PHILIP MORRIS INTERNATIONAL MANAGEMENT SA v AG OGUN STATE & ORS

PHILIP MORRIS INTERNATIONAL MANAGEMENT SA v AG OGUN STATE & ORS


IN THE COURT OF APPEAL
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN

ON FRIDAY, 24TH FEBRUARY, 2017


Appeal No: CA/I/196/2011
CITATION:

Before Their Lordships:

CHINWE EUGENIA IYIZOBA, JCA

HARUNA SIMON TSAMMANI, JCA

NONYEREM OKORONKWO, JCA


BETWEEN

PHILIP MORRIS INTERNATIONAL MANAGEMENT SA

(APPELLANT)

AND

THE ATTORNEY GENERAL OF OGUN STATE
BRITISH AMERICAN TOBACCO (NIGERIA) LTD
INTERNATIONAL TOBACCO COY LTD
BRITISH AMERICAN TOBACCO PLC
BRITISH AMERICAN TOBACCO (INVESTMENTS) LTD

(RESPONDENTS)


PRONOUNCEMENTS


A. ACTION
1. Parties to an Action – Whether a stranger to a suit can apply for and obtain orders against the parties in a suit

Whether a non-party can apply for and obtain orders against the parties in a suit

“Is it then conceivable that a stranger to a suit can apply for a relief in the suit without first applying to be joined in the suit? In this regard, the word “intervener” comes to mind. In TAIWO VS ADEGBORO (2011) LPELR-3133(SC) the SC per Rhodes-Vivour JSC observed that “an intervener is a person who was not originally a party in the suit but claims an interest in the subject matter, so comes to the case to protect his right. He usually comes at the discretion of the Court.” What makes this appeal unique is that the Appellant at the lower Court had no interest to be joined in the suit. It simply wanted the name of a party in the suit to be struck out. This to my mind is contrary to the Rules of Court especially the Ogun State High Court (Civil Procedure) Rules applicable in the instant case. The question here is whether the Appellant, not being a party in the suit had the competence (or in a sense the locus) to apply for the striking out of the name of a party in the suit. Locus standi in the proper and widely accepted sense of the phrase arises where a person is actually a party in the suit or is seeking to be made a party in the suit. Learned senior counsel had contended that in recognition of the fact that any person whose legal rights may be directly affected to his detriment has locus standi, referred to the cases of OWODUNI V. REGISTERED TRUSTEES OF CCC (SUPRA) and ATTORNEY GENERAL OF LAGOS STATE V. EKO HOTELS LTD(SUPRA). But in both cases, the complainants were parties. Here the Appellant was not seeking to be made a party in the suit. Without first and foremost taking that initial step to be made a party in the suit, he simply jumped in and proceeded to ask the Court for a relief affecting a party in the suit. The reason canvassed by the Appellant for taking that route is that the 5th Defendant was a non juristic person and by implication not competent to make the application by itself. Further, that the processes were served on it and that it was thereby given the footing to intervene. The case of AKANDE V GENERAL ELECTRIC CO. & ORS (SUPRA) cited by learned counsel for the 1st Respondent is a complete answer to the latter reason. As learned counsel stated in his brief the facts and circumstances are materially similar to the present case. Quoting: “The Plaintiff took action against three Defendants, the first of which is known as “General Electric Company”. Service of the Writ was effected on one John Maddox of the General Electric USA (Nigeria) Limited (not the first Defendant). The first Defendant entered conditional appearance and upon their failure to get the service of the Writ set aside filed their Statement of Defence.

The General Electric USA (Nigeria) Limited (An Intervener) which is in the position of the Appellant in the present appeal brought an Application for leave to intervene in the suit on the ground that it was served but was refused. It then filed an Application seeking for leave to appeal. This Application was refused but was granted by the Federal Court of Appeal. The Plaintiff appealed to the Supreme Court seeking to set aside the Order granting leave to appeal to the Intervener as a person having interest in the matter. After reviewing the facts and circumstances of the case, the Supreme Court initially observed on page 56 paragraph 5 – 10 that: This second question whether, assuming that the Court of Appeal has jurisdiction, it ought to have granted the leave sought, must be decided against the special facts and circumstances of this case which are in themselves unique. Still on page 56 paragraphs 25 – 30, the Supreme Court considering submission of Counsel at the hearing of the case, noted that the Plaintiff’s Counsel argued as follows: But the plaintiff has, through his counsel, Chief Williams, informed this Court that he did not intend to sue, or did he sue the intervener; that he has no claim against the interveners and therefore could not and did not intend to levy execution against the said interveners. On page 56 paragraphs 30 -35, the Supreme Court then posed: In those circumstances one, obviously, is inclined to ask what business have the interveners in a suit which does not concern them, the service on John Maddox of the writ of summons notwithstanding. It is against this background that we view the futile exercise of the application to set aside the service of the writ of summons and the application for leave to appeal from the order dismissing it.

