REVENUE MOBILIZATION ALLOCATION AND FISCAL COMMISSION (RMAFC) v. ATTORNEY GENERAL OF FEDERATION & ORS (2014)

REVENUE MOBILIZATION ALLOCATION AND FISCAL COMMISSION (RMAFC) v. ATTORNEY GENERAL OF FEDERATION & ORS

(2014)LCN/7523(CA)

In The Court of Appeal of Nigeria

On Thursday, the 13th day of November, 2014

CA/A/82/2009

RATIO

STATUTORY INTERPRETATION; THE GUIDING PRINCIPLE IN THE INTERPRETATION OF A STATUTE
The guiding principle in the interpretation of a statute is that words must be given their ordinary and grammatical meaning. The primary concern of the court is the intention of the law makers. A court has no business reading in any statute words which are not used therein. See Onyedebulu Vs Mwaneri (2009) All FWLR (part 453).
It follows therefore that the court is duty bound to interpret the words contained in the statute and cannot go outside in search of an interpretation as it will amount to a voyage of discovery. Where words used in the statute are clear and unambiguous, the court is duty bound to apply it to that effect. It is well settled that a court of Law is not entitled to read into a statute words which are excluded expressly or impliedly from it. The sacred duty of our court is to interpret the words used in the section by the legislation and give them their intended meaning and effect without more. See Buhari Vs INEC (2008) 18 NWLR (part 1120) 246 at 344 paragraphs F – G where the Supreme Court held that:
“Courts of Law in interpreting the constitution or a statute have no Jurisdiction to read into the constitution or statute what the legislators did not provide for, and a fortiori read out of the constitution or statute what is provided for by the legislators, In either way, the court are abandoning their constitutional functions and straying into those of the legislature by interfering or interloping with them. As that will make nonsense of the separation of power provided for in section 4 and 6 of constitution, courts of law will not do such a thing”. per. TANI YUSUF HASSAN, J.C.A.

COURT: JURISDICTION/LOCUS STANDI; THE IMPORTANCE OF JURISDICTION TO A PROCEEDING, THE MEANING OF LOCUS STANDI AND THE TWO TESTS IN DETERMINING LOCUS STANDI

On the issue of locus standi, the importance of the issue of jurisdiction had been emphasized in the numerous decisions of this Court and the Supreme Court. It is an accepted view that jurisdiction forms the foundation of adjudication. A defect in competence is extrinsic to adjudication Hope Democratic Vs Obi (2011) 12 SCNJ 182 at 187. Locus standi means standing to sue or competence of a party to sue. An objection to a Plaintiff’s Locus standi attacks his competence to sue as to whether he has any legal or equitable interest to protect. A plaintiff satisfying the court that he has locus standi if he is able to show that his civil rights and obligations have been or are in dangers of being infringed. There must be a nexus between the claimant and the disclosed cause of action concerning his rights or obligations.

Justice

MOORE A.A. ADUMEIN Justice of The Court of Appeal of Nigeria

TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria

JOSEPH EKANEM Justice of The Court of Appeal of Nigeria

Between

REVENUE MOBILIZATION ALLOCATION AND FISCAL COMMISSION (RMAFC)Appellant(s)

AND

1. ATTORNEY GENERAL OF FEDERATION
2. FEDERAL MINISTRY OF FINANCE
3. NIGERIAN CUSTOMS SERVICE
4. FEDERAL INLAND REVENUE SERVICE
5. CENTRAL BANK OF NIGERIARespondent(s)

TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): The Appeal is against the Judgment of the Federal High Court, Abuja delivered on the 3rd day of November, 2008.
The facts of the case are that the Appellant as Plaintiff instituted the suit at the Federal High Court Abuja by Originating Summons dated 4th day of May and filed on the 8th day of May 2007 against the 1st – 4th Respondents as defendants seeking Judicial interpretation and determination of certain questions relating to the Federation Account as reflected at pages 2 – 14 of the Record of Appeal. The 1st – 3rd Respondents as defendants at the Lower Court filed a Notice of preliminary objection dated 5th day of June, 2007 while 4th Respondent filled on 29/06/2007. By a motion dated 29th day of June, 2007, the 5th Respondent was joined as a party in the suit as the 5th defendant by order of Court on 03/07/2007. The 5th Respondent also filed a Notice of preliminary objection dated 12th day of July, 2007.
The 5th Respondent filed a counter affidavit to the Appellant’s originating summons while the 1st -4th Respondent did not file anything. The originating summons with the Notices of Preliminary objection were determined together. The preliminary objection was upheld and the originating summons was struck out for want of jurisdiction to entertain the suit.

The decision of the Lower Court declining jurisdiction to entertain the suit gave rise to this Appeal. There are four grounds of Appeal. The grounds of Appeal without their particulars are:
GROUND ONE
The learned Trial Judge of the Federal High Court erred in law when the held at page 27 – 28 of the Judgment
“I cannot find any express provision which empowers the plaintiff to institute an action to enforce compliance with the constitutional provision relating to the accrued to and disbursement of the proceeds in the Federation Account There is also nowhere in the said provisions where the plaintiff is said to be the umpire of the Federation Account apart from the duty of monitoring the Account. In the absence of an express provision giving the plaintiff the power of enforcing compliance with the constitutional provisions afore said the submission of the learned SAN that the power to monitor comes within the power to institute an action to seek interpretation of the relevant constitutional provisions relating to the Federation Account is not backed by any law”. And thereby occasioned a miscarriage of Justice”.

GROUND TWO
The learned trial Judge erred in law and on the facts when he held at page 28 of the Judgment that:
“Having performed the monitoring of the Federation Account effectively to the extent of making reports and recommendation to the trustees the role of the plaintiff has ended. And thereby occasioned a miscarriage of Justice”.

GROUND THREE
The learned trial Judge erred in law when he held at pages 28 – 29 of the judgment as follows:
“It follows therefore that it is these beneficiaries to the Federation Account that have the legal interest in subject matter of the suit and IPSO facto the locus standi to bring an action to stop any perceived infraction of the constitutional provisions in question”. And thereby occasioned a miscarriage of Justice.

