CENTRE FOR OIL POLLUTION WATCH v. NIGERIA NATIONAL PETROLEUM CORPORATION (2013)

CENTRE FOR OIL POLLUTION WATCH v. NIGERIA NATIONAL PETROLEUM CORPORATION

(2013)LCN/5875(CA)

In The Court of Appeal of Nigeria

On Monday, the 28th day of January, 2013

CA/L/413/2008

RATIO

ON THE DEFINITION OF LOCUS STANDI

Now, locus standi is Latin for “place of standing”, and it simply means – “the right to bring an action or to be heard in a given forum” – see Black’s Law Dictionary 9th Ed. The legal concept of standing or locus standi is predicated on the assumption that no Court is obliged to provide a remedy for a claim in which the Applicant has a remote, hypothetical or no interest – see Att. Gen. Kaduna State V. Hassan (1985) 2 NWLR (Pt.8) 483 SC. Per. AMINA ADAMU AUGIE, J.C.A.

LOCUS STANDI: THE FUNDAMENTAL ASPECT OF LOCUS STANDI

THE POSITION OF THE LAW WITH LOCUS STANDI TO MAINTAIN AN ACTION FOR PUBLIC INTEREST

The position of the law may have changed to cloak “pressure groups, NGOs and public spirited taxpayers” with locus standi to maintain an action for public interest, as argued by the Appellant, but that is in other countries, not Nigeria. The truth of the matter is that there is a remarkable divergence in the jurisprudence of locus standi in jurisdictions like England; India; Australia, etc., and the Nigerian approach to same, which has not evolved up to the stage, where litigants like the Appellant can ventilate the sort of grievance couched in its Amended Statement of Claim. As it is, the position of the law on the subject is that the plaintiff must show sufficient interest in the suit – see Nyame v. FRN (2010) 7 NWLR (Pt.1193) 344 SC where the Supreme Court held that – The plaintiff will have locus standi – – only if he has a special right or alternatively if he can show that he has sufficient or special interest in the performance of the duty sought to he enforced or where the interest is adversely affected”. It was held in Shibkau v. A.-G. Zamfara State (2010) 10 NWLR (Pt.1202) 312 -“- – Where a plaintiff institutes on action claiming a relief or reliefs, which on the face of the cause of action is readily enforceable by another person, then such a Plaintiff cannot succeed because he lacks the requisite locus standi to stand on. This is more so, because it is the person in whom is vested the aggregate of the enforceable rights in a cause, who is better placed, positioned and armed with proper standing to stand up and out to be counted, by suing thereon” – per Oredola, JCA”. Per. AMINA ADAMU AUGIE, J.C.A.

JUSTICES:

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

Between

CENTRE FOR OIL POLLUTION WATCH – Appellant(s)

AND

NIGERIA NATIONAL PETROLEUM CORPORATION – Respondent(s)