The Supreme Court interpreting Section 121E (5)(A) of the Constitution Amendment No. 2 Decree No. 42 of 1976 which provision is in pari materia to the present Section 243(a) of the 1999 Constitution held on page 56 paragraphs 40 – 45 that: ”But on proper construction of Section 121E (5) (A) of the Constitution (Amendment) (No. 2), the person therein stated exercising the right of appeal to the Court of Appeal, must be one named in the record or with leave, having “an interest” in the proceedings – which term would include a person affected or likely to be affected, or aggrieved or likely to be aggrieved by the proceedings. Good examples are afforded by Maja & Ors v Johnson (1951) 13 WACA 194, and Johnson v Aderemi (1955) 13 WACA 297 (PC) at 299. It cannot include a total stranger to the proceedings who is neither named in the record, nor has an interest therein…”
It should be noted that the Supreme Court reviewed all the cases relied upon by the Court of Appeal and distinguished them from the facts of Akande’s case and eventually reversed the Court of Appeal decision. The Supreme Court consequently refused the leave to appeal in the following words on page 57 paragraphs 15 – 20: ”We think that the order of the Federal Court of Appeal granting leave to appeal to the interveners, the General Electric Company of USA (Nigeria) Ltd, and a stay of proceedings of the action, was in all the circumstances of this case erroneous. It was for the foregoing reasons that we set aside, with cost the order of the said federal Court of Appeal as hereinbefore stated. It is imperative to state that the facts and circumstances of Akande’s case is on all fours with the present case and despite the argument that it (General Electric Company of USA (Nigeria) Ltd) the Interveners just like the Appellant in this case has done, the Supreme Court still held that the Interveners were total strangers to the suit. “
Consequently, the claim by the Appellant that it was served the processes in the suit does not give it the right to intervene and make the application for the name of the 5th Defendant to be struck out. It remained a stranger to the suit.”
Per IYIZOBA, JCA read in context

2. Parties to an Action – Whether a stranger to a suit can apply for and obtain orders against the parties in a suit

Whether a non-party can apply for and obtain orders against the parties in a suit

“Being a non-Party in the suit at the High Court, Order 13 of the Ogun State High Court (Civil Procedure) Rules 2008 precludes the appellant from making any application to it. Besides this statutory provision, there is also the Constitution (1999) which by its provision in Section 243 (a) confines right of appeal to a Party to the action only (save by leave of the Court of Appeal or the High Court at the instance of any party having an interest in the subject matter) it provides thus:
”Any right of appeal to the Court of Appeal from the decision of the Federal High Court or a High Court conferred by this Constitution shall be (a) Exercisable in the case of civil proceedings at the instance of a party thereto/ or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney – General of the Federation or the Attorney – General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed.”In Other words, not being a party to the suit, appellant herein could not have made any application to the lower Court. Under Section 243 (a), “any ‘other person having an interest in the matter” refers to the substantive matter in the suit before the lower Court and not merely collateral interest.”
Per OKORONKWO, JCA read in context

B. APPEAL
3. Formulation of Issues for Determination – Formulation of issues for determination by the Respondent

Options available to a respondent as regards formulation of issues for determination

“The law is that as long as the issue arises from one of the Appellant’s grounds of appeal, the Respondent is at liberty to give it a slant favourable to his own line of argument without departing from the complaint in the ground of appeal. See MKPEDEM V. UDO (2000) 9 NWLR (PT. 673) 631; GEIDAM V. N.E.P.A. (2001) 2 NWLR (PT. 696) 45; CHIA V. THE STATE (1996) 6 NWLR (PT. 445) 465.” Per IYIZOBA, JCA read in context


LEAD JUDGMENT DELIVERED BY IYIZOBA, JCA


This appeal presents an interesting scenario. The 1st Respondent, the Attorney General of Ogun State as Plaintiff instituted an action at the Ogun State High Court, Abeokuta against five tobacco companies, the 2nd – 5th Respondents and a 5th defendant

– Philip Morris International for alleged conspired tortuous conducts which the 1st Respondent considered injurious to public health resulting in great financial expense. The 1st Respondent obtained an Order of Court for leave to serve the 5th Defendant out of jurisdiction in Switzerland through diplomatic channels. The originating processes were transmitted through diplomatic channels by the Ministry of Foreign Affairs of the Federal Republic of Nigeria to the Swiss cantonal authorities in the Canton of Vaud, Lausanne, Switzerland. The Swiss cantonal authorities, in turn, served the originating processes allegedly on the 5th Defendant at the address supplied. Learned Counsel E.A. Sofunde SAN/Babtunde A. Sodipo Esq., initially filed a memorandum of conditional appearance, preliminary objection and other Court processes on behalf of the 5th Defendant. Similar applications were filed separately by the other Defendants in the suit. Learned counsel later claimed that on the realization that the party sued is Philip Morris International and not Philip Morris International Management SA on which the processes were served sought and obtained permission to withdraw the conditional appearance, preliminary objection, motion to amend and other Court processes filed as having been filed without instruction and these processes were struck out by the Court below. Surprisingly, the same counsel now appearing for the Appellant who is not a party in the suit; who did not apply to be joined as an interested party and without any evidence of authorization by the 5th Defendant filed a Motion dated July 9, 2009 praying for an order of the Court to strike out the name of the 5th Defendant from the suit. See Pages 409 – 440 (Vol. 1) of the Record of Appeal. The grounds of the application were that the entity named as the 5th Defendant, “Philip Morris International,” is not a juristic entity; that it is not registered under the laws of Switzerland or any other country in the World; and that it is not located at the address identified in the Writ of Summons for service of the processes in Switzerland. The application was supported by a 7 paragraph affidavit and exhibits. The 1st Respondent vehemently opposed all the applications and filed counter affidavits with several exhibits separately for each Defendant. Their stand in respect of the 5th Defendant was that it sued the 5th Defendant and not the appellant; that the 5th Defendant was formerly incorporated in the United States and later moved to Switzerland; that the 5th Defendant exists and was involved in the tortuous conducts alleged by the 1st Respondent in its suit at the Trial Court; that the service of the originating process at the Switzerland address was made on the 5th Defendant and not the appellant; that the fact that the Appellant also occupies the building where the service was effected does not necessarily transfer into service on the Appellant; and finally, that the service was done based on the 5th Defendant’s address presented by it on its worldwide website managed by the Appellant. See pages 795 – 800 of Vol. II of the Record of Appeal.