GROUND FOUR
The learned trial Judge erred in law and misdirected himself on the facts when he held at page 29 of the judgment:
“The case of Attorney General of Federation V. A.G. Abia State clearly illustrates the point that beneficiaries of the Federation Account are capable of bringing any action to stop the Executive Arm of the Federal Government from the alleged acts of infraction of the provisions of the constitution relating to the accruals to and disbursement of the Federation Account wherever they feel aggrieved by such acts, That they have not done so in respect of the plaintiff does not cloak the plaintiff with the locus standi to bring the action as the plaintiff has no legal interest beyond that of the public at large that has (sic)been breached or threatened to be breached”.

RELIEFS SOUGHT
1. Allow the Appeal
2. Set aside the Judgment of the Federal High Court per Bello J. delivered on 03/11/2009
3. Invoke section 15 of the Court of Appeal Act, LFN 2004, to determine all other issues raised by the parties but left unresolved by the trial Court.
In an originating summons dated 4th day of May 2007 and filed on the 8th day of May, 2007 as reflected at pages 2 – 14 of the Record of Appeal, the Plaintiff/Appellant sought for the determination of the following questions.
1. Whether having regard to Section 7(6) Sections 80(3), 162(3) and 165-167 and item A (i) (a) – (iv) of part II of the second schedule of the constitution of the Federal Republic of Nigeria 1999, the 1st and 2nd Defendants are entitled to deduct monies directly from the Federation Account running into Billions of Dollars and billions of Naira for any of the following:
a) National integrated power plants for which over US$3.4 Billion already deducted
b) Nigerian Railways Co-operation project for which over US$250 Million already deducted.
c) Paris and London Club Debt Percentage Commission and payments for which over US$13 Billion already deducted
d) N13.7 Billion Naira Monthly direct deduction from the Federation under “ALGON – ASSISTED” health scheme.
e) 7% Monthly deduction from the Federation as cost of collection of revenue in favour of the Nigerian customs service with the sum of over N40 Billion already deducted.
f) 4% Monthly deduction from the Federation Account as cost of collection of revenue in favour of Federal Inland Revenue Service with sum of over N20 Billion already deducted.
2) Wherefore having regard to Section 80(3), 162 (3) and 165 – 167 of the constitution of the Federal Republic of Nigeria 1999, and having further regard to the decision of the Supreme Court in Attorney General of the Federation vs Attorney General of Abia State and 35 others (2002) 6 NWLR (764) 542 the Monthly direct deductions from the Federation Account for:
a) National Integrated Power Plant
b) Nigerian Railways Co-operation Project
c) Paris and London Club Debt percentage Commission
d) 13.7 Billion Naira Monthly direct deduction from the Federation Account under “ALGON – ASSISTED” health scheme.
e) 7% Monthly deduction from the Federation Account as cost of collection of revenue in favour of the Nigerian Customs Services.
f) 4% Monthly deduction from the Federation as cost of collection of revenue in favour of Federal Inland Revenue Service running into Billions of Dollars and billions of Naira by the Defendants through direct first line charge on the Federation Account are not unconstitutional?
3) Wherefore having regard to Section 80(3) and paragraph A of part II of the second schedule of the Constitution of the Federal Republic of Nigeria, 1999, the Defendant can deduct funds directly from the Federation Account without an enabling Act of the National Assembly.

4) Whether having regard to Section 7(6) Section 163 (1 – 6) of the Constitution of the Federal Republic of Nigeria 1999, any tier of Government or any Government Agency can take or receive a loan from the Federation Account or conversely direct or instruct that monies be deducted on its behalf directly from the Federation Account for any purpose whatsoever or charge its debt on the Federation Account?

5) Whether having regard to Section 162(3) of the Constitution of the Federal Republic of Nigeria 1999, the 3rd and 4th Defendants can be direct beneficiaries from the Federation Account, not being Federal, State or Local Government.

6) Whether having further regard to Section 162(2) of the Constitution of the Federal Republic of Nigeria 1999 the principle of derivation can apply to revenue collected by the 3rd and 4th Defendants, such not being national resources?

7) Whether having regard to Section 165 of the Constitution of the Federal Republic of Nigeria 1999, cost of collection of revenue ought not to be charged on the consolidated Revenue fund or other funds, such as the VAT Pool Account rather than on the Federation Account?

8) Whether it does not amount to double-charging for the 4th defendant to draw cost of collecting both from the VAT Pool Account to which the Federal Government is entitled to 15% and then directly from the Federation Account?
The Plaintiff/Appellant prayed for declaratory reliefs as follow:
1. A declaration of the Honourable Court that having regard to Section 7(6), Section 80(3), 162(3) and 165 – 167 and item A(1) (a) (iv) of part II of the second schedule of the constitution of the Federal Republic of Nigeria 1999, the 1st and 2nd Defendants are not entitled to deduct monies directly from the Federation Account running into Billions of Dollars and Billions of Naira for any of the following:
a) National Integrated Power Plants for which over US$3.4 Billion already deducted.
b) Nigerian Railways Co-operation project for which over US$250 million already deducted.
c) Paris and London Club Debt percentage commission and payments for which over US$13 Billion already deducted,
d) N13.7 Billion Naira Monthly direct deduction from the Federation Account under “ALGON – ASSISTED” health scheme.
e) 7% Monthly deduction from the Federation Account as cost of collection of revenue in favour of the Nigerian customs service, with the sum of over N40 Billion already deducted.
f) 4% monthly deduction from the Federation Account as cost of collection of revenue in favour of the federal Inland Revenue Service, with the sum of over N20 Billion already deducted.
2) A declaration of this Honourable Court that having regard to Sections 80(3), 162(3) and 165 – 167 of the Constitution of the Federal Republic of Nigeria 1999, and having further regard to the decision of the Supreme Court in Attorney General of the Federation Vs Attorney General of Abia State and 35 OTHERS (2002) 6 NWLR (764) 542 the Monthly direct deductions from the Federation Account for:
a) National Integrated Power Plant
b) Nigerian Railways Co-operation Project
c) Paris and London Club Debt Percentage Commission
d) N13.7 Billion Naira Monthly direct deduction from the Federation Account under “ALGON – ASSISTED” health scheme
e) 7% Monthly deduction from the Federation Account as cost of collection of revenue in favour of the Nigerian Customs Service.
f) 4% Monthly deduction from the Federation Account as cost of collection of revenue in favour of Federal Inland Revenue Service running into billions of Dollars and Naira by the 2nd Defendant through first line charge on the Federation Account are unconstitutional.
3) A declaration of this Honourable Court that having regard to Section 80(3) and paragraph A of part II of the second schedule of the constitution of the Federal Republic of Nigeria 1999, the Defendants cannot deduct funds directly from the Federation Account without an enabling Act of the National Assembly.

