DR. ANTHONY IGWEGBE v. MR. OBI AYOBAMCHUKWU ANSELEM & ORS
(2017)LCN/9405(CA)
In The Court of Appeal of Nigeria
On Friday, the 27th day of January, 2017
CA/E/343/2014
RATIO
CAUSE OF ACTION: HOW THE COURT DETERMINES A REASONABLE CAUSE OF ACTION
the law is settled by a plethora of cases that in determining whether a suit discloses a reasonable cause of action against a party it is the relief(s) endorsed on the writ of summons or statement of claim where one has been filed that has to be examined. In the instant case, it is the amended originating summons and the affidavit in support that must be examined to ascertain whether a reasonable cause of action has been disclosed against the appellant and no other process, not the counter affidavit of the appellant and other respondents. This is because a contention of lack of reasonable cause of action means that even if all the averments in the statement of claim are true, there is no cause of action against the defendant. PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
EVIDENCE: INSTANCES THAT AMOUNT TO AN ADMISSION
In law, a party who contends that there is no reasonable cause of action against him is deemed to have admitted all the averments in the statement of claim. PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
ACTION: CONDITIONS FOR PROVING EXISTENCE OF CAUSE OF ACTION
Once the allegations in the originating process or the pleadings show a real controversy which may entitle a party to grant of the relief(s) sought, a reasonable cause of action is disclosed. The weakness of a case or perceived low chance of success is not a ground for striking out the suit. See COOKEY V. FOMBO (SUPRA), MOBIL PROD. (NIG) UNLTD. V. LASEPA (2002) 18 NWLR (PT. 798) 1, YUSUF V. AKINDIPE (2000) 8 NWLR (PT. 669) 376. PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
CONSTITUTIONAL LAW: POWER OF THE ATTORNEY GENERAL TO REPRESENT THE FEDERAL GOVERNMENT IN COURT
As rightly submitted by the appellant’s counsel, the offices of the President of the Federation and Attorney General of the Federation are creations of the Constitution under Sections 130 and 150 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The President is the Head of State, the Chief Executive and Commander-in-Chief of the Armed Forces of the Federation. It is correct that the Constitution provides separately under Sections 2 and 130 of the Constitution, the Federation known as the Federal Republic of Nigeria and the office of the President of the Federation. It is also correct that the Federation known as the Federal Republic of Nigeria is a distinct and separate entity from the office of the President of the Federal Republic of Nigeria. However, whatever functions or duty or power the President performs or exercises as conferred on him by the Constitution or any other Statute or Act of the National Assembly is a public power vested in him as an agent of the Federal Republic of Nigeria and which he exercises for the purpose of good governance in Nigeria.
The power to appoint a Chief Medical Director conferred on the President under Section 5 (1) of University Teaching Hospitals (Reconstitution of Boards etc) Act is conferred on him in his official capacity. The said power is therefore a public right or power. The exercise of that right or power is in the interest of the public and constitutes a public act for which he can be sued in his official capacity but that does not make the President a necessary party in every case where the matter relates to the exercise of his constitutional duty or power. This is because in the exercise of that power, the President acts for and on behalf of the Federal Republic of Nigeria and Federal Government of Nigeria. See NIGERIA ENGINEERING WORKS LTD. V. DENAP. LTD (2001) NWLR (PT. 746) 726 AT 751 (E-H), where the Supreme Court held as follows:
“In the consolidated suit of ATTORNEY GENERAL OF OGUN, BENDEL AND BORNO STATES V. ATTORNEY GENERAL OF THE FEDERATION AND 2 ORS. (1982) 1-2 SC 13 AT 86 this Court in considering the provisions of the Public Order Act 1981, and the powers of the Military Administrator thereunder held per Idigbe JSC that
“Power which is another form of legal right is either public or private. Public powers “are those vested in a person as an agent or instrument of the functions of the State” and private powers, on the other hand, “are those which are vested in persons to be exercised for their own purposes and not as agent of the State (see SALMON: JURISPRUDENCE 12 Edition pages 229-230 Chapter 42). When a Statute confers a power on the holder of an office it is a public power; and then unless the contrary intention appears from or in the Statute, the power may be exercised only virtue office (i.e. by the holder of the office and by his successor-in-office or the holder of the office for the time being.”