The Trial Judge, O. O. Olopade J. heard this application along with the preliminary objections filed by all the other Defendants and on 20/05/10 delivered one Ruling in respect of the various applications. With respect to the Appellant’s application she held at pages 998 and 999 of Vol. 2 of the Record as follows:

“Paragraph 12 and Exhibits SCP1 and 2 to the counter affidavit of Bashir A. Ramoni deposed to on 14/10/09 to this Objection has not been adequately contradicted. Paragraph 12 gives a corporate history of the 5th Defendant. I am satisfied that an entity exists by the name Philip Morris International.

By its own showing, the 5th Defendant has settled the issue of its own existence. The disclosures in Exhibits SCP1 and SCP2 which I have referred to earlier in this Ruling suffice as confirmation of the existence of an entity called – Philip Morris International at the address ordered for service.

Moreover, the Applicant herein has no bearing to this matter before me. It has no legal standing to seek the striking out of an existing Party before the Court. I do not find any merit at all in this attempt by Philip Morris International Management S. A.

In all, I think I am satisfied with the issuance and service of the Writ of Summons herein and the Defendants on Record are duly and properly before the Court in this Suit.

The Applications of the 1st, 2nd, 3rd, and 4th Defendants and that of Philip Morris International Management S. A. Lack merit and are hereby dismissed”

The Appellant being dissatisfied with the above decision of the Court appealed to this Court by Notice of Appeal dated and filed on 27/05/11. The Notice of Appeal was filed pursuant to leave of the Court granted the Applicant on 26/01/11 to appeal as an interested party and also an order for extension of time within which to appeal dated 23/05/11 granted the Applicant by this Court. The original Notice of Appeal was subsequently amended by an order of the Court. The Amended Notice of Appeal dated and filed on 13/06/16 contains 12 grounds of appeal. The parties filed and exchanged briefs of argument. The extant briefs are (1) The Appellant’s Further Amended Brief of Argument dated and filed 02/11/16 but deemed properly filed and served on 11/11/16. (2) The 1st Respondent’s Further Amended Brief of Argument dated and filed on 18/11/16 and (3) Appellant’s Amended Reply Brief of Argument dated 28/11/16 and filed 05/12/16. The 2nd, 3rd, 4th and 5th Respondents did not file any briefs.

Mr. E. O. Sofunde SAN and Babatunde A. Sodipo Esq., of the Chambers of Ajumogobia & Okeke who settled the brief for the Appellant out of the 12 grounds of appeal in the Further Amended Brief of Argument, formulated 4 issues for determination as follows:

1. Whether the learned trial Judge was wrong to have concluded that the 5th Defendant is a juristic entity that exists at the address ordered for service and to have refused the Appellant’s Motion to Strike, having regard to the totality of the affidavit evidence before the Court? (Grounds 1,2,3, 5, 6, 7, 8 and 9)

2. Whether the learned trial Judge failed to evaluate the affidavit evidence placed before the Court below by the Appellant in support of the Appellant’s Motion to Strike and Paragraph 13 of the 1st Respondent’s Counter Affidavit before delivering her Ruling on the Motion and thus occasioned a miscarriage of justice? (Grounds 4 and 10)

3. Whether the learned trial Judge was wrong to have held that the Appellant lacked legal standing to seek to strike out the name of the 5th Defendant from the suit at the Court below? (Ground 11)

4. Whether the learned trial Judge was wrong to have made a finding of fact to the effect that the service of the Writ of Summons was satisfactory and that the Defendants on record were duly and properly before the Court below having regard to the absence of proof of service of the Concurrent Writ of Summons on the 5th Defendant in the Court’s case file? (Ground 12)

Babatunde Irukera Esq., Victoria Alonge (Mrs), Dapo Akinosun Esq., and a host of other counsel all from Simmons Cooper Partners who settled the brief of argument of the 1st Respondent distilled the following issues for determination.

i. Whether the Trial Court was right in holding that the Appellant being a non-party to the suit and without any authorization from the 5th Defendant lacks requisite standing to apply to strike out the name of the 5th Defendant from the suit. This issue flows from Ground 11 of the Amended Notice of Appeal.

ii. Considering the avalanche of factual analysis of the historical development of the 5th Defendant placed before the Trial Court, was the Trial Court right in holding that the 5th Defendant exists and ought to appear before the Court? This issue is derived from grounds 1, 2, 3, 7, 8 and 9 of the Amended Notice of Appeal.

