EZE JOHN K. ELOCHUKWU NWANKWO & ORS v. CHIEF MARTIN ORIZU & ORS
(2019)LCN/12641(CA)
In The Court of Appeal of Nigeria
On Monday, the 4th day of February, 2019
CA/OW/275/2016
RATIO
COURT AND PROCEDURE: QUESTION OF LOCUS STANDI
“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 locus standi of a complainant and this is to be determined in the light of the facts or special circumstances of each case.” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
CONSTITUTION: SECTION 6, CFRN 1999.
“I do not think that that test is affected by Section (6) (b) of the Constitution. In my respective view, I think Ayoola JCA, (as he then was), correctly set out the scope of Section 6 subsection (6) (b) of the Constitution when in N.N.P.C. v. Fawehinmi & Ors. (1998) 7NWLR 598, 612 he said. “In most written constitutions, there is a delimitation of the power of the three independent organs of government, namely the executive, the legislature and the judiciary, Section 6 of the Constitution which vests judicial powers of the Federation and the States in the Courts and defines the nature and extent of such judicial powers does not directly deal with the right of access of the individual to the Court. The main objective of Section 6 is to leave no doubt as to the definition and delimitation of the boundaries of the separation of powers between the judiciary on the one hand and the other organs of government on the other, in order to obviate any claim of the other organs of government, or even attempt by them, to share judicial powers with the Courts. Section 6(6) (b) of the Constitution is primarily and basically designed to describe the nature and extent of judicial powers vested in the Courts. It is not intended to be a catch-all, all-purpose provision to be pressed into service for determination of questions ranging from locus standi to the most uncontroversial questions of jurisdiction.'” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
1. EZE JOHN K. ELOCHUKWU NWANKWO
(EZE-ELECT AKUNWANTA-UNO)
2. CHIEF OBI NWANKWO
3. SIR ROMANUS OKEREKE
(For themselves and on behalf of other indigenes of Akunwanta-Uno except 1st & 2nd Defendants) Appellant(s)
AND
1. CHIEF MARTIN ORIZU
2. MAZI OKWUDILI OGBUKATI
3. GOVERNOR OF IMO STATE
4. ATTORNEY GENERAL, IMO STATE
5.THE SPEAKER, IMO STATE HOUSE OF ASSEMBLY Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment):
The appeal is against the ruling delivered on 29/2/2016 by the High Court of Imo State holden at Orlu Judicial Division, presided over by Hon. Justice C.A. Ononeze-Madu (hereafter to be simply referred to as ‘the lower Court’ and the ‘learned trial Judge’ respectively).
The Appellants herein, instituted the instant action against the Respondents herein, by a writ of summons dated 25/2/2014 and which was issued on the same date. The writ of summons was accompanied with a 48-paragraph statement of claim and therein, the Appellants claim against the Respondents jointly and severally, as follows: –
(a) Declaration that Akunwanta-Uno community in Arondinzuogu, Ideato North L.G.A, is entitled to an Autonomous Community status and not Ndiakunwanta Iheme, which in a manner inconsistent with the custom and traditional usages of Akunwanta-Uno (sic) Arondizuogu usurped and converted the autonomous community status that accrued to Akunwanta Uno to Ndiakunwanta-Iheme, Arondizuogu.
(b) Declaration that Eze Elect John K. Elochukwu Nwankwo is the Eze-Elect for the proposed Akunwanta-Uno autonomous community, excluding any other person claiming through or under him, throughout his life time.
(c) An order setting aside the fraudulently obtained autonomous community status from Imo State Government by Ndiakunwanta-Iheme in the stead of Akunwanta-Uno the 1st in time to apply to Imo State House of Assembly in 2005 and whose facilities Akunwanta-Iheme converted to its own benefit under the auspices of the 1st defendant, Chief Martin Orizu.
(d) N3,000, 000 (three million naira) being general damages for upturning and converting the Akunwanta-Uno autonomous community status with its facilities to Akunwanta-Iheme autonomous community contrary to the custom and traditional usages of Arondizuogu, Ideato North L.G.A.
(e) An order restraining the 3rd, 4th and 5th defendants from recognizing, installing and giving staff of office of Ezeship to the 2nd defendant as the Eze-elect of Akunwanta-Uno community of the claimants.
(f) Perpetual injunction, restraining the 1st and 2nd defendants from parading themselves in the name and style of or as the Eze-Elect of Akunwanta-Uno or the Eze of Akunwanta Uno in whatsoever guise, and or acting or doing anything in that capacity or temper or character as the Eze-Elect of Eze of Akunwanta-Uno, Arondizuogu.
Going by the index of reference in the record, it would appear that only the 3rd and 4th Respondents herein, joined issues with the Appellants by filing a joint statement of defence. Therein, these Respondents in paragraphs 10 and 11, averred thus: –
‘Paragraph 10 – the 3rd and 4th defendants will contend at the trial that there is no cause of action against the 3rd and 4th defendants.
Paragraph 11 – The claimants are not entitled to the reliefs sought in paragraph 51(a)(b)(c)(d)(e) and (f) of the claim.’
A motion dated 29/4/2014 was filed in the action by the 1st Respondent and therein he sought for: –
‘An order of the honourable Court dismissing this action for the claimants lacking locus standi to bring this action’.