4) A declaration of this Court that having regard to Section 7(6) Section 163(1) – (6) of the Constitution of the Federal Republic of Nigeria 1999 no tier of Government or any Government Agency can take receive a loan from the Federation Account or Conversely direct or instruct that monies be deducted on its behalf directly from the Federation Account for any purpose whatsoever or charge its debt on the Federation Account.

5) A declaration of this Honorable Court that having regard to Section 162(3) of the Constitution of the Federal Republic of Nigeria 1999, the 3rd and 4th Defendants cannot be direct beneficiaries from the Federation Account not being Federal, State or Local Governments.

6. A declaration of this Honorable Court that having further regard to Section 162(2) of the Constitution or the Federal Republic of Nigeria 1999, the principle of derivation cannot apply to revenue collected by the 3rd and 4th Respondents, such not being natural resources.

7) A declaration of this Honourable Court that having regard to Section 165 of the Constitution of the Federal Republic of Nigeria 1999, cost of collection of revenue may be charged on the consolidated Revenue Fund or other funds, such as the VAT Pool Account but not on the Federation Account.

8) A declaration that it amounts to double-charging for the 4th Defendant to draw cost of collection both from the VAT Pool Account to which the Federal Government is entitled to 15%o and then directly from the Federation Account.

9) An order of injunction by this Honourable Court restraining the Defendants from any such further direct deduction from or charges on the Federation Account.

10) An order of this Honourable Court commanding the Defendants to refund and return all such unconstitutionally deducted funds on charges running into several Billions of Dollars and Billions of Naira back to the Federal Account.
The originating summons is supported by thirty paragraph affidavit. The Notices of Preliminary objection filed by the Respondents at the Lower court (as defendants) were based on lack of locus standi or the Plaintiff Appellant to institute the action and the incompetency of the suit being statute barred with no reasonable cause of action disclosed against the 5th Defendant/Respondent.
The trial Court declined Jurisdiction on the locus standi of the Plaintiff/Appellant to institute the action and the suit was struck out which gave rise to this Appeal. The Appellant’s brief dated 16/01/2013 was filed on 17/01/2013. The Appellant’s Reply brief to the 1st -3rd Respondents brief was dated and filed on 12/5/2014. The Appellants Reply brief of the 4th Respondent’s brief dated 01/08/2014 was filed on 02/08/2014. The Appellant’s Reply brief to the 5th Respondent’s brief dated 23/01/2013 was filed on 24/01/2013.
In the Appellant’s brief learned counsel for the Appellant, Olusegun Jolaawo formulated three issues for determination.

ISSUE ONE
Whether being a legal entity created by the constitution which also provides for its powers and functions, the Appellant is not within its right to seek judicial interpretation of constitutional provisions relating to its powers and functions to determine the extent and application thereof (Distilled from ground one).

ISSUE TWO
Whether the word monitor or monitoring as used in paragraph 32(9) of part 1 to the Third schedule to the Constitution of the Federal Republic of Nigeria 1999 in relation to the powers and functions of the Appellant cannot be said to include acts which put a check or seek to put a check on the thing being monitored (Distilled from ground two)

ISSUE THREE
Whether the Appellant in the performance of its constitutionally designated duties does not have sufficient legal interest or locus standi to initiate an action for the interpretation and or determination of constitutional provisions which relate to the performance of its said constitutional duties in line with the recent development of the law as espoused in Fawehinmi Vs President FRN (2007) 14 NWLR (Pt.1054) 275 at 334 – 336 paragraph B – F (Distilled from grounds three and four)
T. A. Gazali (Assistant Chief State Counsel Federal Ministry of Justice, Abuja adopted the Appellant’s three issues for determination in their brief of Argument for the 1st – 3rd Respondents, dated 11/02/2013 filed on 12/02/2013.
The 4th Respondent’s counsel N. A. Ikoro Esq adopted their brief of Argument dated 20/07/2013 filed on 01/08/2013 in which the three issues for determination formulated by the Appellant were responded to.
The 5th Respondent’s brief of argument is dated 23/01/2013 and filed the same day. The 5th Respondent’s counsel Abimbola Kayode also adopted the three issues as formulated by the Appellant. I also adopt the issues of the Appellant in determining this Appeal,

The learned counsel for the Appellant Olusegun Jolaawo craved the indulgence of the court to argue ISSUES 1 and 2 together.
ISSUE ONE
“Whether being a legal entity created by the constitution which also provides for its powers and functions, the Appellant is not within its right to seek judicial interpretation of constitutional provisions relating to its powers and functions to determine the extent and application thereof (Distilled from ground one)”.