iii. Was the Trial Court right in holding that the Appellant did not materially contradict the factual issues contained in the 1st Respondent’s Counter-Affidavit? This issue is formulated from grounds 5 and 6 of the Amended Notice of Appeal.

iv. Whether there exists any inconsistency in the 1st Respondent’s Counter-Affidavit and if the Trial Court indeed failed to consider and evaluate the factual evidence placed before it by both the Appellant and 1st Respondent in determining the Appellant’s motion to strike out the 5th Defendant’s name from the suit? This issue if derived from grounds 4 and 10 of the Amended Notice of Appeal.

v. Was the Trial Court right when it held that the issuance and service of the writ of summons on the 5th Defendant on record was proper and satisfactory having regard to the facts and documents before it? This issue is derived from Ground 12 of the Amended Notice of Appeal.

I am of the view that the Appellant’s issue 3 which is basically identical to 1st Respondent’s issue I is adequate to dispose of this appeal. Learned counsel for the Appellant in their Reply Brief argued that the 1st Respondent’s issue I formulated from Ground 11 of the Notice of Appeal is defective, as nowhere in Ground 11 of the Appellant’s Notice of Appeal did the Appellant complain about the Court below holding that the Appellant was a non-party to the suit or that the Appellant lacked authorisation from the 5th Defendant to apply to strike out the latter from the suit. Learned counsel submitted that 1st Respondent’s Issue I did not arise from Ground 11 or any other ground of appeal and urged us to hold the issue incompetent and to strike it out.

Ground 11 of the Amended Notice of Appeal and its

Particulars read:

GROUND 11:

“The learned trial Judge erred in law when she held that the Appellant has no bearing to this matter before me. It has no legal standing to seek the striking out of an existing party before the Court.”

PARTICULARS OF ERROR:

“The fact that the Appellant filed the application seeking to strike out the name of the 5th Defendant as the person who was served with the originating processes meant for the 5th Defendant on the ground that the 5th Defendant lacked juristic personality gave the Appellant the standing to seek that relief.”

By this contention, learned senior counsel’s attempt in my view is to put the 1st Respondent in a straight jacket where he can proffer no argument whatever outside his own line of discourse. Clearly this is not what is meant by the rule that the issues formulated by the Respondent must arise from the Appellant’s grounds of appeal. The law is that as long as the issue arises from one of the Appellant’s grounds of appeal, the Respondent is at liberty to give it a slant favourable to his own line of argument without departing from the complaint in the ground of appeal. See MKPEDEM V. UDO (2000) 9 NWLR (PT. 673) 631; GEIDAM V. N.E.P.A. (2001) 2 NWLR (PT. 696) 45; CHIA V. THE STATE (1996) 6 NWLR (PT. 445) 465.

The issue derivable from Ground 11 is whether the Appellant had the legal standing to make the application. The fact that the Appellant was not a party in the suit, and did not have the authority of the 5th Defendant to apply for its name to be struck out are facts not in dispute in the appeal. Those were the actual incidents that gave rise to the Appellant’s lack of legal standing. Even if these factors were not mentioned in the issue as formulated by the 1st Respondent, they were bound to come up as arguments while considering the issue as formulated by the Appellant. On this ground, I find no merit in the objection raised by the Appellant. I find the 1st Respondent’s issue I competent and within the contemplation of Ground 11 of the Appellant’s grounds of Appeal.

I shall however adopt the Appellant’s issue 3 in the determination of this appeal.

Whether the learned trial Judge was wrong to have held that the Appellant lacked legal standing to seek to strike out the name of the 5th Defendant from the suit at the Court below? (Ground 11)

APPELLANT’S ARGUMENTS:

On this issue, learned counsel for the Appellant submitted that the trial Judge’s conclusion on the Appellant’s lack of standing flows from, and is dependent on her conclusion that the 5th Defendant exists and is a proper party to the litigation. Counsel argued that it had proffered convincing reasons that the 5th Defendant is nonexistent contrary to the trial Judge’s ruling. By implication counsel’s argument is that the nonexistence of the 5th Defendant gives the Appellant the legal standing to make the application. In other words, counsel contends that the Appellant’s standing to bring this Motion becomes obvious once it is accepted that the 5th Defendant is a non-juristic entity.

Learned counsel submitted that the Appellant is the company served with the Writ of Summons in this case at its address in Lausanne, Switzerland. He argued that this fact alone gives the Appellant standing to appear in Court to apply for the striking out of the name of the party named as the 5th Defendant as no other entity has the standing. He opined that “Philip Morris International” is not a juristic entity and so cannot bring a Motion to Strike out the suit. He further submitted that “Philip Morris International Inc.” was neither named as a party nor served with the Writ of Summons. Learned counsel submitted that the risk of wrongful execution gives the Appellant an interest that cannot be adequately protected by other means or at a later date without risking the consequence of estoppel by silence and standing-by. Learned counsel set out the grounds in support of the motion and submitted that the Appellant has an interest in bringing the application to strike out the name of the 5th Defendant from the suit in order to bring to the attention of the Court and parties to the suit, the fact that it had been wrongly served with the originating processes meant for the 5th Defendant. He argued that the 5th Defendant is not a juristic entity; that it is not located at the address where service of processes were effected, and that it is not registered in Switzerland or any other country. Counsel submitted that these objectives were achieved by filing its Motion to Strike out the name of the 5th Defendant. Counsel further submitted that the address for service of the 5th Defendant is in fact stated on the originating processes filed by the 1st Respondent in the suit as the registered address of the Appellant and that the only entity at that address is the Appellant, Philip Morris International Management SA. Counsel referred to OWODUNI V. REGISTERED TRUSTEES OF CCC (2000) 10 N.W.L.R. (PT. 675) 315 @ 345 A-B where the Supreme Court per Ogundare JSC held as follows:

“… to invoke the judicial power of the Court a litigant must show sufficient interest or threat of injury he will suffer. I think the interest or injury test applied by the Federal Supreme Court in Olawoyin v. Attorney-General of Northern Nigeria (supra) should remain the yardstick in determining the question of the locus standi of a complainant and this is to be determined in the light of the facts or special circumstances of each case”.

Counsel also referred to the decision of the Supreme Court in ATTORNEY GENERAL OF LAGOS STATE V. EKO HOTELS LTD.(2006)18 N.W.L.R. (PT.1011) 378 @ 450- 451 F-A, where it was held that:

“A person who is in imminent danger of any conduct of an adverse party has the locus standi to commence an action

… a person has locus standi not only because he is connected or in close proximity, with the suit or action but that the result of any litigation outside him will directly affect his legal rights and to his detriment. Of course, the person must prove that his civil rights and obligations will be affected or are affected in the matter. That is the essence of Section 6(6) (b) of the 1999 Constitution …”

Counsel submitted that in recognition of the fact that any person whose legal rights may be directly affected to his detriment has locus standi, the Supreme Court in NJEMANZE V. SHELL B.P. PORT HARCOURT (1966) 4 N.S.C.C. 6 @ 7 LINE 45 OR (1966) ALL N.L.R. (REPRINT) 8 @ 10 endorsed the right of a juristic person who was served with process issued in the name of a non-juristic person whose name was substantially similar to its own, to move to strike out the action because the Defendant was not a juristic person. Counsel submitted that the situation is identical to that of the Appellant herein. He cited in further support of his contention the case of NJOKU V. UNITED AFRICAN COMPANY FOODS (1999) 12 N.W.L.R. (PT. 632) 557 AT 562 B-C.

Learned counsel submitted that the Appellant has the legal standing because there is a real risk of wrongful execution against the Appellant at the end of the proceedings before the Court below. He opined that the Court below held that there is a “Philip Morris International” at the address for service in Lausanne, Switzerland; that there is no other entity with “Philip Morris International” in its name at this address that the 1st Respondent could execute Judgment against, other than the Appellant. Counsel argued that as further evidence of the risk the Appellant is facing, the 1st Respondent identified the Appellant’s web site as belonging to the 5th Defendant. Counsel submitted that the Appellant is exposed to the risk of a possible execution against it, of judgment obtained against the 5th Defendant. He contended that the Appellant’s legal right would surely be affected justifying the need for it to make the application for the name of the 5th Defendant to be struck out.

Learned counsel argued that if the Appellant had failed to intervene at the Court below in the manner it did, it would be guilty of standing by. He referred to the case of OLOSUNDE V, OLADELE [1991] 4 N.W.L.R. (PT. 188) 713 @ 730 where the Court of Appeal held per Adio JCA as follows:

“Estoppel by silence and standing-by applies (sic) where it is shown that the party against whom the defences are set-up had notice of what was being done but did nothing to prevent it and that the position of the other party had been altered to his prejudice or detriment or that he has been induced by the first party’s inaction to expend the money”.

Learned counsel urged us to hold that the learned trial Judge’s decision on the Appellant’s standing to bring the Motion to Strike out the 5th Defendant’s name is wrong.

1ST RESPONDENT’S ARGUMENTS:

Learned counsel for the 1st Respondent in his brief submitted that the fulcrum of the Appellant’s motion was to have the name of the 5th Defendant struck out as a party to the suit. Counsel submitted that it is settled law that a person has no legal standing to seek relief that inures to the benefit of a party in a suit. He submitted that the Appellant neither acted as agent of the 5th Defendant nor claimed to have obtained any authorization from it. Counsel cited A.G ANAMBRA STATE V. A.G FEDERATION (2007) 12 NWLR (PT. 1047) 1 and KALU V ODILI (1992) 5 NWLR (Pt. 240) 130.

Learned counsel submitted that the Appellant did not apply to set aside the service of the originating processes made on it if its claim is that the service thereof conferred on it any legal standing. Learned counsel referred us to Exhibit SCP 13 on page 799 of the record where the 5th Defendant represented to the World that its address is the Appellant’s address. Counsel argued that in view of the Appellant’s disclosure that its interest entails no more than seeing that “justice is done to a party” (5th Defendant); the competent party to challenge the existence or otherwise of the 5th Defendant is the 5th Defendant itself. To that extent, counsel submitted that the Appellant is a meddlesome interloper and that the Trial Court was right in dismissing the Appellant’s application on the ground that the Appellant does not have legal standing to bring the application. Counsel submitted that the Appellant’s action is a case of a sympathizer wailing more profusely than the bereaved! He opined that the Appellant by its request is defending the 5th Defendant indirectly which is not permissible under our judicial system. He cited PLATEAU STATE V. A.G. FEDERATION (2006) 3 NWLR (PT. 967) 346 AT 423 where the Supreme Court held as follows:

Only parties to an action can claim reliefs flowing from such action. A person who is not a party to an action lacks the locus to claim a relief therein. In this case, the suit wrongly sought compensatory relief for Chief Joshua Dariye, the Governor of Plateau State, the Deputy Governor of Plateau State, Commissioners of Plateau State Speaker and members of the House of Assembly, all of whom were strictly not parties to the action.