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): The Appellant is a Non-Governmental Organization [NGO] that involves itself in the reinstatement, restoration and remediation of environments impaired by oil spillage/pollution; it also ensures that environments that belong to no one are kept clean and safe for human and aquatic live/consumptions. It sued the Respondent at the Federal High Court, Lagos, wherein it claimed as follows –
A. Reinstatement, restoration and remediation of the impaired and/or contaminated environment in Acha autonomous community of Isukwuato Local Government Area of Abia State of Nigeria particularly the Ineh and Aku Streams, which environment was contaminated by the oil spill complained of.
B. Provision of portable water supply as a substitute to the soiled and contaminated Ineh/Aku Streams, which are the only and/or major source of water supply to the community.
C. Provision of medical facilities for evaluation and treatment of the victims of the after negative health effect of the spillage and/or the contaminated streams.
The reason for its intervention is set out in its Amended Statement of Claim –
(4) That over 25 years Ago, the [Respondent] constructed and laid oil pipelines beneath, around and beside Ineh and Aku Streams/Rivers in Acha Autonomous Community in Isukwuato Local Government Area, Abia State of Nigeria and; that the Respondent’s use of the land viz-a-viz the oil pipeline is special and non-natural.
(5) That Ineh and Aku Streams/Rivers are the only source of water supply to Acha Community, her environs, visitors and travelers.
It further averred as follows at paragraphs 6 to 13 of its said pleadings –
– The pipeline had outlived its usefulness due partly to use and partly to the salinity of the sea water under which it was laid.
– On 13/5/2003, it noticed a strange oily substance (crude hydrocarbon oil) circulating and drafting on top of the streams and within some days therefrom the magnitude of the strange oily substance increased to an unbearable proportion, overflew from the streams and surged unto the adjourning lands, estuaries, creeks and mangroves.
– Crude Hydrocarbon oil, which is lighter than water, floats on water and the meniscis is at the highest water level during flow tide and is gently smeared and deposited downwards on the mangrove trees and swamps as the tide ebbs. All the recesses and swamp holes of the aquatic animals automatically collect pockets of oil when the flood recedes. This process is repeatedly undergone as long as the split oil lasted.
– Crude Hydrocarbon oil coming from the bowels of earth have amongst several impurities, a lot of dissolved nitrogen called Basic Sediments and water (Bs & W) of which are not readily visible to the naked eyes, in aqueous medium.
– The Ineh/Aku spill in question was straight from the earth bowels and discharged at the sea bed with all its impurities. This substance wipes off all known marine food and is dangerous to human health.
– Subsequently, it sent its delegate to the scene of the incident upon being aware of it and; this delegate found that their oil pipeline laid at the sea bed and/or beneath, beside and around Ineh/Aku streams which had been corroding unattended was ruptured fractured and completely spewed its entire capacity of persistent hydrocarbon mineral oil.
– It provided relief materials which included but not limited to bottled/pure water to the community but did not clean-up or reinstate the Ineh-Aku streams.
– The spillage and drifting of the crude hydrocarbon oil from the aforesaid pipeline of the Defendant continued till 21/6/2003 when it was eventually contained by the Respondent.
– The Respondent ought to have carried out periodic inspection of its pipeline via X-rays to detect early signs of corrosion and fracture.
– The Respondent ought to have maintained proper surveillance with state of the art instrument panels that will promptly alert on a sudden loss in pressure along the pipeline which device would have anticipated that in the case of oil spills from these pipes that the two streams would be a natural point of entry.
– The Respondent knows that crude hydrocarbon oil is dangerous to ecosystem, marine aquatic lives, flora and being aware of natural tidal transport and sea waves within the area would have anticipated that in the case of an oil spills from these pipes that the two streams would be a natural point of entry.
– The oil spill — into the Ineh and Aku Streams, estuaries has deleterious effect as harm to living resources and marine life, hazards to human health, hindrance to marine life and other legitimate use of the steams. It has impaired the quality for the use of the streams and resulted in reduction of amenities and economic activities of the people
– The oil spillage left the — steams impure, soiled, and contaminated and they could not longer be put to their ordinary and natural use. They are no longer good for human consumption and; aquatic lives, sea birds, fraud and flora no longer abound in them.
– The [Respondent] only stopped the leakage/spillage but never cleaned-up and/or adequately cleaned up or remedied the Ineh/Aku Streams.
– It will show that oil is more toxicant than thought and dangerous to human health. It causes skin diseases, cancer, damage to longs and reproductive systems and so on.
– It will rely on scientific report and opinion to show that the devastating effect of oil spills on the ecosystem, marine life and the forest system persist for several decades except when properly and constantly cleaned for several years (minimum of 5 years) and; even after 10 years of the incident that oil still remains on the affected streams/rivers causing skin diseases, cancer, damaging the reproductive system and respiratory system, of users of the affected streams. It also leads to major social and psychological impact like depression and post-traumatic stress disorder.
– To the naked eyes it seemed that the [Respondent] having contained the spillage that all is normal but beneath the surface there exist excessive crude hydrocarbon oil in bottom sediments in Ineh/Aku streams. This continues to contaminate the streams.
– The inhabitants of Acha community, visitors and travelers thereto continue to use water from the Ineh/Aku streams (for all purposes that water is used) after the incident as there is no alternative water supply to them.
The Respondent filed a Statement of Defence wherein it denied the allegation in the Appellant’s Amended Statement of Claim, and further averred that –
6. The losses allegedly caused to the Acha autonomous community — If any, were not occasioned by the acts, omission, default, negligence or breach of duty by it.
7. Any damage to the pipelines within the affected community was caused by acts of sabotage or interference by unscrupulous persons within the affected community.
8. In specific response to paragraph 10 and 11 of the Statement of Claim (it) denies the imputation of strict liability and or negligence on its part.
9. The Appellant lacks the requisite locus standi to institute and/or maintain action as presently constituted, as the Appellant has neither suffered damage nor been affected by the injury allegedly caused to the Acha Community.