ISSUE TWO
“Whether the word monitor or monitoring as used in paragraph 32(2) of part 1 the Third schedule to the Constitution of the Federal Republic of Nigeria 1999 in relation to the power and functions of the Appellant cannot be said to include ads which put a check or seek to put a check on the thing being monitored (Distilled from ground Two)”.
In arguing the two issues together he submitted that the Appellant is a creation of statute by Section 153(n) of the constitution of the Federal Republic of Nigeria 1999, that is The Revenue Mobilization Allocation and Fiscal commission. He referred to paragraph 32(a) of part I of the third schedule to the constitution of the Federal Republic of Nigeria 1999 which provides:
“The commission shall have power to:
(a) Monitor the accruals to and disbursement of revenue from the Federation Account”.
Learned counsel submitted that the power of the Revenue mobilization and Fiscal commission has been expressly stipulated in both the constitution and the commission Act to monitor the accruals to and disbursement of revenue from the Federation Account. He said the word monitor imports the right of the commission to institute an action in court and it also includes the duty to take action to check, control or watch that which is being monitored, and the monitoring is the accruals to and disbursements of revenue from the Federation Account.
He submitted further that the constitution being an organic instrument the court owes a duty to add flesh to the frame work and give life and force to the provisions of the constitution. He referred to Director General SSS Vs Agba Kaba (1999) 3 NWLR (part 595) 314 paragraphs E – F and the case of Okotie-Eboh Vs Manager (2005) 2 MJSC 125 at 108 – 109 paragraph A-C and urged the Court to hold the word monitor in the constitution and the Revenue Mobilization and Fiscal Commission Act to also mean the right to institute an action in Court in the course of being a monitor.
Appellant’s Counsel also submitted that Section 7 of the Revenue Mobilization Allocation and Fiscal Commission Act No. 49 of 1989 preserves the independence and autonomy of the Appellant in the exercise of its powers and responsibilities. He said the autonomy of the commission as contained in the Constitution and its enabling Act connotes that the Appellant is not an agent or servant to the Government in carrying out its functions but a custodian of the Federal Revenue which it holds in trust for the benefit of the citizens of Nigeria and not the Government of Nigeria. He referred to the case of Guardian Newspapers Ltd Vs Attorney General of the Federation and anor (1999) 5 NWLR (part 398) 703 at 730 paragraph D – F and the case of Gani Fawehinmi Vs President (2007) 14 NWLR (part 1054) 275. He urged the court to resolve issues one and two in favour of the Appellant.

It is also his submission that the Appellant being vested with this constitutional duty, has a corresponding accountability if any wrongful accruals to or disbursements from the Federation Account take place under its watch. He referred to Adesanya Vs President FRN (2001) FWLR (part 46) 859 SC on the scope of application of locus standi and submitted that subsequent appellate court decisions have liberalized the parameters of the concept of locus standi and its requirement to institute and maintain an action. The referred to Fawehinmi Vs President (supra) Williams Vs Dawodu (1988) 4 NWLR (part 87) 189 and SPDC Ltd Vs Nwaka (2001) 10 NWLR (part 720) 64 at 336 – 337 paragraph G – E.
He finally submitted that the position taken by the trial court that the beneficiaries, the Federal Government, State Government and Local Government having not brought any action to correct the wrong, did not cloak the Appellant as plaintiff with the locus to do so is not supported by any law.
He urged the court to resolve the 3rd issue in favour of the Appellant and invoke its power under Section 15 of the Court of Appeal Act 2004 to determine all issues raised in this Appeal as well as the substantive suit. He referred to Inakoju Vs Adeleke (2007) 4 NWLR (part 1025) 427 at 612- 613.
Learned Counsel for the 1st – 3rd Respondents T. A Gazali in adopting the Appellant’s issues also followed the Appellant’s pattern by arguing issues 1 and 2 together.
He submitted that the word “Monitor” defined as “check” in the dictionary, he said dictionaries can hardly be taken as authoritative exponents of the meanings of the words used in legislative enactments for the plainest words may be controlled by a reference to the content. He referred to R Vs Peters (1886) 16 QBD 636 Paragraph 641.
He said the guiding principle in the interpretation of statute is that the words must be given their ordinary and grammatical meaning. And a court has an onerous duty to give effect to words that appears to be plain and unambiguous. A court has no business reading into any statute words which are not used therein. He referred to Onyedebelu Vs Mwaneri (2000) All FWLR (part 453 and the case of EFCC Vs Ekeocha (2009) All FWLR (part 458).
He submitted that the word “Monitor” does not vest the Appellant with the power to institute an action on what it terms as illegal or unlawful deduction from the Federation Account. He referred to Section 162(3) of the Constitution of the Federal Republic of Nigeria, 1999 where the beneficiaries of the Federation Account are identified as the Federal Government, States Government and Local Government. For clarity he reproduced Section 162(3):
‘Any amount standing to the credit of the Federation Account shall be distributed among the Federation and State Government and the Local Government Councils in each state on such terms and in such manner as may be prescribed by the National Assembly”
Learned Counsel for the 1st – 3rd Respondents said the above provision of the Constitution got judicial blessing in the case of AGF Vs Attorney General of Abia and 35 others (No. 2) (2002) 6 NWLR (part 764) 542 which limited the beneficiaries of the Federation Account with the Federal Government as trustee of the Federation Account which is accountable to the other beneficiaries of the Federation Account.
He submitted further that it is these beneficiaries to Federation Account that have the legal interest in the subject matter of the suit that have locus standi to bring an action. He said the proper parties to sue the Federal Government in this circumstance are the states Government and Local Government but not an organisation. He referred to Owners of MV Arabella Vs NAIC (2008) 11 NWLR (part 1097) 182 and Araka Vs Don Egbue (2003) 10 SCM among others.
He said legislatures always confer express powers on bodies to institute action. Where it is the intention to confer such powers on a body, it is so provided in the Act.
Counsel to the 1st – 3rd Respondents also referred to Section 7 of the Revenue mobilization Allocation and Fiscal commission Act where the Appellant made a heavy weather on the issue of being autonomous body and submitted that the provision specifically vested independence as to appointment or exercise of disciplinary action in the commission only and urged us to so hold.
On the 3rd issue learned counsel submitted that the case of Fawehinmi vs President (supra) heavily relied upon by the Appellant’s counsel is distinguishable with the case at hand as the states are constitutionally competent to institute an action against the Federal Government and he urged us to so hold.

The 4th Respondent’s Counsel N. A. Ikoro in arguing all the three issues together submitted that the substance of the Appellant’s submission was on the locus standi of the Appellant to prosecute the action as constituted. He referred to the case of Attorney General of the Federation vs Attorney General of Abia and 35 others (supra) which limited the beneficiaries of the Federation Account to:
1) The Federal Government
2) The States Government
3) The Local Government Councils while describing the Federal Government as the trustee of the Federation Account which is accountable to the other beneficiaries to the Account. He said the above case illustrates the point that the beneficiaries are capable of instituting an action against the Federal Government regarding to the accrual to and the disbursement of the Federation Account whenever they feel aggrieved. He submitted that the case of Fawehinmi Vs President (supra) which the Appellant’s Counsel heavily relied on, has not altered the compass of the law on locus standi. He said locus standi by the provision of Section 6(6)(b) of the 1999 Constitution provides that the constitutional right of a citizen to institute an action in court can only be exercisable by a person who has complaint touching on his civil rights and obligations.