The Attorney General of the Federation as the Chief Law Officer of the Federal Republic of Nigeria has an interest in the interpretation of the Constitution, Statutes and other Laws of the Federation. See A. G. OF THE FEDERATION V. A. N. P. P. (2003) 18 NWLR (PT. 851) 182. It is clear from the authorities that the Attorney General being the Chief Law Officer of the Federation is the proper party to be sued in any action against the Federal Government, the Federation of Nigeria or any of its agencies which impliedly includes the President of the Federation who exercise the powers vested in him by the Constitution for and on behalf of the Federal Republic of Nigeria. SeeFEDERAL AIRPORT AUTHORITY OF NIGERIA V. BI-COURTNEY LTD & ANOR. (2011) LPELR – 19742 (CA). In A.G KANO STATE V. A. G. FED. (2007) 6 NWLR (PT. 1029) 164 AT 192 (B-C), the Supreme Court held as follows:
“It is not in dispute that the Attorney General of the Federation can be sued as a defendant in all civil matters in which a claim can properly be made against the Federal Government or any of its authorized agencies, arising from any act or omission complained of.”?
In the light of the foregoing, I am of the firm view that any action against the President who exercises the power or authority conferred on him on behalf of the Federal Republic of Nigeria may be instituted against the Attorney General of the Federation. The President need not be a party to the action. The non joinder of the President in this suit does not render the proceedings incompetent and does not rob the Court of its jurisdiction to entertain the action. PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
DR. ANTHONY IGWEGBE
(ACTING CHIEF MEDICAL DIRECTOR, NNAMDI AZIKIWE UNIVERSITY TEACHING HOSPITAL, NNEWI) Appellant(s)
AND
1. MR. OBI AYOBAMCHUKWU ANSELEM
2. HON. ATTORNEY GENERAL OF THE FEDERATION AND MINISTER OF JUSTICE
3. HON. MINISTER OF HEALTH
4. THE MANAGEMENT BOARD, NNAMDI AZIKIWE UNIVERSITY TEACHING HOSPITAL, NNEWI
5. MR. B. O. CHUKWUMA
(DIRECTOR OF ADMINISTRATION SECRETARY OF THE BOARD, NNAMDI AZIKIWE UNIVERSITY TEACHING HOSPITAL, NNEWI) Respondent(s)
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal from the ruling of the Federal High Court delivered on 27/3/2014 in suit No. FHC/AWK/CS/38/13. By an amended originating summons filed on 27/6/2012, the 1st respondent in this appeal had sought the determination of the following questions and reliefs from the Court below:
(a) “Whether having regard to the clear provisions of the University Teaching Hospitals (Reconstitution of Boards, etc) Act, Cap. U15, Laws of the Federation (LFN) 2004 and in particular, Section 5(2) (a) thereof, the words “medically qualified” can be restricted to only medical doctors registered with the Medical and Dental Council of Nigeria (MDCN).
(b) Whether having regard to the aforementioned Act, applications from suitably qualified candidates in respect of the advertisement for the post of Chief Medical Director of the Nnamdi Azikiwe University Teaching Hospital, Nnewi (NAUTH) as contained in the Vanguard Newspaper of November 30, 2012 at pages 25, can only be received from medical doctors that are registered with the Medical and Dental Council of Nigeria (MDCN).
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(c) Whether having regard to the provisions of the said Act, the criteria that an applicant for the post of the Chief Medical Director, NAUTH, must be medically qualified and registered with the Medical and Dental Council of Nigeria (MDCN), is within the provisions of the law.
(d) Whether the management of NAUTH in the exercise to fill the vacant post of its Chief Medical Director can set out criteria that are clearly not within the provisions of the University Teaching Hospitals (Reconstitution of Boards, etc.) Act, Cap U15, LFN 2004.
(e) Whether the management of Nnamdi Azikiwe University Hospital, Nnewi was right in rejecting the application of the Plaintiff for the vacant post of Chief Medical Director, NAUTH without considering same alongside that of other applicants on the basis that he did not satisfy the set out criteria for the position, not being a medical doctor registered with the MDCN as published.
(f) Whether having regard to the clear provisions of the Act and the surrounding circumstances of this matter, the said application of the plaintiff for the vacant post of Chief Medical Director, NAUTH, was wrongly rejected by the
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management.”