The grounds for the application as set out in the motion on notice include: –
a. That the claimants are not members of Ndiakunwanta Iheme Autonomous Community to possess such right as required by the Imo State Traditional Rulers and Autonomous Communities and Allied Matters Law No. 6, 2006.
b. That the right to challenge the recognition of the Eze of Ndiakunwanta Iheme Autonomous Community, (the 1st defendant) by anybody whatsoever is statute bare (sic).
c. By Section 24 of Imo State Traditional Rulers and Autonomous Communities and Allied Matters Law No. 6, 2006, it is only members of Ndiakunwanta Iheme Autonomous that can object to the creation of the said autonomous community.
d. That the claimants and their privies are not members of Ndiakunwanta Iheme Autonomous Community, and therefore do not possess the locus standi.
The motion on notice was entertained by the lower Court on 16/3/2015 and ruling reserved till 26/3/2016. The motion came up for ?re-adoption? on 15/2/2016 and ruling was reserved till 29/2/2016. The lower Court duly delivered its ruling on the said 29/2/2016. Therein, the lower Court concluded as follows: –
‘In conclusion, I had found earlier that the Respondents cannot under the law No. 6 of 2006 challenge the creation of Ndiakunwata Iheme Autonomous Community which is their principal claim. This action is incompetent and hereby dismissed for lack of locus standi in the Claimants.’
Being aggrieved with the part of the ruling of the lower Court ‘adjudging that the claimants/Appellants lacked the locus standi to commence and maintain the suit’, the Appellants initiated the instant appeal by lodging at the registry of the lower Court on 16/3/2014 a notice of appeal bearing the same date. The notice of appeal contains two grounds of appeal. The grounds of appeal and their respective particulars read thus: –
GROUNDS OF APPEAL
GROUND 1
The learned trial Judge erred in law when it adjudged that the Claimants/Appellants lacked the authority to initiate the suit.
PARTICULARS OF ERROR
i. Locus standi to commence and maintain a suit is determined by the nature of the claim as disclosed in the statement of claim.
ii. the Claimants/Appellants by their statement of claim disclosed their locus to commence and maintain the suit.
iii. notwithstanding (i) and (ii) hereof the trial Court wrongly adjudged that the Claimants/Appellants were not vested with any authority to initiate the suit.
GROUND 2
The learned trial judge erred in law when it relied on Section 24 of the Imo State Traditional Rulers and Autonomous Communities Law 2003 as amended to adjudge that the Claimants/Appellants lacked the authority to initiate the suit.
PARTICULARS OF ERROR
i. Section 24 of the Imo State Traditional Rulers and Autonomous Communities Law deals with the right of administrative objection to the Governor of Imo State and the Imo State House of Assembly.
ii. Section 24 of the Imo State Traditional Rulers and Autonomous Communities Law 2003 (sic) does not provide for limitation of right of action in Court.
iii. it was improper for the learned trial Judge to read into Section 24 of the Imo State Traditional Rulers and Autonomous Communities Law 2003 a limitation of right of action in Court.
The reliefs the Appellants seek from this Court as contained in their notice of appeal are: (i) to allow the appeal; (ii) set aside the ruling of the trial Court delivered on the 29/2/2016; and (iii) remit the matter to another Judge of the Imo State High Court for hearing on the merit.
The appeal was entertained on 8/11/2018 with learned counsel, Jerry Elumeze in urging the Court to allow same, adopting and relying on the Appellants’ brief of argument dated 10/7/2017 and filed on 17/7/2017.
In the same vein, learned counsel, Emeka Orafu, in urging the Court to dismiss the appeal, adopted and relied on the brief of argument of the 1st Respondent dated 24/10/2017 and filed on 25/10/2017 but deemed as having been properly filed on 23/1/2018.
None of the 2nd, and 3rd, 4th and 5th Respondents respectively, filed a brief of argument in the appeal and despite being served with the notice of hearing of the appeal on 29/10/2018 and 24/10/2018 respectively, they were absent at the hearing of the appeal.
The Appellants formulated a lone issue for the determination of the appeal in their brief of argument. It reads thus: –
‘Whether the trial Court was right when it adjudged that the Appellants had no authority to institute and maintain the suit.’
The 1st Respondent (hereafter to be simply referred to as the ‘Respondent’) in his brief of argument adopted the issue for the determination of the appeal as formulated by the Appellants.
Dwelling on the issue for the determination of the appeal as formulated by them, the Appellants in the main submitted that they have the locus standi to institute the instant action. They submitted that locus standi being the right or authority to institute and maintain a suit, is to be determined from the statement of claim before the lower Court and no extraneous material(s) is/are to be taken into consideration. It is their position that the statement of claim in this case glaringly disclosed their locus standi, in the instant case, they (Appellants) brought in a representative capacity. Having re-produced some of the averments in their statement of claim and which they itemized as (i) – (xi) at paragraph 4.4 of the brief of argument as well as the reliefs which they sought in the case, the Appellants proceeded to state in paragraph 4.6 of the same brief of argument thus: –
‘The Appellants submit that the averments in their statement of claim summarized in 4.4. above and reliefs claimed in the statement of claim disclosed the Appellants authority or locus standi to institute and maintain the suit. With the greatest respect the Appellants submit that the trial Court would have come to the same conclusion if the trial Court had confined itself to the statement of claim as required by law.’
Thereafter, the Appellants disclosed that the lower Court relied on an extraneous and inapplicable factor in the nature or form of Section 24 of the Imo State Law No. 6 of 2006 (hereafter to be simply referred to as ‘Law No. 6 of 2006’) to adjudge them as lacking the authority (i.e. locus standi) to institute and maintain the instant case.
Having stated the full title of Law No. 6 of 2006 to be Traditional Rulers & Autonomous Communities Law, the Appellants submitted that the law which merely deals with the creation and operation of traditional stools and autonomous communities in Imo State, ‘does not deal with access to Court and does not create any Court or vests judicial powers and functions.’ That access to Court is a constitutional matter beyond state law and is provided for by Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1999 as amended and which extends the judicial powers vested in Courts created by the said Constitution. That any person in Nigeria, who complains about the infraction of his rights or seeks a determination of his liability has an unfettered constitutional right or capacity to institute a suit and be heard by the Courts. Ditto, them (Appellants).