Learned Counsel to the 4th Respondent submitted that where the plaintiff in his statement of claim or originating summons fails to raise question as to his civil rights and obligations that have been violated, the statement of claim or originating summon will be struck out. He referred to Okechukwu Vs Etuko Kwu (1998) 8 NWLR (part 562) 513
He submitted further that a dispute is of a legal nature if it affects a person’s legal rights. He referred to Section 6(2) (a) (i) of the Revenue Mobilization Allocation committee and Fiscal commission Act which provides for the statutory membership of the Appellant to the Federation Account Allocation committee. And Section 6(2)(b) of the Act provides that the Appellant shall have the power to demand and obtain regular and relevant information, data or return from any Government Agencies including the following:
i) The Nigerian National Petroleum Corporation
ii) The Nigerian Customs Service
iii) The Federal Board of Internal Revenue
iv) The Central Bank of Nigeria
v) The Federal Ministry of Finance
Counsel submitted that the scenario that emerges from the above provisions is that the Appellant lacks the locus to initiate the action. He said there is nothing in the Appellant’s affidavit to show what it has done with the information, data or returns handed to it in the past, as Section 6(3) of the Commission’s Act has made it a duty of the Government Agencies referred above to comply with request made by the commission pursuant to subsection (1) of this section.
He said by virtue of Section 14 of the Commission’s Act the commission reports to the President who is to arrest any situation complained of. Learned Counsel said there is nothing in the affidavit in support of the Originating Summon to show such step previously taken without bearing any fruits. He said the result is that the Appellant is statutorily and constitutionally deprived of locus standi to institute and maintain this action having regard to the forgoing.

It is his further submission that the appellant’s heavy reliance on monitor will not avail him as it is only created with powers directed at assisting in the discharge of constitutional powers entrusted to the executive branch.
He finally submitted that this court cannot invoke Section 16 of the Court of Appeal’s Act, as the lower court declined jurisdiction for lack of legal power to adjudicate in the matter. He said the trial court must have the legal power to adjudicate in the matter before the Appellate court can entertain same. He urged the court to refuse the prayer to invoke Section 16 of the Court of Appeal Act.
The 5th Respondent’s Counsel Abimbola Kayode having adopted the three issues formulated by the Appellant also argued issues 1 and 2 together in this Appeal. He submitted that the functions of the Appellant as enunciated in paragraph 32, part 1. Third schedule to the constitution of the Federal Republic of Nigeria, 1999 and part II, Section 6(1) (a – f) of the Revenue Mobilization Allocation and Fiscal Commission Act, Cap R 7, LFN (2004).

He said the words of Section 6 are very clear as the Act never gave the Appellant powers to challenge the deductions made from the Federation Account. He referred to Attorney General of the Federation Vs Attorney General of Abia and 35 others (supra).
He said the Appellant’s interpretation of monitor to mean duty on the commission to institute action in court for judicial interpretation as to the proprietary or otherwise of how the monies in the Federation Account are being disbursed is wrong and ultra virus without amendments to the Act or the 1999 constitution. He referred to Buhari Vs INEC and others (2008) 18 NWLR (part 1120) 246 at 344 paragraphs F – G and Adesanoye Vs Adewole (2006) 14 NWLR (part 1000) 242 at 272 paragraph B -D among others.
Learned Counsel for the 5th Respondent further submitted that the Appellant’s Counsel has misunderstood the decision in the case of Director General SSS Vs Agbakoba (supra) and Okotie-Eboh Vs Manager (supra) as both cases maintained that where words used in a statute are very clear and unambiguous effect must be given to those words.

He said Section 7 of the Revenue mobilization Act which gives the Appellant autonomy, it does not rise the Appellant above the law. He finally submitted on these two issues that the Appellant not being a beneficiary of the revenue accruing to the Federation Account it does not have the legal interest to institute this action. He urged us to uphold the decision of the Lower Court that the Appellant has no standing to sue or maintain this action “and resolve issues 1 and 2 in favour of the 5th Respondent.
On the 3rd issue the 5th Respondent’s Counsel submitted that in an action commenced by a Writ of Summons or by Originating Summons, the Plaintiff must have sufficient interest in the subject matter or the outcome of the controversy. But where the Plaintiff has no clear interest the action is incompetent and liable to be struck out. He said the affidavit in support of the Originating Summons has not shown any complaint on the alleged deductions against the 5th Respondent, There was also no relief sought against the 5th Respondent.
He said the Appellant did not show from the affidavit in support of the Originating Summons its civil rights that have been infringed upon by the 5th Respondent. He referred to Yesufu Vs Governor of Edo State (2001) 13 NWLR (part 731) 517 at 533.
He said throughout the Appellant’s processes he did not show that he has legal and sufficient interest in the alleged deducted funds. It did not also show that it has supervisory role over the Federation Account. CHe referred to Government of Imo State Vs Amuzie (2009) 13 NWLR (part 1157) 34 at 75 paragraph C.
He urged the court to hold that the Appellant has not disclosed sufficient interest in the suit to warrant the invocation of the judicial power conferred on the Court by Section 6(6)(b) of the 1999 Constitution. He said legal interest are generally conferred by law and not by mere IPSE dixit of the parties Counsel to the 5th Respondent also urged the Court to refuse the Appellant’s invitation to invoke Section 16 of the Court of Appeal Rules because before the Court of Appeal can invoke Section 16 the Trial High Court must have jurisdiction to entertain the suit. He said in this case the trial court declined jurisdiction because the Appellant has no locus. He said no case has been made for this court to invoke Section 16 of the Court of Appeal Act. He said the cases of Inakoju Vs Adeleke (supra) and Dapianlong Vs Dariye (supra) relied upon by the Appellant are not helpful as they are distinguishable with this case. He urged the court to resolve issue 3 in favour of the 5th Respondent.
The Appellant’s Counsel Olusegun Jolaawo in the Appellant’s Reply brief in response to 1st – 3rd Respondent’s brief submitted that by the enabling law setting up the RMFC it is a legal entity in law and like all legal entities it is clothed with the power to sue and be sued in its name.
He urged the court to allow the Appeal and invoke it power under Section 16 of the enabling Act. In his reply brief to the 4th Respondent brief Appellant’s counsel submitted that the constitutional provisions relating to the powers and functions of the Appellant allow for the Appellant the right to institute and maintain suits such as the instant one. He said it is not only in political cases that Section 16 of the Court of Appeal Act may be invoked as it can be invoked in other circumstances.
Also in his reply brief to the 5th Respondent’s brief, Counsel submitted that the 5th Respondent’s challenge to the locus of the Appellant to institute the suit that no complaint was made against the 5th Respondent and no relief has been sought is misconceived. He said locus standi of a party relates to the competence of the plaintiff to institute and maintain an action in court and has nothing to do with relief sought against any of the Defendants.