By a motion on notice filed on 6/11/2012, the appellant as the 4th defendant prayed for an order striking out/dismissing the suit for being incompetent and non justiciable on the following grounds.
1. “The suit has become dead, academic, moot, speculative and hypothetical.
2. The plaintiff did not disclose any Reasonable cause of action against the 4th defendant or the president of the Federal Republic of Nigeria in making the appointment.”
Parties filed and exchanged written addresses. The Court below after hearing both parties held as follows:
1. “From the claims or reliefs of the Plaintiffs, it is clear that this Court is called upon to interpret provisions of the University Teaching Hospitals (Reconstitution of Boards, e.t.c.) Act, Cap U15, Laws of the Federation of Nigeria particularly Section 5(2)(a)- where the word- “medically qualified” is used.
2. By virtue of Section 251 (1) (r) this Court has jurisdiction to hear and determine any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its
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agencies.
3. The Plaintiff has sued the necessary and even desirable parties in this suit. The Attorney General is a competent party to be sued in any suit against the Federal Government or any of the agencies. See A. G. RIVERS V. A. G. AKWA IBOM (2011) 45 NSCQR PER B. RHODES – VIVOUR, JSC AT PAGES 1202 – 1202.
In view of the above authorities, I hold that this suit is alive and not an academic exercise, speculative e.t.c. and that there is reasonable cause of action. The reliefs sought by the 4th defendant are hereby refused.”
The appellant is challenging that ruling by a notice of appeal filed on 9/4/2014 containing three (3) grounds of appeal. The processes in the appeal were served on all the respondents. Only the 1st respondent filed a brief of argument in response to the appellant’s brief of argument. The appellant’s brief of argument filed on 8/4/2014 was settled by Chief G. Oseloka Osuigwe. The 1st respondent’s brief of argument filed on 9/10/2014 was settled by Simon Ngbakor Esq.
The appellant’s counsel formulated the following issues for determination:
1. “Whether the lower Court was right in holding as it did that the suit is
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alive and not academic, speculative etc and that there is a reasonable cause of action shown.
2. Whether the presence of the Attorney General of the Federation in the suit is sufficient for or covers the President of the Federal Republic of Nigeria whose statutory power and its exercise is being challenged in the suit?”
The 1st respondent’s counsel formulated a sole issue for determination. The issue is:
(1) Whether the application filed by the appellant was rightly refused by the lower Court.
?
Considering the three grounds of appeal, I found the two issues formulated by the appellant’s counsel apt for the determination of this appeal. On issue 1 which is whether the lower Court was right in holding as it did that the suit is alive and not academic, speculative and that there is a reasonable cause of action shown, the appellant’s counsel submitted that the President of the Federal Republic of Nigeria having appointed the appellant as the Chief Medical Director of Nnamdi Azikiwe University Teaching Hospital (NAUTH) in his absolute discretion and no vacancy to be filled, further determination of the question whether the 1st respondent is
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medically qualified or not is an academic exercise as such determination will not confer any tangible benefit on the 1st respondent because the Court cannot even direct the President of Nigeria to appoint him even if the academic question is answered in his favour. He referred to A.G. PLATEAU STATE v. A.G. FEDERATION (2006) 3 NWLR (PT. 967) 349 AT 419 – 420; ONOCHIE VS. ODOGWU (2006) 6 NWLR (PT. 975) 65, ANYAFULU V. AGAZIE (2006) 5 NWLR (PT. 973) 260 AT 227 – 273.
He further submitted that the Court will not adjudicate on or consider any issue raised in an action which would amount to a mere academic exercise and the outcome of which if decided one way or the other would neither confer on or injure any of the parties but merely expose or expound the law. He referred to DABO V. ABDULAHI (2005) 7 NWLR (PT. 923) 181 AT 205, ADELAJA V. ALADE (1999) 6 NWLR (PT. 608) 54, A. G. ANAMBRA STATE V. A. G. OF THE FED. (2005) 9 NWLR (PT. 931) 572 AT 607, 610 AND 654.
