In The Court of Appeal of Nigeria

On Thursday, the 19th day of May, 2005



VICTOR AIMEPOMO OYELEYE OMAGE                                    Justice of The Court of Appeal of Nigeria

JOHN AFOLABI FABIYI                                                                 Justice of The Court of Appeal of Nigeria

MONICA BOLNA’AN DONGBAN-MENSEM                            Justice of The Court of Appeal of Nigeria





    6. CHIEF A.K. DERI
    8. CHIEF H.H. KING A.L. DIGIGHA WARI – Respondent(s)

VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A. (Delivering the Lead Ruling)
: In the court below the plaintiff claims in suit No. NHC/1/2002, the following relief against the 1st – 8th defendant; 6th – 8th defendants were joined in the proceedings subsequently before hearing. The reliefs sought by the plaintiff are:
(a) that the Nembe Local Government created by the Federal Military Government on the 1st October 1996 is the instrument Gos/9/SA dated 27th December 1996 signed by the Secretary to Government as commanded by the instrument Gos/9/62 dated 14th March 1997.
(b) (In it) the headquarters of Nembe Local Government created by the Federal Military Government in October 1996 is Nembe Ogbolomabiri and nowhere else;
(c) That the elections conducted by the then NECON now (INEC) for positions of Chairman and Councilors in what it purported to be Nembe Local Government were unconstitutional null and void.
(d) That the then NECO electoral wards delineated by them and voters register compiled and used to conduct the local government election in 1997 in what it purported to be NEMBE local government Area are unconstitutional wrong and so inoperative:
(e) That not being a new local government the 1st and 2nd defendants have no constitutional rights to
(i) Change the name of Nembe local government or the residue after carving away of any part of it to form a new local government to Nembe (West) local government or any other name whatsoever
(ii) Change the name of the local government headquarters from Nembe Ogbolomabiri to Ogbolomabiri or any other name.
(f) That the 5th defendant who was declared winner as Chairman of Nembe local government was wrongfully declared as Chairman of Nembe local government.
(g) That the 5th defendant who was declared as chairman of Nembe local government of Bayelsa state has since been operating from Bassambiri purporting same to be the headquarters of Nembe local government Area has not been operating from the constitutionally recognized headquarters of Nembe local government Area.
For the above complaints, the plaintiff seeks an order compelling –
(a) The 1st – 3rd defendants to carry out a new ward delimitation within the boundaries Nembe local government as created by the federal Military Government on 1st October 1996 and as stated in the instrument GOS/9/S4 dated 27th December 1996, and amended by instrument GOS/9/62 dated 14th March 1997.
(b)(i) An order for the 5th defendant to move over to Nembe Ogbolomabiri as headquarters
(ii) The 5th defendant as the present incumbent Chairman and any Chairman subsequently elected for Nembe local government Area of Bayelsa State to operate from Nembe Ogbolomabiri as headquarters.
(c) An order compelling the 1st – 3rd Defendants to advise the Independent National Electoral commission (INEC) to compile a fresh voter register in accordance with the Nembe Local Government council Area created by the Federal Military Government on October 1, 1996 and as contained in the instrument GOS/9/54 dated December 27, 1996.
(d) Compelling the 1st – 3rd Defendants to conduct all future elections in Nembe Local Government Area in accordance with instrument dated December 27, 1996.
(e) Compelling the 1st Defendant to amend the schedule Pursuant to section 2 of the Beyelsa State Local Government Area (Creation and provisions) Law 1999 to show the name of the remainder of Nembe Local Government Area after the exclusion of Okoroma/Tereke LGA to Nembe Local Government and to change name of the Headquaters to Nembe Ogbolomabiri.”
Before the matter matured for hearing the plaintiff filed a motion for interlocutory injunction; in it, the plaintiff sought an order identical to the prayers above pending the hearing and determination of the suit.
The counsel to the 1st – 3rd defendants filed a motion of preliminary objection to the hearing of the suit on two major grounds –
(i)That the plaintiffs has no locus standi to prosecute the issues and reliefs raised above, since the issues are on matters affecting the public generally and the plaintiff has failed to show in what special way his interest exceeds that of the members of the public.