It is the stance of the Appellants that the Courts in this country have long recognized that the issue of locus standi is tied to the issue of access to Court under Section 6(6)(b). That if the determination of the rights and obligations of a person are in issue, that person has the locus standi to sue and an unfettered access to the Courts for the determination of those rights and obligations. That the import of the decisions on locus standi, is that once the determination of the rights and obligations of a person is at stake, the person has the locus standi to sue and his constitutional right of access to Court cannot be taken away. That by the hierarchy of laws in Nigeria, the Constitution of the Federal Republic of Nigeria 1999 as amended, is the grund-norm of Nigerian law, consequently, Law No. 6 of 2006 cannot supercede the Constitution or operate as an exception to the right of access to Court granted by Section 6(6)(b).
Having said all these, the Appellants submitted that in fairness to the Imo State House of Assembly, Section 24 of Law No. 6 of 2006, does not limit access to Court or take away the locus standi to sue. That the law merely provides for an administrative procedure which does not exclude judicial process; hence the interpretation given to the said Section 24 by the lower Court was inaccurate and did great violence to the wording and intent of the provision by confusing the administrative procedure provided for therein, with judicial process. The Appellants submitted that the wording and intent of Section 24 of Law No. 6 of 2006, is that only members of an autonomous community can make an administrative objection to the Governor and House of Assembly over the creation of an autonomous community. That the Section does not preclude non-members from making judicial complaints over wrongs suffered by the non-members as a result of the creation of an autonomous community as they (Appellants) have done in their statement of claim.
To drive home their position, the Appellants made an analogy in the realms of contract in paragraph 4.16 of their brief of argument which reads thus: –
Paragraph 4.16
‘The Appellants submit further that an analogy can be drawn with the position of strangers to a contract. On the doctrine of privity of contract a stranger to a contract has no locus to enforce the contract or have the contract enforced against him. But the stranger has the locus to sue if the contract infracts his right. For instance if A contracts with B to build a road over the land of C, a suit by C to invalidate the contract or restrain the execution of the contract cannot be defeated on the ground that C is a stranger to the contract and has no locus to sue on the contract.’
It is the stance of the Appellants that in their statement of claim, they were not merely objecting to the creation of an autonomous community because they did not want to be part of the autonomous community; that their complaints were premised on the infraction of their (Appellants’) rights by the creation of the autonomous community. The Appellants submitted that the lower Court in holding as it did to wit: that they have no authority to ventilate their grievance in Court, not only and abdicated the judicial powers vested in it by Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1999, as amended, but has given an open invitation to anarchy and chaos. The Appellants urged this Court to resolve this issue in their favour and hold that the lower Court was in grave error and misinterpreted the provisions of Section 24 of Law No. 6 of 2006, when the said Court held that it took away their (Appellants’) authority to institute and maintain this suit.
The position of the Respondent on the issue at hand, in the main, is that the lower Court was right in its decision being appealed against. In this regard he submitted that the Appellants in their statement of claim made copious averments regarding the fact that they are from Akunwanta-Uno (sic) community, while they are challenging the autonomous community status of Ndiakunwanta-Iheme autonomous community. Reference was made to paragraphs 1, 33, 35 and 48 of the statement of claim and Exhibits ‘A’ and ‘B’, the Imo State Government Official Gazette of 2011, showing that Ndiakunwanta-Uno (sic) community is not among the component villages that make up Ndiakunwanta-Iheme autonomous community.
Having stated the trite position of the law to be that locus standi is a threshold issue for the purpose of determining the right of anybody to initiate proceedings, and that interest is the yardstick for determining whether a plaintiff has locus standi, the Respondent ended up by saying that the Appellants have no locus standi to have instituted the instant case, against the backdrop of the fact that Law No. 6 of 2006, which created the Autonomous Communities in Imo State, also regulates those who should have the locus standi to challenge its creation. That the gate is not open ended for gate crashers or for busy bodies. That it is only people who have sufficient interest in the creation of an autonomous community that can challenge the creation of the same. That anybody that can do this, must be a member of that community in order to have locus standi. That Section 24 of Law No. 6 of 2006 does not need any esoteric interpretation to understand its provision as it concerns locus standi.
That the lower Court acted upon the facts before it and came to the proper conclusion with regards to the provision of the said Section 24 of Law No. 6 of 2006. That the law has in no way infringed on the constitutional right of the Appellants.
It is the stance of the Respondent that to say that Law No. 6 of 2006 by limiting locus standi of the people that can challenge the creation of any autonomous community to the members of that autonomous community only, infringed the right of the Appellants is tantamount to saying that the Law which limits the right of people that can challenge election, only to the party and/or party (candidate is a better word in my considered view) that contested an election, or that limitation laws, are inconsistent with the Constitution. It is also the stance of the Respondent that Law No. 6 inasmuch as it did not oust the jurisdiction of the Court, is not in conflict with the provisions of Section 6(6)(b) of the 1999 Constitution as amended. That there is nothing inconsistent with the right of a Nigerian citizen to challenge or contest the breach of his right in Court under Law No. 6 of 2006 as the law only goes to curtail busy bodies/interlopers who have no nexus with the autonomous community in question. That the Appellants have other ways to ventilate their grievance if any against him (Respondent). That the Appellants can maintain an action for ownership of property; or criminal conversion of property; if such is/are their complaints or claims, against him (Respondent).