On non-disclosure of a reasonable cause of action, counsel argued that since the 1st respondent in his amended originating summons did not allege any wrong doing by the appellant or the President of
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the Federal Republic of Nigeria in appointing the appellant as the Chief Medical Director of NAUTH, no reasonable cause of action has been disclosed against them. It is his submission that an action against a person against whom no wrong doing is alleged is merely fanciful and not justiciable in a Court of law and the Courts exist not for fanciful or merely academic claims but to grant reliefs and remedies to an injured party. He referred to OJUKWU V. OJUKWU & ANOR. (2000) 11 NWLR (PT. 677) 65 AT 92 (E). It is also submitted that since the 1st respondent’s action did not disclose any reasonable cause of action against the appellant, the action against him ought to be dismissed. He referred to COOKEY V. FOMBO (2005) 22 NSQR 411.
?
In his response, the 1st respondent’s counsel urged us to discountenance the argument of the appellant’s counsel on the effective date of the purported appointment of the appellant and to take judicial notice of the date of the purported appointment letter and the date the suit was filed at the Court below. He argued that since all the parties were aware of the pendency of the suit before the appointment of the appellant into
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the post in question, they are caught by the doctrine of lis pendens. He referred toU. B. A. V. ETIABA (2008) 6 NWLR (PT. 1082) 154 AT 186, OBI V. INEC (2007) 11 NWLR (PT. 1046) 565.
On reasonable cause of action, counsel referred to paragraphs 1 to 15 of the additional affidavit in support of the originating summons on pages 311-313 of the record of appeal and reliefs 7 and 8 in the amended originating summons. He submitted that since the appellant has been part of the issue that led to the commencement of this action and is also presently occupying the post in question, he is a necessary party to the case. He further submitted that the rationale and main reason for making a person a party to an action or proceedings is so that he will be bound by the result of the action and all questions arising in the proceedings can be settled once and for all. He referred to RE: NDIC (LIQUIDATOR OF ALPHA MERCHANT BANK PLC) MR. T. ADESANYA & ANOR. V. MR. J. LAWAL & 2 ORS. (2007) 7 NWLR (PT. 1032) 54, AJIBOLA V. PERMANENT SECRETARY TEACHING SERVICE COMMISSION EKITI STATE (2007) ALL FWLR (PT. 350) 1357-1358 (PARAS H-B).
RESOLUTION:
The issue of
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whether a suit is academic or hypothetical is a question of both fact and law. That is to say, the question is dependent on the facts and circumstances of a particular case and the relief(s) sought. The authorities are ad idem that a suit is an academic exercise when a decision or pronouncement on an issue or issues thrown up for determination in it will be of no practical value or affect any of the parties thereto either because of the nature of the relief(s) sought or because of changed circumstances after the institution of the action. However, “a suit does not necessarily become spent merely because it was heard after the act or conduct which gave rise to the action” per Niki Tobi JSC in PLATEAU STATE V. ATTORNEY-GENERAL OF THE FEDERATION (2006) 3 NWLR (PT. 967) 346 cited in AGBAKOBA V. INEC & ORS (2008) 18 NWLR (PT. 1119) 489 AT 547 (C-G) where his lordship stated thus:
“A suit does not necessarily become spent merely because it was heard after the act or conduct which gave rise to the action. It is clear from the case file that the action was filed on June 24, 2004, about thirty-six days after the declaration of the state of emergency in the
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State. That the matter was not heard until the expiration of the emergency is not the fault of the plaintiffs and it will be improper for this Court to throw out the suit on that ground.
A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity.
My position on the instant case is thus fortified and whether a suit has become a mere academic exercise is a matter of mixed law and facts.”
See also ADEOGUN V. FASHOGBON (2008) 17 NWLR (PT. 1115) 149, ODEDO V. INEC (2008) 17 NWLR (PT. 1117) 554, C. P. C. V. INEC & ORS. (2011) LPELR – 8257 (SC).