Learned counsel submitted that the 5th Defendant to whom the relief sought by the Appellant inures did not authorize the Appellant to bring the Application. He opined that the Court ought not to have heard the Application in the first place. He referred again to PLATEAU STATE V. A.G. FEDERATION (SU RA) @ 430 where the Supreme Court held as follows:

In this case, there was no authority to file this suit at the time it was filed ….. this Court would have no jurisdiction, power or authority to adjudicate over the matters.

Learned counsel submitted that the Appellant’s Application dated 9th July 2009 and the present Appeal are designed for the benefit the 5th Defendant; and that the Appellant has no right to sue on behalf of the 5th Defendant without any authorization by the 5th Defendant. Counsel submitted that from Exhibit SCP 13 attached to the Further Counter-Affidavit at pages 797 – 799 of the Record of Appeal, there is a representation that the address of the 5th Defendant since it moved from USA to Lausanne in Switzerland is actually care of the Appellant. The Appellant cannot therefore hide on the pretence that it was served with the processes to acquire any nexus with the suit. He called in aid the case of AKANDE V GENERAL ELECTRIC CO. & ORS (1979) NS 51.

Learned counsel cited Order 13 Rules 17(1) and (2) of the High Court of Ogun State (Civil Procedure Rules) 2008 and submitted that by the said Rule it is only a party to a suit that can apply to strike out its name and not a non-party like the Appellant. He submitted that the Trial Court recognized this provision when it held that since the Appellant is not a party, it does not have a legal standing to apply for striking out the name of a party before it. Counsel submitted that allowing the Appellant’s appeal will not only contravene this provision but also interfere with the prerogative of the 1st Respondent to sue any person against whom he has cause of action as was held by this Court in interpreting similar provision in ADEFARASIN V DAYEKH (2007) 11 NWLR (PT. 1044) 89 AT 119; :

A plaintiff who conceives that he or she has a cause of action against a particular defendant is entitled to pursue his remedy against that defendant only; and should not be compelled to proceed against other person whom he has no desire and intention to sue.

Learned counsel urged us on this ground alone to dismiss the appeal as lacking in merit.

RESOLUTION:

The learned trial judge in the Ruling held:

“Moreover, the Applicant herein has no bearing to this matter before me. It has no legal standing to seek the striking out of an existing Party before the Court. I do not find any merit at all in this attempt by Philip Morris International Management S. A.”

It is not in dispute that the Appellant was not a party in the suit in the lower Court. Is it then conceivable that a stranger to a suit can apply for a relief in the suit without first applying to be joined in the suit? In this regard, the word “intervener” comes to mind. In TAIWO VS ADEGBORO (2011) LPELR-3133(SC) the SC per Rhodes-Vivour JSC observed that “an intervener is a person who was not originally a party in the suit but claims an interest in the subject matter, so comes to the case to protect his right. He usually comes at the discretion of the Court.” What makes this appeal unique is that the Appellant at the lower Court had no interest to be joined in the suit. It simply wanted the name of a party in the suit to be struck out. This to my mind is contrary to the Rules of Court especially the Ogun State High ourt (Civil Procedure) Rules applicable in the instant case.

A considerable time was devoted by learned senior counsel for the Appellant on the question of locus standi. With respect I do not consider locus standi strictly the issue here. The question here is whether the Appellant, not being a party in the suit had the competence (or in a sense the locus) to apply for the striking out of the name of a party in the suit. Locus standi in the proper and widely accepted sense of the phrase arises where a person is actually a party in the suit or is seeking to be made a party in the suit. Learned senior counsel had contended that in recognition of the fact that any person whose legal rights may be directly affected to his detriment has locus standi, referred to the cases of
OWODUNI V. REGISTERED TRUSTEES OF CCC (SUPRA) and ATTORNEY GENERAL OF LAGOS STATE V. EKO HOTELS LTD(SUPRA). But in both cases, the complainants were parties. Here the Appellant was not seeking to be made a party in the suit. Without first and foremost taking that initial step to be made a party in the suit, he simply jumped in and proceeded to ask the Court for a relief affecting a party in the suit. The reason canvassed by the Appellant for taking that route is that the 5th Defendant was a non juristic person and by implication not competent to make the application by itself. Further, that the processes were served on it and that it was thereby given the footing to intervene. The case of AKANDE V GENERAL ELECTRIC CO. & ORS (SUPRA) cited by learned counsel for the 1st Respondent is a complete answer to the latter reason. As learned counsel stated in his brief the facts and circumstances are materially similar to the present case. Quoting:

“The Plaintiff took action against three Defendants, the first of which is known as “General Electric Company”. Service of the Writ was effected on one John Maddox of the General Electric USA (Nigeria) Limited (not the first Defendant). The first Defendant entered conditional appearance and upon their failure to get the service of the Writ set aside filed their Statement of Defence.