He said assuming but not conceding that the 5th Respondent’s argument is tenable, the 5th Respondent was joined as a party. He finally urged the court to invoke Section 15 of the Court of Appeal Act to determine all outstanding issues in the matter.
As earlier stated above, I have also adopted the three issues formulated by the Appellant will treat the three issues together to avoid unnecessary repetition as they are all related to one other
ISSUE ONE
“Whether being a legal entity created by the constitution which also provides for its powers and functions the Appellant is not within its right to seek judicial interpretation of constitutional provisions relating to its powers and functions to determine the extent and application thereof.

ISSUE TWO
“Whether the word Monitor or Monitory as used in paragraph 32(a) of part I to the Third schedule to the Constitution of the Federal Republic of Nigeria 1999 in relation to the power and functions of the Appellant cannot be said to be said to include acts which put a check or seek to put a check on the thing being monitored”.

ISSUE THREE
“Whether the Appellant in the performance of its constitutionally designated duties does not have sufficient legal interest or locus standi to initiate an action for the interpretation and/or determination of constitutional provision which relate to the performance of its said constitutional duties in line with the recent development of the law as espoused in Fawehinmi Vs President FRN (2007) 14 NWLR (part 1054) 275 at 334 – 336 paragraph B – F”.
The main issue which the Learned Counsel to the parties based their submissions borders on the locus standi of the plaintiff/Appellant to institute the action at the Lower Court.
The contention of the Appellant is that being a creation of statute it owes a duty to check and to institute an action on the unlawful deduction of money accrued to the Federation Account. Section 153(7) of the 1999 Constitution of the Federal Republic of Nigeria provides;
“(1) There shall be established for the Federation,
(n) Revenue Mobilization Allocation and Fiscal Commission” the Appellant in this Appeal.
Paragraph 32(a) of part 1 of the Third schedule to the constitution of the Federal Republic of Nigeria 1999 provides:
“The commission shall have power to:
a) Monitor the accrual to and disbursement of revenue from the Federation Account”.
Section 6 of the Revenue Mobilization and Fiscal Commission Act provides for the establishment, composition, powers and functions of the commission as follow:
“Monitor the accruals to and disbursement of revenue from the Federation Account”.
Part 1 of the Third schedule paragraph 32 1999 Constitution provides that the commission shall have power to;
a) Monitor the accrual to and disbursement of revenue from the Federation Account.
b) Review from time to time, the revenue allocation formula and principles in operation to ensure conformity with changing realities. Provided that any revenue formulating which has been accepted by an Act of the National Assembly shall remain in force for a period of not less than five years from the date of commencement of the Act;
c) Advise the Federal and state Government on Fiscal efficiency and methods by which their revenue can be increased
d) Determine the remuneration appropriate for political office holders, including the President, Vice president, Governors, Deputy Governors, Ministers, Commissioners, special Advisers, Legislatures and holders of the offices mentioned in Sections 84 and 124 of this Constitution; and
e) Discharge such functions as conferred on the commission by this Constitution or any Act of the National Assembly.
The Appellant at the Lower Court on issues 1, 2 and 3 raised the issue of alleged withdrawals from the Federation Account by the defendants (Respondents herein). The 1st – 5th Respondents in their Notices of preliminary objection challenged the locus standi of the plaintiff (Appellant to institute the action. The 1st to 5th Respondents in their briefs of argument contended that the Appellant is not a beneficiary to the Federation Account and therefore lacks the locus standi to institute and maintain the action. They all relied on the case of Attorney General of the Federation Vs Attorney General of Abia State and 35 others (supra) in support of their argument.

The Supreme Court in the that case held that the Federal Government, the States Government and the Local Government Councils are the beneficiaries of the Federation Account, the Federal Government as the trustee of the Federation Account which is accountable to the other beneficiaries to the Account. In line-with the above case, paragraph 32(a) of part 1 of the Third schedule of the constitution of the FRN 1999 and Section 6 of the enabling Act of the commission the 1st – 5th Respondents submitted that the Appellant has no sufficient legal interest in the subject matter of this suit and therefore lacks the locus standi to institute the action against the Defendants (Respondents in this Appeal), The learned trial Judge in his Judgment at page 290 of the Record of Appeal upheld the preliminary objection of the Defendant/Respondents and declined jurisdiction to entertain the suit on the ground that the plaintiff/Appellant has no locus standi to institute the action against the Defendant’s/Respondents.
A careful look at paragraph 32(a) of part 1 of the Third schedule to the constitution of the Federal Republic of Nigeria 1999 and Section 6 of the Commission’s Act, the powers and functions of the commission are limited to monitoring the accruals to and disbursement of Revenue from the Federation Account.
The Appellant canvassed heavily on the word “Monitor” used in the statute and the enabling Act of the commission. It is the submission of the Appellant that the word monitor used in the statute is defined in the Chamber Dictionary page 1041, 1998 edition to mean to check to track or to control, to watch and to supervise. By this definition the Appellant imports the right to institute a court action in protection of what it is mandated to monitor.
By paragraph 32(a) of part 1 of the Third schedule of the constitution and Section 6 of the enabling Act of the commission, there is no provision for the institution of a court action against the Federal Government by the Appellant.
The guiding principle in the interpretation of a statute is that words must be given their ordinary and grammatical meaning. The primary concern of the court is the intention of the law makers. A court has no business reading in any statute words which are not used therein. See Onyedebulu Vs Mwaneri (2009) All FWLR (part 453).
It follows therefore that the court is duty bound to interpret the words contained in the statute and cannot go outside in search of an interpretation as it will amount to a voyage of discovery. Where words used in the statute are clear and unambiguous, the court is duty bound to apply it to that effect.