In the instant case, the originating summons by which the action was initiated at the Court below was filed on 13/2/2013 along with a motion ex-parte for an order of interim injunction restraining the defendants, their agents, servants, privies, personal and legal representatives from proceeding with the current and ongoing exercise and/or taking any further steps whatsoever to fill the vacant post of Chief
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Medical Director, NAUTH, Nnewi, Anambra State pending the determination of the motion on notice for interlocutory injunction also filed on the same day. The motions were accompanied with an affidavit of urgency. The ex-parte motion for interim injunction was heard on 19/2/2013 and was refused. The Court ordered that the appellant and other respondents be put on notice. Till date, the motion for interlocutory injunction has not been heard. Meanwhile, the appellant was appointed to fill the vacant post of Chief Medical Director, subject matter of the suit by a letter dated 14/3/2013, one month after the commencement of the suit. The fact that the application for interim injunction was not granted and the motion on which the ruling which has led to this appeal was filed and heard while motion for interlocutory injunction was still pending is not the fault of the 1st respondent. Therefore his suit cannot be thrown out on that ground. See AGBAKOBA V. INEC (SUPRA).
?
The nature of the reliefs sought by the 1st respondent particularly reliefs 1 and 2 is such that cannot become spent even with the exit of the appellant from the post of the Chief Medical Director of
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NAUTH. This is because if the 1st respondent succeeds, he will be at liberty to take part in another process of appointment of a Chief Medical Director. If judgment is against him, then his right to aspire or take part in such process is foreclosed. I am of the firm view that reliefs 1 to 6 have not become spent and a consideration of the questions relating thereto cannot amount to an academic exercise.
?
The appellant is still occupying the post subject matter of the action and the 1st respondent is seeking an order to set aside his appointment and compelling the 2nd – 5th respondents to accept his application. It cannot be said that on the entire facts and circumstances of this, no benefit will accrue to the 1st respondent. The issue of whether a “medically qualified” person in the provisions of the University Teaching Hospitals (Reconstitution of Boards etc) Act, Cap. U15, Laws of the Federation of Nigeria refers to or is restricted to only medical doctors registered with the Medical and Dental council of Nigeria is a live issue and a pronouncement on it is bound to affect the parties to this appeal. Even with the appointment of the appellant, that issue
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has not been aborted.
?
As regards the issue of whether a reasonable cause of action has been disclosed against the appellant, the law is settled by a plethora of cases that in determining whether a suit discloses a reasonable cause of action against a party it is the relief(s) endorsed on the writ of summons or statement of claim where one has been filed that has to be examined. In the instant case, it is the amended originating summons and the affidavit in support that must be examined to ascertain whether a reasonable cause of action has been disclosed against the appellant and no other process, not the counter affidavit of the appellant and other respondents. This is because a contention of lack of reasonable cause of action means that even if all the averments in the statement of claim are true, there is no cause of action against the defendant.
In law, a party who contends that there is no reasonable cause of action against him is deemed to have admitted all the averments in the statement of claim. The facts which the appellant is deemed in law to have admitted as true are stated in paragraphs 3 – 11 of the additional affidavit in support of the
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originating summons. They are reproduced below:
3. “That this suit together with a motion ex parte for interim injunction and a motion on notice for interlocutory injunction was filed on the 13/2/2012 and served on all the defendants few days after. The injunction among other things, sought to restrain the defendants from taking further step(s) leading to the appointment of anybody as the substantive Chief Medical Director (CMD) of NAUTH, pending the determination of the suit.
4. That at the hearing of the motion ex parte, the honourable Court in its wisdom, refused the application and ordered that the defendants be put on notice to enable them respond appropriately.
5. That upon being served with the application for interlocutory injunction, which was fixed for the 15/4/2013, the defendants rushed to purportedly complete the selection process and appointed the 4th defendant as the substantive Chief Medical Director (CMD) of NAUTH, Nnewi on the 14/3/2013, despite the pendency of this suit.
6. That the 4th defendant, because of his vested interest, used his position as Acting CMD to procure the other defendants to hurriedly conclude the
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selection process after which he was appointed as Chief Medical Director, after unlawfully excluding my application, despite their notice of the pending motion in this honourable Court.
7. That the purported letter of appointment dated 14/3/2012 attached to the defendants counter affidavits, which was procured while this suit and the application for injunction were pending, cannot and should not foist a situation of fait accompli on this Court and I verily believe that the Court cannot be put in a position of helplessness.
8. That the defendants cannot and should not be allowed to steal the match from me and prejudice the eventual outcome of this suit, by purportedly appointing the 4th defendant during the pendency of this action.
9. That I strongly believe that I am eminently qualified for appointment into the post of CMD, Nnamdi Azikiwe University Teaching Hospital and my application ought to be considered on its merits alongside other applications for the said Post.