I have deliberately highlighted the submissions of the Appellants on the issue of locus standi, in order to show that they have clearly misapprehended some settled principles law and/or decided case upon which they have predicated their stance that they have the locus standi to have instituted and to maintain the instant case. Indeed, I am of the considered view that the Appellants did not read the many cases cited by the lower Court in its ruling, otherwise, they would have seen that the conclusion of the lower Court that they lack the locus standi to have instituted the instant case and maintain the same cannot be faulted on the basis of the arguments/submissions in their brief of argument.
The lower Court, dwelling on the issue of locus standi in its ruling, stated thus:
The Applicant in this motion raised two issues;
a) Whether the Claimants (sic) anybody claiming through them not being members of Ndiakunwata Iheme Autonomous Community can protest or challenge the creation of Ndiakunwata Iheme Autonomous Community.
b) Whether the challenge to the recognition of the 1st Defendant as the Eze of Ndiakunwata Iheme Autonomous Community is statute barred.
The Claimant(sic)/Respondents on their part proposed 3 issues for settlement.
i) Whether the Claimants/Respondents have legal capacity or locus standi to institute this action.
ii) Whether this action instituted by the Claimants is statute barred.
iii) Whether the 1st Defendant/Applicant by filing this statement of defence and other Court process has waived his right to bring this application.
Although issues one and two of both parties appear similar, I will adopt the Respondents issues in determining the issues raised in this application.
ISSUE 1
The question of Locus Standi is often taken to be a threshold issue in our civil jurisprudence and its definition or explanation has been largely dealt with by our superior Courts.
When the locus standi of a party is questioned in any proceeding the Court is being called upon to determine if there is sufficient interest in the party to warrant or give him authority to bring the action.
It is a principle of law meant to check busybodies or interlopers from meddling in judicial proceedings. See the case of, Thomas Vs. Olufosoye (1986) NWLR (Part 18) 669.
Per Karibi Whyte JSC, ‘Locus standi will only be accorded to a Plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected’.
It is well settled that where there is locus standi; there is a justiciable dispute.
Where there is no locus standi a person is said to be a stranger to the proceeding and therefore cannot be entertained or permitted to initiate the actions. Locus Standi is to be differentiated from a cause of action. Even when there is a cause of action; it must invest on a party for the party to have locus standi.
Locus Standi may be determined from the nature of the action, the facts as disclosed on the statement of claim and the relief sought by a party.
In some other cases the authority to bring an action or persons who can bring an action is stated in the statute. In the later (sic) case, it becomes easier to determine the issue of locus standi along the parameters stated by the law.
In this regard; the primary responsibility of the Court is to ascertain the intention of the legislative so as to give effect to it.
ln determining whether a party has locus standi, the Court is confined to the writ of summons and statement of claim and no more.
In the case before me, both parties are agreed that Section 24 of the lmo State of Nigeria Traditional Rulers and Autonomous Communities Law 2003 as amended is the relevant Legislation. It provides as follows:-
‘Any person or group of persons who objects to the creation of a new autonomous community must be members and come within the said autonomous community and may protest against the creation in writing with two original copies one of which should be sent to the Governor through the Commissioner or Adviser on Chieftaincy Affairs and the other to the Imo State House of Assembly”.
While the Applicant counsel places heavy reliance on the above provision of the Law, the Respondents have argued that the provision is not applicable to this case.
In interpreting this provision (i.e.) Section 24 of Imo State of Nigeria Traditional Rulers and Autonomous Communities Law, I shall adopt the canon of statutory interpretation which enjoins me to give the language of the statute its plain and ordinary meaning unless this will lead to any absurdity or be in conflict with the constitution.
A perusal of the provision (S. 24 of Law No.2 Supra) shows the use of the word must in prescribing the group of persons or persons who can object to the creation of an autonomous community. The same provision uses the word may to denote the manner of protest if the person so wish (sic).
The above situation leaves no one in doubt as to what the law requires or who has the authority to protest the creation of an autonomous community.
A crucial question that arises is whether the creation of Ndiakunwata Iheme Autonomous Community is being questioned in these proceedings. The answer can be gleaned from the statement of claim before me particularly the reliefs thereof.
The Claimant/Respondents have made no pretences about their identity. They say they are from Ndiakunwata Uno and not Ndiakunwata Iheme. I refer to paragraphs 1 which I reproduce hereunder
“The Claimants are indigene/natives of Akunwata Uno Arondizuogu Ideato North Local Government Area of Imo State”.
The Claimants clearly acknowledged the existence of Ndiakunwata Iheme which they described as a distinct community near Okigwe in their paragraph 33 of the statement of defence (sic: claim).
Applying S. 24 of Imo State Law No. 6 of 2006 to the above facts and deductions, I hereby resolve the issue 1 of the Respondents in favour of the Applicants and hold that the Claimants who are by their own admission from Ndiakunwata Uno are not vested with any authority to initiate an action challenging or protesting the creation of Ndiakunwata Iheme Autonomous Community, under the Imo State Law No. 6 of 2006.
The contention that the suit or relief challenging the recognition of the 1st Defendant is statute barred as hinged on S. 28 of Imo State Traditional Rulers, Autonomous Communities and Allied Matters Law No. 6 of 2006 which states as follows;
“Where any interested party within the autonomous community feels that in the exercise of such recognition of an Eze the rules of natural justice have been contravened, that party may have within 21 days of the recognition, the right to apply to the High Court for a review of the recognition and the Court may?”
The above sections of the Law No. 6 have been dealt with by the Supreme Court in Okeahialam Vs. Nwamara (2003) FWLR (Pt.176) 635 and Okere Vs. Amadi (2005) ALL FWLR (pt. 269) at 1925. Surprisingly, the two counsel who has put in appreciable industry in this application failed to advert to the authorities.