10. The [Respondent] shall seek the leave of the Court to set down this point of law for determination before trial.
11. WHEREUPON the (Respondent) urges this Honourable Court to dismiss this Suit as the same lacks merit and constitutes an abuse of the Court’s process.
The Respondent subsequently filed a Motion on Notice 14/7/05, praying for –
“An order directing that the point of law raised by the Defendant in its Statement of Defence to wit:
(a) Absence of locus standi on the part of the plaintiff to institute and/or maintain this suit.
Be set down for hearing and disposed of before trial, and that this action be dismissed on the ground that the [Appellant] lacks the requisite locus standi to institute and/or maintain this action”.
The Application was supported by an 11-paragraph Affidavit deposed to by one Rosemary Lamikanra, a legal practitioner in the law firm of HORSEFALL & CO, Solicitors to the Respondent, wherein it was averred in paragraphs 6 to 10 –
6. That the point of taw raised by the [Respondent] impact on the jurisdiction of this Court to entertain this matter.
7. That the [Appellant] has not suffered any loss neither has it been affected by the alleged losses, if any, suffered by the Acha Community.
8. That the [Appellant] is an NGO operating principally in Lagos.
9. That it will be in the interest of justice if this application is granted.
10. The [Appellant] will not be prejudiced if this application is granted.
The application was granted and the “point of law” was set down for hearing. After the adoption of written addressees filed by the parties, Hon. Justice A. R. Mohammed delivered “Judgment” on 31st October 2005, wherein he held –
“I have examined the whole of the Amended Statement of Claim – – and the result of my examination has only revealed that the complaint of the Plaintiff – – is the alleged oil spill at the Acha Community in Abia State arising out of the operational activities of the Defendant. I am, however, unable to find any averment, which shows that the Plaintiff as a legal entity has suffered any injury or damage as a result of the alleged oil spill in Acha Community. The position of the law on issue of locus standi is that a Plaintiff must show sufficient interest and that he has suffered personal injury or damage on the action complained of – – -Although the Plaintiffs counsel has cited many English decisions to support the contention that it has the locus standi to maintain this action, yet my view – – is that reliance on English decisions – – – would not be appropriate when there are decisions of our superior appellate Courts – – – On the argument – – that where a point of law is both common to English Law and Nigerian Law, the decision of English Courts – – – should be followed, I find it difficult to accept this proposition especially when there are several decisions of the superior Courts in this country on the issue – – – Furthermore, this Court as not been availed with any evidence, albeit remotely suggesting that the position of the English Courts – – on the issue of locus standi are similar to the Nigerian superior Court’s decision on the same issue. Evidence has also not been placed before me to show that the English Courts’ position have been upheld or applied by any of our superior appellate Courts on the issue of locus standi for an organization like the Plaintiff to maintain an action to remedy an injury allegedly done to a community like Acha Community – – I, therefore, have no difficulty in coming to the conclusion that the reference – – to English decisions on the issue of locus standi as regard the present suit is nothing but an attempt to pull wool over the eyes of this Court. On the whole, the inevitable conclusion, which I arrive at, is that the Plaintiff lacks the necessary locus standi to institute and maintain this action on the alleged oil spillage at Acha Community of Isukwuato LGA of Abia State. The result is that the point of law raised by the Defendant in paragraph 9 of its Statement of Defence – – has succeeded and – – this suit is hereby struck out for want of locus standi on the part of the Plaintiff”.
Dissatisfied, the Appellant filed a Notice of Appeal containing 4 Grounds of Appeal in this Court, and it distilled 4 Issues for determination there-from in its Brief of Argument settled by Joseph N. McCarthy Mbadugha, Esq., as follows –
i. Whether the learned trial Judge was right in holding that the Appellant lacks the necessary locus standi to institute and maintain the action on the alleged oil spillage in Acha Community of Isukwuoto LGA of Abia State, being an environmental matter maintained for public interest and to vindicate the rule of law.
ii. If the civil rights and obligations of the Appellant include the objects or functions for which is incorporated under the law to carry out (as pleaded) as well as ensuring compliance with the rule of law or the provision of Nigerian laws, was the learned trial Judge right in holding that the Plaintiffs case failed to disclose its civil right and obligation that has been affected by the alleged oil spillage to be able to have unimpeded right of access to the court?
iii. If the Appellant’s case is distinguishable from the cases of Adenuga V. Odumeru (2003) 8 NWLR (Pt. 821) 163, A.C.C Ltd. V. Rao Investment & Product Ltd. (1992) 1 NWLR (Pt.219) 583, was the learned trial Judge right in applying the ratios in Adenuga and A.C.C. Ltd. cases (supra) to the Appellant’s case.
iv. Whether the learned trial Judge having found that he cannot determine the Respondent’s preliminary objection (point of law) without evidence was right in determining same without calling for evidence and assessing evidence thereto.
The Respondent, however, submitted in its own brief of argument prepared Victor Ogude, Esq., that the sole issue that calls for determination in this appeal is whether or not having regards to the amended Statement of Claim filed by the Appellant, the Appellant had disclosed the requisite locus standi to institute or maintain this action. And/or in the alternative whether the Lower Court was right to have struck out the Appellant’s suit for want of locus standi.
Obviously, this appeal hinges solely on the issue of locus standi, and looking at it from that perspective; I have to agree with the Respondent that the issue for determination is whether the Lower Court was right to strike out the suit because the Appellant lacked the locus standi to institute the action, which is in keeping with the Appellant’s Issue 1. In my view, its issues 2, 3, and 4 are more in the form of academic questions than issues for determination.
As it is, the Appellant argued that the law on locus standi has changed to the extent that pressure groups, NGOs, and even public spirited taxpayers are cloaked with the locus standi to maintain an action for public interest, even though they may not have suffered any injury at all let alone any injury above every other member of the society from the subject matter of their suit.