10. That I was informed by my learned Counsel, Precious Nwadimuya, Esq., of K.O. Ijatuyi & Co. in the Court premises on the 15/5/2013 when this matter came up, and I
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verily believe him as follows:
(a) That the action of the defendants/respondents in the purported appointment of the 4th defendant, done while this suit and application for injunction were pending is a flagrant act of abuse of the powers of this Court, done with a view to undermine and overreach the eventual outcome of this suit and the application.
(b) That in view of the latest action of the defendants, this Court can make a declaration that the purported appointment letter dated 14/3/2013 signed by the 2nd defendant, which was made during the pendency of this suit is null, void and of no effect.
(c) That this Court can also make an order setting aside the purported appointment of the 4th defendant as the substantive Chief Medical Director of Nnamdi Azikiwe University Teaching Hospital, Nnewi, in addition to other reliefs sought by me.
(11) That the defendants should not be allowed to benefit from their wrongful actions taken with a view to render the decision of this Court of no effect.”
?
The allegations in the above deposition show that there is a real controversy in respect of the appointment of the appellant which the Court is
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being called upon to look into and make appropriate pronouncement(s). Once the allegations in the originating process or the pleadings show a real controversy which may entitle a party to grant of the relief(s) sought, a reasonable cause of action is disclosed. The weakness of a case or perceived low chance of success is not a ground for striking out the suit. See COOKEY V. FOMBO (SUPRA), MOBIL PROD. (NIG) UNLTD. V. LASEPA (2002) 18 NWLR (PT. 798) 1, YUSUF V. AKINDIPE (2000) 8 NWLR (PT. 669) 376. Having considered the additional affidavit and the reliefs being sought, I have no doubt that a reasonable cause of action is disclosed against the appellant. The Court below was right in holding that there is a reasonable cause of action. Issue 1 is resolved against the appellant.
?
Issue 2 is whether the presence of the Attorney General of the Federation in the suit is sufficient or covers the President of the Federal Republic of Nigeria whose statutory power and its exercise is being challenged in the suit. On this issue, the appellant’s counsel conceded that the Court below was right in holding that the Attorney General of the Federation is a competent party to
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be sued in any suit against the Federal Government or any of its agencies. He however argued that the instant suit is not challenging the action of the Federal Government or any of its agencies but the exercise of statutory powers of appointment specifically conferred on the President by an Act. He further argued that the President is not the Federal Government or any of its agencies. According to counsel, the President is a juristic person and can be sued in his official capacity for anything done or purported to have been done by him in the exercise of his statutory power. He submitted that by virtue of Sections 130 and 150 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which created the office of the Attorney General of the Federation and the President as the Chief Executive of the Federation, the President is a different legal entity from the Attorney-General of Federation. It is submitted that the Attorney-General of the Federation cannot take the place of the President in a suit except where the action challenges the exercise of power or authority by the Federal Government which is not the case here. He urged us to hold that
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where the President exercises a statutory power conferred on him, he is the proper person to be sued and not the Attorney General of the Federation.
In response, the respondent’s counsel submitted that the NAUTH being a Federal Government agency, the proper party to be sued is the Attorney General of the Federation and not the President. He referred to AJIBOLA V. PERMANENT SECRETARY TEACHING SERVICE COMMISSION, EKITI STATE (2007) ALL FWLR (SUPRA), A. G. RIVERS V. A. G. AKWA-IBOM (2011) 45 NSCQR AT 1201 – 1202.
RESOLUTION:
As rightly submitted by the appellant’s counsel, the offices of the President of the Federation and Attorney General of the Federation are creations of the Constitution under Sections 130 and 150 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The President is the Head of State, the Chief Executive and Commander-in-Chief of the Armed Forces of the Federation. It is correct that the Constitution provides separately under Sections 2 and 130 of the Constitution, the Federation known as the Federal Republic of Nigeria and the office of the President of the Federation. It is also correct that the Federation
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known as the Federal Republic of Nigeria is a distinct and separate entity from the office of the President of the Federal Republic of Nigeria. However, whatever functions or duty or power the President performs or exercises as conferred on him by the Constitution or any other Statute or Act of the National Assembly is a public power vested in him as an agent of the Federal Republic of Nigeria and which he exercises for the purpose of good governance in Nigeria.