The General Electric USA (Nigeria) Limited (An Intervener) which is in the position of the Appellant in the present appeal brought an Application for leave to intervene in the suit on the ground that it was served but was refused. It then filed an Application seeking for leave to appeal. This Application was refused but was granted by the Federal Court of Appeal. The Plaintiff appealed to the Supreme Court seeking to set aside the Order granting leave to appeal to the Intervener as a person having interest in the matter. After reviewing the facts and circumstances of the case, the Supreme Court initially observed on page 56 paragraph 5 – 10 that:

This second question whether, assuming that the Court of Appeal has jurisdiction, it ought to have granted the leave sought, must be decided against the special facts and circumstances of this case which are in themselves unique.

Still on page 56 paragraphs 25 – 30, the Supreme Court considering submission of Counsel at the hearing of the case, noted that the Plaintiff’s Counsel argued as follows:

But the plaintiff has, through his counsel, Chief Williams, informed this Court that he did not intend to sue, or did he sue the intervener; that he has no claim against the interveners and therefore could not and did not intend to levy execution against the said interveners.

On page 56 paragraphs 30 -35, the Supreme Court then posed:

In those circumstances one, obviously, is inclined to ask what business have the interveners in a suit which does not concern them, the service on John Maddox of the writ of summons notwithstanding. It is against this background that we view the futile exercise of the application to set aside the service of the writ of summons and the application for leave to appeal from the order dismissing it. The Supreme Court interpreting Section 121E (5)(A) of the Constitution Amendment No. 2 Decree No. 42 of 1976 which provision is in pari materia to the present Section 243(a) of the 1999 Constitution held on page 56 paragraphs 40 – 45 that:

”But on proper construction of Section 121E (5) (A) of the Constitution (Amendment) (No. 2), the person therein stated exercising the right of appeal to the Court of Appeal, must be one named in the record or with leave, having “an interest” in the proceedings – which term would include a person affected or likely to be affected, or aggrieved or likely to be aggrieved by the proceedings. Good examples are afforded by Maja & Ors v Johnson (1951) 13 WACA 194, and Johnson v Aderemi (1955) 13 WACA 297 (PC) at 299. It cannot include a total stranger to the proceedings who is neither named in the record, nor has an interest therein…” It should be noted that the Supreme Court reviewed all the cases relied upon by the Court of Appeal and distinguished them from the facts of Akande’s case and eventually reversed the Court of Appeal decision. The Supreme Court consequently refused the leave to appeal in the following words on page 57 paragraphs 15 – 20:

”We think that the order of the Federal Court of Appeal granting leave to appeal to the interveners, the General Electric Company of USA (Nigeria) Ltd, and a stay of proceedings of the action, was in all the circumstances of this case erroneous. It was for the foregoing reasons that we set aside, with cost the order of the said federal Court of Appeal as hereinbefore stated.

It is imperative to state that the facts and circumstances of Akande’s case is on all fours with the present case and despite the argument that it (General Electric Company of USA (Nigeria) Ltd) the Interveners just like the Appellant in this case has done, the Supreme Court still held that the Interveners were total strangers to the suit. “ Consequently, the claim by the Appellant that it was served the processes in the suit does not give it the right to intervene and make the application for the name of the 5th Defendant to be struck out. It remained a stranger to the suit.

The first reason given by the Appellant for its intervention is that the 5th Defendant was a non juristic person and by implication not competent to make the application by itself. In his Reply brief, learned senior counsel observed:

“If the 1st Respondent were correct and if there were a juristic person named “Philip Morris International,” then the 1st Respondent would have a basis for claiming that the Appellant is a meddlesome interloper. But this is not correct. The 1st Respondent has not submitted reliable evidence that “Philip Morris International” – the name of the 5th Defendant – is a juristic entity, and the Appellant has submitted substantial and reliable evidence that it is not a juristic entity.”

While the issue as to whether or not the 5th Defendant is a juristic person given the stance of the parties is irrelevant at this point being a matter for pleadings and evidence; the Appellant by the observation above is indeed supporting the case that it is indeed a meddlesome interloper. The Appellant had submitted in paragraph 1.5 page 1 of its Reply brief that “the 5th Defendant, not being a juristic entity, is not capable of making any application or giving authorization to anyone to challenge the action at the Court below.” Whatever made the Appellant feel that it has the competence to ask for the striking out of the name of the 5th Defendant ought to have made it possible for it to make the application in the name of the 5th Defendant instead of in its own name of “Philip Morris International Management S.A” a stranger in the suit. After all, there is a long line of cases where the party sued is a non juristic person and it is that same non juristic person that takes the necessary step for its name to be struck out; invariably because there is always an entity linked to the non juristic party just as the Appellant herein is linked with the 5th Defendant. See SHITTA V LIGALI (1941) 16 NLR 23; AGBONMAGBE BANK LTD V. GENERAL MANAGER G.B. OLLIVANT LTD (1961) 1 ALL NLR 116; ATAGUBA & CO V. GURA (NIG.) LTD (2005) 8 NWLR (PT. 927) 429; MAERSK LINE V. ADDIDE INVEST. LTD (2002) 11 NWLR (PT 778) 317.