In the cases referred above the Court had to consider the similar provisions which is contained in Section 25 of the Traditional Rulers and Autonomous Communities Law of Imo State (No. II of 1981) and came to the conclusion that the limitation of 21 days shall apply when a party comes by judicial review.
I am of the humble view that the 21 days limitation is not an absolute provision but can only be applicable where complaint is based on a breach of Natural Justice and the party seeking a review of the recognition. The limitation shall not apply to a matter commenced by writ of summons as in this case. I therefore hold that Section 28 as referred above is not applicable to this case.
The issue III proposed by the Respondent (sic) is as to whether the Applicant can bring this application after filing his defence and joining issue with the Claimant/Respondent (sic).
In conclusion; I had found earlier that the Respondents cannot under the law No. 6 of 2006 challenge the creation of Ndiakunwata Iheme Autonomous Community which is their principal claim. This action is incompetent and hereby dismissed for lack of locus standi in the Claimants.
The issue of locus standi cannot be said to be recondite or incomprehensible to anyone of ordinary understanding or knowledge against the backdrop of the numerous cases decided on the said issue from many years back till present day. I am of the considered view that though it is clear that the Courts had for many years adopted a rather restrictive attitude to the issue of locus standi and have in recent times relaxed or expended the application of the said issue in litigation, the position of the law has never been that all manner of people can institute actions in respect of all manner of causes of action as it would appear to be the stance of the Appellants relying on Section 6(6)(b) of the 1999 Constitution as amended. The current position of the law in my considered view has not obliterated the dichotomy between locus standi in the realm of public law or public right litigation and locus standi in the realm of private law or private right litigation and the different tests applicable to them respectively. This much in my considered view is clear from the case OWODUNNI V. REGISTERED TRUSTEES OF CCC (2000) 10 NWLR (Pt. 675) 325 SC. The said case was decided by the Supreme Court as far back as 30/6/2000. Therein, Ogundare, JSC; delivering the leading judgment of the Court stated thus:
‘The term locus standi (or standing) denotes the legal capacity to institute proceedings in a Court of law. Standing to sue is not dependent on the success or merit of a case, it is a condition precedent to a determination on the merits. It follows therefore, that if the plaintiff has no locus standi or standing to sue, it is not necessary to consider whether there is a genuine case on the merits; his case must be struck out as being incompetent. At common law, the position is that, in the realm of public right, for a person to invoke judicial power to determine the constitutionality of legislative or executive action, he must show that either his personal interest will immediately be or has been adversely affected by the action or that he has sustained or is in immediate danger of sustaining an injury to himself, and which interest or injury is over and above that of the general public. In other words, the plaintiff or claimant must show that he has some justiciable interest which may be affected by the action or that he will suffer injury or damage as a result of the action. The question whether there is such a justiciable interest or sufferance of injury or damage depends on the facts and circumstances of each case’ See generally the various judgments delivered by their Lordships of this Court in Senator Adesanya v. President of the Federal Republic of Nigeria & Anor, (supra). I shall say more on this case later in this judgment.
In Oloriode v. Oyebi (1984) 1 SCNLR 390 at p. 400 Irikefe JSC ? (as he then was) declared:
“A party prosecuting an action would have locus standi where the reliefs claimed would confer some benefit on such a party.”
This is clearly the position in private law. A case in point is Amusa Momoh v. Jimoh Olotu (supra) where, in a chieftaincy matter the plaintiff had pleaded, without more, in paragraph 1 of his statement of claim that he was a member of the ruling house affected by the dispute. Sir Ademola CJN. delivering the judgment of this Court declared:
“In regard to paragraph 1 of the statement of claim and the point raised that the plaintiff has no locus standi in the matter, the learned trial judge ruled that as this paragraph has not been denied, the plaintiff cannot be said to have no interest. Now, what is the averment in paragraph 1. The plaintiff says that he is a member of the Olukare family. The question may be asked, is it enough for the plaintiff to state that he is a member of the family? Has he not got to state that he has an interest in the chieftaincy? Surely not every member of a chieftaincy family as such has interest in the chieftaincy title. We are of the view that it is not enough for the plaintiff to state that he is a member of the family; he has to state further that he has an interest in the chieftaincy title, and furthermore, state in his Statement of Claim how his interest in the chieftaincy title arose. It is difficult to say on the pleadings filed that the plaintiff has any locus in the matter.”
The position appears to be that in private law, the question of locus standi is merged in the issue of cause of action. For instance, a plaintiff who has no privity of contract with the defendant will fail to establish a cause of action for breach of the contract as he will simply not have a locus standi to sue the defendant on the contract. It is on this basis one can explain the decision in Momoh v. Olotu. What cause of action has amember of a ruling house who has no interest in a chieftaincy title against the successful candidate? None that I can imagine. It is on the basis of the reasoning in Momoh v. Olotu that one can readily explain the decisions in Odeneye v. Efunuga (supra) and cases cited therein and that is that “a party must show clearly that he has a right to protect and that his coming to Court is to seek remedy so that the right will not be violated” per Belgore JSC in Odeneye v. Efunuga at page 639. Belgore JSC added at page 640 and I agree with him.
“The respondent in this matter on appeal not only claims that he is entitled to be nominated for the vacant stool of Alakenne (which in all respects is enough to confer locus standi) but he went further that his name really came up as one of those nominated which to my mind more that satisfied his right to sue. I find no merit in this issue of locus standi as canvassed by the appellant. Surely the respondent is not a mere busy-body.”