(ii) That the issue raised on the amendment of the number of towns and villages contained in the reliefs sought had previously been determined by the a court of law, against which no appeal has been filed. The issues are therefore caught by res judicata.
That the court below has no jurisdiction over the matter because the issues before the court are not well constituted.
Oso (SAN) of counsel for the 6th – 8thh defendant associated himself with the submission of the 1st – 3rd applicants in the preliminary objection on the grounds of lack of locus standi and res judicata. He too urged the court to strike out the plaintiff’s claim in its entirety.
In his ruling, the court below inter alia in determining the test of what constitutes locus standi in the realm of public law or right for a person to invoke judicial power to determine the constitutionality of a legislative or executive action he must show that either his personal interest will immediately be affected by the action or that he sustained or is in immediate danger of sustaining an injury to himself which interest or injury is above that of the general public. See Owodunmi v Registered Trustee of Celestial Church of Christ (2000) FWLR 1455 1479 par E & F.
The court ruled further as follows:
“I cannot see in the plaintiff’s claim 1(a) – h2a to c any claim peculiar to the plaintiff; which is above that of the general hue, which entitles plaintiff specially to the allocation of public law.
“I find incorrect the claim by the plaintiff that the public situation affects his right to vote and be voted for. The constitutional right of the plaintiff is intact.”
“I hold that the plaintiff has not established locus standi to institute this suit, the writ of summons and statement of claim; and the motions for interlocutory injunction filed in this suit are hereby struck out.”
The plaintiff was dissatisfied with the decision of the High Court Bayelsa State, sitting at Nembe, and has filed this appeal against the judgment of the court delivered on 31st July 2002. The appellant filed two main grounds of appeal with copious particulars. The appellants formulated two issues for determination of the appeal. These are –
(1) Whether the plaintiff appellant has by his statement of claim shown that his suit rights and obligations are being expunge upon so as to entitle him to invoke judicial powers of the court under section 6 of the constitution of the Federal Republic of Nigeria.
(2) Whether the appellant has special rights or interests which is adversely affected or are in danger of being notated by acts of the respondents complained of.”
The counsel for the state; for the 1st – 3rd respondents formulated the issues thus
(1) “Whether the totality of the averments contained in the plaintiff/appellant statement of claim and writ of summons does not raise questions/issues that (sic) relates or touches on the constitutionality of executive and legislative actions and thus discloses reliefs common to the general public.
(ii) Whether the plaintiff/appellant has shown in his statement of claim special legal right or interest which is adversely affected or are in danger of being impugned by the acts of the 1st – 3rd respondent; and is therefore clothed with the requisite locus standi.
The counsel to the 4th – 8th respondents formulated only one issue –
“Whether the appellant has the necessary locus standi to have instituted the suit subject matter of this appeal.”
Upon the receipt of the brief of the 4th – 8th respondents, the appellant filed a reply brief. In it, the appellant dealt in response to the other reasons why the appellants claim in the court below was struck out namely, that the claim failed to disclose a reasonable cause of action that the claim is academic and that the plaintiff does not have a locus standi. Because the entire arguments and submission is the whole briefs filed, the appellant’s brief, of the 1st – 3rd, 4th – 8th respondents deal with the claim to and lack of locus stand to institute the plaintiff action, I will in this judgment consolidate the briefs and consider all the divergent together.
It is necessary to identify the complaint made by the plaintiff in the court below. This was done in the briefs of the 1st -3rd respondents to which the briefs of the 4th – 8th respondents added some heads quoted from the writ and statement of claim filed by the now appellant as the plaintiff in the court below. Are they issues, which confer public right, which entitle all the indigenes of the area a right to act as one or that which entitles an individual to a right to relief? Does damage or injury resulting to an individual whether imminent or in future entitle the victim a right to invoke solely, the power of the court? Do the coercive powers of the court exist against a discretionary power, legislative power or exercise of political discretion of a government functionary without apparent and clear show of injury to an individual who wishes otherwise? The above are some of the issues for consideration in the determination of the plaintiffs appeal. It is therefore necessary to; recite the averment in the statement of claim of the plaintiff –