Furthermore, that the existence of any of the following confers locus standi to a Plaintiff in an environmental action or one maintained in public interest – merits of the challenge; substantial default or abuse; the importance of vindicating the rule of law; the importance of the issue raised; the nature of the breach or damage for which relief is sought; the role of the Plaintiff and its sincere concern for the issue involved, citing Shell Dev. V. Nwawka (2001) 10 NWLR (pt.720) 64, Fawehinmi v. President FRN (2007) 14 NWLR (pt.1054) 275; Reg. V. Inland Revenue Commissioners, Ex Parte National Federation of Self-Employed and Small business Ltd. (1982) AC 617; REG V. Foreign Secretary of State for foreign and Commonwealth Affairs, Ex Parte World Development Movement Ltd. (1995) 1 WLR 386, R. V. Inspectorate of Pollution and Another, Ex Parte Greenpeace Ltd. No. 2 (1994) 4 ALL E. R. 329, R. V. Somerset County Counsel Arc Southern Ltd., Ex Parte Dixon, (1998) Environmental LR III.
It further argued that its action is purely for public interest without any private interest, and will vindicate the rule of law as the Appellant will ensure that the Respondent complies with the provisions of Federal Government Protection Agency Act (FEPA), which was duly passed by the appropriate Legislative House; that it is settled law that since the dominant objective of the rule of law is to ensure the observance of the law, it can best be achieved by permitting any person to put the judicial machinery in motion whereby any citizen (including a registered NGO) could bring an action in respect of a public derelict as it has done in this case, citing Fawehinmi v. President FRN (supra); that its action is laudable and will bring peace, justice, orderliness as well as social and economic justice; and that it, therefore, follows that it has the locus standi to maintain this action, and so, the Lower Court strayed when it held that it lacks the necessary locus standi to institute and maintain this action. The Appellant also submitted under its issue (ii) that the Lower Court’s finding that it has no locus standi to maintain the suit under Section 6 (6) (b) of the Constitution, is perverse having regard to the law on locus standi pursuant to the said Section viz-a-viz actions maintained purely on public ground and for public interest or to vindicate rule of law; and its civil rights include seeing that the laws of the Federal Republic of Nigeria are enforced in matter of public law or for public interest, citing Fawehinmi v. President FRN (supra), Okechuckwu v. Etukokwu (1998) 8 NWLR (pt. 562) 513; Shell Dev. v. Nwawka (supra).
It further argued that by paragraphs 4, 6, 7, 8, 9, 10, 11, 12 and 13 of its pleadings and its claim against the Respondent, its action is on public law and for public interest given that the Streams, which its seeks that the Respondent remedies, are the only sources of water supply to the Acha Community; that it is clear from the provision of section 6 (6) (b) of the 1999 Constitution that the only competent action contemplated therein are actions between person(s) and government or between State governments and the Federal Government, and not between the Federal government and the Federal Government as well as not between the Federal Government and its Agencies or parastatals; that the Respondent is a statutory corporation, and it will be absurd and contrary to the said Section 6 (6) (b) to suggest that FEPA or the Att. Gen. of the Fed., will sue a fellow Federal Government Agency or Corporation/Parastatal; that it has shown that it has a special interest in ensuring reinstatement, restoration and remediation of environments impaired by oils spills/pollution particularly the environment that belongs to no one in particular; and that the Lower Court was in error in holding that contrary to its counsel’s argument “on Section 6 (5) (b) it “failed to disclose its civil rights and obligations that has been affected by the alleged oil spillage, to be able to have in impeded right of access to the Court.”
On its part, the Respondent submitted that the local authorities cited by the Appellant do not support the proposition of law projected in its brief; that the plethora of foreign decisions relied upon would not be relevant as no evidence has been furnished by it to show that the foreign law principles applied in those decisions are the same as those applicable in Nigeria; that the Lower Court’s finding rejecting the applicability of the foreign decisions was not appealed against by the Appellant and stands un-impeached; that by Section 56 of the Evidence Act, the opinion of foreign law are matters of fact requiring proof before our Courts, citing Arakan V. Egbue (2003) 17 NWLR (Pt.848) 1, Adigun V. A. G. Oyo State (1987) 2 NWLR (Pt.50) 197; that despite the dicta calling for expansion of the scope of locus standi in recent decisions of our superior Courts, Nigerian law of locus standi remains essentially the same, citing Busari V. Oseni (1992) 4 NWLR (Pt. 237) 557; Shell Pet. Dev. Co. Ltd. V. Otoko (1990) 6 NWLR (Pt.159) 693, and Owodunni v. Registered Trustees of Celestial Church of Christ (2000) 10 NWLR (Pt. 675) 315, decided after Senator Adesanya v. President, FRN and Anor. (1981) 2 SCNLR 358; that the Appellant did not satisfy the test laid down in In Re: Ijebu (1992) 9 NWLR (Pt.266) 414, Thomas V. Olufosoye (1986) 1 NWLR (Pt. 18) 669 and Okafor V. Asoh (1999) 3 NWLR (Pt. 93) 35, in that it does not reside in the affected community, has not personally suffered any injury to its interest, neither has it been authorized by the affected community or sought leave to bring an action on behalf of the affected community; that it cannot take refuge under Section 6(6) (b) of the Constitution to claim locus standi as the Supreme Court has settled the point in the Owodunni v. Registered Trustees of Celestial Church of Christ (Supra) and that the said test in Section 6 (6) (b) of the Constitution must be confined to its proper limit and must not be allowed to intrude into other areas of the law.
The Appellant countered in its Reply Brief that the Respondent missed the point and befogged the issue as the cases it cited – Busari v. Oseni (supra), Shell v. Otoko (supra) Owodunni V. Reg. Trustees, C.C.C. (supra) and Thomas v. Olufosoye (supra), are distinguishable from this case, and that the issues in this case are whether it has the locus standi to maintain this suit if-.
a. This suit is on public ground and/or for purely public interest without any private interest to serve;
b. Its action (this suit) would vindicate the rule of law;
c. This suit as constituted disclosed an extreme or a most extreme case which would justify an exceptional approach to the question of sufficient interest
d. lf it has a genuine concern for the environment;
e. It is denied standing those it represents might not have an effective way to bring the issues/matter to Court.
Furthermore, that none of these issues arose for determination in those cases; that none of the issues were determined in them; and the facts of this case are different from the facts of those cases, so, they are irrelevant and unhelpful.
Now, locus standi is Latin for “place of standing”, and it simply means – “the right to bring an action or to be heard in a given forum” – see Black’s Law Dictionary 9th Ed. The legal concept of standing or locus standi is predicated on the assumption that no Court is obliged to provide a remedy for a claim in which the Applicant has a remote, hypothetical or no interest – see Att. Gen. Kaduna State V. Hassan (1985) 2 NWLR (Pt.8) 483 SC.

