314 paras D-E adopted with approval the House of Lords decision in Dunlop Pneumatic Tyre Company v. Selfridges & Co. (1915) AC 847 at 847 where Lord Haldane said:-

“In the law of England, certain principles are fundamental. One is that only a person who is a party to a contract can sue on it. Our law knows nothing of a Jus quaesitum tertio arising by way of contract. Such a right may be conferred by way of property, as, for example, under a trust but it cannot be conferred on a stranger to a contract as a right to enforce the contract in personam”.

The sum total of what I am trying to say is that as there is no averment in the statement of claim that the contract has been breached, the Respondent has nothing to sue under the said contract, and even at that, the Respondent cannot sue the Appellant on the contract since he is a stranger to it.

Clearly, there is averment in the statement of claim that the trade mark of Lude Shoe Polish belonging to the Chinese Company has been infringed by the Appellant. Whether this is so or not, I do not know as trial is yet to start.  It is trite that a trade mark when duly registered will entitle the proprietor to sue or to institute an action for any infringement of the trade mark.  Any passing off the goods of the proprietor in which the trade mark pertends grounds a cause of action which the owner or his duly accredited agent can sue. It does not enable a third party to sue in the circumstance. See Dyktrade Ltd. v. Omnia Nig. Ltd. (2000) 12 N.W.L.R. (pt.680) 1. It follows that only the Chinese Company, the proprietor of the Trade Mark or his attorney can sue where there is a passing off the Lude Shoe Polish.

Now the Respondent has averred that he has a Power of Attorney donated to him by the proprietor of the Trade Mark and that one of the duties conferred on him by the said Power of Attorney is to institute actions in court against any person who infringes the trade mark of Lude Shoe Polish. I am not aware that this is in dispute. What however is in dispute is the fact that in instituting the case against the Appellant, the Respondent filed the case in its own name. This was one of the grounds for the preliminary objection at the court below which Ruling gave birth to this appeal. The court below had relied on the case of United Nigeria Company Ltd. v. Joseph Nahman (Attorney for Jumil Abdullah & Ors.) (Supra) to hold that the donee of a Power of Attorney can sue on behalf of the donor of the power in the name of the donee. Apart from the case of Nahman (Supra), the learned counsel for the Respondent cited the case of Laah v. Opaluwa (2004) 9 N.W.L.R. (pt.879) 558 to buttress his submission that a donee of a Power of Attorney can sue in his own name.

Let me start with the case of Laah (Supra). Quite contrary to the position taken by the learned counsel for the Respondent, the Court of Appeal in the said case held that an agent under a Power of Attorney should as a general rule, act in the name of the principal and that if he is authorized to sue on the principal’s behalf, the action should be brought in the principal’s name. See p.573 paras B-D (Supra). Thus, the case was wrongly cited by the Respondent. It is the other way round.

The learned senior counsel for the Appellant had drawn the attention of this court to the fact that some cases decided by the Apex court on the issue were cited to the court below but it failed to refer to or follow the decision in those cases. One of such cases is Vulcan Gases Ltd. v. Gasellschaft Fur Industries AG (2001) 9 N.W.L.R. (pt.719) 610. In that case the donee of a power of Attorney sued in his own name but obtained the leave of the Supreme Court at that late stage to amend and substitute the name of the principal as Plaintiff. The Supreme Court, per Iguh, JSC (as he then was) at p.640 para F-H held as follows:-

“I think I ought to observe, in the first place, that this amendment of the 24th February, 1997 which was not opposed in no small way helped to save this proceeding. This is because; the donee of a power of attorney or an agent in the presentation of a court suit or action pursuant to his power must sue in the name of the donor or his principal and not otherwise”.

Also, in Malwani v. Five Star Industries Ltd. (supra) the Supreme Court considered both Vulcan Gases Ltd. case and Nahman’s case (Supra) and also came to the conclusion that as it was held in Vulcan Gases Ltd. case, a donee of a power of attorney must sue in the name of his principal. Even in that Nahman’s case the Plaintiff sued as:

“JOSEPH NAHMAN
(ATTORNEY FOR JAMIL ABDULLAH)”

In the instant case, the agent or donee of the power of attorney sued simply as:

“ASCO INVESTMENT LIMITED” as if it is the Plaintiff in the case. The Preponderance of authorities both at the Supreme Court and in this court state that a donee of a Power of Attorney has to sue in the name of the principal. He can then indicate that the principal is suing by his lawful attorney who is the agent or donee of the authority to sue. It has to be noted that in Vulvan Gases Ltd. case, the Supreme Court said that had the donee of the Power of Attorney not amended the statement of claim to reflect the name of the principal as the Plaintiff, the suit would not have been properly constituted.