(a) plaintiff is a native of Isonkiri; Nembe in Nembe Local Government Area of Bayelsa State.
(b) Plaintiff is installed as Chief Ineyougha, within the Yekorogha, later Oruwari & Ineyougha group of Houses of Isonkiri Nembe by the Amanyanabo of Nembe in April 1998.
(c) Plaintiff is a legal practitioner and a politician.
(d) Plaintiff is desirous of contesting for the position of chairman Nembe Local Government Council Area of Bayelsa State in the next election.”
The above portion reflects that the plaintiff acts only for himself as a politician; even as a chief, there are other chiefs, 4th – 8th respondents who were defendants opposed to the requests of the plaintiffs/appellant. The 1st, 2nd 3d and 4th defendants are government functionaries installed to carry out legal, political and administrative functions in the interest of the entire people of Bayelsa State inclusive of Nembe Ogbolomabiri and adjoining local government.
In brief these include the reliefs sought by the plaintiff individually from the court –
(a) Excision of certain towns or villages from the local government Area.
(b) Amendment of the situation and of the title of the local government to continue to read Nembe Ogbolomabiri
(c) Adjustment of the Area comprising the local government area, and way more.
The reasons given by the plaintiff for demanding a return to the name of the headquarters is because the announcement creating the local government is contained in the instrument signed by the Secretary to local government dated 27th December 1996 as amended by another exhibit GOS/9/62: not before the court. The plaintiff asked in his claim the defendant to produce same.
I would like to observe here that the onus to prove the averments in a document does not end by quoting the particulars of the document. If at all the documents exist a reliance to produce the document should not be placed on the defendants since the success of the plaintiff’s claim depend on the production of the document. Therefore besides the absence of the document, the right belongs not only to the plaintiff/appellant but also to all citizens of Nembe, indeed Bayelsa state to demand compliance with the contents of such a letter.
The same rule affects the demand for delimitation of boundaries. The submissions have been made by counsel to the parties and the learned trial court agree that reliefs contained in the plaintiffs claim 2a – 1 – (ii) are no longer tenable as at the time the preliminary objection was being argued because the Chairman 5th defendant on whom an order is sought to be made has ceased to be chairman of Nembe Ogbolomabiri Council.
The decision to compile a voters list to conduct a fresh election; and to include and exclude names of towns villages and cities on electoral list are all political decisions major either by the executive or legislative houses of assemblies; except in the exercise of the powers created by the bodies themselves they omitted to comply or failed to observe the laid down rules a court of law is usually careful to demand to see a cognisable right of an individual that has been briefed before it attempts to exercise its awesome powers. In the instant case, the right of demand in each case does not belong only to the appellant, it belongs to the population. In the absence of a cognizable right of the plaintiff to institute the actions to claim in each any interest or sufficient interest other than for the convenience of the plaintiff to reduce the area that he needs to cover when in future he seeks to contest election in the area in order to save costs to himself it is right to say that the plaintiff now appellant did not possess a locus standi. The effect and consequence of a lack of locus standi is to strike out the claim. In the decision of the Supreme Court in Adesanya v. president of Nigeria and another (1981) NSCC p. 146, the apex court described a locus standi as a right with which a plaintiff is clothed if he has a justifiable case to claims for injury he suffered, or about which he fears he may suffer injury. See Owodunmi v. Registered Trustees of Celestial Church of Christ (2000) FWLR (Pt 9) p. 1455.