For a person to have locus standi, he must be able to show that his civil rights and obligations have been or are in danger of being infringed – see Adesanya v. President (supra), where Bello, JSC (as he then was) referred to Section 6 (6) (b) of the 1979 Constitution, which is the same in the 1999 Constitution, and held as follows –
“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”.
Obaseki, JCA also observed in Adesanya’s case (supra), that “the fundamental aspect of locus standi is that it focuses on the party seeking to get his complaint before the High Court not on the issue he wishes to have adjudicated. In effect, the person instituting an action before a Court of law must have legal capacity otherwise the Court is robbed of the necessary jurisdiction to entertain it.
In this case, the Lower Court agreed with the Respondent and struck out the suit “for want of locus standi” on the part of the Appellant because –
“There is nothing in the whole of the Amended Statement of Claim to show that the [Appellant] as a legal concern has suffered any damage or injury as a result of the alleged oil spillage except the fact that some of the [Appellant]’s members reside in Acha Community and use the water from the Streams and Rivers of that community. The Amended Statement of Claim dwells entirely on the alleged oil spillage in the Acha Community and its attendant health consequences to the Members of that community and the public at large”.
The Appellant anchored the main plank of its proposition on foreign decisions, which it set out in its brief. For instance, it referred us to the observation of Lord Diplock in the English case of Reg. V. Inland Revenue Commissioners, Ex Parte National Federation of Self-Employed and Small business Ltd.(supra) –
“It would, in my view be a grave lacuna in our system of ‘public law if a pressure group – – or even a single public spirited taxpayer were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the Court to vindicate the rule of law and get unlawful conduct is stopped.”
It also referred us to the decision of the English Court in R v. Inspectorate of Pollution and another, Ex Parte Greenpeace Ltd. No.2 (supra), as follows –
“I have not the slightest reservation that Greenpeace is an entirely responsible and respected body with a genuine concern for the environment. That concern naturally leads to a bona fide interest in the activities carried on by BNFL at Sellafield and in particular the discharge and disposal of radioactive waste from its premises to which the Respondents’ decision to vary relates – – It seems to me that if I were to deny standing to Greenpeace, those it represents might not hive on effective way to bring the issue before the Court.”
The position of the law may have changed to cloak “pressure groups, NGOs and public spirited taxpayers” with locus standi to maintain an action for public interest, as argued by the Appellant, but that is in other countries, not Nigeria.
The truth of the matter is that there is a remarkable divergence in the jurisprudence of locus standi in jurisdictions like England; India; Australia, etc., and the Nigerian approach to same, which has not evolved up to the stage, where litigants like the Appellant can ventilate the sort of grievance couched in its Amended Statement of Claim. As it is, the position of the law on the subject is that the plaintiff must show sufficient interest in the suit – see Nyame v. FRN (2010) 7 NWLR (Pt.1193) 344 SC where the Supreme Court held that –
The plaintiff will have locus standi – – only if he has a special right or alternatively if he can show that he has sufficient or special interest in the performance of the duty sought to he enforced or where the interest is adversely affected”.
It was held in Shibkau v. A.-G. Zamfara State (2010) 10 NWLR (Pt.1202) 312 –
“- – Where a plaintiff institutes on action claiming a relief or reliefs, which on the face of the cause of action is readily enforceable by another person, then such a Plaintiff cannot succeed because he lacks the requisite locus standi to stand on. This is more so, because it is the person in whom is vested the aggregate of the enforceable rights in a cause, who is better placed, positioned and armed with proper standing to stand up and out to be counted, by suing thereon” – per Oredola, JCA.
In this case, apart from its averment that “some of her members are indigenes of and/or live at Acha community and use the water from Ineh and Aku Streams/Rivers”, there is nothing in its pleadings to show what the Appellant or any of its unspecified Members suffered as a result of the alleged oil spill. Besides, the members of the Community itself are better placed, positioned and armed with the standing to sue the Respondent for any damage caused. The decision of the Lower Court that it had no locus standi cannot be faulted.
The end result of the foregoing is that the appeal totally lacks merit. It, therefore, fails and it is hereby dismissed. There will be no order as to costs.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I concur with the reasoning and conclusion reached in the judgment just delivered by my learned brother, the Hon. Justice A. A. Augie, JCA. Having read, before now, the submissions of the learned counsel, contained in their respective briefs of argument, I cannot but agree with my learned brother that the instant appeal totally lacks merits, thus it ought to be dismissed by the court.