I am bound by these decisions. I have no power not to follow the decisions of the Supreme Court and I think all other subordinate courts are bound by these decisions. This court had observed in Yusuf v. Fred Egbe (1987) 2 N.W.L.R. (pt.56) 341 at 354 H-355 B, per Kolawole, JCA thus:-

“This court is bound by its own previous decisions which have not been overruled by the Supreme Court. The principle upon which the doctrine of precedent is built was enunciated by Lord Gardiner L. C. when he said:-
“Their Lordships regards the use of precedent as an indispensable foundation upon which to decide what are the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs as well as a basis for orderly development of legal rules”.

In consequence when a broad principle has been clearly decided by the Supreme Court, the decision should not be weakened or frittered away by fine distinctions… We, sitting as a Court of Appeal, must accept loyally the decision of the Supreme Court and where the decisions manifestly conflict it is in my view the tatter decision that is binding on the Court of Appeal”.

It follows that the High Court ought to have considered the above cases cited by the Appellant before it.

A court lower in the judicial hierarchy is bound by the ratio decidendi of a higher court in a prior case close, in facts and legal principles, to the case under consideration. This is what is referred to as the principle of stare decisis which means to stand by what has been decided and not to disturb and unsettle things which are established. See Tajumade A. clement & Anr. V. Bridget J. Iwuanyanwu & Anr. (1989) 3 N.W.L.R. (pt.107) 39.

Let me also say that although lower courts are bound to follow the decision of higher courts, it is not in all cases that the lower court is bound to follow all the cases cited before it, it must be seen to be in line with the case at hand. Having said that, it is my view that the court below erroneously applied the case of Nahman (Supra) instead of a plethora of Supreme Court authorities some of which have been discussed above and were cited to the court below.

The summary of all I have endeavoured to say above is that the Respondent, who is a donee of a Power of Attorney, cannot sue in his personal name but in the name of his principal and that not being the proprietor of the Trade Mark in Lude Shoe Polish, he cannot personally sue on any infringement or passing off as it were. Therefore, it is my view that the Respondent lacked locus standi to institute this suit in his personal capacity as he has not shown in his statement of claim his right or interest especially as the contract between it and the Chinese company has not been alleged to have been breached. In consequence therefore, this appeal succeeds and is hereby allowed. Suit No. FHC/L/CS/514/99 now pending at the Federal High Court, Lagos is hereby struck out being incompetent. I award costs of N30, 000.00 in favour of the Appellant.

CLARA BATA OGUNBIYI, J.C.A: I have read in draft the lead judgment just delivered by my brother John Inyang Okoro JCA, and I agree that the appeal has merit and should succeed.

Plethora of authorities had vehemently laid down the bounden duty on the respondent as the plaintiff at the trial court to show by the averments in the statement of claim that it has locus standi to institute the suit. Without a locus standi, there cannot be any right vested in the plaintiff to institute an action. The plaintiff in other words, is bereft of an authority and consequent upon which any statement of claim filed will be struck out. The term” locus standi” was extensively discussed in the case of Senator Abraham Adesanya V. The President of the Federal Republic of Nigeria & Anor. (1981) 1 ANLR 32 where it was held that the phrase denotes “legal capacity to institute proceedings in a court of law:

Also in the case of Josiah Kayode Owodunni V. Registered Trustees of Celestial Church of Christ & Ors. (2000) 10 NWLR (pt. 675) 315 the dicta of Ogundare JSC (of blessed memory) in his lead judgment at page 338 are very relevant wherein he said:-

“The term locus standi (or standing) denotes the legal capacity to institute proceedings in a court of law. Standing to sue is not dependent on the success or merits of the case; it is a condition precedent to a determination on the merits. It follows therefore that if the plaintiff has no locus standi or standing to sue, it is not necessary to consider whether there is a genuine case on the merits, his case must be struck out as being incompetent. At common law, the position is that, in the realm of public right, for a person to invoke judicial power to determine the constitutionality of legislative or executive action, 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 or injury is over and above that of the general public…”

Furthermore and at pages 354 – 355 of the same report, Iguh JSC also had this pronouncement to say:-

“It cannot be disputed that the question whether or not a plaintiff has locus standi in a suit is determinable from a totality of all the averments in his statement of claim. See Bolaji V. Rev. Bamgbose (1986) 4 NWLR (pt. 37) 632, Momoh v. Olotu (1970) 1 ANLR 117, 123. In dealing with the locus standi of a plaintiff, it is the statement of claim alone that has to be carefully examined with a view to ascertaining whether or not it has disclosed his interest and how such interest has arisen in the subject matter of the action…”

The absence of locus standi denotes lack of jurisdiction and the court cannot properly be constituted as competent. From the dicta in the cases under reference supra, the phrase locus standi can be summarised in the following terms and as squarely put by the learned respondent’s counsel that is to say that:

1. Locus standi is the legal capacity of a plaintiff to institute proceedings in a court of Law.

2. It is the statement of claim alone that has to be examined to ascertain whether its averments disclose any of the rights or interests of the plaintiff alleged of being violated or adversely affected by the acts of the defendant complained of.