In the latter case, the Supreme Court further clarified the principle of the locus standi and pronounced that a right to a legal interest may exist to institute an action in a court of law in the realm of public law or private or chieftaincy cases. However in Olowoyin v. Attorney-General of Nigeria (1961) 2 SCNLR 5 Ogundare JSC (of blessed memory) has in 1981, warned a plea for redress to certain provisions of the law may fall within the realm of public law, to which an individual may have no locus standi.
In this appeal on the issue of locus standi, I am guided by the decision and observation of his Lordship Mohammed JSC in the case, Re Ijebu (1992) 9 NWLR (Pt 266) Per H A where he ruled inter aria thus –
“For a person to have a locus standi to institute an action or to show that he has a special interest, that interest must not be an interest he shared with other members of the society.

He must also show that the interest he has been adversely affected by the act or omission which he seek to challenge.”
The plaintiff in the court below is bound by the pleadings; he is not at liberty to alter without notice to the defendants the substitution of his claim in court. I have to add that I am not by this saying that he may not amend his pleadings. It is that the defendants are entitled to react by preliminary objection to the averments contained in the statement of claim of the plaintiff.

In this case, the 1st – 8th defendants have reasoned, both in the court below should consider the absence of locus standi of the plaintiff; and that the plaintiff has disclosed no special loss, damage or grouse over and above that of the community of Nembe for which he seeks redress. The learned trial court in his ruling and judgment of 31st July 2002 has found in favour of the defendants. I have on appeal considered the relevant issues in detail as above, I find no reason to disagree with the judgment of the trial court. I affirm it.
The appeal has no merit. It is dismissed. There will be costs to the two sets of defendants at N5, 000.00

JOHN AFOLABI FABIYI, J.C.A.: I had the advantage of reading before now the judgment just delivered by my learned brother, Omage, JCA. I agree with his reasons leading to the conclusion that the appeal is devoid of merit and should be dismissed.
The lone issue is whether the Appellant was clothed with the requisite vires or let me say locus standi to fight the cause of Nembe/Ogbolomobiri people. The test to, be applied in determining the locus standi of the Appellant is whether his civil rights and obligations are solely affectedRefer to the case of SENATOR ABRAHAM ADESANYA v PRESIDENT OF NIGERIA (1981) 2 NCLR 358 nt380 where locus standi is defined ‘as the right of a party to appear and be heard on the question before any court or tribunal.”

At this point, let me say it that in order to determine whether a Plaintiff has locus standi or not, the court or tribunal looks at the statement of claim. See ADESOKAN v ADEGOLU, (1997) 3 NWLR (pt. 498) 261. This must be so since it is in the statement of claim that a plaintiff ventilates the facts and circumstances and in some instances, the capacity in which he initiates the claim. In ADESANYA OF PRESIDENT OF NIGERIA (supra)’ issue of locus standi was raised after the statement of claim in that case had been filed; not before same. When a party’s standing to sue is in issue in a case, 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 OLORIODE v OYEBI (1984) 5 S.C. 1.

The Appellant Failed to show in the statement of claim that his personal interest will be immediately affected by the action of the executive which interest can be said to be above that of the general public. See OWODUNNI v REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST (2000) 10 NWLR (Pt. 675) 315 at 338. He does not have nor made any special claim that is peculiar to him which is above that of the general public. He should not constitute himself as a ‘meddlesome interloper, or a ‘chameleonic impostor’. It occurs to me that the Appellant had no ‘place to stand’ in the suit wrongly initiated by him as same was designed to fight the public cause. He has not shown that his sole interest has been adversely affected by the executive act which he sought to challenge.
For the above reasons and those well set out in the lead judgment, the appeal should be dismissed. I order accordingly. I endorse the order relating to costs therein contained.




Chief F. D. LOTT For Appellant



  1. T. Y. ABASI
    2. FATAI AREMU OSO ESQ. For Respondent


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