It is well settled that a court of Law is not entitled to read into a statute words which are excluded expressly or impliedly from it. The sacred duty of our court is to interpret the words used in the section by the legislation and give them their intended meaning and effect without more. See Buhari Vs INEC (2008) 18 NWLR (part 1120) 246 at 344 paragraphs F – G where the Supreme Court held that:
“Courts of Law in interpreting the constitution or a statute have no Jurisdiction to read into the constitution or statute what the legislators did not provide for, and a fortiori read out of the constitution or statute what is provided for by the legislators, In either way, the court are abandoning their constitutional functions and straying into those of the legislature by interfering or interloping with them. As that will make nonsense of the separation of power provided for in section 4 and 6 of constitution, courts of law will not do such a thing”.
It is clear from the wordings of the Constitution and the enabling of Act of the commission that the powers and functions of the Appellant are monitoring the accrual to and disbursement of the Federation Account. There is nowhere in the constitution and the Commission’s Act, the Appellant is given power to institute an action in Court. As both laws are silence on this issue, we cannot read into the section what is not contained therein.
In as much as the Appellant has shown its concern over the alleged unlawful withdrawal from the Federation Account by the Respondents, that notwithstanding, it cannot arrogate to itself the power that it does not possess in stopping the alleged withdrawal. This is because a statute rightly or wrongly enacted must be obeyed until it is amended. Law is not an individual opinion or people’s expectation. It has to be applied the way it is and not the way it should be.
The Supreme Court in the case of Attorney General of Lagos State Vs Attorney General of the Federation (2014) 9 NWLR (part 412) 217 at 337 held that express mention of one thing in a statutory provision automatically excludes any other stipulations which would otherwise have been applied by implication.
The Courts are created and empowered to adjudicate on cases applying the law as it is but certainly not as it ought to be. It is not for the court in performing its function of interpreting that law to alter or amend it Ugbo Vs Suswan (20012) 6 SCNJ 432.

Locus standi means standing to sue or competence of a party to sue. An objection to a Plaintiff’s Locus standi attacks his competence to sue as to whether he has any legal or equitable interest to protect. A plaintiff satisfying the court that he has locus standi if he is able to show that his civil rights and obligations have been or are in dangers of being infringed. There must be a nexus between the claimant and the disclosed cause of action concerning his rights or obligations.

The two tests in determining locus standi of a person are that:
a) The action must be justiciable
b) There must be a dispute between the parties. Taiwo vs Adegboro (2011) 5 SCNJ 125 AT 127
The Appellant’s contention is that its powers and functions to monitor the accrual to and disbursement of the Federation Account extended to power to institute and maintain an action in a court of law.
Locus standi is determined by examining on the statement of claim and affidavit in support of Originating Summons.
The Appellant in its Originating Summons set out questions for determination by the Lower Court with regard to Sections 7(6), 80(3) 162(3) and 165 – 167 and item a(1 – iv) of part II of the second schedule of the constitution of the Federal Republic of Nigeria 1999 as to whether the 1st and 2nd Defendant are entitled to deduct monies directly from the Federation Account running into billions of Dollars and billions of Naira for any of the following:
a) National integrated power plants for which over US 3.4 Billion already deducted
b) Nigeria Railways Corporation Project for which over US$250 million already deducted
c) Paris and London Club Debt Percentage Commission and payments for which over US$13 Billion already deducted.
d) N13.7 Naira monthly direct deduction from the Federation Account under ALGON ASSISTED “Health Scheme.
e) 7% monthly deductions from Federation Account as cost of collection of revenue in favour of the Nigeria Customs Service with the sum of over N40 Billion already deducted.
f) 4% monthly deductions from the Federation Account as cost of collection of revenue in favour of Federal Inland Revenue Service with the sum of over N20 Billion already deducted