Olawoyin v. Attorney.General of Nigeria (supra) is a case in the realm of public law.
Unsworth FJ delivering the judgment of the Court laid down the following test:
“Now did the appellant in the High Court show that he had a sufficient interest to enable him to apply for a declaratory judgment in accordance with the principles laid down in the case of the Guaranty Trust Co. of New York v. Hannay. The Appellant did not in his claim allege any interest but his counsel said that the evidence would be that the appellant had children whom he wished to educate politically. There was no suggestion that the appellant was in imminent danger of coming into conflict with the law or that there had been any real or direct interference with his normal business of other activities. In my view the appellant failed to show that he had a sufficient interest to sustain a claim. It seems to me that to hold that there was an interest here would amount to saying that a private individual obtains an interest by the mere enactment of a law with which he may in the future come in conflict; and I would not support such a proposition.”
As O. failed to allege or establish any such interest, his case was held to be rightly dismissed. The Court applied the “interest” “injury” test in denying O of locus standi in the case. The same test was applied by the court in Gamioba & Ors. v. Esezi II & Ors. (1961) ANLR 608, 613 where Brett FJ, as he then was, said:
“There is a further test to be applied in a case such as this one. It is always necessary, where the plaintiff claims a declaration that a law is invalid, that the Court should be satisfied that the plaintiff?s legal rights have been or are in imminent danger of being invaded in consequence of the law. We dealt with this point at length in Olawoyin v. Attorney-General Northern Region, (F.S.C. 290/1960), (1961) All N.L.R. 269, and it will be enough to say here that since the validity of a law is a matter of concern to the public at large the Court has a duty to form its own judgment as to the plaintiff?s locus standi, and should not assume it merely because the defendant admits it or does not dispute it. The plaintiff?s locus standi in the present case has not yet been disclosed, and if he has none, his claim must be dismissed on that ground, and it will be unnecessary to decide the question involved in the declaration he claims. For this reason also it is not yet clear that the questions set out in counsel?s application arises.”
A word or two on Adesanya v. President of the Fed. Republic of Nigeria (supra). It appears that the general belief is that this Court laid it down in that case that the law on locus standi is now derived from Section 6(6) (b) of the Constitution of the Federal Republic of Nigeria, 1979 (re-enacted in Section 6(6) (b) of the 1999 Constitution) which provided:
I am not sure that this general belief represents the correct position. Of the seven Justices that sat on that case only 2 (Bello and Nnamani JJ.SC) expressed views to that effect. Bello JSC, (as he then was), put the law on locus standi or standing in the realm of public law in these words:
“Finally, I would like to make the following observations: A careful perusal of the problem would reveal that there is no jurisdiction within the common law countries where a general licence or a blank cheque. if I may use that expression without any string or restriction, is given to private individual to question the validity of legislative or executive action in a Court of law. It is a common ground in all the jurisdictions of the common law countries that the claimant must have some justiciable interest which may be affected by the action or that he will suffer injury or damage as a result of the action. In most cases the area of dispute, and sometime, of conflicting decisions has been whether or not on particular facts and situation the claimant has sufficient interest or injury to accord him a hearing. In the final analysis, whether a claimant has sufficient justiciable interest or sufferance of injury or damage depends on the facts and circumstances of each case: Bengal Immunity Co. v. State of Bihar (1955) 2S.C.R. 602; Forthingham v. Mellon (1925) 262 U.S. 447; for India and America respectively. Even in the Canadian case of Torson v. Attorney-General of Canada (1974) 1 N.R. 2254, and the Australian case of Mckinlay v. Commonwealth (1975) 135 C.L.R. cited by Chief Fawehinmi, in which liberal views on standing were expressed, the issue of sufficiency of interest was the foundation upon which the decisions in both cases were reached.”
I think this passage correctly sums up the law and is in accord with Olawoyin v. Attorney-General of Northern Nigeria (supra). Bello JSC did not, however, stop there. He went on to consider the provision of our Constitution and after quoting Section 6(6)(b) of the Constitution (1979 Constitution) went on to observe:
“It may be observed that this sub-section expressed the scope and content of the judicial powers vested by the Constitution in the Courts within the purview of the sub-section. Although the powers appear to be wide, they are limited in scope and content to only matters, actions and proceedings for the determination of any question as to the civil rights and obligations of that person?. It seems to me that upon the construction of the sub-section, it is only when the civil rights and obligations of the person, who invokes the jurisdiction of the Court, are in issue for determination that the judicial powers of the Courts may be invoked. In other words, standing will only be accorded to a plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected by the act complained of.”
Idigbe JSC also quoted Section 6(6) (b) of the Constitution and went on to say:
“The expression ?judicial power? in the above quotation is the power of the Court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision? (see Justice Miller: The Constitution (p. 314). Judicial Power is therefore invested in the Court for the purpose of determining cases and controversies before it; the cases or controversies, however, must be ‘justiciable’. That being so, it is necessary to know in what circumstances a Court can, in the exercise of its judicial power pronounce on the constitutional validity of an ‘Act’ (i.e. legislation) of the Legislature or, an ‘act’ (i.e. action) of the National Assembly. In attempting to answer this question, I would gratefully adopt the views of Marshall C.J. in Marbury v. Madison (1803) 1 Cranch 137, which, in a summary, are that the right of the Court to declare unconstitutional an act of Congress can only be exercised by it when a proper case between opposing parties has been submitted to it for judicial determination,.”