Instructively, at pages 1 & 2 of the brief thereof, the Appellant has formulated a total of four issues for determination. Regrettably, however, none of the four issues in question was specifically indicated to have been distilled from any of the four grounds of appeal, contained at pages 78 – 82 of the Record of Appeal,
Considering the nature and circumstances surrounding the appeal, the submissions of the learned counsel, contained in the respective briefs thereof vis-a-vis the record of appeal, as a whole, I have no doubt that there is only one vexed issue that calls for determination in the instant appeal. And that’s the Appellant’s issue No.1, regarding locus standi. Incidentally, the issue No.1 in question clearly relates to ground 2 of the notice of appeal.
It is a trite principle, that issues raised or formulated in briefs of argument must be precise and devoid of frivolous complexity and ambiguity. Such issues as formulated in briefs’ must equally relate to, or be distilled from, the grounds of the notice of appeal. Thus, failure to predicate an issue upon a specific ground of appeal may result in discountenancing the said issue by the court. See GUDA vs. KITTA (1999) 12 NWLR (Pt.629) 21; OCEANIC BANK INT’L LTD VS. CHITEX IND. LTD. (2001) FWLR (Pt.4) 678; DADA VS. DOSUNMU (2006) 18 NWLR (Pt. 1010) 134; IDIKA VS. ERISI (1988) 2 NWLR (Pt.78) 563; ANIMASHAUN VS. UCH (1996) 10 NWLR (Pt.476) 65; SPDC vs. GOODLUCK (2008) 14 NWLR (Pt.1107) 294 @ 307 paragraphs G – H.
However, the above trite general principle, notwithstanding. The court does have an unfetted discretion to, in given circumstances, either adopt the issues as formulated by the parties, or alternatively formulate such relevant issues it believes would sufficiently determine the grievances of the Appellant in the appeal. After all, the whole essence of the administration of justice vis-a-vis adjudication process, is fair hearing and the ultimate attainment of equitable justice. See ADUKU vs. ADEJOH (1994) 5 NWLR (Pt.346) 582; IKEGWUOCHA VS. OHAWUCHT (1996) 3 NWLR (pt.435) 146; FRN v. OBEGOLU (2006) 18 NWLR (PT.1010) 188; DADA V. DOSUMU (2006) 18 NWLR (PT.1010) 134; SPDCN LTD. VS. GOODLUCK (Supra) @ 307 – 308 paragraphs H – B; respectively.
In the instant case, the said issue No.1 raises the vexed question of:
i. Whether the learned trial judge was right in holding that the plaintiffs (Appellant) lacks the necessary locus standi to constitute and maintain the action on the alleged oil spillage in Acha community of Isulawuato Local Government Area of Abia State, being an environmental matter maintained for public interest and to vindicate the rule at law.
I have taken the liberty of adopting the far-reaching and rather erudite reasoning of my learned brother contained in the lead judgment.
The vexed judgment of the lower court in question, contained at pages 60 -77 of the Record, is to the conclusive effect thus:
On the whole, the inevitable conclusion, which I arrive at, is that the plaintiff lacks the necessary locus standi to institute and maintain this action on the alleged oil spillage in Acha Community of ISUKWUATO Local Government Area of Abia State. The result is that the point of law raised by the Defendant in paragraph 9 of it’s statement of defence dated 14/7/05 has succeed (sic), and consequently therefore, this suit is hereby struck out for want of locus standi on the part of the plaintiff.
I think, I cannot agree more with the above far-reaching, and rather unassailable decision of the lower court. From the pleadings of the Appellant, contained in the Amended statement of claim, (pages 31 – 36 of the Record), there is every cogent reason for me to believe that the Appellant appeal to be more of a faceless busybody. The said statement of claim spans a total of 16 paragraphs. The 1st paragraph is to effect that –
“The Plaintiff is a non-Governmental organization incorporated in accordance with part c of the companies and Allied Matters Act 1990 with its principal place of operation at Allied House (17th Floor) 155/161 Broad Street, Lagos Island, Lagos.”
The second paragraph of the amended statement of claim is to the effect, effect, inter alia, that the Appellant has well –
“Over 200 members drawn from across the whole state of the Federal Republic of Nigeria and outside of Nigeria. Some of her members are indigenes of and / or live at Acha Community and use the water from Inch and Aku Streams/Rivers.”
Ironically, however, none of the purported “over 200 members” of the Appellant was disclosed as having any interest in the matter. The identities of the management (executive) and principal members of the Appellant have equally remained a mystery. The memorandum and articles of Association of the Appellant have equally not been exhibited. The Appellant Mr. Joseph N. McCarthy Mbadugha, of Appellant’s counsel, merely endorsed and filed the suit and other processes on behalf of the Appellant. The source of his brief and authority to represent the Appellant has equally remained a mystery.
The term locus standi in Latin simply denotes a party’s right to make a legal claim, or seek judicial enforcement of a duty or right. And it’s a well settled doctrine, that-