3. Locus standi is a threshold question which can be taken up even suo motu by the court and in the absence of a defence having been filed.

4. The consequential effect on the plaintiff’s statement of claim in the absence of a locus standi is a striking out.

In the matter at hand, the respondent as a donee of a power of Attorney was not competent in taking out an action in his name as he did and shown on his statement of claim. The power was only vetted in his principal who was the proprietor of the Trade Mark in Lude Shoe Polish. My learned brother had adequately dealt with the appeal and I therefore subscribe to the reasoning’s and conclusion arrived there at in the lead judgment to the effect that the appeal has merit and ought to succeed. In the result, I also allow same and struck out the suit which is pending at the Federal High Court, Lagos. I further endorse the order made as to costs.

HUSSEIN MUKHTAR, J.C.A: I have had a preview of the lead judgment just rendered by my learned brother Okoro, JCA and do agree with him that the appeal is meritorious and ought to be allowed.

It is pertinent that all the issues raised for determination boil down to the jurisdictional issue of losus standi or the propriety of the appellant as a donee of power of attorney suing in respect of the subject matter thereof in his personal capacity. Locus standi denotes the capacity of a plaintiff to institute or commence proceedings in court. In other words it is a legal query in to the right or otherwise of the party instituting the action to so do. It could be a starter or non-starter in commencement of proceedings in court defending on the legal capacity of the plaintiff to sue or otherwise.

The issue of locus standi is so fundamental and the very foundation upon which the competence of the suit rests. Where the court determines that the plaintiff has no locus to bring the action, the matter automatically terminates there and has to be struck out as being incompetent. It then becomes a nonstarter into which the court cannot delve.

Whether or not the plaintiff has locus standi in the matter is determined by the facts and circumstances arising from the statement of claim and in particular whether from such facts and circumstances, the plaintiff has shown a legal right that entitles him to request for adjudication in respect of a particular issue or issues. The mere fact that such issue or issues are justiciable is not enough to confer locus standi. The plaintiff must show that he has legally protected right of action against the defendant.

Where, as in this case, the plaintiff claims to protect the interest of its principal under a power of attorney, the suit must be brought in the principal’s name or at least in the agent’s name acting for the donor of the power of attorney, but certainly not by the donee in his own right, for he has no such right independent of the power of attorney. My learned brother Sanusi, JCA has aptly observed in United Nigeria Co Ltd v. Nahman (2000) 9 NWLR (pt. 671) 177 at 187 – 188 paras H-B:

“An agent acting under a power of attorney should, as a general rule, act in the name of the principal. If he is authorized to sue on the principal’s behalf, the action should be brought in the principal’s name. A deed executed in pursuance of such a power is properly executed in the name of the principal or with words to show that the agent is signing for him, but the donee of the power may, where so authorized by the donor of the power, execute any instrument with his own signature and, where sealing is required, with his own seal, and act in his own name. This provision for execution and action by the donee in his own name exists as an alternative to the statutory procedure for the execution of a conveyance by the attorney of a corporation or by a corporate attorney. Any document executed or thing done under this provision is as effective as if it were executed or done in the name of the donor of the power. In the instant case, the 1st respondent, the donee, is authorized to act on behalf of his principal, the donor of the power of attorney. Thus, any act he does in his name is effective as if it was done by the donor.”

The respondent therefore could only have filed the suit in its capacity as an attorney for Shanghai Light Industrial International (Group) Corporation Ltd. the donor of the power of attorney under which guise the respondent’s right has been rooted.

In the instant case, the respondent having chosen to seek for a right which belongs to his principal, in its personal capacity rather than as a donee of power of attorney, has not disclosed a locus standi to sue the appellant. It follows therefore that the action as filed by the respondent is incompetent.

For the foregoing appraisal and the more detailed reasons in the lead judgment, this appeal succeeds per force and is allowed by me. I subscribe to all the consequential orders made in the lead judgment inclusive of the one in respect of costs.

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