Even in the cases of NJEMANZE V. SHELL B.P. PORT HARCOURT (SUPRA) and NJOKU V. UNITED AFRICAN COMPANY FOODS (SUPRA) which the Appellant claimed to be on all fours with the instant case, conditional appearance was entered for the non juristic entity and subsequently objection was raised as to the competence of the suit. For example in NJEMANZE V.SHELL B.P. PORT HARCOURT (SUPRA) learned counsel for the Defendant entered appearance for the non juristic person Shell B.P Port Harcourt. It did not file a motion in the name of Shell B.P Petroleum Development of Nigeria Ltd asking for the name of Shell B.P. Port Harcourt to be struck out as the Appellant did in the instant appeal. From the affidavit evidence filed by the parties, it is quite obvious that there is some kind of relationship between the 5th Defendant and the Appellant. The Appellant had in justifying the step it took expressed the fear that if it failed to take action, judgment if obtained by the 1st Respondent may be levied against it just as the processes were served on it. This is precisely the reason why all the processes filed by the Appellant should have been filed in the name of the 5th Defendant. If the Appellant had gone that route, it would not be in the difficulty it is facing now. The issue would then not arise as to whether it lacked the requisite standing to apply to strike out the name of the 5th Defendant. The truth is that the Appellant is a non party in the suit. Order 13 Ogun State High Court (Civil Procedure) Rules 2008 deal with parties generally. From these provisions it is clear that only parties to the suit can make applications to the Court. A non party to qualify must first apply to be joined as a party. Herein lay the predicament of the Appellant. It did not apply to be joined before making the application that the 5th Defendant’s name be struck out. The Appellant was an interloper and the learned trial judge was right to have held that the Appellant lacked the legal standing to seek to strike out the name of the 5thDefendant from the suit.

To give it the competence to file this appeal, the appellant had come to this Court by motion on notice praying for an order granting it leave to appeal as an interested party. The appellant knew he was not a party at the lower Court. The only way to get this Court to hear him was by that application. Why then did the Appellant imagine that without such similar application giving him the right to be heard at the lower Court, it could just jump in and ask the Court to strike out the name of the 5th Defendant? If the only reason why the Appellant was in Court was because the originating processes meant for the 5th Defendant was served on it, it would have made sense if it had applied for the wrongful service to be set aside. Instead his application is that the name of the 5th Defendant be struck out allegedly because it is a non juristic person and cannot act for itself. What is the business of the appellant in the matter? This issue alone is sufficient to determine this appeal. All the other issues in the Appellants brief are academic and no useful purpose will be served in dealing with them.

In the final conclusion, I hold that this appeal lacks merit. It is hereby dismissed. The Ruling of Olopade J. in Suit No. AB/61/2008 delivered on 20/05/20 0 as it concerns the Appellant herein is affirmed. I make no order as to costs.

TSAMMANI, JCA

I had a preview of the judgment just delivered by my learned brother, Chinwe Eugenia Iyizoba, JCA.

Certainly the affidavit evidence deposed to in this case show clearly that the Appellant herein is not a party in the substantive Suit before the trial Court. Order 13 Rule 17 (1) and (2) of the Ogun State High Court (Civil Procedure) Rules, 2008 makes it clear that only a party to a Suit may apply that its’ name be struck out. The Appellant not being a party on the Claims before the trial Court had no locus or competence to pray that the name of a party to the Suit be struck out. The Appellant therefore eminently qualified as an interloper when he applied that the name of a party to the Suit (5th Defendant) be struck out.

In the circumstances, I agree with my learned brother that this Appeal is lacking in merit. It is accordingly dismissed. I abide by the order on costs.

OKORONKWO JCA

I have read the draft of the Judgment in this appeal by my lord Chinwe Eugenia Iyizoba (J. C. A). I agree with the reasoning entirely and adopt the conclusions reached.

In addition, I would like to add a few words in order to show that either the appellant is a meddlesome interloper or is concealing some secrets between it and the 5th respondent on record.

Being a non-Party in the suit at the High Court, Order 13 of the Ogun State High Court (Civil Procedure) Rules 2008 precludes the appellant from making any application to it. Besides this statutory provision, there is also the Constitution (1999) which by its provision in Section 243 (a) confines right of appeal to a Party to the action only (save by leave of the Court of Appeal or the High Court at the instance of any party having an interest in the subject matter) it provides thus:

”Any right of appeal to the Court of Appeal from the decision of the Federal High Court or a High Court conferred by this Constitution shall be

(a) Exercisable in the case of civil proceedings at the instance of a party thereto/ or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney – General of the Federation or the Attorney – General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed.” In Other words, not being a party to the suit, appellant herein could not have made any application to the lower Court.

Under Section 243 (a), “any ‘other person having an interest in the matter” refers to the substantive matter in the suit before the lower Court and not merely collateral interest. The matter in the suit at the lower Court relates to tobacco production and tortuous liabilities connected therewith -that is not the kind of interest alluded to by appellant.

In any event the appeal is not meritorious and I also dismiss it as such.