On what is a “proper case” that would justify the invocation of the judicial power of the Court, the learned Justice of the Supreme Court observed:
“The type of case or controversy which will justify the exercise by the Court of its judicial power must be justiciable and based on bona fide assertion of right by the litigants (or one of them) before it I take the view that the circumstances in which the judicial power under Section 6(6) (b) of the 1979 Constitution can be exercised by the Court for the purpose of pronouncing on the constitutional validity of an act for the National Assembly or, more particularly, any legislation must be limited to those occasions in which it has become necessary for it (i.e. the Court) in the determination of a justiciable controversy or case based on bona fide assertion of rights by the adverse litigants (or anyone of them) before it to make such a pronouncement. The Court does not, in my view possess a general veto power over legislation by, or acts of, the National Assembly; its powers properly construed, are supervisory, and the supervisory power, in circumstances to which I have referred above.”
It will be observed that Idigbe JSC did not say that it was Section 6(6) (b) that gave locus standi but rather that it was this sub-section that prescribed the judicial power of the Court in the separation of powers scheme of the Constitution.
Obaseki JSC was emphatic in his rejection of the notion that Section 6(6) (b)is concerned with locus standi. The learned Justice of the Supreme Court after quoting the sub-section, said:
“This provision by itself, in my opinion and respectful view, does not create the need to disclose the locus standi or standing of the plaintiff in any action before the Court and imposes no restriction on access to the Courts. It is the cause of action that one has to examine to ascertain whether there is disclosed locus standi or standing to sue.”
Nnamani JSC appeared to share Bello JSC?s view when he said:
“Section 6(6)(b) to my mind encompasses the full extent of the judicial powers vested in the Courts by the Constitution. Under it, the Courts have power to adjudicate on a justiciable issue touching on the rights and obligations of the person who brings the complaint to Court. The litigant must show that the act of which he complains affects rights and obligations peculiar or personal to him. He must show that his private rights have been infringed or injured or that there is a threat of such infringement or injury. It seems to me that the Court must operate within the parameter of the judicial power vested in them by Section 6(6) (b) of the Constitution and that they can only take cognisance of justiciable actions properly brought before them in which there is dispute, controversy, and above all, in which the parties have sufficient interest. The Courts cannot widen the extent of this power which has been so expressly defined by the Constitution.”
Uwais JSC also agreed with Bello JSC but only to some extent. For he said:
“It is for the foregoing reasons and those given by my learned brother, Bello, J.S.C. (which I had the privilege of reading in draft) that I feel that the interpretation to be given to Section 6 subsection (6)(b) of the Constitution will depend on the facts or special circumstance of each case. So that no hard and fast rule can really be set-up. But the watchword should always be the ?Civil rights and obligations? of the plaintiff concerned.”
I have highlighted above the views expressed by five of their Lordships that determined the Senator Adesanya?s case.
I am only left with two. Sowemimo JSC, (as he then was), declined to express a view on Section 6 subsection (6) (b) of the Constitution. He said:
“On interpretation placed on Section 6(6)(b) I prefer to reserve my comments until a direct issue really arises for a determination.”
Fatayi-Williams, CJN who expressed his preference for what the Romans called actio popularis when he said:
“To my mind, it should be possible for any person who is convinced that there is an infraction of the provisions of Sections 1 and 4 of the Constitution which I have enumerated above to be able to go to Court and asks for the appropriate declaration and consequential relief if relief is required,. In my view, any person, whether he is a citizen of Nigeria or not, who is resident in Nigeria or who is subject to the laws in force in Nigeria, has an obligation to see to it that he is governed by a law which is consistent with the provisions of the Nigeria Constitution. Indeed, it is his civil right to see that this is so. This is because any law that is inconsistent with the provisions of that Constitution is, to the extent of that inconsistency, null and void by virtue of the provisions of Section 1 and 4 to which I have referred earlier.”
Still found against the Senator on the ground that the latter:
‘From the extracts for their Lordships’ judgments I have quoted above one can clearly see that there was not majority of the Court in favour of Bello JSC’s interpretation of Section 6 Subsection (6) (b) of the Constitution. It will, therefore, not be correct to say that this Court decided in the Adesanya case that the subsection prescribes the locus standi of a person wanting to invoke the judicial powers of the Court. They all seem to agree, however, that the sub-section prescribes the extent of the judicial powers of the Courts. The Adesanya case which is in the realm of public law, seems to lay it down that 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 locus standi of a complainant and this is to be determined in the light of the facts or special circumstances of each case. I do not think that that test is affected by Section (6) (b) of the Constitution.
In my respective view, I think Ayoola JCA, (as he then was), correctly set out the scope of Section 6 subsection (6) (b) of the Constitution when in N.N.P.C. v. Fawehinmi & Ors. (1998) 7NWLR 598, 612 he said.
“In most written constitutions, there is a delimitation of the power of the three independent organs of government, namely the executive, the legislature and the judiciary, Section 6 of the Constitution which vests judicial powers of the Federation and the States in the Courts and defines the nature and extent of such judicial powers does not directly deal with the right of access of the individual to the Court. The main objective of Section 6 is to leave no doubt as to the definition and delimitation of the boundaries of the separation of powers between the judiciary on the one hand and the other organs of government on the other, in order to obviate any claim of the other organs of government, or even attempt by them, to share judicial powers with the Courts. Section 6(6) (b) of the Constitution is primarily and basically designed to describe the nature and extent of judicial powers vested in the Courts. It is not intended to be a catch-all, all-purpose provision to be pressed into service for determination of questions ranging from locus standi to the most uncontroversial questions of jurisdiction.”