The following sections relied upon by the Appellant in determining the questions are hereby produced Section 7(6) provides.
Subject to the provisions of this constitution:
a) “The National Assembly shall make provisions for statutory allocation of public revenue to Local Government Councils in the Federation, and
b) The House of Assembly of a state shall make provisions for statutory allocation of public revenue to Local Government Councils within the State”.
Section 80(3) provides
“No monies shall be withdrawn from any public fund of the Federation other than the Consolidated Revenue Fund of the Federation, unless the issue of those moneys has been authorised by an Act of the National Assembly”.
Section 162(3)
‘Any amount standing to the credit of the Federation Account shall be distributed among the Federal and States Governments and Local Government Councils in each State on such terms and in such manner as may be prescribed by the National Assembly”.
Paragraph 32 of part 1 of the Third schedule of the 1999 constitution of the Federal Republic of Nigeria and Section 6(1) (a – f) of the Revenue Mobilization, Allocation and Fiscal Commission Act, Cap R7, LFN (2004) provide:
1) “The commission shall have power to:
a) Monitor the accruals to and disbursement of revenue from the Federation Account
b) Review from time to time, the revenue allocation formula and principles in operation to ensure conformity with changing realities;
c) Advise the Federal, States and Local Governments to Fiscal efficiency and methods by which their revenue is to be increased,
d) Determine the remuneration appropriate to the holders of offices as specified in parts A and B of the First schedule to this Act,
e) Make recommendations and submit its finding by a report thereto to the Government of the Federation of the State, as the case may be, regarding the formula for the distribution of the Federation Accounts and the Local Government Account; and
f) Discharge such other functions as may be conferred on the commission by the constitution of the Federal Republic of Nigeria, this Act, or any other Act of the National Assembly”.
From the above provisions of the Constitution and the commission is Act there is no where indicated that the power of the Appellant is extended to institute and maintain an action against the Federal Government.
Section 162(3) of the Constitution specifically stated therein the beneficiaries of the Federation Account to be the Federal Government, States Government and the Local Government Councils. The Federal Government is the Trustee of the Federation Account. They are the beneficiaries, of the Federation Account who possess the capacity to sue, but not the Appellant. In addition it is the Federal Government that is accountable to the States and Local Government Council.
The Appellant’s Counsel also canvassed heavily on the independence and autonomy of the commission without regard to the fact that the commission as an independent and autonomous body relates only to the exercise of its power to make appointment or to exercise disciplinary action over persons. His argument in this regard will also not hold,
The Appellant’s Counsel in the final analysis invited us to invoke Section 15 of the Court of Appeal’s Act, 2004 to determine the issues left unconsidered by the trial court and grant the reliefs sought.
It is pertinent to point out there that the trial court never adjudicated on this matter having declined jurisdiction for lack of locus standi by the Appellant to institute the action.
A court will have the necessary competence to hear and determine a matter before it, if the subject matter is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction. NNPC Vs Sele (2013) 4 SCNJ 173 at 175.
It follows therefore that the Lower court must have the legal power to adjudicate in a matter before the Appellant court can entertain same. The Lower Court in the instant case only upheld on the notices of preliminary objection of the Respondents declining jurisdiction to entertain the Originating Summon for want of jurisdiction.
The Lower court having declined jurisdiction on the absence of locus standi, Section 15 of the Court of Appeal’s Act cannot be invoked, there is nothing adjudicated by the trial court for us to look at.
The briefs of the 1st – 5th Respondents on the three issues for determination are virtually the same. All the respondents in their briefs made reference to Section 162(3) of the constitution of the FRN 1999 and the case AGF vs Abia and 35 others (supra) to support their submissions that the constitution limited the beneficiaries of the Federation Account to the Federal Government the states Government and the Local Government Councils with the Federal Government as the trustee of the Federation Account which is accountable to the other beneficiaries to the Federation Account. And that it is only the beneficiaries that have locus to bring an action in respect of any unlawful deductions.
On the use of the word “Monitor” in the Constitution and the commission’s Act the 1st – 5th Respondents submitted that the interpretation of the word by the Appellant is not supported by any law. Counsel to the 1st – 3rd Respondent said that the word ‘monitor, has not been defined in the Revenue Mobilization Allocation and Fiscal Commission Act or within the con of the statute that is why the Appellant engaged in the voyage of discovery to various meaning of the word “Monitor”. It is the submissions of all the Respondents that Court owes a duty to interpret the words in a statute in their normal grammatical meaning without going outside for interpretation.
On the invitation of the Appellant to this court to invoke Section 15 of the Court of Appeal Act the 4th and 5th Respondents submitted that, the Lower Court having not adjudicated on the matter and declined jurisdiction on the absence of lack of locus standi this court cannot invoke Section 15 of its Act.
We therefore agree with the submissions of the respondents and resolve all the three issues in favour of the Respondents against the Appellants.
The Appeal lacks merit and it is dismissed. The decision of the Federal High Court, Abuja is hereby affirmed.

Cost of N50,000.00k is awarded against the Appellant in favour of the Respondents.

MOORE A. A. ADUMEIN, J.C.A.: I had a preview of the judgment of my learned brother – TANI YUSUF HASSAN, JCA just delivered.
I completely agree with the reasoning and conclusions of my learned brother in dismissing this appeal.
For the reasons given in the leading judgment, I also dismiss this appeal and abide by the order as to costs.

JOSEPH E. EKANEM, J.C.A.: I read in draft the judgment just delivered by my learned brother, T.Y. Hassan, JCA. I agree with the reasoning and conclusion therein.
The Supreme Court in ADESANYA V. PRESIDENT OF NIGERIA (1981) 5 SCI 12 laid down the rule regarding locus standi in civil cases while in FAWEHINMI V. AKILU (1987) 4 NWLR (67) 797, it laid down far more liberal rules in criminal cases. See BEWAJI V. OBASANJO (2008) 9 NWLR (1098) 540, 573. The rule has not changed in civil cases inspite of efforts to change it. This is because it will take an amendment of Section 6 (6) (b) of the Constitution of Nigeria or a pronouncement of a full bench of the Supreme Court to do so. See THOMAS V. OLUFOSOYE (1986) ANLR 261, 287 and BUSARI V. OSENI (1992) 4 NWLR (237) 557, 586.
In the realm of public rights the person suing must demonstrate that his personal interest will be, has been or is likely to be adversely affected or that he has sustained an injury to himself and which injury and interest are over and above that of the general public.
The beneficiaries of the Federation Account are the Federal Government, State Government and Local Government Councils. This is on the authorities of Section 162(3) of the Constitution of Nigeria 1999 (as amended) and the case of ATTORNEY – GENERAL OF THE FEDERATION V. ATTORNEY GENERAL OF ABIA STATE (2002) 6 NWLR (764) 540. They are the entities directly affected by any deduction from that account and therefore can sue regarding any, alleged wrongful deduction therefrom. See ATTORNEY-GENERAL OF ADAMAWA STATE V. ATTORNEY GENERAL OF THE FEDERATION (2006) 135 LRCN 911, 949 and 989.
The appellant is not affected by any such deduction not being a beneficiary of it. It is now crying more than the bereaved and like a knight-errant of the Middle Ages is seeking to fight a battle that is not its own. Where a person makes a claim which belongs to another person, he lacks locus standi. See BEWAJI V. OBASANJO supra and OKONKWO V. NATIONAL UNIVERSITIES COMMISSION (2013) 15 NWLR (1378) 482,502.
The position that the appellant has the power to “monitor” accruals to and disbursement of revenue from the Federation Account does not vest it with standing to sue over alleged wrongful disbursements therefrom as it can only observe the “goings – on” therein and advise the Federal and State Governments thereon pursuant to item 32(a) and (c) of part 1 of the Third Schedule to the Constitution of Nigeria 1999 (as amended).

It is for these reasons and the more comprehensive reasons given by my learned brother, Hassan, JCA that I also find that the appeal lacks merit and I also dismiss it.

Appearances

O. JolaawoFor Appellant

AND

T. A. Gazali (Assistant Chief State Counsel) Federal Ministry of Justice, with
Y. M. Sherif (Mrs) Snr. State Counsel) Miss L T. Lawal and
A. H. Tsanmani (State Counsel) for 1st – 3rd Respondents
Ikoro N. A. Ikoro for 4th Respondent with
Miss Mary Okpe (Assistant Director)
Mrs Okoro (Manager) A. A. Nwoe and C. J. Emineke Esq
A. M. Kayode with Helen L lwuangawu and Uzoma Nnana Esq for 5th RespondentFor Respondent

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