“Whether or not a Plaintiff has locus standi to sue in a matter is to be determined on the pleading…
Failure to disclose any locus standi is as fatal to an action as failure to disclose any reasonable cause of action”
See NWANKWO vs. ONONEZE -MADU (2009) 1 NWLR (Pt.1123) 671 at 698 paragraphs D – E, 200 paragraphs D – F; ADESANYA vs. PRESIDENT FRN (1981) 2 NCLR 358; GAMUOBA VS. ESEZI II (1961) 2 SC NLR 237; THOMAS VS. OLUFOSOYE (1986) 1 NWLR (Pt.18).
During the 19th century, the phrase ‘a person aggrieved was construed very strictly by the English courts. As a matter of principle, a man could not properly be called ‘ a person aggrieved’ unless he had personally suffered a particular loss or injury. See SIDEBOTHAM’S case; (1880) 14 CH.D 458; 465. However, eight decades thereafter, the court of appeal deemed it expedient to depart from its previous decision in SIDEBOTHAM’S case (supra). See R. vs. THAMES MAGISTRATE’S COURT (1957) 5 LGR 129; R. VS. PADDINGTON VALUATTON OFFICER, EXPARTE PEACHEY PROPERTY CORPN LTD. (1966) 1 QB 380; 400.
Most interestingly, in R. vs. PADDINGTON’S case (supra), the Court of Appeal held, inter alia, thus:
The question is whether the peachey property corporation are “persons aggrieved” so as to be entitled to ask for certiorari or mandamus…
But I do not think grievances are to be measured in pounds, shillings and pence. If a rate payer or other person finds his name included in a valuation list which is invalid, he is entitled to come to the court and apply to have it quashed. He is not to be put off by the plea that he has suffered no damage, any more than the voters were in Ahsby v. White. The Court would not listen, of course, to a mere busybody who was interfering in things which did not concern him. But it will listen to anyone whose interests are affected by what has been done… So here it will listen to any ratepayer who complains that the list is invalid.
Per Lord Denning. See also ARSENAL FOOTBALL CLUB VS. ENDE (1977) WLR 974, in which the proposition of law enunciated by Lord Denning in R. Vs. PADDINGTON’S case was cherishing approved and applied by the House of Lords.
By way of a relator action, such as in the present case, an individual can only file an action where the Attorney General of either the Federation or State, as the case may grant a fiat thereto in the name thereof.
However, in very exceptional circumstances, especially where an individual can sue personally, he has to show that he suffered a special damage over and above that which was suffered by the generality of the public. See GAMOBA VS. ESEZI II (1961) 2 SC NLR 237; OWODUNNI VS. REGISTERED TRUSTEE OF CELESTIAL CHURCH OF CHRIST (2000) 10 NLR (Pt. 675) 315; FAWEHINMI VS. PRESIDENT OF FRN (2007) 14 NWLR (P1.1054) 275 at 333 G – H; NWANKWO VS. ONONEZE – MADU (supra) @ 712 A – B; 713 -714 F – H & 715 – 716 G – G, respectively.
Undoubtedly, the laudable objectives inherent in the present action are in accord with the well cherished preamble of the 1999 Constitution which is predicated upon the solemn resolution for the purpose of-
“Promoting the good government and welfare of all persons in our country on the principles of freedom equality and justice, and for the purpose of consolidating the unity of our people.”
In furtherance of the preamble in question, section 17 (1) of the constitution provides to the effect thus:
17 – (1) The state social order is founded on ideals of freedom equality and justice.
(2) In furtherance of the social order –
(a) every citizen shall have equality of rights, obligations and opportunities before the law;
(b) the sanctity of human person shall be recognized and human dignity shall be maintained and enhanced;
(c) governmental actions shall be humane;
(d) exploitation of human or natural resources in any form whatsoever for reasons, other than the good of the community, shall be prevented, and
(e) the independence, impartiality and integrity of courts of law, and easy accessibility thereto shall be secured, and maintained.
I would recall having seriously pontificated on the rational in entrenching the fundamental rights provisions in our constitution, thus:
It is axiomatic, that the natural rights of the people of this country, as guaranteed by the 1999 constitution and those constitutions before it, are those rights which appertain to every man in right of his existence of this land, are all the fundamental rights itemized under sections 33 – 46 of the 1999 constitution. The essence of entrenching those fundamental rights in the constitution is to guard against the arbitrary exercise of power by government, its agencies (as in the instant case, the Respondent) and public servants generally.
History has recorded that there was a time when despotic kings disposed off the crowns thereof by wills upon their death bed”, thereby consigning their people (subjects!) like chatters or beasts of the forests, to whatever successors they appointed. However, as Thomas Paine would aptly state –
“This is now so exploded as scarcely to be remembered and so monstrous as hardly to be believed! See The Rights of Man… Words worth Editions Ltd. 1996 at page 10.”
Hence, in the light of the above postulations, and the far-reaching reasoning and conclusion thereby reached in the lead judgment, I hereby, without any further hesitation, dismiss the appeal for lacking in merits.
No order as to costs.