That the sub-section does not lay down the plentitude of the Nigerian law on locus standi is borne out by the decision of this Court in Fawehinmi v. Akilu (1987) 4 NWLR 797 where this Court recognized the right of a citizen to lay a criminal charge against any one committing an offence or who he reasonably suspects to have committed an offence. This view is also shared by Ademola J.C.A. in Bolaji v. Bamgbose (1986) 4 NWLR 632 at 650-653 where he gave an overview of the law and concluded that the test in Section 6(6) (b) of the Constitution be confined to challenges in constitutional and statutory matters only.
He observed:
“It should be noted that the extract from the judgment of Fatai-williams, CJN in the Senator Adesanya case reproduced above sought to make a distinction of what is required as sufficient standing in matters that are constitutional and those that are not; such as common law or administrative law. This distinction is valid and very important in our law having regard to the fact that Section 6 Sub-section 6(b) of the Constitution of 1979 has created a constitutional locus standi in matters relating to challenges to the provisions of the constitution and statutory enactments under it”
“It follows then logically from this distinction so noted in the extract from the judgment that Section 6 subsection 6(b) of the Constitution has laid down a test applicable only to challenges in constitutional and statutory matters and should not come into play in order sphere of the law. More often the tendency is to regard the test laid down in Section 6(6) (b) as applicable to all situations on the issue of locus standi.
This is doing violence to the plain meaning of the words used in that provision of the Constitution. The words ‘rights’ and ‘obligations’ are not synonymous with the word ‘interest’ which is the word used in the second test by the Courts. The test in Section 6 subsection 6(b) must in my view be confined to its proper limit and must not be allowed to intrude into other areas of law. The issue of locus standi has also been predicated on the second test of sufficiency of interest being shown by the would be plaintiff in an action.”
I think there is some wisdom in the views expressed by his Lordship Ademola JCA. The judgments delivered in the Adesanya case seem to support him. The term ‘civil rights and obligations’ applies more in the sphere of public law than in the realm of private law where the cause of action test will be more appropriate.
The Appellants’ case having regard to their statement of claim is not that they are by right under any enactment entitled to be granted the status of an autonomous community.
This is to say that the Appellants are not seeking for the enforcement of a public right. If that were their cause of action, all they needed to have done in my considered view, was to have instituted an action compelling the creation of their own autonomous community. They have instituted the instant action to procure what they believe they are entitled to, and which no doubt is at the discretion of the appropriate authorities. Law No. 6 of 2006, is the enactment in operation in Imo State pursuant to which whoever is aggrieved by the creation of autonomous communities can ventilate his or their grievance(s) in respect of the same. The said law without doubt, does vest a cause of action to challenge the creation of an autonomous community in any category of persons, save those within an autonomous community that has been created by the appropriate authorities.
The lower Court in my considered view, therefore cannot be said to be wrong in applying Law No. 6 of 2006 to the Appellants’ case as the law is the only enactment applicable to already created autonomous communities. The Appellants having been shown in the ruling of the lower Court to have agreed that Section 24 of the said Law No. 6 of 2006, is the relevant enactment applicable to the instant case, in my considered view must be confusing themselves to now say that the said Law is not applicable to their case. The Appellants having regard to their statement of claim are clearly not claiming any relief in respect of any autonomous community that they claim to belong to, or claim to be theirs. Indeed, it is clear from their case as set up in their statement of claim that what they want is that Ndiakunwata Iheme autonomous community to which they (Appellants) clearly have averred that they do not belong, should be cancelled or de-recognized as it were, and that their own community ‘Akunwanta-Uno’ should be conferred with the autonomous status already accorded the said Ndiakunwanta Iheme autonomous community. From the case of the Appellants as set up in their statement they are clearly challenging the creation of Ndiakunwanta Iheme autonomous community or the status conferred on the said community.
I am of the considered view that since the lower Court rightly found to the effect that Law No. 6 of 2006 is the applicable law to the instant case, (and I simply do not consider the stance of the Appellants that the recognition by the lower Court of the law applicable to a case tantamount to a consideration of an extraneous matter, to be valid), the finding of the said Court that the Appellants have no locus standi, in respect of their main claim and a fortiori their case, cannot be faulted. In other words, the lower Court was eminently correct in its finding and application of the appropriate or relevant law, in striking out the Appellants’ case given the averments in the statement of claim. The Appellants in my view should note that the striking out of their case has not robbed them of the opportunity of going back to the drawing board to conceive and commence an appropriate case to get their desire actualized (if any such case would be justiciable), or to pursue the actualization of their desire to have an autonomous community of their own, by any other appropriate means or procedure.
What they however cannot do as rightly decided by the lower Court, is that they have no locus standi to challenge the creation of the Ndiakunwanta Iheme autonomous community and the status conferred on the said community, as by their own showing they do not belong to the said community. The locus standi to do this, the Appellants equally cannot in any event claim to flow from Section 6(6) of the Constitutionnew_anno.
The issue for the determination of the appeal as formulated by the Appellants is accordingly resolved against them.
In the final analysis, the appeal fails and is dismissed as the issue formulated for its determination has been resolved against the Appellants. The ruling of the lower Court appealed against, is accordingly affirmed.
Costs of N25,000.00 is awarded in favour of the 1st Respondent only, and against the Appellants jointly and severally.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now the lead judgment just delivered by my Brother AYOBODE OLUJIMI LOKULO-SODIPE JCA.
I agree with his reasoning and conclusion.
I also dismiss the appeal.
I abide by the consequential order made as to costs.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother Hon. Justice Ayobode Olujimi Lokulo-Sodipe, JCA.
I completely agree with his reasoning and conclusions. I have nothing more to add. I adopt his orders as mine.
Appearances:
Jerry ElumezeFor Appellant(s)
Emeka Orafu for 1st Respondent.
2nd, 3rd, 4th and 5th respectively are absent and not represented by Counsel
For Respondent(s)