The power to appoint a Chief Medical Director conferred on the President under Section 5 (1) of University Teaching Hospitals (Reconstitution of Boards etc) Act is conferred on him in his official capacity. The said power is therefore a public right or power. The exercise of that right or power is in the interest of the public and constitutes a public act for which he can be sued in his official capacity but that does not make the President a necessary party in every case where the matter relates to the exercise of his constitutional duty or power. This is because in the exercise of that power, the President acts for and on behalf of the Federal Republic of Nigeria and Federal Government of
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Nigeria. SeeNIGERIA ENGINEERING WORKS LTD. V. DENAP. LTD (2001) NWLR (PT. 746) 726 AT 751 (E-H), where the Supreme Court held as follows:
“In the consolidated suit of ATTORNEY GENERAL OF OGUN, BENDEL AND BORNO STATES V. ATTORNEY GENERAL OF THE FEDERATION AND 2 ORS. (1982) 1-2 SC 13 AT 86 this Court in considering the provisions of the Public Order Act 1981, and the powers of the Military Administrator thereunder held per Idigbe JSC that
“Power which is another form of legal right is either public or private. Public powers “are those vested in a person as an agent or instrument of the functions of the State” and private powers, on the other hand, “are those which are vested in persons to be exercised for their own purposes and not as agent of the State (see SALMON: JURISPRUDENCE 12 Edition pages 229-230 Chapter 42). When a Statute confers a power on the holder of an office it is a public power; and then unless the contrary intention appears from or in the Statute, the power may be exercised only virtue office (i.e. by the holder of the office and by his successor-in-office or the holder of the office for the time being.”
The Attorney General
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of the Federation as the Chief Law Officer of the Federal Republic of Nigeria has an interest in the interpretation of the Constitution, Statutes and other Laws of the Federation. See A. G. OF THE FEDERATION V. A. N. P. P. (2003) 18 NWLR (PT. 851) 182. It is clear from the authorities that the Attorney General being the Chief Law Officer of the Federation is the proper party to be sued in any action against the Federal Government, the Federation of Nigeria or any of its agencies which impliedly includes the President of the Federation who exercise the powers vested in him by the Constitution for and on behalf of the Federal Republic of Nigeria. SeeFEDERAL AIRPORT AUTHORITY OF NIGERIA V. BI-COURTNEY LTD & ANOR. (2011) LPELR – 19742 (CA). In A.G KANO STATE V. A. G. FED. (2007) 6 NWLR (PT. 1029) 164 AT 192 (B-C), the Supreme Court held as follows:
“It is not in dispute that the Attorney General of the Federation can be sued as a defendant in all civil matters in which a claim can properly be made against the Federal Government or any of its authorized agencies, arising from any act or omission complained of.”?
In the light of the foregoing, I am of
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the firm view that any action against the President who exercises the power or authority conferred on him on behalf of the Federal Republic of Nigeria may be instituted against the Attorney General of the Federation. The President need not be a party to the action. The non joinder of the President in this suit does not render the proceedings incompetent and does not rob the Court of its jurisdiction to entertain the action. Issue 2 is resolved against the appellant.
For the above reasons, this appeal fails and it is hereby dismissed. The case shall be sent back to Federal High Court for trial before another judge of the Court. Parties are to bear their own costs.
TOM SHAIBU YAKUBU, J.C.A.: I am satisfied with the resolutions, by my Lord MISITURA OMODERE BOLAJI-YUSUFF, JCA, of all the issues canvassed and ventilated by the parties, in this appeal.
The appeal fails and therefore stands dismissed. I abide by the order as to costs contained in the lead judgment.
RITA NOSAKHARE PEMU, J.C.A.: I had the advantage of reading in draft, the lead judgment just delivered by my brother MISITURA OMODERE
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BOLAJI-YUSUFF J.C.A.
I agree with his reasoning and conclusions.
I also dismiss the appeal, and abide by the consequential order made as to costs.
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Appearances
Chief G.O. OsigweFor Appellant
AND
K.O. Ijatuyi for the 1st Respondent.
I. C. Ozemenam for 2nd and 3rd Respondents.
B.S.U. Ucheagwu for the 4th and 5th Respondents.For Respondent