SIDI DAUDA BAGE, J.C.A.: I had the singular honour of reading in draft, the Judgment just delivered by his Lordship, HON. JUSTICE A. A. AUGIE (JCA), to which I am in complete agreement with. I will only add a few words of my own on the subject of locus standi, which constitutes the main theme of the Judgment.
The Supreme Court in the case of Pam & Anor V. Mohammed & Anor (2008) 5- 6 SC (Pt.1) 83 exposited as follows:
“It is the law that to have locus standi to sue, the Plaintiff must show sufficient interest in the suit or matter. One criterion of sufficient interest is whether the party could have been joined as a party in the suit. Another criterion is whether the party seeking redress or remedy will suffer some injury or hardship arising from the litigation. If the Judge is satisfied that he will so suffer, then he must be heard as he is entitled to be heard. A party who is in imminent danger of any conduct of the adverse party has the locus standi to commence action.”
The Supreme Court also added its strength on the effect of questioning when a party’s standing to sue is in issue in a case. It stated
“The question is whether the person whose standing is in issue is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiceable. See. Oloriodo V. Oyebi (1984) 5 SC 1; Apostolic Church Ilesha V. A.G. Mid-West (1972) 4 SC. 150; Itsekiri Trustees V. Warri Divisional Planning (1972) 11 SC. 235.
The Appellant in the present Suit in its pleadings, did not show any injury caused to it as a result of the subject matter of this Suit in the first place.
For the more detail reasonings as contained in the lead Judgment I have not found any reason to disturb the decision of the lower court. The appeal totally lacks merit, and it is also dismissed by me.
I abide by the order as to costs contained in the lead judgment.

Appearances

E. C. Ofiwe, Esq. For Appellant

AND

V. O. Ogude, Esq. For Respondent